WORLD TRADE  
ORGANIZATION  TN/RL/GEN/64 
16 September 2005 
 (05-4087) 
Negotiating Group on Rules Original:   English 
  
 
FURTHER SUBMISSION ON FACTS AVAILABLE
1 
 
Paper from Chile;  Hong Kong, China;  Israel;  Korea, Rep. of;  Norway;   
the Separate Customs Territory of Taiwan , Penghu, Kinmen and Matsu;  and Thailand  
 
 
 The following communication, dated 15 September 2005, is being circulated at the request of the Delegations of Chile;  Hong Kong, China;  Israe l;  Korea, Rep. of;  Norway;  and the Separate 
Customs Territory of Taiwan, Penghu, Kinmen and Matsu;  and Thailand  
 
 The submitting delegation has requested that th is paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(05)/ 187), also be circulated as a formal document. 
 
_______________ 
 
 A. Introduction
 
 
 In JOB(04)/1262, the Friends of Anti-Dumping Negotiations (“FANs”) discussed the 
problems with the current provisions on the use of  facts available in the Anti-Dumping Agreement, 
and made several proposals to improve the Agreement. 
 
This paper builds on our earlier paper and refines some of the ideas in that paper into proposed textual 
amendments to Article 6.8 and Annex II of the Anti-Dumping Agreement, as shown in the Annex to 
this paper.  
B. Explanation of the amendments
 
  Our proposed amendments are guided by the following main objectives: 
 1. Greater allowance given to respondents in the provision of information 
 
 
 Given the increasing complexity of anti-dumping investigations and tight timeframe given to 
respondents to provide information, it would grea tly facilitate respondents’  participation in an 
investigation if respondents can be given greater  flexibility to submit missing or supplementary 
information or clarification prior to the rejecti on of information and/or the application of facts 
available.  Noting that it has been  the practice of many authorities to send out deficiency letters to 
respondents, our proposal seeks to codify th is practice (paragraph 6 of Annex II).   
 
                                                      
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 Also circulated as TN/RL/W/93 and TN/RL/GEN/20 TN/RL/GEN/64 
Page 2  
 
  In assessing whether respondents have acted to their best ability, our proposal moreover 
highlights the need to give due regard to the di fficulties faced by respondents, particularly small 
companies, in participating fully in the inves tigations due to their limited ability or resource 
constraints (paragraph 5 of Annex II).  
2. Clearer guidance on the use of facts available
 
  Our proposal seeks to clarify the following:  - that authorities shall make reasonable effo rts to acquire information necessary for the 
investigation from the respondent (Article 6.8)
3; 
 - that authorities shall not require the submission of  information which is not reasonably needed for 
the purposes of the investigation (paragraph 1 of Annex II); 
 
- that information actually verified as accurate  by authorities, and which is germane to the 
investigation, must be used, and that authorities may reject information which they did not verify 
based on the results of sampling verification onl y if the results of the sampling verification 
indicate that the unverified information is hi ghly likely to be inaccurate (minor inaccuracies 
excepted)  (new footnote to paragraph 3 of Annex II); 
 
- clarify one of the situations in which facts av ailable may be used, by replacing the concept of 
“significant impediment” with “unreasonable refusal of  verification”, and further clarify that facts 
available shall be used only to the extent necessary to substitute missing or rejected information 
(Article 6.8).  Consequential amendment is made to the last sentence of paragraph 3 of Annex II; 
 
- where facts available are used, how informa tion from secondary source is to be chosen 
(paragraph 7 of Annex II).   
 3. Transparency with regard to the rejection of information and/or use of facts available 
 
  
 Our proposal seeks to ensure that where information submitted by a party is rejected and/or 
where facts available is used, the reason for the rej ection, as well as details of the information being 
rejected (or found to be missing) and details of the secondary source informati on used to substitute the 
rejected or missing information, are disclosed pursuant to Article 6.9 and Article 12 (paragraph 6 of Annex II). 
                                                     
 
3 We note that in Argentina – Ceramic Tiles (DS189), for example, the Panel determined that 
authorities have initial obligation of informing respondents in clear and specific terms of the information that they need, and may not resort to facts available unless they have informed the respondents of the information 
which was insufficient in the initial response and have given them an opportunity to provide further information.  TN/RL/GEN/64 
 Page 3 
 
 
 Annex  
 
Proposed amendments to Article 6.8 and Annex II of the ADA  
 
6.8 In cases in which any interested party re fuses access to, or otherwise does not provide, 
necessary information within a reasonable period  or significantly impedes the investigation  
unreasonably refuses verification of such information,  and after the authorities have made reasonable 
efforts to acquire such information from the interested party in question,  preliminary and final 
determinations, affirmative or negative, may be made on the basis of the facts available to the extent 
necessary to substitute missing or rejected information .  The provisions of Annex II shall be observed 
in the application of this paragraph.   
 
