CHINA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES ON BARLEY FROM AUSTRALIA REQUEST FOR THE ESTABLISHMENT OF A PANEL BY AUSTRALIA
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 16 March 2021
Document codes: WT/DS598/4
Complainant: Australia
Respondent: China
Third parties: Brazil, Canada, EU, India, Japan, Mexico, New Zealand, Norway, Russia, Singapore, Ukraine, United Kingdom, U.S.
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 1, 2.1, 2.2, 2.3, 2.4, 2.4.2, 2.6, 3.1, 3.2, 3.4, 3.5, 3.6, 4.1, 5.1, 5.2, 5.2(i), 5.2(iv), 5.3, 5.4, 5.8, 6.1, 6.2, 6.4, 6.5.1, 6.6, 6.8, 6.9, 6.10, 9.1, 9.2, 9.3, 12.2, 12.2.2, Annex II  Anti-dumpingArt. VI, VI:2(a), VI:3  GATT 1994Art. 1.1, 1.2, 2.1, 2.2, 2.4, 10, 11.1, 11.2, 11.2(i), 11.2(iv), 11.3, 11.4, 11.9, 12.1, 12.3, 12.4.1, 12.5, 12.7, 12.8, 15.1, 15.2, 15.4, 15.5, 15.6, 16.1, 19.4, 22.3, 22.5, 32.1  Subsidies and Countervailing Measures (SCM)

CHINA – ANTI-DUMPING AND COUNTERVAILING DUTY MEASURES ON BARLEY
FROM AUSTRALIA
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY AUSTRALIA
The following communication, dated 15 March 2021 , from the delegation of Australia to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

China ("China") pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes ("DSU"), Article XXII:1 of the General Agree ment on Tariffs
and Trade 1994 ("GATT 1994"), Articles 17.2 and 17.3 of the Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement") and
Article 30 of the Agreement on Subsidies and Countervail ing Measures ("SCM Agreement") with
respect to measures imposing anti -dumping duties and countervailing duties on barley imported
from Australia.1 Australia and China held such consultations on 28 January 2021. Unfortunately,
these consultations were un successful in resolving this dispute. As a consequence, Australia is
requesting the establishment of a panel pursuant to Articles 4.7 and 6 of the DSU, Article 17.4 of
the Anti-Dumping Agreement, Article 30 of the SCM Agreement and Article XXIII of the GATT 1994.
2. Australia considers that China's measures imposing anti-dumping and countervailing duties
on barley from Australia, as set forth in Ministry of Commerce of the People's Republic of China
("MOFCOM") Notice No. 14 of 2020 (18 May 2020), including any and all annexes and any
amendments, modifications or replacements thereof, and Notice No. 15 of 2020 (18 May 2020),
including any and all annexes and any amendments, modifications or replacements thereof, are
inconsistent with China's commitments and obli gations including under the following provisions of
the GATT 1994, the Anti-Dumping Agreement and the SCM Agreement.
Interpretation and application of "like product", "product under consideration" and
"domestic industry"
i. Articles 2.1, 2.6, 3.1, 3.6 and 5.2 (i) and (iv) of the Anti -Dumping Agreement and
Articles 11.2(i) and (iv), 15.1, footnote 46 and 15.6 of the SCM Agreement because,
inter alia , in conducting its investigation China incorrectly defined and applied the
"product under consideration" and the "like product" including, inter alia, by failing to
account for the difference between: seed barley and other barley; malting barley and
feed barley; and different qualities of malting barley.
ii. Article 4.1 of the Anti -Dumping Agreement and Article 16.1 of the SCM Agreement
because, inter alia, in conducting its investigation China incorrectly defined and applied
the "domestic industry" in part because of its incorrect definition and application of
"product under consideration" and "like product".

