WORLD TRADE  
ORGANIZATION  TN/RL/GEN/142 
6 June 2006 
 
 (06-2689) 
Negotiating Group on Rules Original:   English 
  
 
ECONOMIC EFFECTS OF ANTI-DUMPING MEASURES
1  
 
Paper from Hong Kong, China; and the Se parate Customs Territory of Taiwan,  
Penghu, Kinmen and Matsu  
 
 
 The following communication, received on 1 June 2006, is being circulated at the request of the above delegations. 
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As proponents of a proposal on public interest
2, the co-sponsors firmly believe in the merit of 
including a provision in the Anti-Dumping Agreement to provide for the economic effects of an anti-
dumping measure to be considered by importi ng Members before an anti-dumping measure is 
imposed pursuant to Article 9.1 of the Anti-Dumping Agreement.  
The co-sponsors recalled their earlier proposal in TN/RL/GEN/53 and the useful discussions 
that followed.  The discussions were further enrich ed by subsequent submi ssions from Canada and the 
exchanges thereon
3.  The co-sponsors note, among other developments, the widely shared 
understanding among participants that the public inte rest decision should be a sovereign decision, and 
thus should not be subject to challenge in WT O dispute settlement, and that any new provisions 
should contain a minimum level of procedural requi rements, so that the proposed mechanism would 
be faithfully implemented.  
In the light of the above developments, this  paper updated the earlier textual proposal in 
TN/RL/GEN/53.  
 
A. Highlights of major features and changes from  TN/RL/GEN/53  
Article 9.1 as the basis for the new provision
 
 
 Article 9.1 of the Anti-Dumping Agreement provi des that “[t]he decision whether or not to 
impose an anti-dumping duty in cases where all requir ements for the imposition have been fulfilled, 
and the decision whether the amount of the anti-dumping duty to be imposed shall be the full margin of dumping or less, are decisions to be made by the authorities of the importing Member.  It is desirable that the imposition be permissive in th e territory of all Members …”.  Thus, the Anti-
Dumping Agreement implicitly recognises that it may not always be appropriate to impose an anti-
dumping measure or to impose an anti-dumping measure to its fullest extent. 
                                                     
 
1 The proposal contained in this document does not represent a final position and may be subject to 
further addition and/or modification in the course of the negotiations.  Other provisions of the Anti-Dumping 
Agreement that may be affected by the proposal may be examined in the later stages of the negotiations when 
Members have a more comprehensive picture of the amended Agreement. 
2 TN/RL/W/174/Rev.1 and TN/RL/GEN/53 
3 TN/RL/GEN/85.  We note that Canada has made a nother submission on the Procedures for Adversely 
Affected Domestic Interested Parties – TN/RL/GEN/111. TN/RL/GEN/142 
Page 2  
 
   Given the gravity of the decisions made under Article 9.1 and to ensure that the decision-
making process is an informed one, the revised draft provides for importing Members to establish 
appropriate domestic procedure to require authorities to take due a ccount of representations made by 
“relevant persons” – those economic actors who will be most closely affected by a definitive anti-
dumping measure, other than the interested parties themselves.  The new draft text also distinguishes 
between rights of domestic parties (“relevant persons”) and exporte rs.  While the domestic parties 
under the new provision have the primary right to su bmit representations on how they may be affected 
by an anti-dumping measure, the right of exporters  (and other interested parties) to defend their 
interest is set out in Article 6.  
 The purpose of this procedure is to enable  the importing Member to better identify those 
instances where the imposition of an anti-dumping measure may not be in its economic interest.  Following the procedure, if the importing Member takes the view that the imposition of an AD measure is not in its economic in terest, we believe that the natu ral consequence would be for the 
Member not to impose the measure, or to otherwi se mitigate it.  Nevertheless, the new provision does 
not dictate how Members make the decision, and what  action is to be taken thereafter.  The basic 
premise of the wording “it is desirable that the imposition be permissive” in Article 9.1 is fully 
preserved.  We believe that this drafting puts be yond doubt that the decision as to what is in the 
importing Member’s economic interest or not, is a decision to be made by that Member alone.   
 Application to original imposition of anti-dumping duty, and reviews under Article 11 involving an 
examination of injury  
 
The procedure applies in connection with an  original imposition of definitive anti-dumping 
duty.  As foreshadowed in TN/RL/GEN/53, we be lieve the procedure should also apply when the 
importing Member reviews the continued applica tion of an anti-dumping measure under Article 11, 
unless the review is limited to a review of the du mping margin without involving an examination of 
injury.   Procedural flexibility
 
 
Like the textual proposal in TN/RL/GEN/53, the present proposal envisages commencement 
of the procedure by public notice.  The proposal ta kes a “bottom-up” approach i.e. consideration of 
the economic effects of a measure is triggered by information submitted by re levant persons.  The list 
of factors, as set out in the footnote, that rele vant persons can comment on is indicative and non-
exhaustive, and is the same as those in the original draft.  We would be willing to discuss further with 
Members in refining the list. 
 
