WORLD TRADE  
ORGANIZATION  TN/RL/W/222 
12 March 2008 
 (08-1094) 
Negotiating Group on Rules Original:   English 
   
PUBLIC INTEREST 
 
Communication from Colombia;  Hong Kong, China;  Israel;  Japan; 
  
Norway;  Singapore;  Switzerland;  the Separate Customs Territory  
of Taiwan, Penghu, Kinmen and Matsu;  and Thailand  
  The following communication, dated 10 March 2008, is being circulated at the request of the Delegations of Colombia;  Hong Kong, China;  Israe l;  Japan;  Norway;  Singapore;  Switzerland;  the 
Separate Customs Territory of  Taiwan, Penghu, Kinmen and Matsu;  and Thailand.   
 
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 The Delegations of Colombia;  Hong Kong, Chin a;  Israel;  Japan;  Norway;  Singapore;  
Switzerland;  the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu;  and Thailand 
present this Working Document concerning the issue of "Public Interest" under the Anti-Dumping 
Agreement (ADA).  This paper analyses the Rules Chair's text (TN/RL/W/213) on this issue as a 
contribution to the discussions in the Negotiating Group.   It includes alternatives to the Chair's text.  
This submission is without prejudice to the views we may have on other parts of  the text.  We reserve 
the right to modify or further refine this documen t, or co-sponsor it with other Members at a later 
stage.
1   
 
                                                      
1 This paper builds upon a paper submitted to the Negotiating Group as a room document in 
January 2008. TN/RL/W/222 
Page 2  
 
  I. INTRODUCTION 
 We listened carefully to the discussion in the Negotiating Group in December 2007 and 
January 2008.  The vast majority of the Members welcomed the inclusion of provisions on the public 
interest in Article 9 of the Chair's text, but still expressed strong concerns about shortcomings in the 
text.   
 
II. DISCUSSION 
The Chair's proposed amendment to Article 9 would require Members to enable their 
authorities to take due account of the vi ews of domestic interested parties ( e.g., end-users and 
retailers) whose interests might be affected by the imposition of an AD duty.  This would help 
authorities reach well-reasoned and balanced determin ations, because the domestic interested parties 
are well-positioned to provide authorities with importa nt evidence and information on the impact of a 
duty that may be imposed.  Under the Chair's proposed  amendment, authorities would at least be able 
to request domestic interested parties to make comments.   
 
We recall that several proposals have been tabled regarding the inclusion of a public interest 
provision in the ADA.
2  These proposals sought to ensure that a Member's authority would take into 
consideration the effect of an anti-dumping measure  on other sectors of its economy before applying 
an AD measure.  This is important because the ef fect of an AD measure on the economy of an 
importing Member is not confined to the domestic producers of the like product;  but also affects 
other economic sectors such as downstream users a nd retailers, and ultimately, consumers.  The 
consequences of the imposition of an AD duty for th ose sectors can be quite serious.  It is important 
that parties in such sectors be allowed to defend th eir interests in an anti-dumping investigation.  The 
Chair's proposed amendment to Article 9 is a step in the right direction.   
 
We believe, however, that the Chair's proposed am endment falls short of what is needed in 
this area.  It is necessary to do more than simply  "enable" the authorities to take account of domestic 
parties' comments.  This enabling provision alone would not sufficiently secure the interests of all 
parties that would be affected by the AD measure because the authorities could simply choose not to 
hear certain comments from domestic interested parties.  Therefore, the ADA should require the 
authorities to take due account of the comments ma de by the domestic interested parties.   
 
The authorities also should consider the interests of all domestic parties that will be affected 
by the imposition of an AD measure.  The Chair' s proposal defines the scope of the "domestic 
interested parties" too narrowly by limiting the scope to immediate users of the product under 
consideration or the domestic lik e product, and to suppliers to th e domestic industry.  Domestic 
parties that would be affected by an AD measure are not limited to these parties.  Immediate users will 
in turn pass the cost of an AD measure on to thei r customers and to the ultimate consumers;  these 
parties therefore would also be affected by the AD measure.   
 