1 WT/DS598/1.

Initiation of the investigations
iii. Articles 5.1, 5.2 and 5.4 of the Anti -Dumping Agreement and Articles 11.1, 11.2 and
11.4 of the SCM Agreement because, inter alia , China improperly initiated
investigations on the basis of applications that were not made "b y or on behalf of the
domestic industry" and because, inter alia, China failed to determine, on the basis of
an examination of the degree of support for, or opposition to, the application expressed
by domestic producers of the like product, that the applic ation has been made "by or
on behalf of the domestic industry".
iv. Articles 5.2, 5.3 and 5.8 of the Anti -Dumping Agreement and Articles 11.2, 11.3 and
11.9 of the SCM Agreement because, inter alia, China initiated investigations without
sufficient evidence, China failed to examine or review the accuracy and adequacy of
the evidence provided in the application, and China failed to reject the application or
terminate promptly the investigation given the lack of sufficient evidence.
Conduct of the investigations
v. Article 6.1 of the Anti -Dumping Agreement and Article 12.1 of the SCM Agreement
because, inter alia, China did not provide all interested parties and interested Members
with sufficient notice of and opportunity to present all relevant information and
evidence, including, inter alia , by failing to take into account relevant factors in
determining deadlines for response to questionnaires and comments on the Final
Disclosures, and failing to make interested parties aware of alleged deficiencies in the
information provided and to give opportunities to rectify such alleged deficiencies.
vi. Article 6.2 of the Anti -Dumping Agreement because, inter alia , throughout the
investigation China did not provide all interested parties a full opportunity for the
defence of their interests.
vii. Articles 6.4 of the Anti -Dumping Agreement and Article 12.3 of the SCM Agreement
because, inter alia, China failed to provide timely opportunities for all interested parties
to see all non -confidential information used by authorities that was relevant to the
presentation of their cases, and to prepare presentations on the basis of this
information, including, inter alia, with respect to: alleged deficiencies in the information
provided by the interested parties and the basis for disregarding such information; the
composition of the domestic industry; the determination of normal value and export
prices, including data sourced from Global Trade Atlas; the adjustments for differences
in price comparability; the calculations of the dumping margins; the financial
contributions and specificity of the alleged subsidy programs; the calculation of the
subsidy rates; and the determination of injury and causation.
viii. Articles 6.4 and 6.5.1 of the Anti-Dumping Agreement, and Articles 12.3 and 12.4.1 of
the SCM Agreement because, inter alia, China appears to have relied on confidential
information from interested parties and has failed to provide, or require the interested
parties to provide, adequate non -confidential summaries of allegedly confidential
information or because China wrongly treated information as being confidential.
ix. Article 6.6 of the Anti -Dumping Agreement and Articles 12.5 of the SCM Agreement
because China failed during the course of the investigation to satisfy itself as to the
accuracy of th e information supplied by interested parties, including, inter alia: the
composition of the domestic industry; the production of barley in Australia and the
operation of the Australian barley market; the operation of the alleged subsidies; the
domestic pri ces of barley in China; and the accuracy of the statistics of various
economic indicators related to the state of China's barley industry.
x. Article 6.9 of the Anti -Dumping Agreement and Article 12.8 of the SCM Agreement
because, inter alia, China failed to disclose to the interested parties the essential facts
under consideration which form the basis for the determinations in sufficient time for
the parties to defend their interests, including by failing to make available all relevant
information on the matters of fact, law and reasons which led to the imposition of the

