ARGENTINA - ANTI-DUMPING DUTIES ON FASTENERS AND CHAINS FROM PERU
Document: Request for Consultations by Peru
Date: 31 May 2010
Document codes: WT/DS410/1; G/L/924; G/ADP/D84/1
Complainant: Peru
Respondent: Argentina
Dispute stage: Consultation
Agreements cited: Art. 1, 2.1, 2.2, 2.4, 2.6, 3.1, 3.2, 3.3, 3.4, 3.5, 3.7, 3.8, 4.1, 5.2, 5.3, 5.8, 6.6, 6.7, 6.8, 6.9, 6.13, 9.1, 9.2, 9.3, 10.2, 10.4, 12.1, 12.2, 18.1, Annex II  Anti-dumpingArt. VI  GATT 1994

ARGENTINA - ANTI-DUMPING DUTIES ON FASTENERS
AND CHAINS FROM PERU

Request for Consultations by Peru

 The following communication, dated 19 May 2010, from the delegation of Peru to the
delegation of Argentina and to the Chairman of the Dispute Settlement Body, is circulated in
accordance with Article 4.4 of the DSU.

 My country's authorities have instructed me to request the holding of consultations with
Argentina pursuant to Article 4 of the Unders tanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), Article XXIII.1 of the General Agreement on Tariffs and Trade 1994
("GATT 1994") and Article 17 of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (the "Anti-Dumpi ng Agreement"), with regard to the definitive
anti-dumping duties imposed by Argentina on imports of separable and non-separable fasteners and
chains from Peru and the investigation that led to application of the duties.

A. M
EASURES IN QUESTION
1. Initiation of the investigation
 On 29 April 2008, the Secretariat of Industry, Trade and Small and Medium-Sized Enterprises
declared admissible the initiation of an investigation into imports from China and Peru. 1 T h e
initiation of the dumping investigation was based on evidence of the normal value concerning a retail
transaction that did not appear to be representative of domestic sales in Peru. Moreover, the evidence
did not appear to be representative either of total transactions for the period, the numerous types of the
product in question, the volumes or an appropriate le vel of trade that would enable a fair comparison
to be made with the evidence used to determine the export price.2

1 SICPYME Resolution 120/08 of the Secretariat of Industry, Trade and Small and Medium-Sized
Enterprises of the Ministry of the Economy and Production, dated 29 April 2008, published in the
Official Journal of 5 May 2008, declaring admissible the opening of an investigation into imports of fasteners
and chains from China and Peru ("initiation resolution"), and inadmissible the opening of an investigation into
imports from Chinese Taipei.
2 Report on the feasibility of opening an investiga tion into the alleged dumping of exports of fasteners
and chains to the Argentine Republic ("initial dumping examination"), folios 889, 890, 892, 909 and 910.

 In addition, with respect to injury, the deci sion to initiate the investigation was based on a
request which, in Peru's view, did not contain su fficient evidence to justify its initiation, and on
assumptions that did not appear to be supported by this evidence.
3

2. Provisional application of anti-dumping duties
 On 15 January 2009, the Ministry of Production issued the preliminary resolution.
4 T h e
preliminary determination of dumping was based sole ly on the information available, without taking
into account the information requested by the inv estigating authority and furnished by the exporter
investigated within the time-limit given. A dumpi ng margin of 483.06 per cent was thus determined. 5
Moreover, the preliminary determination of injury w as based on a claim of threat of material injury
caused by imports from Peru. 6 As a result, the preliminary r esolution determined an anti-dumping
duty of 33 per cent on imports from Peru entering under tariff headings 9607.11.00, 9607.19.00 and
9607.20.00 of the MERCOSUR Common Nomenclature.

3. Definitive application of anti-dumping duties
 On 30 September 2009, the Ministry of Production issued the final resolution.
7 The definitive
determination of dumping was based on a determ ination of the normal value and on a calculation
methodology which Peru does not consider appropriate. As a result of this determination, a dumping
margin of 21.48 per cent was decided for the product investigated. 8 In addition, the definitive
determination of injury was made in respect of the product investigated as a whole and the injury
caused by imports from Peru was adduced. There w as no evaluation of all the relevant factors of
material injury or how each and every one of thes e factors was affected by the alleged threat of
injury.9

 Moreover, in Peru's view, there was no examin ation of non-attribution of injury to other
factors that had a bearing on the state of the industry such as increased costs and operational
expenditure in the domestic industry itself.
10

 Although the dumping margin determined for th e product investigated was 21.48 per cent, the
final resolution imposed differentiated ad valorem anti-dumping duties of (i) 23.61 per cent for

