AGREEMENT ON IMPLEMENTATION OF ARTICLE VI OF GATT1994
Members hereby agree as follows:
PART I
Article 1 - Principles
An anti-dumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated[1] and conducted in accordance with the provisions of this Agreement. The following provisions govern the application of Article VI of GATT 1994 in so far as action is taken under anti-dumping legislation or regulations.
Article 2 - Determination of Dumping
2.1 For the purpose of this Agreement, a product is to be considered as being dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country.
2.2 When there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country or when, because of
the particular market situation or the low volume of the sales in the domestic market of the exporting country[2], such sales do not permit a proper comparison, the margin of dumping shall be determined by comparison with a comparable price of the like product when exported to an appropriate third country, provided that this price is representative, or with the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits.
2.2.1 Sales of the like product in the domestic market of the exporting country or sales to a third country at prices below per unit (fixed and
variable) costs of production plus administrative, selling and general costs may be treated as not being in the ordinary course of trade by
reason of price and may be disregarded in determining normal value only if the authorities[3] determine that such sales are made within an extended period of time[4] in substantial quantities[5] and are at prices which do not provide for the recovery of all costs within a reasonable period of time. If prices which are below per unit costs at the time of sale are above weighted average per unit costs for the period of investigation, such prices shall be considered to provide for recovery of costs within a reasonable period of time.
2.2.1.1 For the purpose of paragraph 2, costs shall normally be calculated on the basis of records kept by the exporter or producer under
investigation, provided that such records are in accordance with the generally accepted accounting principles of the exporting country and reasonably reflect the costs associated with the production and sale of the product under consideration. Authorities shall consider all available evidence on the proper allocation of costs, including that which is made available by the exporter or producer in the course of the investigation provided that such allocations have been historically utilized by the exporter or producer, in particular in relation to establishing
appropriate amortization and depreciation periods and allowances for capital expenditures and other development costs. Unless already reflected
in the cost allocations under this sub-paragraph, costs shall be adjusted
appropriately for those non-recurring items of cost which benefit future
and/or current production, or for circumstances in which costs during the
period of investigation are affected by start-up operations.[6]
2.2.2 For the purpose of paragraph 2, the amounts for administrative,
selling and general costs and for profits shall be based on actual data
pertaining to production and sales in the ordinary course of trade of the
like product by the exporter or producer under investigation. When such
amounts cannot be determined on this basis, the amounts may be determined
on the basis of:
(i) the actual amounts incurred and realized by the exporter or producer
in question in respect of production and sales in the domestic market of
the country of origin of the same general category of products;
(ii) the weighted average of the actual amounts incurred and realized by
other exporters or producers subject to investigation in respect of
production and sales of the like product in the domestic market of the
country of origin;
(iii) any other reasonable method, provided that the amount for profit so
established shall not exceed the profit normally realized by other
exporters or producers on sales of products of the same general category
in the domestic market of the country of origin.
2.3 In cases where there is no export price or where it appears to the
authorities concerned that the export price is unreliable because of
association or a compensatory arrangement between the exporter and the
importer or a third party, the export price may be constructed on the
basis of the price at which the imported products are first resold to an
independent buyer, or if the products are not resold to an independent
buyer, or not resold in the condition as imported, on such reasonable
basis as the authorities may determine.
2.4 A fair comparison shall be made between the export price and the
normal value. This comparison shall be made at the same level of trade,
normally at the ex-factory level, and in respect of sales made at as
nearly as possible the same time. Due allowance shall be made in each
case, on its merits, for differences which affect price comparability,
including differences in conditions and terms of sale, taxation, levels of
trade, quantities, physical characteristics, and any other differences
which are also demonstrated to affect price comparability.[7] In the cases
referred to in paragraph 3, allowances for costs, including duties and
taxes, incurred between importation and resale, and for profits accruing,
should also be made. If in these cases price comparability has been
affected, the authorities shall establish the normal value at a level of
trade equivalent to the level of trade of the constructed export price, or
shall make due allowance as warranted under this paragraph. The
authorities shall indicate to the parties in question what information is
necessary to ensure a fair comparison and shall not impose an unreasonable
burden of proof on those parties.
