WORLD TRADE  
ORGANIZATION  TN/RL/GEN/46 
10 June 2005 
 
 (05-2384) 
Negotiating Group on Rules Original:   English 
  
 
ISSUES RELATED TO ARTICLE 6.10, 
INCLUDING “LIMITED EXAMINATION”, 
AND ARTICLE 9.4 “ALL OTHER’S RATE” 
 
Paper from Brazil;  Chile;  Hong Kong, China;   Israel;  Japan;  Korea, Rep. of;
 
Norway;  Switzerland;  Separate Customs Territory of Taiwan, Penghu,  
Kinmen and Matsu;  and Thailand  
   The following communication, dated 9 June 2005, is being circulated at the request of the 
Delegations of Brazil;  Chile;  Hong Kong, China;  Israel;  Japan;  Korea, Rep. of;  Norway;  
Switzerland;  Separate Customs Territory of Ta iwan, Penghu, Kinmen and Matsu;  and Thailand 
  The proposals contained in this document do no t represent a final position and may be subject 
to further addition and/ or modification in  the course of the negotiations.  Other provisions of the Agreement that might be affected by these proposed  amendments may well be examined in the later 
stages of the negotiations when Members have a more comprehensive picture of the amended 
Agreement.   The submitting delegations have requested that this paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(05)/98), also be circulated as a formal document. 
 
_______________ 
 
 
Overview
 
  This proposal addresses issues relating to Articles 6.10 and 9.4: 
 
• In relation to Article 6.10, we propose clarifying the rules relating to the selection of a sample 
of exporters or producers (“respondents”) to ensure  that investigating authorities adhere to the 
basic requirement to provide an individual dumping margin for all respondents or explain 
adequately why they have failed to do so; and, also to ensure that any sample is adequately 
representative of the respondents as a whole. 
 
• In relation to Article 9.4, for non-examined exporters or producers, we propose confirming 
the Appellate Body’s rulings that the authorities must determine one single all others rate and 
that this rate is to be the weighted av erage of the dumping margins for all examined 
respondents that participated in the investigation.   
 
• In order to clarify the relationship between the dumping margins determined for different 
categories of exporters and producers (examine d and unexamined) under Article 6.10 and the 
duties imposed under Article 9.4, we propose to insert a new sub- paragraph in Article 6.10 to 
ensure the application of a single dumping marg in for unexamined exporters or producers.  
 TN/RL/GEN/46 
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 The first two sections of this paper outline the cont ent of, and reasons for, the proposals, and the last 
section, cf the Annex, contains the proposed amendments to the Anti-Dumping Agreement . 
 
Article 6.10 ADA
 
 
Proposals : 
 
• Require that investigating authorities provide  a reasoned and adequate explanation for a 
conclusion that the number of respondents is so “large” as to make it “impracticable” to 
comply with the general obligation to prov ide an individual determination for each  
respondent; 
 
• require that investigating authorities choose th e sample in consultation with respondents; 
ensure that any sample is sufficiently representative of all respondents;  
• ensure that respondents that are not part of a sample can obtain an individual margin by 
submitting necessary information, given that  certain requirements are fulfilled.  
 
• ensure that authorities determine one single dum ping margin for all exporters or producers not 
examined. 
 Explanation
 
 
Authorities Must Justify the Use of Sampling if Respondents are not given an Individual Margin 
 
 Article 6.10 ADA provides that authorities shall, as a rule, determine an individual margin of 
dumping for each exporter or producer.  However, the Agreement  also provides an exception to this 
general rule in circumstances set forth in Article 6.10.1  The exception provides that where the number 
of respondents is so “large” as to make individual determinations for all “impracticable”, authorities 
are entitled to limit their examination by providing individual margins to a sample of respondents.   
 
 Investigating authorities have wide discretion to decide:  what constitutes a “ large ” number of 
respondents;  when providing individual margins is “ impracticable ”;  and, how to select a sample for 
investigation.  As a result, th e exceptional right to limit the exam ination is susceptible to widely 
diverging applications that afford little predictability. 
 