3 Act No. 1281 of 19 March 2008 of the National Foreign Trade Commission of the Ministry of the
Economy and Production ("initial examination of injury"), folios 927 to 932.
4 Resolution 6/2009 of the Ministry of Production, dated 15 January 2009, published in the
Official Journal of 22 January 2009, imposing provisional ad valorem anti-dumping duties on imports of
fasteners and chains from China and Peru ("preliminary resolution").
5 Report of the Directorate for Unfair Competition of the National Directorate for the Management of
Foreign Trade of the Ministry of the Economy and Production, of 24 September 2008, containing the
"preliminary determination of the dumping margin in exports of fasteners and chains from the People's Republic
of China and the Republic of Peru to the Argentine Republic" ("preliminary determination of dumping"),
folio 3054.
6 Act No. 1330 of the National Foreign Trade Commission of the Ministry of the Economy and
Production containing the preliminary determination of thr eat of injury in respect of imports of fasteners and
chains from Peru, as well as material injury in respect of imports from China ("preliminary determination of
injury").
7 Ministry of Production Resolution 409/2009 of 30 September 2009, published on 7 October 2009.
8 Report on the final determination of the dumping margin in the investigation into alleged dumping in
exports of fasteners and chains from the People's Republic of China and the Republic of Peru to the Argentine
Republic ("definitive determination of dumping"), folios, 4743.
9 Act No. 1464 of 21 August 2009 of the National Foreign Trade Commission of the Ministry of
Production ("definitive determination of injury"), folios 7104-7109.
10 Ibid.

imports of all non-separable fasteners in bronze from Peru, and (ii) 77.24 per cent for imports of all
separable and non-separable fasteners and chains manufactured by plastic injection under tariff
headings 9607.11.00, 9607.19.00 and 9607.20.00 of the MERCOSUR Common Nomenclature.11

B. LEGAL BASES FOR THE COMPLAINT
 Article 1 of the Anti-Dumping Agreement pr ovides that "An anti-dumping measure shall be
applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to
investigations initiated and conducted in accordan ce with the provisions of this [Anti-Dumping]
Agreement." In addition, Article 18.1 of the Agr eement also states that "No specific action against
dumping of exports from another Member can be ta ken except in accordance w ith the provisions of
GATT 1994, as interpreted by this Agreement."

 In the light of these obligations and others incumbent upon Argentina under Article VI of the
GATT and the Anti-Dumping Agreement, Peru is deeply concerned about certain aspects of the
measures imposed by Argentina and the investigati on that led to their application, such as the
methodology, calculations, comparisons, determinati ons, procedures or practices, undertaken or used
by Argentina during the investigation and for the application of the aforementioned measures.

1. Claims concerning the initiation of the investigation:
(a) The request for initiation of an investiga tion did not contain sufficient evidence of
dumping, injury or a causal relationship to justify the initiation of an investigation.
Despite this, Argentina initiated the inv estigation without properly determining
whether the request contained sufficient ev idence to justify its initiation, without
having properly examined the accuracy and ad equacy of the evidence provided in the
request, including evidence on the relevant adjustments that would have enabled a
fair comparison to be made between th e normal value and the export price.
Argentina's failure to do so appears to be c ontrary to Article 5.2, 5.3 and 5.8 of the
Anti-Dumping Agreement.
2. Claims concerning the preliminary determinations and the provisional application of
anti-dumping duties:
(b) Argentina based itself on the known facts to determine the dumping margin of the
Peruvian exporter investigated without ta king into account the information furnished
by the exporter investigated for this pur pose within the time-limit given by the
investigating authority. Consequently, Argentina did not properly comply with the
procedures laid down in Article 6.8 and 6.13, and Annex II, of the Anti-Dumping
Agreement, in particular paragraphs 3, 5, 6 and 7 of the Annex, which appears to be
contrary to the terms of these provisions, as well as Article 2.1, 2.2 and 2.4 of the
Anti-Dumping Agreement, as regards the n eed for a fair comparison between the
export price and the normal value of the product.
(c) Argentina determined the threat of injury to the domestic industry without examining
all the factors required by Article 3.4. In any event, Argentina determined injury
based on conjectures regarding the alleged th reat of injury caused by imports from
Peru. These determinations appear to be inc onsistent with Article 3.1, 3.4 and 3.7 of
the Anti-Dumping Agreement.

11 Ministry of Production Resolution 409/2009 of 30 September 2009, published on 7 October 2009,
Articles 5 and 6, and Annex II.