final duties, including, inter alia: alleged deficiencies in the information provided by the
interested parties and the basis for disregarding such information; the composition of
the domestic industry; the determination of normal value and export prices, including
data sourced from Global Trade Atlas; the decisions regarding adjustments for
differences in price comparability; the calculations of the dumping margins; the
financial contributions and specificity of the alleged subsidy programs; the calculation
of the subsidy rates; and the determination of injury and causation.
The use of facts available
xi. Article 6.8, and Annex II.1, 3, 5, 6 and 7 of the Anti -Dumping Agreement and
Article 12.7 of the SCM Agreement because China improperly based its determinations
on the facts available. In particular, China was not entitled to reject necessary
information submitted by Australian interested parties as such information was
submitted in a reas onable period of time and Australian interested parties did not
significantly impede the investigation. China also, inter alia:
a. failed to take into account information that was verifiable, appropriately
submitted so that it could be used in the investigat ion without undue
difficulties, which was supplied in a timely fashion, and, where applicable,
which was supplied in a medium or computer language requested by China;
b. improperly and without justification disregarded information provided by
interested parties acting to the best of their abilities;
c. failed to inform supplying parties forthwith of the reasons for not accepting
evidence or information or to give an opportunity to provide further
explanations within a reasonable period;
d. failed to give reasons for the rejection of such information in its published
determination; and
e. failed to exercise special circumspection in regard to information from
secondary sources in making its findings.
Dumping determination
xii. Article 2.2 of the Ant i-Dumping Agreement because, inter alia , China improperly
determined normal value by reference to third country sales without proper
justification, without establishing that the third country was "appropriate", and without
establishing that the price of the like product when exported to that third country was
"comparable" and "representative".
xiii. Article 2.3 of the Anti-Dumping Agreement, because, inter alia, China did not determine
export price on a reasonable basis when it improperly discarded the informati on
provided by exporters on their export sales of barley to China, and determined the
export price by reference to third party information.
xiv. Article 2.4 of the Anti -Dumping Agreement because China failed to make a fair
comparison between the export price and normal value by, inter alia, failing to ensure:
that normal value and export price were compared at the same or equivalent levels of
trade; that the comparison was made in respect of sales made at as nearly as possible
the same time; that due allowances were made for all factors affecting price
comparability; and that allowances were made for costs and profits accruing. Moreover,
China failed to indicate what information was necessary to ensure a fair comparison,
in part because of its failure to disclose its methodologies for determining both export
price and normal value.
xv. Article 2.4.2 of the Anti -Dumping Agreement, because, inter alia , China did not
establish the margin of dumping on the basis of a comparison of a weighted average
normal value with a weighted average of prices of all comparable export transactions.

xvi. Article 6.10 of the Anti -Dumping Agreement because, inter alia , China did not
determine individual margins of dumping for each known exporter or producer
concerned of barley.
Countervailing determination
xvii. Articles 1.1, 1.2, 2.1, 2.2 and 2.4 of the SCM Agreement because, inter alia, China
improperly established the existence of a subsidy, as defined in paragraph 1 of Article 1
of the SCM Agreement, including by improperly determining that a subsidy existed,
that a "benefit" was conferred on Australian producers or exporters of barley, and that
the alleged subsidy was specific to certain enterprises within Australia.
Determination of injury and causation
xviii. Article 3.1 of the Anti -Dumping Agreement and Article 15.1 of the SCM Agreement
because China failed to base its determination of injury on positive evidence and an
objective examination of both (a) the volume of the allegedly dumped and subsidized
imports of Australian barley and the effect of these imports on prices in the domestic
market for like products, and (b) the consequent impact of the allegedly dumped and
subsidized imports of Australian barley on domestic producers of like products. China's
failure to meet the obligations under Artic le 3.1 is linked to its failure to comply with
Articles 3.2, 3.4 and 3.5 of the Anti -Dumping Agreement and China's failure to meet
the obligations under Article 15.1 is linked to its failure to comply with Articles 15.2,
15.4 and 15.5 of the SCM Agreement.
xix. Article 3.2 of the Anti -Dumping Agreement and Article 15.2 of the SCM Agreement,
because: (a) with regard to the volume of the allegedly dumped and subsidized imports
of Australian barley, China failed to consider, inter alia , all the positive evidence
available on the record, including year -to-year fluctuations in the volume of these
imports, and failed to conduct an objective analysis of whether there had been a
significant increase in these imports, either in absolute terms or relative to production
or consumption in China; (b) with regard to the effect of the allegedly dumped and
subsidized imports of Australia barley on prices, China did not consider, inter alia, all
the positive evidence available on the record, including year-to-year fluctuations in the
volume of these imports, and failed to conduct an objective analysis of whether there
had been a significant price undercutting by these imports as compared with the price
of a like product in the domestic market, or whether the effect of the imports w as
otherwise to depress prices to a significant degree; and (c) China failed to consider
whether the allegedly dumped and subsidized imports of Australian barley prevented
price increases, which otherwise would have occurred, to a significant degree.
xx. Article 3.4 of the Anti -Dumping Agreement and Article 15.4 of the SCM Agreement,
because China failed to (a) conduct an objective examination of the impact of the
allegedly dumped and subsidized imports of Australian barley on the domestic industry
by, inter alia, conducting the examination in relation to a wrongly defined domestic
industry under Article 4.1 of the Anti-Dumping Agreement and Article 16.1 of the SCM
Agreement; (b) evaluate the role, relevance and weight of all the relevant economic
factors and indices having a bearing on the state of the domestic industry, limiting its
analysis to a mechanical checklist approach that, inter alia, did not take into account
all the positive evidence available; and (c) give full weight to factors such as planting
costs in making its finding that the domestic industry had suffered a substantial injury.
xxi. Article 3.5 of the Anti -Dumping Agreement and Article 15.5 of the SCM Agreement,
because China failed to (a) demonstrate that the allegedly dumped and subsidized
imports of Australian barley, through the effects of the alleged dumping and subsidies,
caused injury to the domestic industry; (b) base its purported demonstration of the
causal relationship on an objective examination of all relevant evidence; (c) objectively
examine other known factors that injured the domestic industry, including, inter alia,
non-subject imports and support provided by the Chinese government for corn and
wheat production; and (d) not attribute the injuries caused by those other factors to
the imports of Australia barley. Moreover, China improperly based its assessment of