 This situation is unsatisfactory not only becau se, in using sampling, authorities are making 
use of an exception, but also because the use of  sampling deprives some respondents of their usual 
due process rights to influence an investigation that may affect their commercial viability.  The lack of 
clarity in Article 6.10, therefore, favours the convenience of investigating authorities (i.e. their 
discretion regarding the use of their time and re sources) over the legitimate rights and interests of 
respondents. 
  The FANs recognize that the application of the terms “large” and “impr acticable” is likely to 
turn on case-specific factors that are quite variable.  This makes it difficult to define them.  Instead of 
defining “large” and “impracticab le”, FANs propose that authorities should provide a reasoned and 
adequate explanation for why it had to limit the ex amination, in other words, explain why the number 
of respondents would be too “large” and why it woul d be “impracticable” to conduct the investigation 
on the basis of a full examination of all exporters or producers. 
                                                     
 
1  Appellate Body Report, EC - Bed Linen (21.5 ), WT/DS141/AB/RW, para 132 (“the  Anti-Dumping 
Agreement  generally requires examination of  all  producers, and only exceptionally permits examination of 
only  some  of them”).  TN/RL/GEN/46 
 Page 3 
 
 
  
Reference is made to footnote 4 in the Annex.  
The Sample Must be Sufficiently Representative of All Respondents 
 
 Article 6.10 provides for two different met hods for selecting a sample.  The first method 
requires a “statistically valid” sample of producers or products. As regards this option, we propose 
that authorities demonstrate how the selected sa mple conforms to the requirement of being 
statistically valid.  The second method under the current  Article 6.10 allows the sample to comprise 
“the largest percentage of the volume of the exports from the country in question which can 
reasonably be investigated ”.  There are several difficulties with th is text.  In particular, it provides no 
guidance as to the appropriate percentage of exports th at must be investigated in sampling.  Like the 
words “large” and “impracticable”, the word “reasonably” is also given no definition.  As a result, the 
criteria for selecting a sample are neither clear nor predictable.  
 This is unsatisfactory because, as noted above, in selecting a sample, authorities are making 
use of an exception that deprives respondents of their usual due process rights.  Moreover, the 
composition of the sample has significant repercu ssions as much for the non-sampled respondents as 
it does for the sampled producers.  Under Article 9. 4, the authorities can apply anti-dumping duties to 
non-sampled respondents on the basis of the weight ed average dumping margin of the sampled 
respondents.  Thus, conclusions reached regardi ng dumping by the sampled respondents are deemed 
to apply also to the non-sampled producers.  This assumption of dumping, based on the behaviour of a 
few sampled respondents, is highly questionable as there is no necessary link between the behaviour 
of one respondent and the behaviour of another.  Accordingly, without proper examination of the 
exporting industry, it is not possible to extrapolate from conclusions regardi ng one set of respondents 
to another. 
 
 Consequently, an exceptional departure from th e basic principle that a respondent can be 
subject to anti-dumping duties solely following individual examination requires that the representativeness of the sample be beyond question.  The selection criteria must, therefore, guarantee 
that a sample is representative  of all exporters and producers from the country of export, taking into 
account all relevant factors that might have a bear ing on the dumping margin.  To ensure this, we 
propose that, as a guideline, the sample must include respondents representing no less than two thirds 
of the total imports from the expor ting country under investigation.  
  We do, however recognize, that authorities in  exceptional circumstances may depart from this 
general guideline in a situation where authorities would have serious difficulties in reaching the 
stipulated threshold, pr ovided that the sample is nevertheless demonstrated to be representative and 
that a reasoned and adequate explanation is given of  why the authorities could not meet the guideline. 
  We also propose that authorities, in order to f acilitate the investigation, may  select the largest 
exporters in descending order when establishing the sample until the threshold of two thirds of the 
imports is met. 
 
