Document: WT/DS312/R Page A-1 ANNEX A REQUEST FOR THE ESTABLISHMENT OF A PANEL Contents Page Annex A-1 Request for the Establishment of a Panel – Document WT/DS312/2 A-2
Document codes: WT/DS312/R; WT/DS312/2
Complainant: Indonesia
Respondent: South Korea
Third parties: Canada, China, EU, Japan, U.S., Taiwan
Dispute stage: Panel
Agreements cited: Art. 5.4, 2.6, 3.1, 4.1, 5.2, 5.3, 5.7, 12.1.1, 6.5, 6.7, Annex I, Annex II, 6.8, 12.2, 2.1, 2.2, 2.4, 5.8, 9.3, 3.2, 3.4, 3.5, 3.7, 6.1, 6.4, 6.9  Anti-dumpingArt. VI:1, VI:2(a), VI:2(b), VI:6  GATT 1994

ANNEX A

REQUEST FOR THE ESTABLISHMENT OF A PANEL

Contents Page
Annex A-1 Request for the Establishment of a Panel – Document A-2

ANNEX A

REQUEST FOR THE ESTABLISHMENT
OF A PANEL

KOREA – ANTI-DUMPING DUTIES ON IMPORTS
OF CERTAIN PAPER FROM INDONESIA

Request for the Establishment of a Panel by Indonesia

 The following communication, dated 16 Augus t 2004, from the delegation of Indonesia to the
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 On 4 June 2004, the Republic of Indonesia ("I ndonesia") requested consultations pursuant to
Article 4 of the Understanding on Rules and Pro cedures Governing the Settlement of Disputes
("DSU"), Article XXII:1 of the General Agr eement on Tariffs and Trade 1994 ("GATT"), and
Article 17 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 ("AD Agreement") regarding the im position by the Republic of Korea ("Korea") of
definitive anti-dumping duties on imports of bus iness information paper and uncoated wood-free
printing paper from Indonesia
1 and certain aspects of the investigation leading thereto. The request
was circulated on 10 June 2004 as document , , Korea and
Indonesia held consultations in Geneva on 7 July 20 04. However, consultatio ns have failed to settle
the dispute.

 Article 1 of the AD Agreement requires that "[a]n 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 accordance with the pr ovisions of [the AD] Agreement" [*footnote
omitted]. Indonesia considers that Korea's defi nitive anti-dumping duties on imports of business
information paper and uncoated wood-free prin ting paper from Indonesia do not meet these
requirements. In this regard, Indonesia notes the following:

1 Imposed under Resolution No. 2003-22, issued by Korea Trade Commission dated
24 September 2003.

Relating primarily to the initiation of the investigation

 1. Korea initiated the investigation notwithst anding its failure to make a determination
that the application had been made by or on be half of the domestic industry. This is
inconsistent with Article 5.4 of the AD Agreement.

 2. Korea's determination that business information paper and uncoated wood-free
printing paper are like products is inconsiste nt with the definition of "like products"
as set out in Article 2.6 of the AD Agre ement. Consequently, the definition of
"domestic industry" utilised by Korea in its determination that the application has
been made by or on behalf of the "domestic industry" is flawed. For this reason,
Korea's initiation of the investigation is inconsistent with Article 5.4 of the
AD Agreement.

 3. Korea initiated the investigation notwith standing its failure to make an objective
examination of the participation of the app licant Hansol Paper Co. ("Hansol") in the
definition of "domestic industry", despite Hansol's significant volume of imports from
Indonesia during the period of investigation fo r injury. This is inconsistent with
Article 3.1 and Article 4.1(i) of the AD Agreement.

 4. Korea initiated the investigation notwithst anding the failure of the applicants to
include in the application sufficient and adequate evidence of dumping, injury, and
causal link between the alleged dumped imports and the injury, particularly in respect
of:

(i) the occurrence of certain injury factors, inter alia, market share, domestic
prices, output, profits, ability to ra ise capital or investment, employment,
productivity, actual and potential negativ e effects on cash flow, growth, and
the magnitude of the margin of dumping,
(ii) the existence of causal link between th e alleged dumped imports and injury,
as the information and evidence on injury submitted by the applicants relate
to a period of investigation (1999-2001) during which – except for the quarter
October to December 2001 – there was no occurrence of dumping for the
purpose of the investigation (according to the Notice of Initiation, the period
of investigation for dumping was 1 October 2001 to 30 September 2002),
 In these circumstances, Korea's initiation of the investigation is inconsistent with
Article 5.2 and Article 5.3 of the AD Agreement.

 5. Korea initiated the investigation notwithst anding that the period for injury and the
period for dumping overlapped only for a peri od of three months. Korea's failure to
simultaneously consider the evidence of both dumping and injury in the decision to
initiate the investigation is contrary to Article 5.7 of the AD Agreement.

 6. Korea failed to provide in the Notice of Initiation any information regarding the
factors on which the allegation of injury was based. This is inconsistent with
Article 12.1.1(iv) of the AD Agreement.