2.4.1 When the comparison under paragraph 4 requires a conversion of
currencies, such conversion should be made using the rate of exchange on
the date of sale[8], provided that when a sale of foreign currency on
forward markets is directly linked to the export sale involved, the rate
of exchange in the forward sale shall be used. Fluctuations in exchange
rates shall be ignored and in an investigation the authorities shall allow
exporters at least 60 days to have adjusted their export prices to reflect
sustained movements in exchange rates during the period of investigation.
2.4.2 Subject to the provisions governing fair comparison in paragraph 4,
the existence of margins of dumping during the investigation phase shall
normally be established on the basis of a comparison of a weighted average
normal value with a weighted average of prices of all comparable export
transactions or by a comparison of normal value and export prices on a
transaction-to-transaction basis. A normal value established on a weighted
average basis may be compared to prices of individual export transactions
if the authorities find a pattern of export prices which differ
significantly among different purchasers, regions or time periods, and if
an explanation is provided as to why such differences cannot be taken into
account appropriately by the use of a weighted average-to-weighted average
or transaction-to-transaction comparison.
2.5 In the case where products are not imported directly from the country
of origin but are exported to the importing Member from an intermediate
country, the price at which the products are sold from the country of
export to the importing Member shall normally be compared with the
comparable price in the country of export. However, comparison may be made
with the price in the country of origin, if, for example, the products are
merely transshipped through the country of export, or such products are
not produced in the country of export, or there is no comparable price for
them in the country of export.
2.6 Throughout this Agreement the term "like product" ("produit
similaire") shall be interpreted to mean a product which is identical,
i.e. alike in all respects to the product under consideration, or in the
absence of such a product, another product which, although not alike in
all respects, has characteristics closely resembling those of the product
under consideration.
2.7 This Article is without prejudice to the second Supplementary
Provision to paragraph 1 of Article VI in Annex I to GATT 1994.
Article 3 - Determination of Injury[9]
3.1 A determination of injury for purposes of Article VI of GATT 1994
shall be based on positive evidence and involve an objective examination
of both (a) the volume of the dumped imports and the effect of the dumped
imports on prices in the domestic market for like products, and (b) the
consequent impact of these imports on domestic producers of such products.
3.2 With regard to the volume of the dumped imports, the investigating
authorities shall consider whether there has been a significant increase
in dumped imports, either in absolute terms or relative to production or
consumption in the importing Member. With regard to the effect of the
dumped imports on prices, the investigating authorities shall consider
whether there has been a significant price undercutting by the dumped
imports as compared with the price of a like product of the importing
Member, or whether the effect of such imports is otherwise to depress
prices to a significant degree or prevent price increases, which otherwise
would have occurred, to a significant degree. No one or several of these
factors can necessarily give decisive guidance.
3.3 Where imports of a product from more than one country are
simultaneously subject to anti-dumping investigations, the investigating
authorities may cumulatively assess the effects of such imports only if
they determine that (a) the margin of dumping established in relation to
the imports from each country is more than de minimis as defined in
paragraph 8 of Article 5 and the volume of imports from each country is
not negligible and (b) a cumulative assessment of the effects of the
imports is appropriate in light of the conditions of competition between
the imported products and the conditions of competition between the
imported products and the like domestic product.
3.4 The examination of the impact of the dumped imports on the domestic
industry concerned shall include an evaluation of all relevant economic
factors and indices having a bearing on the state of the industry,
including actual and potential decline in sales, profits, output, market
share, productivity, return on investments, or utilization of capacity;
factors affecting domestic prices; the magnitude of the margin of dumping;
actual and potential negative effects on cash flow, inventories,
employment, wages, growth, ability to raise capital or investments. This
list is not exhaustive, nor can one or several of these factors
necessarily give decisive guidance.
3.5 It must be demonstrated that the dumped imports are, through the
effects of dumping, as set forth in paragraphs 2 and 4, causing injury
within the meaning of this Agreement. The demonstration of a causal
relationship between the dumped imports and the injury to the domestic
industry shall be based on an examination of all relevant evidence before
the authorities. The authorities shall also examine any known factors
other than the dumped imports which at the same time are injuring the
domestic industry, and the injuries caused by these other factors must not
be attributed to the dumped imports. Factors which may be relevant in this
respect include, inter alia, the volume and prices of imports not sold at
dumping prices, contraction in demand or changes in the patterns of
consumption, trade restrictive practices of and competition between the
foreign and domestic producers, developments in technology and the export
performance and productivity of the domestic industry.
