WORLD TRADE  
ORGANIZATION  TN/RL/GEN/85 
17 November 2005 
 (05-5422) 
Negotiating Group on Rules Original:   English/ 
 French 
 
 
 
PUBLIC INTEREST 
 
Paper from Canada  
 
 
 The following communication, dated 16 November 2005, is being circulated at the request of 
the Delegation of Canada.   The submitting delegation has requested that th is paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(05)/ 287), also be circulated as a formal document. 
 
_______________ 
 
 
 Members will recall that in TN/RL/W/1, and subsequently in TN/RL/W/47, Canada suggested that, among the areas that would benefit from clarification, are rules/disciplines pertaining to the 
consideration of the broader public interest in anti-dumping and countervail i nvestigations.  Indeed, 
the WTO already establishes a basis for progress on this front.
1   
 
 Canada has since had the benefit of TN /RL/W/174/Rev.1 and JOB(05)/136 and related 
discussions.  In this regard, Canada shares mu ch common ground with Hong Kong China and the 
other co-sponsors of those papers  
 
Guiding Principles  
 
 In Canada’s view, the crafting of more e ffective public interest provisions in the Anti-
Dumping Agreement (ADA) and the Agreement on Subsidies and Countervailing Measures (ASCM) 
must reflect certain basic guiding principles, notably:   (i) that any new obligations on public interest afford sufficient flexibility as to the method of 
their implementation so as to accommodate the di fferent approaches of Members to this issue 
and the domestic legal systems of Members;  and 
                                                     
 
1 Paragraph 19.2 of the WTO ASCM provides, in part, as follows: 
19.2  …It is desirable that…procedures should be established which would allow the 
authorities concerned to take due account of representations made by domestic interested parties whose interests might be adversely affected by the imposition of a countervailing duty.  
For the purposes of this paragraph, footnote 50 defines the term “domestic interested parties” to include 
consumers and industrial users of the imported product subject to investigation. 
Article 6.12 of the WTO Agreement on Implementation of Artic le VI of the General Agreement on 
Tariffs and Trade 1994  also recognizes that there may be other domestic interested parties (i.e., industrial users 
and consumers) in an anti-dumping investigation.     TN/RL/GEN/85 
Page 2  
 
(ii) that domestic public interest decisions, as the sovereign prerogative of each Member, be 
recognised as falling outside the reach of WTO dispute settlement proceedings.
2     
  In Canada’s view, there are several ways in which a Member could implement a public 
interest mechanism into its domestic law.  Wh ile JOB(05)/136 proposed one of these ways, which 
would require that relevant persons  be afforded the opportunity to comment as soon as they are able to 
provide meaningful comments (including before de tails of definitive measur es are known), we believe 
that a sequential process can be used just as effectiv ely.  Such a process, for example, would allow a 
separate and self-contained public interest inquiry to be conducted after a final determination has 
established the basis for the application of defin itive anti-dumping/countervailing duties.  In Canada’s 
experience, a sequential inquiry, which focuses exclusiv ely on public interest issues, lends itself to a 
thorough and informed consideration of the matter.     Thus, while Canada supports stre ngthened public interest provisi ons, it does not believe that it 
is necessary to prescribe the precise modalities for the implementation of these provisions into the 
domestic law of Members.  
Text Proposal
     
 
1. Amend the ADA by adding the following to the end of Article 9.1: 
 
9.1bis - Each Member shall establish appropr iate procedures in its law to allow its 
authorities to inquire into whether the imposition of an anti-dumping duty or the 
imposition of such a duty in the full amount would not be in the public interest.  These procedures shall require the authorities to take due account of representations 
made by any domestic party whose interests may be affected by the imposition of the 
anti-dumping duty, including, but not limited to, industrial users of the product under consideration, representative consumer or ganizations, and the domestic competition 
law authorities of the Member.  In conducting such an inquiry, the authority concerned should consider all relevant inform ation, including those factors set out in 
Annex III to this Agreement.
3  As a result of any such inquiry, the authorities may 
decide to eliminate or reduce the level of duties that would otherwise be applied. For 
greater clarity, public interest decisions cannot give rise to claims of violation under 
the DSU.   
2. Add an Annex III to the ADA as follows: 
 
- Annex III - 
  For the purposes of Article 9:1bis, factors that should be considered include:  
(a) whether products like the product under consid eration are readily available from sources to 
which the measure does not apply; 
 (b) whether imposition of an anti-dumping duty in the full amount  
                                                     
 
2 Canada agrees with the view expressed by Hong Kong, China and the other co-sponsors of 
JOB(05)/136 that any new provisions on public interest must not try to prescribe what is or is not in the 
importing Member’s economic interest and that this decision  must be left to the importing Member concerned.   
3 Like the proponents in JOB(05)/136, Canada considers that information pertaining to public interest 
decisions should be disclosed under Article 12 of the ADA and Article 22 of the ASCM and that this could be 
taken up in the context of other improvements to these Articles.   TN/RL/GEN/85 
 Page 3 
 
 
 (i) has eliminated or substantially lessened or  is likely to eliminate or substantially lessen 
competition in the domestic market in respect of products, 
  (ii) has caused or is likely to cause significant damage to domestic producers that use the 
products as inputs in the production of other products and in the provision of services, 
 
 (iii) has significantly impaired or is lik ely to significantly impair competitiveness by 
   (A) limiting access to products that are used as inputs in the production of other 
products and in the provision of services, or  
 
  (B) limiting access to technology, or   (iv) has significantly restricted or is likely to significantly restrict the choice or availability 
of products at competitive prices for consumers or has otherwise caused or is 
otherwise likely to cause them significant harm; 
 (c) whether non-imposition of an anti-dumping duty  or the non-imposition of such a duty in the 
full amount is likely to cause significant damage to domestic producers of inputs, including primary commodities, used in the domestic manuf acture or production of like products;  and 
 
(d) any other factors that are relevant in the circumstances. 
 
3. Amend Article 19.2 of the ASCM in the same manner.  
 
* * * 
 
 Canada reserves its right to make further submissions on this issue.  
 
__________