 
Annex II – Best Information Available in  Terms of Paragraph 8 of Article 6  
 
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  may  make determinations on the basis of the facts available, including 
those contained in the submission by other interested parties.  application for the initiation of the 
investigation by the domestic industry.   Authorities shall not require the submission of information 
which is not reasonably needed for the purposes of the investigation4.   
 2. The authorities may also request that an inter ested party provide its response in a particular 
medium (e.g. computer tape) or computer language .  Where such a request is made, the authorities 
should consider the reasonable ability of the interest ed party to respond in the preferred medium or 
computer language, 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 computerized response 
if the interested party does not maintain com puterized 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 author ities should not maintain a request for a response 
in a particular medium or computer language if the interested party does not maintain its 
computerized accounts in such medium or computer language 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 or com puter language requested by the authorities, should 
be taken into account when determinations are made
5.  If a party does not respond in the preferred 
medium or computer language but the authorities find that the circumstances set out in paragraph 2 have been satisfied, the failure to respond in th e preferred medium or computer language should not 
be a reason for rejecting the information be cons idered to significantly impede the investigation
.  
 
                                                      
4 New footnote: “This does not prevent interested parties from voluntarily submitting information 
additional to that requested by authorities.”  
 5 New footnote: “Information whic h has been verified as accurate and which is germane to the 
investigation must be used when determinations are made.  Authorities may only reject information which they 
did not verify based on results of sampling verification of the same type of information submitted by the party 
concerned, if the results of the sampling verification indicate that the unverified information is highly likely to 
be inaccurate (minor in accuracies excepted).”  TN/RL/GEN/64 
Page 4  
 
 4. Where the authorities do not have the ability to process information if provided in a particular 
medium (e.g. computer tape), the information shoul d be supplied in the 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, 
due regard to be given to the difficulties faced by  respondents, particularly small companies, in 
providing information to authorities due  to their limited ability and resources.   
 6. If any requested information is missing, or if any
 evidence or information is considered 
deficient  not accepted , authorities shall not automatically reject the information or directly apply facts 
available.  In such cases , the supplying party should  shall  be informed forthwith of the details  reasons  
thereo for, and shall ould have an opportunity to provide the missing information and  further 
explanations within a reasonable period, su ch period to be determined in light of  due account being 
taken of  the nature and amount of information in question, the party’s ability to provide the 
information and  the time-limits of the investigation.  If the additional information and  explanations 
are considered by the authorities as not being satis factory, they shall give a reasoned and adequate 
explanation of  the reasons for the rejection of such ev idence or information, and shall disclose 
(subject to the requirement to protect confidential information under paragraph 5 of Article 6) the 
information which they use to substitute the reject ed information or any missing information in the 
disclosure pursuant to paragraph 9 of Article 6, and  should be given  in any published determinations 
pursuant to Article 12 . 
 7. If the authorities have to base their findings, including those with respect to normal value, on 
information from a secondary source, including th e information supplied in the application for the 
initiation of the investigation, they should do  so with special circumspection, and shall
 In such cases, 
the authorities should, where practicable,  check the information from other independent sources6 at 
their disposal or which are reasonably accessible by them , such as published price lists, official import 
statistics and customs returns, and from the informat ion obtained from other interested parties during 
the investigation.  It is clear, however, that if an interested party does not c ooperate and thus relevant 
information is being withheld from the authorities, th is situation could lead to a result which is less 
favourable to the party than if the party did coope rate.  In any case, the authorities shall, wherever 
possible, choose the information th at most closely represents the prevailing state of the relevant 
industry and market to which the missing or rej ected information relates, based on an objective 
examination of all information obtained by  them in the course of the investigation.   
 
__________ 
 
 
                                                      
6 New footnote: “The independent sources shall be identified in the disclosure pursuant to paragraph 9 
of Article 6, and in any published de terminations pursuant to Article 12.”