3.6 The effect of the dumped imports shall be assessed in relation to the
domestic production of the like product when available data permit the
separate identification of that production on the basis of such criteria
as the production process, producers' sales and profits. If such separate
identification of that production is not possible, the effects of the
dumped imports shall be assessed by the examination of the production of
the narrowest group or range of products, which includes the like product,
for which the necessary information can be provided.
3.7 A determination of a threat of material injury shall be based on facts
and not merely on allegation, conjecture or remote possibility. The change
in circumstances which would create a situation in which the dumping would
cause injury must be clearly foreseen and imminent.[10] In making a
determination regarding the existence of a threat of material injury, the
authorities should consider, inter alia, such factors as:
(i) a significant rate of increase of dumped imports into the domestic
market indicating the likelihood of substantially increased importation;
(ii) sufficient freely disposable, or an imminent, substantial increase
in, capacity of the exporter indicating the likelihood of substantially
increased dumped exports to the importing Member's market, taking into
account the availability of other export markets to absorb any additional
exports;
(iii) whether imports are entering at prices that will have a significant
depressing or suppressing effect on domestic prices, and would likely
increase demand for further imports; and
(iv) inventories of the product being investigated.
No one of these factors by itself can necessarily give decisive guidance
but the totality of the factors considered must lead to the conclusion
that further dumped exports are imminent and that, unless protective
action is taken, material injury would occur.
3.8 With respect to cases where injury is threatened by dumped imports,
the application of anti-dumping measures shall be considered and decided
with special care.
Article 4 - Definition of Domestic Industry
4.1 For the purposes of this Agreement, the term "domestic industry" shall
be interpreted as referring to the domestic producers as a whole of the
like products or to those of them whose collective output of the products
constitutes a major proportion of the total domestic production of those
products, except that:
(i) when producers are related[11] to the exporters or importers or are
themselves importers of the allegedly dumped product, the term "domestic
industry" may be interpreted as referring to the rest of the producers;
(ii) in exceptional circumstances the territory of a Member may, for the
production in question, be divided into two or more competitive markets
and the producers within each market may be regarded as a separate
industry if (a) the producers within such market sell all or almost all of
their production of the product in question in that market, and (b) the
demand in that market is not to any substantial degree supplied by
producers of the product in question located elsewhere in the territory.
In such circumstances, injury may be found to exist even where a major
portion of the total domestic industry is not injured, provided there is a
concentration of dumped imports into such an isolated market and provided
further that the dumped imports are causing injury to the producers of all
or almost all of the production within such market.
4.2 When the domestic industry has been interpreted as referring to the
producers in a certain area, i.e. a market as defined in paragraph 1(ii),
anti-dumping duties shall be levied[12] only on the products in question
consigned for final consumption to that area. When the constitutional law
of the importing Member does not permit the levying of anti-dumping duties
on such a basis, the importing Member may levy the anti-dumping duties
without limitation only if (a) the exporters shall have been given an
opportunity to cease exporting at dumped prices to the area concerned or
otherwise give assurances pursuant to Article 8 and adequate assurances in
this regard have not been promptly given, and (b) such duties cannot be
levied only on products of specific producers which supply the area in
question.
4.3 Where two or more countries have reached under the provisions of
paragraph 8(a) of Article XXIV of GATT 1994 such a level of integration
that they have the characteristics of a single, unified market, the
industry in the entire area of integration shall be taken to be the
domestic industry referred to in paragraph 1.
4.4 The provisions of paragraph 6 of Article 3 shall be applicable to this
Article.
Article 5 - Initiation and Subsequent Investigation
5.1 Except as provided for in paragraph 6, an investigation to determine
the existence, degree and effect of any alleged dumping shall be initiated
upon a written application by or on behalf of the domestic industry.
5.2 An application under paragraph 1 shall include evidence of (a)
dumping, (b) injury within the meaning of Article VI of GATT 1994 as
interpreted by this Agreement and (c) a causal link between the dumped
imports and the alleged injury. Simple assertion, unsubstantiated by
relevant evidence, cannot be considered sufficient to meet the
requirements of this paragraph. The application shall contain such
information as is reasonably available to the applicant on the following:
(i) the identity of the applicant and a description of the volume and
value of the domestic production of the like product by the applicant.
