AUSTRALIA – ANTI-DUMPING MEASURES ON A4 COPY PAPER COMMUNICATION FROM THE PANEL
Document: COMMUNICATION FROM
Date: 5 December 2018
Document codes: WT/DS529/12
Complainant: Indonesia
Respondent: Australia
Third parties: Canada, China, EU, Egypt, India, Israel, Japan, South Korea, Russia, Singapore, Thailand, Ukraine, U.S., Vietnam
Dispute stage: Panel
Agreements cited: Art. 2.2, 2.2.1.1  Anti-dumpingArt. VI:1  GATT 1994Art. 9.3  Anti-dumpingArt. VI:2  GATT 1994

AUSTRALIA – ANTI-DUMPING MEASURES ON A4 COPY PAPER
COMMUNICATION FROM THE PANEL
The following communication, dated 30 November 2018, was received from the Chairperson of the
Panel with the request that it be circulated to the Dispute Settlement Body.

On 21 September, 3 October and 16 October 2018, Australia, China and the Russian
Federation respectively have submitted requests for enhanced third party rights in this proceeding.

 On 29 November 2018, the Panel issued the attached decision to the parties and third parties.

Paragraph 1(3) of the Working Procedures for the Panel proceedings in the dispute Australia
– Anti-Dumping Measures on A4 Copy Paper provides in relevant part that "[t]he Panel will circulate
preliminary rulings as a ppropriate." Therefore, I would be grateful if you could circulate this letter
and the attached decision to the DSB.

DECISION OF THE PANEL CONCERNING THE REQUESTS FOR ENHANCED THIRD PARTY RIGHTS

1.1. At the organizational meeting held on 21 September 2018, Australia requested rights additional
to those accorded in the Dispute Settlement Understanding (DSU) for third parties in this proceeding.
At the request of the Panel, Australia confirmed its request in writing on 15 October 2018,
referencing the communication by Canada regarding "Additional practices and procedures in the
conduct of WTO disputes [on the] participation of third parties in Dispute Settlement" endorsed by
several WTO Members, including Australia. 1 Specifically, Australia re quested that third parties
receive all written submissions and answers of the parties, up to the issuance of the interim report;
be present for the entirety of all substantive meetings with the Panel with the appropriate constraints
on third-party interventions and subject to the adopted Additional Working Procedures of the Panel
Concerning Business Confidential Information; and be provided with an additional opportunity to
express views on questions raised during the second substantive meeting.
1.2. On 3 October 2018, China submitted a request for enhanced third party rights including receipt
of all written submissions and answers of the parties, up to the issuance of the interim report; the
opportunity to submit first and second written submissions and to respond to the Panel's questions
in writing; participation during the entirety of all substantive meetings with the Panel and an
opportunity to make brief statements at such meetings. China argued that it was subject to the
underlying anti-dumping investigatio n where a "particular market situation" in China's A4 paper
market was alleged, with regard to which the Australian investigating authorities made a negative
finding. China further argued that it exports a significant amount of the subject product to Australia.
For those reasons, China considered that it would be affected by the outcome of this dispute in a
manner that is markedly different from its impact on other Members. China further stressed that the
dispute raises novel issues of systemic importance and, t herefore, additional assistance from third
parties would be helpful to the Panel.
1.3. The Panel gave an opportunity to third parties to comment on Australia's and China's requests,
and a subsequent opportunity to the parties to provide comments. On 16 October 2018, Canada,
the European Union, Japan, Korea, the Russian Federation, and the United States submitted
comments.
1.4. In its comments, the Russian Federation requested additional third party rights similar to those
indicated in China's request. The Russian Federation noted that it has a special interest in the
outcome of the dispute since it challenges the provisions of the EU legislation regarding the
"particular market situation" in another ongoing dispute, EU – Cost Adjustment Methodologies II
(Russia) (DS494). The Russian Federation additionally pointed out that it has a substantial legal and
significant economic interest in this dispute: the Australian investigating authorities alleged the
existence of a "particular market situation" in the Russian market in previous investigations and that
this dispute may affect the future practice of the Australian investigating authorities in this regard.
1.5. Indonesia objected to the requests for additional third party rights arguing that the additional
participatory rights requested went beyond current accepted practice and would impose an additional
burden and obligation on Indonesia in this dispute to which it does not consent. Indonesia further
argued that its claim in this dispute is brought on an "as applied" basis to resolve a dispute between
Indonesia and Australia arising from Australia's action in a single anti-dumping case.
1.6. Australia supported China's request for enhanced third party rights, except for the opportunity
to submit second written submissions and respond to questions posed by the Panel to the parties.
1.7. The rights specified in Article 10 and paragraph 6 of Appendix 3 of the DSU guarantee
third-party participation in panel proceedings. It is well established that panels have discretion to
grant additional participatory rights, subject to the requirement of due process and in a manner
consistent with the DSU. We recall that, in approving the granting of additional third party rights in
EC – Hormones, the Appellate Body stated "we believe that t his decision falls within the sound