We are further concerned about the Chair's pr oposed amendments regarding judicial review. 
These provisions would undermine the operation of pub lic interest procedures by entirely exempting 
them from WTO dispute settlement and domestic judi cial review.  They would therefore eliminate 
any possibility of redress, should the authorities fail to respect the requirements of the rule.  We 
consider that the procedural aspects of authorities' application of the public interest rule should be 
subject to WTO dispute settlement; and that their app lication of the rule should be subject to domestic 
judicial review.   
                                                      
2 E.g. TN/RL/GEN/53 by Friends of Antidumping Negotiations (FANS), TN/RL/GEN/142 by 
Hong Kong, China and the Separate Customs Territories of Taiwan, Penghu, Kinmen and Matsu, 
TN/RL/GEN/85 and TN/RL/GEN/111 by Canada.    TN/RL/W/222 
 Page 3 
 
 
  We therefore propose that the following point s be included to the Chair's text:   
 
- Authorities should be required to apply procedural  rules in individual investigations.  They 
need to consider the comments made by all par ties on the public interest.  However, we agree 
that the authorities would have discretion as to whether and how the authorities must incorporate such comments into their decisions.   
 
- Due to the specific reference to Article 5, the text proposed by the Chair lacks clarity 
concerning whether Article 11 reviews are covere d or not by the obligation.  We therefore 
propose to clarify the scope of its obligation by adding the reference to Article 11.   
 
- The scope of the "domestic interested parties"  should include all downstream domestic parties 
whose interests might be affected by the imposition of an anti-dumping duty.   
 
- The scope of the exemption from WTO dispute settlement and judicial review should be 
narrowed:  We believe that th e implementation of the domestic procedures and the application 
of those procedures ( i.e., providing the opportunity to be heard to the public) must be subject 
to WTO dispute settlement and domestic judicial  review.  On the other hand, we share the 
view of many Members that it is up to each Member's judgment whether and how the public interest of the Member is served.  We agree th erefore that substantive decisions by authorities 
based on the public interest procedures would not be subject to WTO dispute settlement.  We 
find no justification, however, for exempting from judicial review the authorities' failure to follow the mandatory procedure of considering th e public interest.  Article 13 is intended to 
ensure that AD investigations and Article 11 reviews are legitimately conducted, and thus 
requires Members to authorize an independent body  to review the authorities' determinations.  
The public interest test will be a part of th e authorities' determination under the Member's 
domestic laws.  Therefore, the authorities' comp liance with domestic law, which will include 
the public interest provisions, must be subject to judicial review.   
 III. PROPOSED AMENDMENTS TO CHAIR'S TEXT 
9.1 The decision whether or not to impose an anti dumping duty in cases where all requirements 
for the imposition have been fulfilled, and the decision whether the amount of the anti dumping duty to be imposed shall be the full margin of dumping or  less, are decisions to be made by the authorities 
of the importing Member.
, provided that the imposition …[an amendment on the lesser duty rule 
(note:  Co-sponsors of this document do not prejudge the possible amendment on the lesser duty rule, 
which all or some of co-sponsors may separately propose)].  Each Member whose national legislation contains provisions on anti-dumping measures shall es tablish procedures in its laws or regulations to 
enable 
oblige  its authorities, in making such decisions  in an investigation initiated pursuant to 
Article 5 or reviews initiated pursuant to Article 11,  to take due account of representations made by 
domestic interested parties37 whose interests might be affected by the imposition of an anti-dumping 
duty.38  The application of these procedures, and decisions made pursuant to the m, these procedures 
established under the second sentence of this Paragraph shall not be subject to dispute settlement 
pursuant to the DSU, Article 17 of this Agreement or any other provision of the WTO Agreement.   
 
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37 For the purpose of this paragraph, the term "domestic interested parties" shall include, 
inter alia , industrial users of the imported prod uct under consideration and of the 
domestic like product, suppliers of  inputs to the domestic industry,  and, where the 
product is commonly sold at the retail level,  representative consumer organizations. 
 TN/RL/W/222 
Page 4  
 
  38 Decisions taken pursuant to these procedures  are not subject to the judicial review 
requirements of Article 13.  
 
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