(d) In addition, Argentina did not examine non-attribution of injury caused by other
known factors and even recognized that they had an effect on the situation of the
domestic industry. This omission appears inc onsistent with Article 3.1, 3.4, 3.5 and
3.7 of the Anti-Dumping Agreement.
3. Claims concerning the definitive determination of injury, threat of injury and causal
relationship:
(e) Argentina determined the threat of injury to the domestic industry without basing
itself on positive evidence and without havi ng undertaken an unbiased and objective
evaluation of all and each of the factors of injury listed in Article 3.4. Moreover, with
regard to certain factors taken into account , Argentina did not determine or evaluate
the occurrence of future clearly foreseen and imminent events in order to substantiate
the determination of threat of injury. A ll these omissions appear to be inconsistent
with Article 3.1, 3.2, 3.4 and 3.7 of the Anti-Dumping Agreement.
(f) Argentina determined the threat of injury to the domestic industry without basing
itself on positive evidence and without havi ng undertaken an unbiased and objective
evaluation of all and each of the threat of injury factors listed in Article 3.7 in
connection with the factors listed in Article 3.4 of the Anti-Dumping Agreement.
These omissions appear to be inconsistent with Article 3.1, 3.2, 3.4, 3.7 and 3.8 of the
Anti-Dumping Agreement.
(g) Argentina determined the existence of a causal relationship between the dumping and
the threat of injury to the domestic industry without having properly examined any
known factors other than the dumped im ports. These include increased costs,
expenditure and investment in the domestic industry. It did not find either that the
injury caused by these other known factors ha d not been attributed to the imports
investigated. These omissions appear to be inconsistent with Article 3.1, 3.2, 3.4, 3.5
and 3.7 of the Anti-Dumping Agreement.
4. Claims concerning the application of the anti-dumping duties:
(h) Although it was determined that the dumping margin for the product investigated was
21.48 per cent, the final resolution impos ed definitive anti-dumping duties in an
amount higher than the said margin, at an ad valorem level of 23.61 per cent on
imports of all non-separable fasteners in bronze from Peru and 77.24 per cent on
imports of all separable and non-separable fasteners and chains manufactured by
plastic injection. The determination of the anti-dumping duties thus appears
inconsistent with Articles 9.1, 9.2, 9.3 and 3.8 of the Anti-Dumping Agreement.
(i) It would appear that Argentina determined the two levels of anti-dumping duties on
the basis of differentiated dumping marg ins for the products: (i) non-separable
bronze fasteners and (ii) separable a nd non-separable chains and fasteners
manufactured by plastic injection. Peru notes that both the determination of the
similar product, the domestic industry, the th reat of injury and the causal relationship
were based on a single investigated a nd similar product without making any
distinction between the two aforementioned pr oducts. Moreover, Peru also notes that
definitive determination of dumping based on two products would not be consistent
with determinations of threat of injury and causal relationship based on one product
alone.

 Peru therefore considers that the determin ations of similar product, domestic industry,
dumping, threat of injury and the causal relationship between the alleged dumping
and threat of injury are inconsistent with Articles 2.1, 2.6, 4.1, 3.1, 3.2, 3.3, 3.4, 3.5,
3.7 and 3.8 of the Anti-Dumping Agreement.

(j) In addition, Argentina decided to en force the security on the provisional
anti-dumping measures and levy anti-dumping duties retroactively for the period
during which the provisional measures app lied despite the fact that it only made a
definitive determination of threat of injury with respect to imports from Peru. This
action is inconsistent with Article 10.2 and 10.4 of the Anti-Dumping Agreement.
5. Claims concerning procedural matters:
(k) Although the period for providing evidence ha d concluded and the interested parties
had been informed of the essential facts to be used as a basis for the decision on
whether or not to apply definitive measu res, Argentina accepte d new information
provided by the Complainant regarding the s ituation of the exporter investigated.
Based on this information, it issued a ne w report on the essential facts that became
the basis for the definitive determination. The authorities did not, however, satisfy
themselves as to the accuracy of this information. Consequently, accepting the
information submitted by the Complainant af ter the declaration of the essential facts
and their utilization, without proper verificati on, is inconsistent with Article 6.6, 6.7
and 6.9 of the Anti-Dumping Agreement.
(l) In its resolution on initiation, its prelimin ary and final resolutions, Argentina did not
disclose in sufficient detail the findings a nd conclusions it had reached on all issues
of fact and law considered material by the Argentine authorities including, inter alia:
the reasons for accepting the evidence of normal value in Peru submitted by the
Complainant and the reasons why it assumed the existence of injury; the reasons why
it did not take into account the time-limits given to the exporter investigated for
submitting its information before making th e preliminary determination; and the
reasons why it found that there was threat of injury without having examined each
and every one of the factors of injury and th reat of injury, as required by Article 3.
These omissions are inconsistent with Ar ticle 12.1 and 12.2 of the Anti-Dumping
Agreement.
 Peru also reserves the right to raise other ma tters concerning the measures in question during
the consultation procedure.

 Peru awaits with interest your reply to th is request as soon as possible so as to reach a
mutually satisfactory solution. It therefore proposes th at the consultations be held in Geneva and that
our respective missions agree on a convenient date and place for holding the consultations.

 I take this opportunity, Mr Am bassador, to renew the assurances of my highest consideration.