1 Statement on a mechanism for developing, documenting and sharing practices and procedures in the
conduct of WTO disputes, Addendum: additional practices and procedures in the conduct of WTO disputes,
participation of third parties in Dispute Settlement, JOB/DSB/1/Add.4.

discretion and authority of the Panel, particularly if the Panel considers it necessary for ensuring to
all parties due process of law."2 In approving the denial of additional third party rights in US – 1916
Act, the App ellate Body similarly stated "[a] panel's decision whether to grant 'enhanced'
participatory rights to third parties is thus a matter that falls within the discretionary authority of
that panel. Such discretionary authority is, of course, not unlimited and is circumscribed, for
example, by the requirements of due process."3
1.8. The Panel notes that in past cases additional third party rights have been granted over the
objections of a party only in exceptional circumstances such as parallel proceedings involvin g the
same measures4, where challenged measures had a significant economic effect on third parties5, or
where certain third parties maintained similar measures that could be affected by the outcome of
the case.6
1.9. The Panel has carefully considered the requests of Australia, China, and the Russian Federation,
as well as the related comments of all the third parties and the respective positions of the parties.
In the Panel's view, taking into account the balance between participatory rights of the disputing
parties and third parties provided for in the DSU, the justifications relied upon in the requests of
Australia, China, and the Russian Federation do not present compelling circumstances that would
warrant granting additional participatory rights to third pa rties in this dispute over the objection of
a disputing party.
1.10. None of the parties or third parties have alleged the existence of parallel proceedings involving
the same measures as the present dispute or indicated that they maintain measures similar to t he
challenged one that could be affected by the outcome of the dispute. China, the Russian Federation,
and Australia have equally not demonstrated the existence of significant economic effects of the
contested measures on third parties or presented other s imilarly compelling circumstances that
would suggest that granting additional third party rights is warranted.
1.11. Regarding China's argument that it was subject to the underlying anti-dumping investigation
where the existence of a "particular market situation " was alleged, the Panel observes that the
relevant aspects of Australia's measure imposing anti -dumping duties contested in this proceeding
relate to dumping by Indonesian exporters and do not concern dumping by Chinese exporters. The
contested measures therefore are not applicable to imports from China and therefore do not have
the type of significant economic effect on China that has underpinned prior grants of additional third
party rights. Moreover, in regard to existence of measures maintained by Aust ralia that do impact
imports of A4 copy paper from China, it is noteworthy that such measures are dissimilar to the
challenged measures in this dispute insofar as the investigating authority did not find a "particular
market situation" to exist in China. We recall additionally China's argument that it exports significant
amounts of A4 paper to Australia. Since China's exports are not affected by the contested aspect of
the measure, the existence of those exports is, in our view, not a sufficient reason for the granting
of additional participatory rights.
1.12. China further points out that Indonesia's panel request raises "issues of novelty" such as "the
particular market situation" and that such issues have systemic implications in the anti -dumping
investigations by the Members, meaning that additional assistance from third parties would be
helpful to the Panel's examination of the case. We note that the WTO panels are often called upon
to interpret novel legal issues with implications for the WTO Membership and this consideration is
not unique to the present dispute. We note as well that the DSU contains a number of options for
third parties to communicate their views during the proceeding. As far as enhanced third party rights
are concerned, however, an interest in the interpretation of the relevant provisions of the covered
agreements does not distinguish China from any other third party or any other WTO Member. In this
vein, a number of panels have concluded that significant legal or systemic interests are not a