 7. Korea granted confidential treatment to information contained in the domestic
industry's application and to supplementa ry information provided by the domestic
industry without (i) requiring the applican ts or the domestic industry to provide
showing of good cause for such a treatment, (ii) requiring the applicants or the

domestic industry to furnish non-confiden tial summaries "in sufficient detail to
permit a reasonable understanding of the subs tance of the information submitted in
confidence", or (iii) any indication that th e information could not be summarized and
the reasons why summarization was not possibl e. The granting of such confidential
treatment without requiring the showing of good cause is inconsistent with Article 6.5
of the AD Agreement. Furthermore, Korea' s failure to require the furnishing of non-
confidential summaries or any indication that that information could not be
summarized and the reasons why summarization was not possible are contrary to
Article 6.5, Article 6.5.1 and Article 6.5.2 of the AD Agreement.

Relating primarily to the conduct of the investigation

 8. Korea requested information on a firm wh ich was not subject to the investigation –
i.e. PT Cakrawala Mega Indah ("CMI") - wit hout having obtained the agreement of
that firm, and without having notified the Government of Indonesia of such request in
the context of an on-the-spot investigation. This is inconsistent with Article 6.7 and
Annex I of the AD Agreement.

 9. Korea did not consider and accept inform ation related to the sales of CMI and the
financial statements of CMI, notwithsta nding that they were (i) verifiable,
(ii) appropriately submitted and could be used without undue difficulties, and
(iii) submitted in a timely fashion. This is inconsistent with Article 6.8 and
paragraphs 3 and 5 of Annex II of the AD Agreement.

 10. Korea failed to explain the reasons fo r its non-acceptance of the information related
to the sales of CMI and the financial statements of CMI . This is inconsistent with
Article 6.8 and paragraph 6 of Annex II of the AD Agreement.

Relating primarily to the preliminary determination

 11. Korea's determination that business information paper and uncoated wood-free
printing paper are like products is inconsiste nt with the definition of "like products"
as set out in Article 2.6 of the AD Agreement. Furthermore, Korea's failure to
explain this conclusion in sufficient detail is contrary to the requirements set out in
Article 12.2 of the AD Agreement.

 12. Korea's resort to constructed value as the basis for determining normal value for
PT Pindo Deli and PT Indah Kiat is inconsistent with Article VI:1 and Article VI:2 of
GATT and Article 2.1 and Article 2.2 of the AD Agreement.

 13. Korea's construction of the normal value in respect of PT Pindo Deli and PT Indah
Kiat without taking into consideration actual data from CMI pertaining to sales in the
ordinary course of trade of the like products subject to investigation, notwithstanding
the fact that all information requested by Korea was supplied by the exporters in time,
is inconsistent with Article 2.2, Artic le 2.2.1.1, and Article 2.2.2 of the
AD Agreement.

 14. Korea's resort to best information ava ilable in order to construct administrative,
selling and general costs of PT Pindo Deli a nd PT Indah Kiat is inconsistent with
Article 6.8 and paragraphs 3, 5 and 6 of Annex II of the AD Agreement.

 15. Korea failed to provide in sufficient detail findings and conclusions reached on the
determination of normal value. In particul ar, Korea failed to provide details of the

amounts for, and methods and evidence used in determining, cost of production,
administrative, selling and general costs, financial expenses and profits. This is
inconsistent with Article 12.2 of the AD Agreement.

 16. Korea's failure to make a fair co mparison between the export price and the
constructed normal value of PT Pindo Deli and PT Indah Kiat inter alia, by failing to
take into account that domestic sales were made through an intermediary – CMI –
while export sales were made directly to cons umers, is inconsistent with Article VI:1
and Article VI:2 of GATT and Article 2.1 and Article 2.4 of the AD Agreement.

17. For exporters who did not submit information to Korea ( i.e., PT Tjiwi Kimia and
unidentified exporters of Indonesia), Korea arbitrarily applied the "best information
available" to determine the dumping margin for Tjiwi Kimia. This is inconsistent
with the provisions of Article 6.8 and paragraph 7 of Annex II of the AD Agreement.
 18. Korea failed to immediately terminate the investigation in respect of PT Indah Kiat
notwithstanding its determination that the margin of dumping for PT Indah Kiat was
de minimis. This is inconsistent with Article 5.8 of the AD Agreement.

Relating primarily to the final determination

 19. Korea's determination that business information paper and uncoated wood-free
printing paper are like products is inconsiste nt with the definition of "like products"
as set out in Article 2.6 of the AD Agreement. Furthermore, Korea's failure to explain
this determination in sufficient detail , notwithstanding the views expressed by
Indonesian exporters that business info rmation paper and uncoated wood-free
printing paper are not like products, is contrary to Article 12.2 of the AD Agreement.

 20. Korea's failure to determine indivi dual margins of dumping for PT Indah Kiat,
PT Pindo Deli and PT Tjiwi Kimia is contrary to Article 6.10 of the AD Agreement.
In the light of this claim, the consequent levy of an anti-dumping duty in excess of
individual margins of dumping, if any, is inconsistent with the requirements of
Article VI:2 of GATT and Article 9.3 of the AD Agreement.