Where a written application is made on behalf of the domestic industry,
the application shall identify the industry on behalf of which the
application is made by a list of all known domestic producers of the like
product (or associations of domestic producers of the like product) and,
to the extent possible, a description of the volume and value of domestic
production of the like product accounted for by such producers;
(ii) a complete description of the allegedly dumped product, the names of
the country or countries of origin or export in question, the identity of
each known exporter or foreign producer and a list of known persons
importing the product in question;
(iii) information on prices at which the product in question is sold when
destined for consumption in the domestic markets of the country or
countries of origin or export (or, where appropriate, information on the
prices at which the product is sold from the country or countries of
origin or export to a third country or countries, or on the constructed
value of the product) and information on export prices or, where
appropriate, on the prices at which the product is first resold to an
independent buyer in the territory of the importing Member;
(iv) information on the evolution of the volume of the allegedly dumped
imports, the effect of these imports on prices of the like product in the
domestic market and the consequent impact of the imports on the domestic
industry, as demonstrated by relevant factors and indices having a bearing
on the state of the domestic industry, such as those listed in paragraphs
2 and 4 of Article 3.
5.3 The authorities shall examine the accuracy and adequacy of the
evidence provided in the application to determine whether there is
sufficient evidence to justify the initiation of an investigation.
5.4 An investigation shall not be initiated pursuant to paragraph 1 unless
the authorities have determined, on the basis of an examination of the degree of support for, or opposition to, the application expressed[13] by
domestic producers of the like product, that the application has been made by or on behalf of the domestic industry.[14] The application shall be considered to have been made "by or on behalf of the domestic industry" if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when domestic producers expressly
supporting the application account for less than 25 per cent of total production of the like product produced by the domestic industry.
5.5 The authorities shall avoid, unless a decision has been made to initiate an investigation, any publicizing of the application for the
initiation of an investigation. However, after receipt of a properly documented application and before proceeding to initiate an investigation,
the authorities shall notify the government of the exporting Member concerned.
5.6 If, in special circumstances, the authorities concerned decide to initiate an investigation without having received a written application by
or on behalf of a domestic industry for the initiation of such investigation, they shall proceed only if they have sufficient evidence of
dumping, injury and a causal link, as described in paragraph 2, to justify the initiation of an investigation.
5.7 The evidence of both dumping and injury shall be considered simultaneously (a) in the decision whether or not to initiate an
investigation, and (b) thereafter, during the course of the investigation, starting on a date not later than the earliest date on which in accordance with the provisions of this Agreement provisional measures may be applied.
5.8 An application under paragraph 1 shall be rejected and an investigation shall be terminated promptly as soon as the authorities
concerned are satisfied that there is not sufficient evidence of either
dumping or of injury to justify proceeding with the case. There shall be
immediate termination in cases where the authorities determine that the
margin of dumping is de minimis, or that the volume of dumped imports,
actual or potential, or the injury, is negligible. The margin of dumping
shall be considered to be de minimis if this margin is less than 2 per
cent, expressed as a percentage of the export price. The volume of dumped
imports shall normally be regarded as negligible if the volume of dumped
imports from a particular country is found to account for less than 3 per
cent of imports of the like product in the importing Member, unless
countries which individually account for less than 3 per cent of the
imports of the like product in the importing Member collectively account
for more than 7 per cent of imports of the like product in the importing
Member.
5.9 An anti-dumping proceeding shall not hinder the procedures of customs
clearance.
5.10 Investigations shall, except in special circumstances, be concluded
within one year, and in no case more than 18 months, after their
initiation.
Article 6 - Evidence
6.1 All interested parties in an anti-dumping investigation shall be given
notice of the information which the authorities require and ample
opportunity to present in writing all evidence which they consider
relevant in respect of the investigation in question.
6.1.1 Exporters or foreign producers receiving questionnaires used in an
anti-dumping investigation shall be given at least 30 days for reply.[15]
Due consideration should be given to any request for an extension of the
30-day period and, upon cause shown, such an extension should be granted
whenever practicable.