2 Appellate Body Report, EC – Hormones, para. 154.
3 Appellate Body Report, US – 1916 Act, para. 150.
4 Panel Report, EC – Hormones (Canada), paras. 8.14-8.20; Decisions by the Arbitrators, EC –
Hormones (US) (Article 22.6 – EC), para. 7; and EC – Hormones (Canada) (Article 22.6 – EC), para. 7.
5 Panel Reports, EC – Bananas III (Ecuador), paras. 7.6-7.9; EC – Bananas III (Guatemala and
Honduras), paras. 7.6-7.9; EC – Bananas III (Mexico), paras. 7.6-7.9; EC – Bananas III (US), paras. 7.6-7.9;
EC – Tariff Preferences, Annex A, para. 7; and EU – Poultry Meat (China), paras. 7.40-7.42.
6 Panel Report, EC – Tariff Preferences, Annex A, para. 7.

sufficient reason for granting of additional third party rights.7 We therefore consider that the above
argument of China, in light of the past panel decisions, does not warrant the granting of enhanced
third party rights.
1.13. The Russian Federation, in its request, makes an essentially similar argument relating to the
systemic implications of this dispute for the WTO Members. For the reasons just discussed, we do
not consider this to be a compelling argument on the basis of past practice. Additionally, the Russian
Federation argues that it has a special interest in the outcome of the present dispute since it contests
the provisions of the EU legislation regarding the "particular market situation" in another ongoing
dispute, EU – Cost Adjustment Methodologies II (Russia) (DS494). Faced with like arguments, two
recent panels have found that a similarity of legal issues in different disputes does not justify the
granting of enhanced third party rights.8 In fact, even where parallel proceedings involved the same
contested measures and different panels composed by the same panel members, a number of panels
have not considered this to be a sufficient basis for the granting of enhanced third party rights.9 The
Panel therefore finds that the overlap between legal issues in the two disputes does not warrant the
granting of enhanced third party rights.
1.14. The Russian Federation has further submitted that, in other investigations, the Australian
investigating authorities have alleged the existence of a "particular market situ ation" in relation to
the Russian market. The Russian Federation argues that it has a "substantial legal and significant
economic interest in this dispute" since the outcome of this dispute may affect the future practice of
Australia in this regard. We do not see how this differentiates the Russian Federation from any other
WTO Member or other third parties having a "substantial interest" in the case pursuant to Article 10.2
of the DSU: exports of any WTO Member in the future could be subject to an investig ation by the
Australian authorities involving the allegation of a "particular market situation". Furthermore, as
Indonesia pointed out in its comments, its challenge is brought on an "as applied" basis and concerns
a specific investigation. Accordingly, the Panel finds this claimed interest of the Russian Federation
to be too attenuated to compel the granting of additional third party rights in this dispute.
1.15. Finally, with regard to Australia's request, we note that, apart from the reference to the policy
document relating to third party participation and endorsed by some WTO Members as framework
for voluntary expansion of third party participatory rights, Australia has not provided any specific
reasons why the enhanced third party rights should be granted i n this proceeding. For the reasons
elaborated above, we do not consider Australia's request to warrant the granting of enhanced third
party rights over the objection of Indonesia.
1.16. The Panel therefore declines the requests of Australia, China, and the Russian Federation for
enhanced third party rights in this proceeding.

8 Panel Reports, EU – Biodiesel (Indonesia), Annex D-2, p. D-4; US – Washing Machines, para. 1.12.
9 Panel Reports, US – 1916 Act (EC), paras. 6.32-6.36; US – 1916 Act (Japan), paras. 6.32-6.35; US –
Shrimp (Thailand), paras 7.1-7.4; and US – Customs Bond Directive, paras 7.1-7.4.