Reference is made to footnote 5 of the Annex.  
Authorities Must be Required to Consult Respondents in Selecting the Sample 
  When investigating authorities choose to con duct their investigation using a sample of 
respondents, Article 6.10.1 states that they should “p referably” select the sample in consultation and 
with the consent of respondents.  This provisi on seeks to balance the respective interests of the 
authorities in using sampling and respondents who ar e denied individual margins.  The composition of 
the sample is important because it determines whic h respondents will obtain the individual margins TN/RL/GEN/46 
Page 4  
 
 that are used to derive the all others rate for the non-examined respondents.  The composition of the 
sample, therefore, has a profound effect on the investigation.   To ensure that the authorities are fully appr ised of all relevant information concerning the 
selection of the sample, and also to give the respondents that are ultimately denied individual margins 
some influence over the investigation, authorities s hould be obliged in Article 6.10.1 to consult with 
known respondents in selecting the sample, althou gh the final decision should remain with the 
authorities.  However, where the sample is not selected with the consent of the respondents, the 
authorities should be required to provide a reasoned and adequate explanation as to why the selection 
could not be so agreed.  
 
 In this context, we would stress that the cons ultation mechanism is not an alternative method 
to select a sample, either a statistically valid sam ple or a representative sample covering, normally, 
two thirds of the imports.  The main point in holdi ng consultation is to facilitate the investigation, 
both for the authorities and the exporters, and to  provide a forum for expressing opinion on what 
could constitute a representative sample. We will, at a later stage, elaborate details on a procedure to 
facilitate effective consultations and would note that  such an element is not included in the present 
proposal for the time being, cf Annex,  Article 6.10.1.  Reference is made to footnote 6 of the Annex.  
Fully Co-operating Respondents Must be Able to Get an Individual Margin 
 
 When investigating authorities exercise the exceptional right to use sampling, the Agreement  
provides a limited qualification to that exception.  Under Article 6.10.2, respondents excluded from 
the sample may nonetheless obtain an individual margin of dumping by submitting the necessary 
information to the authorities in due time.  Howeve r, Article 6.10.2 further authorizes the authorities 
to withhold an individual margin if “the number of  exporters or producers is so large that individual 
examination would be unduly burdensome”.   The FANs consider that it violates basic principles of justice and fairness to deny an individual margin to respondents that fully co-operate  with the authorities – at considerable cost – and 
provide them with all the necessary information to calcu late an individual margin.  This is particularly 
important to ensure that respondents are not wholly denied the opportunity to influence the outcome of an investigation that could have importa nt consequences for their commercial success.   
  However, FANs are aware that authorities could be  confronted with an impossible situation, if 
hundreds of respondents would come forward and requ est an individual margin.  To ensure a proper 
balance of the respective interests of the authoriti es and respondents, we  propose that the authorities 
should not be entitled to reject any request for an  individual margin from a respondent that submits 
the necessary information in due time, unless this would seriously impede the completion of the investigation.  Authorities should in cases of non- acceptance be required to provide a reasoned and 
adequate explanation.  On the other hand, we pr opose that as a minimum, authorities should at least 
accept ten such requests from exporters or producers that were not individually examined. 
 Reference is made to footnote 7 of the Annex.  
Authorities cannot discriminate between Exporters or Producers that have not been examined 
 
 We propose to clarify and to ensure that au thorities determine one single dumping margin for 
all exporters or producers not examined and th at authorities may not discriminate between such 
exporters and producers when they have limited their examination.     TN/RL/GEN/46 
 Page 5 
 
 
  The basic problem we would like to address is that some Members apply two different "all 
others" rates for exporters or producers that were not  examined individually.  We would refer to the 
section below pertaining to Article 9.4, where the explanation given focuses on  the findings of the 
Appellate Body.   
Reference is made to new Article 6.10.3 of the Annex. 
 
