WORLD TRADE  
ORGANIZATION  TN/RL/GEN/103 
6 March 2006 
 (06-0937) 
Negotiating Group on Rules Original:   English 
  
 
PROPOSALS ON ISSUES RELATING TO THE DEFINITION OF "DOMESTIC 
INDUSTRY” (ARTICLE 4.1),  STANDING REQUIREMENTS (ARTICLE 5.4) AND  
INJURY ANALYSIS (ARTICLE 3.1) OF THE ANTI-DUMPING AGREEMENT 
 
Communication from Norway
 
 
  The following communication, dated 2 March 2006, is being circulated at the request of the 
Delegation Norway.  
 The submitting delegation has requested that th is paper, which was submitted to the Rules 
Negotiation Group as an informal document (JOB(06)/42), also be circulated as a formal document.  
_______________ 
  1. Introduction 
1. This proposal on the term “domestic industry” develops earlier proposals by the Friends of 
the Anti-Dumping Negotiations (FANs)
1 and Hong Kong, China2, relating to the following issues: 
• the general definition of “domestic industry” in Article 4.1, including the definition of 
“related” parties; 
 
• the definition of the domestic industry for pur poses of the standing requirement for initiation 
of an investigation under Article 5.4 of the Anti-Dumping Agreement ; and, 
 
• the definition of the domestic industry for purposes of the injury analysis under Article 3.1 of 
that Agreement . 
 
2. Definition of Domestic Industry 
2. In document TN/RL/GEN/27, the  FANs propo sed certain changes to the definition of 
“domestic industry” in Article 4.1 of the Anti-Dumping Agreement .  One goal of this earlier proposal 
was to make certain that the “domestic industry”  would encompass producers accounting for at least 
50 % of total domestic production of the like product.  The present proposal provides further clarifications with a view to guaranteeing the repr esentative character of  the “domestic industry”.
3 
                                                      
 1 In particular, this proposal takes up proposal TN/RL/GEN/19 of 15 September 2004 and 
TN/RL/GEN/27 of 2 December 2004.  
2 Proposal TN/RL/GEN/69 of 13 October 2005. 
 3 This submission does not address the question of  the “sampling” of producers within the “domestic 
industry” for the purpose of injury determinations. We reserv e the right to return to this issue at a later stage.  
Further, criteria relating to exclusions, under Article 4.1 (i), of producers that are themselves importers of the 
allegedly dumped product are dealt with in TN/RL/GEN/62, and are not a part of this proposal. TN/RL/GEN/103 
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3. The proposed changes to the term “major pr oportion” in Article 4.1 of the ADA are made 
because we consider that the existing rules lack precision.
4  This term has even been interpreted by a 
panel to permit a domestic industr y to be defined as a group of producers accounting for less than 
50 per cent of the total output of all domestic producers.5  We believe that it is inappropriate to define 
the domestic industry simply in terms of a large proportion of total production.  Instead, the industry 
should cover, at least, the majority of production.  We, therefore, advocate that the domestic industry 
be defined as encompassing producers accounting fo r “more than 50 per cent” of total domestic 
production.  
4. The exclusion of “related” parties from the domestic industry has important consequences for 
the size of the industry covered by the definition in Article 4.1.  Currently, the definition of the term 
“related” in footnote 11 focuses on the degree of “c ontrol” one entity has over another (directly or 
indirectly control, be controlled by another part y or be under common control of a third party).  
However, the Agreement offers no guidance rega rding the meaning of the term “control”.  
5. Building on an earlier FANs proposal regard ing affiliated parties for purposes of the 
determination of normal value6, this paper proposes several changes to footnote 11 that clarify the 
meaning of the term “related” parties for purposes of  defining the “domestic industry”.  The proposal 
seeks to ensure harmony between the provisions c oncerning affiliation in the export market and the 
import market.  The proposed changes transpose into the Anti-Dumping Agreement  elements of 
international accounting standards regarding “contro l”.  Norway is convinced that the proposed 
changes will greatly enhance transparency. 
3. Standing Requirements for Initiation (Article 5.4)   
6. Through the combined provisions of Article 4.1(i) and 5.4 of the Anti-Dumping Agreement , a 
large percentage of domestic producers can be excluded from the domestic industry in assessing 
whether that industry supports the initiation of an in vestigation.  Consequently, an investigation may 
be initiated even though supported by producers representing only a fraction of the domestic 
industry’s total production of the like product.   
7. Norway  proposes changing Article 5.4 to require  that producers accounting for at least 50 per 
cent of total domestic production must support an app lication for investigation.  In this respect, 
Norway endorses the proposal submitted by Hong Kong, China, although the wording is slightly 
changed from “not less than 50%” to “more than 50%”.7 
4. Injury Determination (Article 3.1) 
8. As the Anti-Dumping Agreement  stands, Article 3.1 also allows an injury determination to be 
made with regard to producers accounting for a minor  share of the total production of the like product 
in the importing Member.  We consider that, in pr inciple, the injury determination should be made 
with regard to all domestic producers.  If that is  not possible, the determination should take into 
account as many producers as is reasonably possibl e.  However, under no circumstances should the 
domestic producers examined represent less than 50 per cent of total domestic production, including 
related parties.  This proposal ensures that the injury determination is based upon analysis which 
shows that domestic producers as a whole in a Member are suffering material injury. 
                                                      
