WORLD TRADE  
ORGANIZATION  TN/RL/GEN/52 
1 July 2005 
 (05-2861) 
Negotiating Group on Rules Original:   English 
  
 
PROPOSALS ON PROCEEDINGS UNDER ARTICLE 11.2 
 
Communication from Brazil, Chile, Israel, Japan, Korea, Singapore, Switzerland, Thailand
 
  
 The following communication, dated 30 June 2005,  is being circulated at the request of the 
Delegations of Brazil, Chile, Israel, Japan, Korea, Singapore, Switzerland and Thailand. 
  The submitting delegations have requested that this paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(05)/ 135), also be circulated as a formal document. 
 
_______________ 
 
  This paper elaborates upon some of the issues raised in documents TN/RL/W/10, 
TN/RL/W/83, JOB(04)/59 and TN/RL/GEN/10 with a focu s on paragraph 2 of Article 11.  This paper 
does not address all proposals that were contained in the documents cited above.  We reserve the right 
to submit further elaboration on the issue.  Furthermore, the proposed amendments to the Anti-
Dumping Agreement  do not represent a final position and ma y be subject to further addition, 
modification, and/or deletion in the course of nego tiations.  Other provisions in the Agreement that 
might be affected by these proposed amendments may well be examined in the later stages of 
negotiations when Members have a more compre hensive picture of the amended Agreement. 
 
General Explanations: 
 
o The importance of establishing explicit rules a nd procedures applies not only to the original 
investigation, but also with equal force to th e subsequent phases of an anti-dumping procedure 
such as Article 11.2 review.  However, the curre nt AD Agreement does not clearly articulate the 
rules and procedures applicable to reviews under Article 11.2.  While reviews under Article 11.2 
are intended to ensure that antidumping measur es “remain in force only as long as and to the 
extent necessary” as set forth in Article 11.1, the lack of explicit rules and procedures gives 
virtually unfettered discretion to the authorities to  continue to impose anti-dumping duties that is 
not necessary to counteract dumping which is causing injury.  
 Proposed Amendments: 
 Proposal 1 – Overall framework
 
 o Explanation of overall framework:  The proposal is  intended to provide a framework for making 
the examinations of the future state of dumping a nd/or injury if the duty were removed or varied.  
For this purpose, we propose to create four new subparagraphs for Article 11.2, Articles 11.2.1 through 11.2.4.  Below, we briefly explain th e purpose of each of the new subparagraphs, and 
then provide the proposed language. 
 TN/RL/GEN/52 
Page 2  
 
 o Explanation of Articles 11.2.1 through 11.2.4:  These Articles are intended to ensure that the 
examinations regarding the future state of dumpi ng and/or injury are to be based on the current 
state as observed during the period of review, as well as on all other rele vant economic factors 
affecting the future state of injury and dumping.  
 
11.2.1 The authorities shall make an examinat ion in accordance with the second sentence of 
this paragraph* regarding whether the continued imposition of the duty is necessary to offset 
dumping and/or whether injury is likely to co ntinue or recur if the duty were removed or 
varied, taking account of the effect of the measures in force.   
 
11.2.2 Where the review involves an examination of whether the continued imposition of the 
duty is necessary to offset dumping, the authorit ies shall base their examination on all relevant 
economic factors concerning the operation of producers and exporters in the exporting country 
during the period of review, and all economi c factors relevant to whether the continued 
imposition of the duty is necessary to offset dumping.  These factors include, but are not limited 
to, prices, costs, inventories, production capaci ty, capacity utilization, sales in the exporting 
country and exports to the importin g country and to third countries.  
 
 11.2.2.1 In making an examination of whether the continued imposition of the duty is 
necessary to offset dumping under subparagr aph 2.2, the authorities shall make a 
determination of dumping for the period of review in accordance with Article 2.21 bis 21 ter 
 
11.2.3 Where the review involves an examination of whether the injury would be likely to 
continue or recur if the duty were removed or varied, the authorities shall base their 
examination on the factors listed above, as well as on all relevant economic factors concerning 
the domestic industry during the period of review and all economic factors relevant to whether 
injury would be likely to continue or recur.   These factors include, but are not limited to, those 
factors listed in paragraph 4 of Article 3. 
 
 11.2.3.1 In making an examination of whether the injury would be  likely to continue 
or recur if the duty were removed or varied under  subparagraph 2.3, the authorities 
shall also examine whether the dumped im ports in and of themselves, through the 
effects of dumping, are likely to cause injury  if the duties were terminated or varied.  
This examination shall be based on all relevant evidence before the authorities.   
 
11.2.4 The authorities shall make an examinat ion in accordance with the second sentence of 
this paragraph based on positive evidence and no t merely on allegation, conjecture or remote 
possibility. 
 