Article 9.4 ADA
 
 
Proposal : 
 
• Clarify that the investigating authorities shall calcu late a single all others rate to be applied to 
respondents that were not included in the sample 
 Explanation
 
 
Authorities Shall Calculate a Single All Others Rate 
 
 Article 9.4 provides that investigating authorities may apply anti-dumping duties to 
respondents that were not included in the sample examined under Article 6.10.  In US – Hot Rolled 
Steel , the Appellate Body held that: 
 
Article 9.4 does not prescribe any method th at WTO Members must use to establish 
the “all others” rate that is actually applied to exporters or producers that are not investigated.  Rather, Article 9.4 simply identifies a maximum limit, or ceiling, which investigating authorities “shall not exceed ” in establishing an “all others” rate.
2 
In other words, authorities retain a discretion to a pply an all others rate that is lower than the 
prescribed ceiling but, in no circumstances, can they appl y a rate that is higher.  It is clear from the 
Appellate Body’s reasoning in US – Hot Rolled Steel  and EC – Bed Linen (Article 21.5)  that 
Article 9.4 envisages one single “all others rate”.  This reading stems from the fact that the non-
sampled respondents were not examined and, theref ore, did not provide individual sales data.  As a 
result, there is no basis for the authorities to appl y anything other than a single rate to all these 
respondents.  We propose to codify the Appellate Bo dy’s interpretation by making explicit in the text 
of Article 9.4 that there is a single all others ra te to be applied to all non-sampled respondents.  
  In EC – Bed Linen (21.5) , the Appellate Body addressed extr apolation, from the sampled to 
the non-sampled respondents, of data pertaining to “dumped imports” for purposes of an injury 
determination under Article 3.  The Appellate Body stated that: 
 
[...]  Indeed in cases where the examinati on has been limited to a select number of 
producers under the authority of the second sentence of Article 6.10, it is difficult to conceive of a determination based on “positive evidence” and an “objective 
examination” that is made other than th rough some sort of extrapolation of the 
evidence.
3 
The same reasoning must guide extrapolation in the calc ulation of the all others rate under Article 9.4.  
Therefore, in following the Appellate Body’s  reasoning to conduct an objective and unbiased 
extrapolation on the basis of positive evidence, i.e. the “sample”, there can be no other conclusion that 
the margin to be attributed to “all others” must be exactly the same for all unexamined producers and 
                                                      
2 Appellate Body Report, US - Hot-Rolled Steel , WT/DS184/AB/R, para. 116. 
3 Appellate Body Report, EC – Bed Linen (21.5) , para 137. TN/RL/GEN/46 
Page 6  
 
 exporters.  Any difference in treatment of these prod ucers or exporters would be biased, and thus not 
objective.  Reference is made to the amendmen ts to Article 9.4 of the Annex.  TN/RL/GEN/46 
 Page 7 
 
 
 ANNEX 
Summary of proposed changes to current text of ADA. 
 (For ease of reference we reproduce below the current text of the relevant provisions of the Anti-
Dumping Agreement, with the proposed c hanges included.  Additions are underlined
, while deletions 
are presented with strikethroughs .) 
 
Article 6  
 
6.10 The authorities shall, as a rule, determine an individual margin of dumping for each known 
exporter or  producer concerned of the product unde r investigation.  In cases where the number of 
exporters, producers, importers or types of produc ts involved, is so large as to make such a 
determination impracticable, the authorities may limit their examination4 either to a reasonable 
number of interested parties by using samples which are statistically valid5 on the basis of information 
available to the authorities at the time of the sel ection or to the largest percentage of the vol ume of the 
exports from the country in question wh ich can reasonably be investigated.  to a representative sample 
including the largest possible proportion of the expor ters or producers representing, normally, no less 
than those whose collective exports constitute two thirds of total imports from the exporting country 
under investigation6. Samples relating to importers or to  types of products shall equally be 
representative.  
 
6.10.1 Any selection of exporters, producers, impor ters or types of products made under this 
paragraph shall preferably  be chosen in consultation with and preferably with the consent of the 
exporters, producers or importers concerned 7. 
 
