WORLD TRADE  
ORGANIZATION  TN/RL/GEN/164 
8 April 2010 
 (10-1832) 
Negotiating Group on Rules Original:   English 
  
 
USE OF "FACTS AVAILABLE" IN COUNTERVAILING 
DUTY INVESTIGATIONS 
 
Communication from India
 
 
 
 The following communication, dated 6 March 2010, is being circulated at the request of the 
Delegation of India.    
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  As per Article 12.7 of ASCM, in case any interested party or interested Member refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determination may be made on the basis 
of the facts available.  
 
 Article 6.8 of the Anti-Dumping Agreement cont ains similar provision regarding use of facts 
available by the investigating authorities.  Howeve r, this is subject to observing the provisions of 
Annex II of the Anti-Dumping Agreement which lay down the guidelines for use of best information 
available.  
 
 It is the experience of the Members that lack  of the guidelines in the ASCM regarding use of 
facts available similar to those in the Anti-Dumpi ng Agreement, may at times, give much wider scope 
to the investigating authorities to use facts available.   This may not be a desirable situation and this 
may at times lead to use of adverse facts resulting in  unreasonable determinations by the authorities.   
 
 The issue of introducing provisions in Article 12.7 of ASCM, similar to those in Annex II of 
the ADA, has been discussed by this Group earlier.  The submission made by the delegation from the 
European Union is relevant in this regard.
1  The EU had proposed a new Annex in the said submission 
which can be a reasonable basis for further discussion in  this Group.  This issue was also discussed in 
the recent meeting of the Negotiating Group on Rules (NGR) in the context of the work relating to 
AD/CVD transposition based on Chair's document TN/RL/W/240. 
  India reserves its right to submit revise d proposal and text on this issue.   
 
Textual proposal: 
 
Article 12.7 
 
 In cases in which any interested Member or in terested party refuses access to, or otherwise 
does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and fina l determinations, affirmative or ne gative, may be made on the basis 
                                                     
 
 1 TN/RL/GEN/93 dated 18 November 2005. TN/RL/GEN/164 
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  of the facts available.  The provisions of Annex [X] shall be observed in the application of this 
paragraph.   
 
ANNEX [X] 
 
BEST INFORMATION AVAILABLE IN TERMS OF PARAGRAPH 7 OF ARTICLE 12 
 
1. As soon as possible after the initiation of the investigation, the investigating authorities 
should specify in detail the information required fro m any interested party, and the manner in which 
that information should be structured by the inte rested party in its response.  The authorities should 
also ensure that the party is aware that if info rmation is not supplied within a reasonable time, the 
authorities will be free to make determinations on the basis of the facts available, including those 
contained in the application for the initiation of the investigation by the domestic industry. 
 2. The authorities may also request that an inter ested party provide its response in a particular 
medium (e.g. computerized response).  Where such a request is made, the authorities should consider 
the reasonable ability of the interested party to  respond in the preferred medium, and should not 
request the party to use for its response a computer system other than that used by the party.  The 
authority should not maintain a request for a com puterized response if the interested party does not 
maintain computerized accounts and if presenting the response as requested would result in an 
unreasonable extra burden on the interested party, e. g. it would entail unreasonable additional cost and 
trouble.  The authorities should not maintain a request for a response in a particular medium if the 
interested party does not maintain its computerized accounts in such medium and if presenting the response as requested would result in an unreasonable extra burden on the interested party, e.g. it 
would entail unreasonable additional cost and trouble.  
3. All information which is verifiable, which is a ppropriately submitted so that it can be used in 
the investigation without undue difficulties, which is supplied in a timely fashion, and, where 
applicable, which is supplied in a medium requested by the authoriti es, should be taken into account 
when determinations are made.  If a party do es not respond in the preferred medium but the 
authorities find that the circumstance s set out in paragraph 2 have been  satisfied, the failure to respond 
in the preferred medium should not be consider ed to significantly impede the investigation. 
 
4. Where the authorities do not have the ability to process information if provided in a particular 
medium, the information should be supplied in th e form of written material or any other form 
acceptable to the authorities.  
5. Even though the information provided may not be  ideal in all respects, this should not justify 
the authorities from disregarding it, provided the inter ested party has acted to the best of its ability. 
 6. If evidence or information is not accepted, the supplying party should be informed forthwith 
of the reasons therefore, and should have an opport unity to provide further explanations within a 
reasonable period, due account being taken of the time-l imits of the investigation.  If the explanations 
are considered by the authorities as not being satis factory, the reasons for the rejection of such 
evidence or information should be gi ven in any published determinations. 
 7. If the authorities have to base their findings, including those with respect to the existence of a 
subsidy
2, on information from a secondary source, including the information supplied in the 
application for the initiation of the investigation, th ey should do so with special circumspection.  In 
such cases, the authorities should,  where practicable, check the information from other independent 
                                                      
 2 It is understood that the Investigating Authorit y will only resort to secondary sources in the 
case of  inadequate co-operation from the granting government.   TN/RL/GEN/164 
 Page 3 
 
 
  sources at their disposal, such as published price lists , official import statistics and customs returns, 
published information including the information on official web sites of governmental authorities  
and from the information obtained from other interested  parties during the investigation.  It is clear, 
however, that if an interested party does not cooperate  and thus relevant inform ation is being withheld 
from the authorities, this situation could lead to a result which is less favourable to the party than if 
the party did cooperate. 
   
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