                                                      
* Explanatory note: The term “this paragraph” stands for paragraph 2 of Article 11.  The same applies 
hereinafter. 
21 bis This does not indicate that the authorities must calculate the margin of dumping for the period of 
review where there are no, isolated or sporadic export transactions during that period.  In a review conducted by the authorities in such circumstances, such review shall be conducted in accordance with subparagraph 2.2.   
21 ter Where the authorities make a determination of dumping for the period of review, and the review 
does not result in termination of the duty, the authorities shall, as a result of the review, adjust the anti-dumping 
duty to the dumping margin that was determined for the period of the review unless the authorities determine 
that continued imposition of the duty at the previously determined rate is necessary to offset dumping, based on 
the examination in accordance  with subparagraph 2.2.  TN/RL/GEN/52 
 Page 3 
 
 
 Proposal 2 – Ensuring comprehensive and balanced examination  
 
 
o Explanation of Article 11.2.5:  This Article provides factors that may not form the basis of a 
presumption in favour of the continuation of measures.   Article 11.2.5 is intended to help ensure 
objective examinations under Article 11.2. 
 
 
11.2.5 In making an examination in accordance with subparagraphs 2.2 and 2.3, the 
authorities may not presume that the continued imposition of the duty is necessary to offset 
dumping, or that the injury would be likely to continue or recur if the duty were removed or 
varied, solely based on any one or any combination of the following: 
 
 (i) Dumping continued at above de minimis  margins of dumping as defined in 
paragraph 8 of Article 5 after the imposition of the duty; 
 (ii) Imports of the products under investigation ceased after the imposition of the 
duty; 
 (iii) Dumping was eliminated after the imposition of the duty and import volumes for 
the products under investigation declined significantly; 
 (iv) The fact that dumping and injury were found in the investigation initiated 
pursuant to Article 5. 
 
 Proposal 3 – Per se  rules and rebuttable presumptions
 
 
 o Explanation:  The following two subparagraphs set forth certain factual settings which we believe 
militate against the continuation of anti-dumping measures. 
 
o Article 11.2.6  provides situations which we believe ar e particularly obvious, and warrant a 
“per se  rule” for the termination of the measure. 
o Article 11.2.7  provides cases that we believe warrant a presumption in favor of termination.  
The authorities may nevertheless continue the measures if they find that other relevant factors 
demonstrate that continued imposition of the measures is necessary, and those factors are 
sufficient to overcome the presumption. 
 
 
11.2.6 The anti-dumping duty shall be deemed  to be no longer warranted and shall be 
terminated immediately when: 
 
 (i) There are zero or de minimis  margins of dumping as defined in paragraph 8 of 
Article 5 for two consecutive determinatio ns under subparagraph 3.1 of Article 9, 
excluding situations where there are no, isol ated or sporadic export transactions 
during that period; or 
 (ii) The domestic producers whose collectiv e output of the products constitutes the 
major proportion (more than 50 percent) of the total domestic production of the 
like products request the termination of the existing measure. 
 
11.2.7 It shall be rebuttably presumed that the anti-dumping duty is no longer warranted, if 
either of the following conditions is met:  
 TN/RL/GEN/52 
Page 4  
 
  (i) The exporter does not have sufficient excess capacity to significantly increase 
exports to the importing country, is not lik ely to increase its capacity in the near 
future, and exports a substantial portion of its exports to one or more third 
country markets at  price levels which a re likely to make exports to the importing 
country commercially unattractive, where there are zero or de minimis  margins of 
dumping as defined in paragraph 8 of Article 5 by the exporter for the period of 
review, excluding situations where there are no, isolated or sporadic export 
transactions during that period; 
 (ii) The foreign producers sell their products not below per unit costs in the domestic 
market of the exporting country and sell them at prices significantly less than the 
prices of the like products in the domest ic market of the importing country, where 
there are zero or de minimis  margins of dumping as defined in paragraph 8 of 
Article 5 by the exporter for the period  of review, excluding situations where 
there are no, isolated or sporadic export transactions during that period; or 
 (iii) There are significant supply shortages in the domestic market of the importing 
country that are likely to continue if the anti-dumping duty is not terminated, 
where there are zero or de minimis  margins of dumping as defined in paragraph 8 
of Article 5 by the exporter for the period  of review, excluding situations where 
there are no, isolated or sporadic export transactions during that period. 
 
Proposal 4 – De minimis  
 
o Explanation of the fourth sentence of Article 11.2 :   The current de minimis  standard of 2 per 
cent for dumping margins set out in Article 5.8 shall be also applied to Article 11.2 reviews. 
 
11.2 Where the authorities determine in a revie w conducted under this paragraph that the 
level of duty that is necessary to offset dumping is de minimis  as defined in paragraph 8 of 
Article 5, the duty to be imposed shall be zero.  
 
 
__________