6.10.2 In cases where the authorities have limite d their examination, as provided for in this 
paragraph, they shall nevertheless determine an individual margin of dumpi ng for any exporter or 
producer not initially selected who submits the nece ssary information in time for that information 
to be considered during the course of the inves tigation., except where the number of exporters or 
producers is so large that individual examinations would be unduly burdensome to the authorities 
                                                      
4 New footnote to be added:  “  Authorities shall provide a reasoned and adequate explanation of the 
particular administrative difficulties that prevented it from complying with the general rule, in Article 6.10, to 
provide an individual margin of dumping  for each exporter or producer.  This  explanation shall be set forth in 
any disclosure under Article 6.9 and also in the public notices referred to in paragraph 2 of Article 12.”  
5 New footnote to be added: "Authorities shall provide   a reasoned and adequate explanation 
demonstrating how their selection is statistically valid  in cases where this option is  used. Such explanation  
shall be set forth in any disclosure under Article 6.9 and al so in the public notices referred to in paragraph 2 of 
Article 12.”  
6New footnote to be added:  “Authorities may select , in descending order, the largest exporters or 
producers, until the thre shold has been reached . In an examination .involving serious difficulties in including the 
necessary number of exporters or producers in order to satisfy the two thirds threshold, the authorities may base 
their examination on a lower share of imports. In su ch a case the authorities shall provide a reasoned and 
adequate explanation demonstrating why the authorities would have serious difficulties in satisfying the 
threshold and how their selection nevertheless is demonstrated to be representative . This explanation  shall be 
set forth in any disclosure under Article 6.9 and also in the public notices referred to in paragraph 2 of 
Article 12.”  
7 New footnote to be added:  “Authorities shall pr ovide a reasoned and adequate explanation for any 
failure to select the sample with the consent of the inte rested parties concerned.  Such explanation shall be set 
forth in any disclosure under Article 6.9 and also in th e public notices referred to in paragraph 2 of Article 12."  
 TN/RL/GEN/46 
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 and prevent the timely completion of the investigation.
8  Voluntary responses shall not be 
discouraged. 
6.10.3 When determining dumping margins, the authorities may only establish:  
(i) individual margins for the known exporters or producers examined individually or as 
part of  a sample; and  
(ii) a single margin for all other exporters or producers not examined, whether  known or 
unknown.   
 
Article 9  
 9.4 When the authorities have limited their ex amination in accordance with the second sentence 
of paragraph 10 of Article 6, they  may apply 
any an anti-dumping duty, at a single all others rate,  
applied  to all other imports from exporters or produ cers from the country under investigation and  not 
included in the examination.  That rate  shall not exceed: 
 
(i) the weighted average margin of dumping9 established with respect to the selected 
exporters or producers or, 
 
(ii) where the liability for payment of anti-dumping duties is calculated on the basis of a 
prospective normal value, the difference be tween the weighted average normal value 
of the selected exporters or producers and the export prices of exporters or producers 
not individually examined, 
 provided that the authorities shall disregard for the purpose of this paragraph any zero and de minimis 
margins and margins established under the circumstances referred to in paragraph 8 of Article 6. The 
authorities shall apply individual duties or normal va lues to imports from any exporter or producer not 
included in the examination who has provided th e necessary information during the course of the 
investigation, as provided for in subparagraph 10.2 of Article 6. 
 
__________ 
 
 
 
                                                     
 
8 New footnote to be added: " The authorities shall provide a reasoned and adequate explanation of why 
the number of  requested individual determinations  was so large that their acceptance would be unduly 
burdensome and prevent the timely completion of the investigation. Such explanation shall be set forth in any 
disclosure under Article 6.9 and also in the public noti ces referred to in paragraph 2 of Article 12. Authorities 
shall, in any case,  where they have not determined an individual dumping margin, accept, as a minimum, no 
less than ten such requests  from respon dents from each country under investigation " 
 
9  Explanatory footnote:  Reference is made to the paper “Further submission of proposals on the 
mandatory application of the lesser duty rule, JOB(05)/ 79” which proposes to include the lesser duty margins in 
the determination of the “All other’s rate”.