causation on flawed considerations, examinations, and evaluations under Articles 3.2
and 3.4 of the Anti -Dumping Agreement and Articles 15.2 and 15.4 of the SCM
Agreement.
Imposition of duties
xxii. Article VI:2 of the GATT 1994 and Article 9.1, 9.2 and 9.3 of the Anti -Dumping
Agreement because, inter alia, China: has imposed anti -dumping duties where all
requirements for their imposition have not been fulfilled; has not imposed
anti-dumping duties in appropriate amounts; has not imposed anti-dumping duties on
an individual basis; has not named the suppliers of the product concerned; and has
imposed anti-dumping duties in excess of the margin of dumping that should have
been established under Article 2 of the Anti-Dumping Agreement.
xxiii. Article VI:3 of the GATT 1994 and Article 19.4 of the SCM Agreement because,
inter alia, China used an inadequate methodology to determine an amount of
subsidization, and therefore improperly levied counterv ailing duties on imported
Australian barley products in excess of the amount of the subsidy that would have been
found to exist had the investigation been conducted in compliance with the SCM
Agreement.
Transparency
xxiv. Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement and Articles 22.3 and 22.5 of
the SCM Agreement because, inter alia, China failed to provide in sufficient detail the
findings and conclusions reached on all issues of fact and law it considered material,
and the reasons for acceptance or rejection of relevant arguments and claims including,
inter alia: its decision to use facts available; the composition of the domestic industry;
the determination of normal value, including the decision to use export sales to Egypt;
the determination of export price; its decision to source data from Global Trade Atlas;
adjustments made, if any, to undertake a fair comparison; calculation of the dumping
margin; imposition of dumping duties; acceptance of the applicant's legal and factual
assertions and reject ion of the same from the Australian government and other
Australian interested parties with respect to the alleged financial contribution,
specificity and injury caused by the alleged subsidy programs; calculation of the
subsidy rates; imposition of countervailing duties; and the determination of injury and
causation in respect of both investigations.
Consequential claims
xxv. Article VI of the GATT 1994 as a consequence of the breaches of the Anti -Dumping
Agreement and the SCM Agreement described above.
xxvi. Article 1 of the Anti -Dumping Agreement as a consequence of the breaches of the
Anti-Dumping Agreement described above.
xxvii. Articles 10 and 32.1 of the SCM Agreement as a consequence of the breaches of the
SCM Agreement and the GATT 1994 described above.
3. China's measures also appear to nullify or impair the benefits accruing to Australia directly
or indirectly under the cited agreements.
4. Therefore, Australia respectfully requests, pursuant to Articles 4.7 and 6 of the DSU,
Article 17.4 of the Anti-Dumping Agreement, Article 30 of the SCM Agreement, and Article XXIII of
the GATT 1994, that the Dispute Settlement Body establish a panel to examine this matter, with the
standard terms of reference as set out in Article 7.1 of the DSU.
5. Australia asks that this reque st be placed on the agenda for the meeting of the Dispute
Settlement Body to be held on 26 March 2021.