. /.   WORLD TRADE  
ORGANIZATION  TN/RL/GEN/139 
6 June 2006 
 
 (06-2673) 
Negotiating Group on Rules Original:   English 
  
FACTS AVAILABLE 
 
Communication from Egypt
 
   The following communication, dated 1 June 2006, is being circulated at the request of the 
Delegation of Egypt. 
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  The present proposal aims at providing guidan ce for investigating authorities that see 
themselves obliged to base their determinations on facts available because the use of information 
submitted by interested parties would be unduly difficult.    Several Members have suggested the introduction of new provisions to clarify the concept of 
facts available as established under Article 6.8 and Annex II of the Anti-Dumping Agreement
1.  The 
main objective of these proposals was to define in clearer terms the circumstances under which 
investigating authorities may resort to facts availabl e.  While some of the Members appear to be in 
favour of significant modifications to the present rul es in order to restrict th e circumstances in which 
use of facts available may be made, Egypt feels that some of these proposed modifications would 
undoubtedly jeopardize the functioning of the provi sions of Article 6.8 and Annex II.  These are 
essential to the preservation of the effectiveness of  the Anti-Dumping Agreement.  Indeed, if 
investigating authorities were not any longer empow ered to take decisions on the basis of facts 
available in situations where insufficient informa tion has been provided, investigating authorities may 
no longer be in a position to reach fair and accurate  findings.  In the light of the foregoing, Egypt 
believes that any modification of the wording of Article 6.8 and/or Annex II should be undertaken 
with special circumspection.   
 
Clarification of the terms “ undue difficulties ” 
 
 Egypt is not in favour of any drastic amendmen ts to the rules set forth in Article 6.8 and 
Annex II but agrees that the clarification of certain specific issues could be beneficial.  In particular, Egypt believes that the terms “ undue difficulties ” in paragraph 3 of Annex II, i.e., where investigating 
authorities have “ undue difficulties ” to use information that was su bmitted by interested parties, 
should be clarified. Egypt is of the opinion that fu rther guidance should be provided to investigating 
authorities in such cases. In this regard, Egypt welcomed the recent proposal (TN/RL/GEN/105) on 
facts available that was presented by the United States which suggested the introduction of provisions that would clarify the concept of “ undue difficulties ”.  Basically, the US proposal provides for two 
modifications to the current rules: first of all, it is proposed to introduce a new footnote in paragraph 3 
of Annex II that declares that the existence of “ undue difficulties ” would be a “ highly fact-specific 
issue ”.  The US moreover proposes to amend paragraph 3 of Annex II so that it makes clear that, in 
essence, “ undue difficulties ” may also exist where an interested party provides certain information 
necessary for the determination, while failing to provi de other information, also deemed necessary for 
the determination.  
                                                     
 
 1 See submissions TN/RL/W/6-26-81-86-93-153 and TN/RL/GEN/20-64-105  TN/RL/GEN/139 
Page 2  
 
   
 Egypt also considers that the determination of the existence of “ undue difficulties ” is a fact-
specific issue and that it should be analysed by i nvestigating authorities on a case-by-case basis.  The 
insertion of such a requirement would prevent inv estigating authorities from invoking the existence of 
“undue difficulties ” as a standard justification for disregar ding information without providing further 
explanation on their specific reasons.  Building on the proposal by the United States, Egypt would like 
to add examples of what may be regarded as an  undue difficulty.  Therefore, Egypt proposes to 
introduce a second sentence in the proposed footnote 25,  which would, in a matter that is consistent 
with Members’ current understandings and practi ce, provide situations where the review of 
information can be regarded as unduly difficult.    
  
Proposed changes to Annex II 
 
In view of the foregoing, it is proposed to  amend paragraph 3 of Annex II as follows: 
 
“All information which is verifiable, which is a ppropriately submitted so that it can be used in 
the investigation without undue difficulties
25, which is supplied in a timely fashion, and, 
where applicable, which is supplied in a me dium or computer language requested by 
authorities, should be taken into account when determinations are made.  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 b een satisfied, the failure to respond in the 
preferred medium or computer language should not  be considered to significantly impede the 
investigation.”. 
 
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25 Undue difficulties may, for instance, exist where an interested party submits information that must be 
complemented with other information in order to be used  by authorities or is not directly pertinent.  It is 
understood that the question of whether information submitted can be used in the investigation without undue 
difficulties is a highly fact-specific issue .