 4 TN/RL/GEN/27 of 2 December 2004. 
 5 Panel report, Argentina – Poultry , para. 7.341. 
 6 TN/RL/GEN/19 of 15 September 2004. 
 7 TN/RL/GEN/69 of 13 October 2005.  TN/RL/GEN/103 
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ANNEX  
 
A. Changes in Article 4 
 
1. Article 4.1 to be amended as follows:8  
  “For the purpose of this Agreement, the term  “domestic industry” sh all be interpreted as 
referring to the domestic producers as a whole of the like products or, where permitted under 
Article 3.1.1,  to those of them whose collective output of the products constitutes a major 
proportion  more than 50 per cent of the total domestic production of those products, except 
that: 
   ( i )
 when producers are related 9 to the exporters or importers or are themselves 
importers of the allegedly dumped product, the term “domestic industry” may be 
interpreted as referring to the rest of the producers.  
   (i) for the purposes of Article 5.4, domestic producers may be excluded from the 
domestic industry where they are re lated to exporters or importers,10 or are 
themselves importers of the allegedly dumped product.”  
 
  (ii) unchanged 
 2. Amend footnote 11 as follows
11:  
  For the purpose of this paragraph, producers sh all be deemed to be re lated to exporters or 
importers only if one enterprise execute s control over another through having: 
   (a) more than one half of the voting power of an enterprise;    (b) power over more than one half of th e voting rights by virtue of an agreement 
 with other investors; 
 
  (c) such power under a statute or an agreement;    (d) power to appoint or remove the majority of the members of the board of 
 directors or equivalent governing body;  or 
 
  (e) power to cast the majority of votes at meetings of the board of directors or 
 equivalent governing body. 
 
                                                     
 
 8 See TN/RL/GEN/27, proposal 1 
 9 Existing footnote 11 
 10 See new footnote 11 
 11 The definition is the same as definition of “af filiated party” in FAN’s TN/RL/GEN19 and  in 
TN/RL/GEN/72 from Japan TN/RL/GEN/103 
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  B. Changes in Article 5 
 
3. Article 5.4 to be amended as follows 
12: 
  An investigation shall not be initiated pursu ant to paragraph 1 unless the authorities have 
determined, on the basis of an examination of the degree of support for, or opposition to, the 
application expressed
13 by domestic producers of the like product, that the application has 
been made by or on behalf of the domestic industry.14  The application shall be considered to 
have been made “by or on behalf of the dom estic industry” if it is supported by those 
domestic producers whose collective output consti tutes more than 50 per cent of the total 
production of the like product produced by that portion of  the domestic industry,  as defined 
in Article 4.1.  expressing either support for or oppos ition to the application. However, no 
investigation shall be initiated when domestic  producers expressly supporting the application 
account for less than 25 per cent  of total production of the like product produced by the 
domestic industry  In the case of an application made or supported by a trade association, only 
the production of those member producers who support the application shall count towards 
the standing threshold.  
 
C. Changes in Article 3 
 
4. Article 3.1 to be amended as follows: 
 
 “A determination of injury for purposes of Article VI of GATT 1994 shall be based on 
positive evidence and involve an objective examination of both (a) the volume of the dumped 
imports and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on. domestic producers of such 
products.  the domestic industry, as defined in Article 4.1.  
   3.1.1 Authorities shall make every effort  to obtain evidence relating to all domestic 
producers of the like product.  In excepti onal cases, where that is not possible, 
authorities shall examine those domestic producers whose collective output of the 
product constitutes the largest volume of production that can reasonably be examined 
in excess of the 50 per cent threshold referre d to in Article 4.1. In such a case, the 
authorities shall provide a reasoned explana tion demonstrating why it could not base 
the injury assessment on evidence covering all domestic producers15, including a 
description of the efforts made by the authorities to obtain evidence covering all 
domestic producers. Such explanation shall be  set forth in any disclosure pursuant to 
Article 6.9 and in the public notices referred to in Article 12.  
 
__________ 
 
 
                                                      
 12 See also TN/RL/GEN/69 on initiation and completi on of investigations put forward by Hong Kong, 
China.  
13 Existing footnote 13 : In the case of fragmented industries involving an exceptionally large number 
of producers, authorities may determine support and oppos ition by using statistically valid sampling techniques.  
14 Existing footnote 14 : Members are aware that in the territory of certain Members employees of 
domestic producers of the like product or representatives of those employees may make or support an application for an investigation under paragraph 1.   
15 See TN/RL/GEN/27 , proposal 2