“Authorities” as defined in footnote 3 of the Anti-Dumping Agreement means “authorities at 
an appropriate senior level”.  The draft provision therefore leaves it up to the importing Member to decide which body should be entrusted with the proce dure.  It could be the investigating authority or 
another authority.  
In terms of procedural timeline, we believe th at the procedure should be completed before a 
definitive anti-dumping measure is imposed (or continued following a review).     
 
As regards application of the procedure in case of a review of the continuation of a measure, 
since the measure is already in force at the time of the review, we believe that authorities would be in 
a better position to obtain information from relevant pe rsons at an early stage of the proceedings.  For 
this reason, it would be logical for the procedure to be completed by the time of completion of the 
review.   TN/RL/GEN/142 
 Page 3 
 
 
  Due process and transparency  
 
As with the earlier draft, we have included provi sions to ensure that relevant persons enjoy 
due process and procedural rights for the purpose of the procedure.  The textual proposal identifies 
certain specific provisions in Article 6 which are re levant.  For greater transparency, we have also 
included a provision for details of representations re ceived and any analysis or conclusion associated 
with them to be published.  We note that the Canadian proposal at TN/RL/GEN/111 contains a similar 
proposal. 
 
B. Textual proposal [amendments are without prejudice to members’ proposals on lesser duty]  
 
9.1 The decision whether or not to impose an anti-dumping duty in cases where all requirements for the imposition have been fulfilled, and the d ecision whether the amount of the anti-dumping duty 
to be imposed shall be the full margin of dumping or  less, are decisions to be made by the authorities 
of the importing Member.  It is desirable that th e imposition be permissive in the territory of all 
Members, and that the duty be less than the margin if such lesser duty would be adequate to remove 
the injury to the domestic industry, and that a measure not be imposed if it is not in the interest of the 
importing Member to do so.   
 9.1.1 In this regard, the importing Member shall ta ke into consideration representations by relevant 
persons4 on how they may be affected economically by an anti-dumping measure5. Relevant persons  
shall be given no less than [20] days to make written representations6.  Paragraphs 1 (except 1.1 and 
1.3), 2 to 5, 9 and 13 of Article 6 apply to the process under Article 9.1.1 mutatis mutandis , and 
“relevant persons” shall also be re garded as “interested parties” for th is purpose.  Before a definitive 
anti-dumping measure is imposed7 or continued, as the case may be, the importing Member shall give 
public notice8, in sufficient detail, of the representations  received and any analysis or conclusion 
associated with them .  
This Article 9.1.1 applies to the original impositi on of an anti-dumping measure, and to a review of 
the measure under Article 11 where the review  involves an examination of injury.   
9.1.2 [Continue with mandatory lesser duty provision –subject to negotiation]       
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4 New footnote:   “Relevant persons” shall mean the traders and industrial users of the product under 
consideration in the importing Member, trade associations  thereof and, where the product is commonly sold at 
the retail level, representative consumer organizations in the importing Member.  
 5 New footnote :  Relevant persons may comment on, inter alia, possible effects of the anti-dumping 
measure on the following:  
(i) costs for the industrial users,  consumers, importers, wholesalers and retailers of the product under 
consideration;  
(ii) competition in the market of the product under consideration in the importing Member;   
(iii) choice or availability of like products at competitive prices for industrial users and consumers;  
(iv) profitability and competitiveness of industrial users, importers, wholesalers and retailers of the 
product under consideration.  
6 New footnote :  The importing member shall issue a p ublic notice and separately notify known 
relevant persons of this right.  Moreover, for the purpose of this provision, the rights of interested parties under 
Article 6 apply to relevant persons.    
7 New footnote:   Nothing in this sentence shall preven t a Member from imposing a definitive anti-
dumping measure before completing the process in Article  9.1.1 provided that the measure is suspended until 
completion of the process.  
8 Editorial  note :  Information can be published either in the notice of final determination under Art 12, 
or in a separate public notice.  Copies of such public notices shall be provided to the WTO.  ADA to be amended to reflect these changes.