WORLD TRADE  
ORGANIZATION  G/ADP/Q1/CHN/62 
G/SCM/Q1/CHN/62 14 September 2007 
 
(07-3830) 
Committee on Anti-Dumping Practices 
Committee on Subsidies and Countervailing Measures Original:   English 
 
 
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS 
 
Reply to Questions Posed by the United States1  
Regarding the Notification of China2 
   
 The following communication, dated 10 September 2007, is being circulated at the request of 
the Delegation of China. 
 
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Question 1 
 
According to Article 1(1) of the Rules of the Supreme People's Court on Certain Issues 
Related to Application of Law in Hearings of  Antidumping Administrative Cases (the Rules), 
the actions reviewable include "[a] final determination on . . . injury or the extent of injury".  Does this mean that there is a distinction between a determination on "injury" and a 
determination on "the extent of injury"?  If so, please describe the nature of this distinction.   
Reply
 
  "Injury" and "the extent of injury" are two diffe rent definitions.  Injury means material injury, 
threat of material injury or material retardation,  while "the extent of injury" means the degree of 
injury.  According to Article 25 and 27 of Regulation of the People's Republic of China on Anti-
dumping(the Regulation) , investigating authority shall conduct investigation on the injury and its 
degree and make a final determination.  If the injury  is negligible, the anti-dumping investigation shall 
be terminated. So investigating authority shall make  determinations on both injury and the extent of 
injury.    Question 2 
Article 1(2) of the Rules mentions the "retroactive imposition of an antidumping duty".  
Please explain under what conditions and to what extent duties are imposed in a retroactive manner.  Also, please explain whether this is consistent with the requirements of Article 10 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 
1994 (the Agreement).   
 
                                                     
 
1 G/ADP/Q1/CHN/59 – G/SCM/Q1/CHN/59).   
2 G/ADP/N/1/CHN/2/Suppl.5.   G/ADP/Q1/CHN/62 
G/SCM/Q1/CHN/62 Page 2 
 
 
  Reply
 
  Article 43 and 44 of the Regulation  provide the specific conditions where the antidumping 
duty may be imposed in a retrospective manner.  The provisions are fully consis tent with Article 10 of 
the Agreement.   
 
Question 3 
Article 1(4) of the Rules states that the People's Court shall accept an administrative 
action regarding "other actionable administrative acts in antidumping proceedings according to 
the laws and regulations".  Do the Rules concer ning "other actionable administrative acts" 
allow the People's Court to determine which specific proceedings or types of reviews ( e.g. 
expiry, new shipper, circumvention, etc.) shall be accepted for consideration?  If so, please 
explain how this selection process would be consis tent with the right to judicial review embodied 
in Article 13 of the Agreement.   
Reply
 
  Besides Article 1(1),(2) and (3), Article 1(4) of  the Rules  is a general provision of the 
jurisdiction of the court regarding antidumping admini strative cases.  Since it may not be possible to 
illustrate all the actionable administrative actions in the Rules , particular due to future modification 
and amendment to relevant AD laws and regulations , this Article can protect better the right of 
interested parities to file a lawsuit and is consiste nt with the aim of Article 13 of the Agreement.   
 
Question 4 
In Article 2 of the Rules, an interested part y refers to "any other natural person, legal 
person and other organization having legal interests thereon".  Is the government of the 
exporting country considered an interested party?   
Reply
 
  According to Article 19 of the Regulation , "the interested parties" refers to applicant, the 
known exporters and importers, the government of th e exporting country (region) and other interested 
organizations and parties.  And Article 2 of the Rules  states that "an interested party" means any 
applicant who files a written application to the admi nistering authority under the State Council for an 
antidumping investigation, any exporter or im porter involved in the corresponding antidumping 
proceedings, or any other natural person, legal person and other organization having legal interests 
thereon.  So generally speaking, the interest ed parties who participate in the anti-dumping 
investigations shall have the right to participate in the court procedures.   
 
Question 5 
 
Please describe what factors or consideration s under Article 5 of the Rules are used to 
decide whether judicial review in an antidumpi ng administrative case should be heard before 
the Interim People's Court or the Superior People's Court.  What is the legal impact of decisions 
made by each of these courts a nd how does the use of separate courts ensure the right to judicial 
review embodied in Article 13 of the Agreement?  In particular, which court's decisions hold higher authority, and may one of these court's de cisions be appealed to a higher court?    G/ADP/Q1/CHN/62 
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 Page 3 
 
 
  Reply  
 According to the Administrative Procedure Law of China,  the intermediate people's court (the 
Interim people's court) shall have the jurisdicti on of first instance over cases against departments 
under the State Council, while the Higher People's Court (the Superior People's Court) shall also have 
the jurisdiction of first instance over grave and complicated cases thereof in the area under its 
jurisdiction.  Since the investigation and dete rmination of anti-dumping cases is conducted by 
Ministry of Commerce(MOFCOM), the Intermediate Pe ople's Court shall have the jurisdiction of first 
instance.  In consideration of the specialty of anti-dumping cases, Article 5 of the Rules  make a 
flexible provision that anti-dumping cases of first instance can be heard either by the designated 
Intermediate People's Court or the Higher People' s Court.  If the Higher People's Court does not 
designate an Intermediate People's Court as a court of first instance over anti-dumping cases, the 
Higher People's Court shall be court of first instance.  The first instance decisions of either court have 
the equal legal effect and can be  appeal to a higher court.   
 Question 6 
 