 21. Korea's determination of a single norma l value, export price and dumping margin for
PT Indah Kiat, PT Pindo Deli and PT Tjiwi Kimi a is inconsistent with Articles 2.1,
2.2 and 2.4 of the AD Agreement.

 22. Korea's resort to constructed value as the basis for determining normal value for
PT Pindo Deli and PT Indah Kiat is inconsistent with Article VI:1 and Article VI:2 of
GATT and Article 2.1 and Article 2.2 of the AD Agreement.

 23. Korea's construction of the normal value in respect of PT Pindo Deli and PT Indah
Kiat without taking into consideration actua l data, including data pertaining to sales
of CMI in the ordinary course of trade of the like products subject to investigation
and data regarding the costs attributable to CMI and without following any of the
methods mandated under Article 2.2.2 of th e AD Agreement is inconsistent with
Article 2.2, Article 2.2.1.1, and Article 2.2.2 of the AD Agreement.

 24. Korea's resort to best information ava ilable in order to construct administrative,
selling and general costs of PT Pindo Deli a nd PT Indah Kiat is inconsistent with
Article 6.8 and paragraphs 3, 5, 6 and 7 of Annex II of the AD Agreement.

 25. Korea failed to provide in sufficient detail findings and conclusions reached on the
determination of normal value. In particul ar, Korea failed to provide details of the
amounts for, and methods and evidence used in determining, cost of production,
administrative, selling and general costs, financial expenses and profits. This is
inconsistent with Article 12.2 of the AD Agreement.

 26. Korea's determination of normal value for PT Tjiwi Kimia is inconsistent with
Article 2.1, and Article 6.8, paragra phs 3, 5, 6 and 7 of Annex II of the
AD Agreement.

 27. Korea's failure to make a fair co mparison between the export price and the
constructed normal value in respect of PT Pindo Deli, PT Indah Kiat and Tjiwi
Kimia, inter alia , by failing to take into account that domestic sales were made
through an intermediary – CMI - while expor t sales were made directly to consumers
and by failing to make a fair comparison at the same level of trade is contrary to
Article VI:1 and Article VI:2 of GATT and Article 2.1 and Article 2.4 of the
AD Agreement.
 28. Korea's incorrect classification of im ports from PT Indah Kiat as dumped imports as a
result of treating PT Indah Kiat, PT Pindo Deli and PT Tjiwi Kimia as a single
economic unit, as well as Korea's incorrect classification of all imports from
Indonesia and China, including imports that occurred outside the period of
investigation for dumping, as dumped imports and the consequent incorrect
determination of injury and causal link between the alleged dumped imports and
injury is inconsistent with Article 3.1, Article 3.2, Article 3.4, Article 3.5 and
Article 3.7 of the AD Agreement, and Article VI:1 and Article VI:6 of GATT.
 29. As a result of the incorrect characte rization of business information paper and
uncoated wood-free paper as like products, Korea's incorrect assessment of the
impact of the dumped imports on the domestic industry is inconsistent with Article
3.1, Article 3.4, Article 3.5 and Article 3. 7 of the AD Agreement, and Article VI:1
and Article VI:6 of GATT.
 30. Korea's failure to adequately evaluate the effect of the dumped imports on prices in
the domestic market for like products is inc onsistent with Article 3.1, Article 3.2,
Article 3.5 and Article 3.7 of the AD Agreement, and Article VI:1 and Article VI:6 of
GATT.
 31. Korea's failure to evaluate all releva nt economic factors and indices having a bearing
on the state of the domestic industry is contrary to Article 3.1, Article 3.4, Article 3.5
and Article 3.7 of the AD Agreement, and Article VI:1 and Article VI:6 of GATT.
 32. Korea's failure to objectively examine the participation of the domestic industry in the
importation of the allegedly dumped imports and Korea's erroneous attribution of the
injury that occurred in the first half of 2003 to dumped imports that entered the
Korean market 3-15 months earlier is incons istent with the requirements set out in
Article 3.1, Article 3.2, Article 3.4, Article 3.5, and Article 3.7 of the AD Agreement,
and Article VI:1 and Article VI:6 of GATT.
 33. In relation to further information pr ovided by the domestic industry concerning the
domestic industry's performance up to first half of 2003, Korea's denial of access to
such information by not making it available to the other interested parties in a timely
manner or by not allowing other interested parties to see it is inconsistent with
Article 6.1.2 and Article 6.4 and Article 6. 9 of the AD Agreement. Furthermore,
Korea's failure to inform the Indonesian exporters of the essential facts relating to

injury before the final determination was made is inconsistent with Article 6.9 of the
AD Agreement.
 In Indonesia's view, the foregoing cannot be reconciled with Article VI of the GATT,
Article 1 of the AD Agreement, and the specific provisions cited above. Therefore, pursuant to
Articles 4.7 and 6 of the DSU, Article XXIII:2 of the GATT, and Articles 17.4 and 17.5 of the
AD Agreement, Indonesia hereby requests the Dis pute Settlement Body to establish a panel to
examine the matter described above.