 Please explain the obligation of the Ministry of Commerce to abide by decisions of the 
People's Court in order to provide effective judicial review embodied in Article 13 of the 
Agreement.   
 Reply
 
  MOFCOM, as the defendant of anti-dumping ad ministrative cases, has the obligations to 
appear in the court, provide evidence and implem ent the binding decision of the People's Court.   
 Question 7 
 
Article 7 of the Rules states that the defendant authority shall have the burden of proof 
for a contested administrative act.  Article 8 of the Rules states that the plaintiff shall have "the burden of proof for the facts he has asserted".  On  the basis of these provisions, it is not clear 
whether the authority has the burden of proving that  its contested action is legal, or whether the 
plaintiff has the burden of proving the authority's contested action is illegal.  Please explain how 
these two burden of proof provisions are harmonized, and indicate which side ultimately bears the burden of proving that a contested action is (or is not) legal.   
Reply
 
 
 According to Article 32 of the Administrative Procedure Law of China,  the defendant has the 
burden of proof for legality of its act.  Meanwhile, according to Article 6 of the Rules of Supreme 
People's Court on Certain Issues Related to  Evidence in Administrative Procedure , the plaintiff is 
entitled to provide further evidence to prove illegality of administrative act.  If the plaintiff provides such evidence to the court, he shall have the burde n of proof for the fact he has asserted.  But the 
failure of the plaintiff to provide further evid ence does not exempt defendant's obligation from 
proving the legality of its act.  So it is the authority that ultimately bears the burden of proving that a 
contested action is legal.    
Question 8 
 
Article 7 of the Rules indicates that the "P eople's Court shall rely on the evidence on 
record furnished by the defendant" authority in determining the legality of the authority's action.  Article 8 of the Rules appears to provide  the plaintiff with the opportunity to introduce 
"relevant, legitimate, and authentic" evidence to the People's Court.  Could China clarify G/ADP/Q1/CHN/62 
G/SCM/Q1/CHN/62 Page 4 
 
 
  whether and under what circumstances a plaintiff may introduce evidence to the People's Court 
that is not in the record presented by the defenda nt authority?  Are there measures in place to 
ensure the protection of any confidential informatio n, pursuant to Article 6.5 of the Agreement?   
Reply
 
 
 According to Article 8 of the Rules , People's Court shall deem inadmissible any evidence 
submitted by the plaintiff in the action if, in the preceding antidumping investig ation and upon request 
by the defendant through legal procedure, the pl aintiff rejects to offer such evidence under no 
justifiable grounds, fails to offer the authentic  one, or severely impedes the process of the 
investigation in other way.  However, if the plai ntiff were not requested to  submit evidence, or the 
plaintiff has collected new evidence after the end of the investigation, the evidence shall be admissible 
if the court find it to be relevant, legitimate and au thentic.  China has taken measures to preserve the 
confidentiality of the confidential information.   For example, according to Article 37 of the Rules of 
Supreme People's Court on Certain Issues Relate d to Evidence in Administrative Procedure , the 
evidence involving state secret, business confiden ce, personal privacy and other confidential 
information shall not be examined in public in court.    
Question 9 
 
Article 8 of the Rules states that the plaintiff will not be allowed to introduce any 
evidence at the proceeding if it, during th e preceding antidumping investigation, severely 
impeded the process of the investigation in other w ays.  Does this mean that plaintiff will not be 
able to introduce evidence during judicial rev iew that was properly before the administering 
authority if it is determined that the pl aintiff "severely impeded" the process of the 
investigation?  Does this standa rd only relate to situations wh ere a facts available finding under 
Article 6.8 of the Agreement was made, or does th is phrase encompass other situations as well?  
If it encompasses other situations, please explain th e types of circumstances that are applicable.  
Please explain how a plaintiff would be able to contest or defend against a finding that it "severely impeded" the process of the investigatio n if it is not allowed to introduce evidence 
during the judicial review process under Article 13 of the Agreement.   
Reply
 
 
 According to Article 21 of the Regulation  and Article 9 of the Rules,  if the plaintiff requested 
to submit evidence refused to do so, the further evidence submitted in the following court procedure 
will generally be deemed inadmissible.  Plaintiff can contest or defend against the "severely impede" 
finding during the whole court procedure.   
 
Question 10 
 
Article 11 of the Rules mentions that the "People's Court may take, as reference, the 
provisions concerning the foreign-related civil pr ocedures".  Please explain what is meant by 
"foreign-related civil procedures" and what is meant by "take, as reference".   
Reply  
  "Foreign-related civil procedure" refers to pr ocedure applied by the court in the acceptance, 
trial and execution of a civil case involving foreign element.  Part IV of the Civil Procedure Law 
contains special provisions in this regard.   
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   The term "take, as reference" means the c ourt may, when hearing the anti-dumping cases, 
follow the foreign-related civil proce dures which are not in conflict with the Administrative 
Procedure Law.   
  
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