6.1.2 Subject to the requirement to protect confidential information,
evidence presented in writing by one interested party shall be made
available promptly to other interested parties participating in the
investigation.
6.1.3 As soon as an investigation has been initiated, the authorities
shall provide the full text of the written application received under
paragraph 1 of Article 5 to the known exporters[16] and to the authorities
of the exporting Member and shall make it available, upon request, to
other interested parties involved. Due regard shall be paid to the
requirement for the protection of confidential information, as provided
for in paragraph 5.
6.2 Throughout the anti-dumping investigation all interested parties shall
have a full opportunity for the defence of their interests. To this end,
the authorities shall, on request, provide opportunities for all
interested parties to meet those parties with adverse interests, so that
opposing views may be presented and rebuttal arguments offered. Provision
of such opportunities must take account of the need to preserve
confidentiality and of the convenience to the parties. There shall be no
obligation on any party to attend a meeting, and failure to do so shall
not be prejudicial to that party's case. Interested parties shall also
have the right, on justification, to present other information orally.
6.3 Oral information provided under paragraph 2 shall be taken into
account by the authorities only in so far as it is subsequently reproduced
in writing and made available to other interested parties, as provided for
in subparagraph 1.2.
6.4 The authorities shall whenever practicable provide timely
opportunities for all interested parties to see all information that is
relevant to the presentation of their cases, that is not confidential as
defined in paragraph 5, and that is used by the authorities in an
anti-dumping investigation, and to prepare presentations on the basis of
this information.
6.5 Any information which is by nature confidential (for example, because
its disclosure would be of significant competitive advantage to a
competitor or because its disclosure would have a significantly adverse
effect upon a person supplying the information or upon a person from whom
that person acquired the information), or which is provided on a
confidential basis by parties to an investigation shall, upon good cause
shown, be treated as such by the authorities. Such information shall not
be disclosed without specific permission of the party submitting it.[17]
6.5.1 The authorities shall require interested parties providing
confidential information to furnish non-confidential summaries thereof.
These summaries shall be in sufficient detail to permit a reasonable
understanding of the substance of the information submitted in confidence.
In exceptional circumstances, such parties may indicate that such
information is not susceptible of summary. In such exceptional
circumstances, a statement of the reasons why summarization is not
possible must be provided.
6.5.2 If the authorities find that a request for confidentiality is not
warranted and if the supplier of the information is either unwilling to
make the information public or to authorize its disclosure in generalized
or summary form, the authorities may disregard such information unless it
can be demonstrated to their satisfaction from appropriate sources that
the information is correct.[18]
6.6 Except in circumstances provided for in paragraph 8, the authorities
shall during the course of an investigation satisfy themselves as to the
accuracy of the information supplied by interested parties upon which
their findings are based.
6.7 In order to verify information provided or to obtain further details,
the authorities may carry out investigations in the territory of other
Members as required, provided they obtain the agreement of the firms
concerned and notify the representatives of the government of the Member
in question, and unless that Member objects to the investigation. The
procedures described in Annex I shall apply to investigations carried out
in the territory of other Members. Subject to the requirement to protect
confidential information, the authorities shall make the results of any
such investigations available, or shall provide disclosure thereof
pursuant to paragraph 9, to the firms to which they pertain and may make
such results available to the applicants.
6.8 In cases in which any interested party refuses access to, or otherwise
does not provide, necessary information within a reasonable period or
significantly impedes the investigation, preliminary and final
determinations, affirmative or negative, may be made on the basis of the
facts available. The provisions of Annex II shall be observed in the
application of this paragraph.
6.9 The authorities shall, before a final determination is made, inform
all interested parties of the essential facts under consideration which
form the basis for the decision whether to apply definitive measures. Such
disclosure should take place in sufficient time for the parties to defend
their interests.
6.10 The authorities shall, as a rule, determine an individual margin of
dumping for each known exporter or producer concerned of the product under
investigation. In cases where the number of exporters, producers,
importers or types of products involved is so large as to make such a
determination impracticable, the authorities may limit their examination
either to a reasonable number of interested parties or products by using
samples which are statistically valid on the basis of information
available to the authorities at the time of the selection, or to the
largest percentage of the volume of the exports from the country in
question which can reasonably be investigated.
6.10.1 Any selection of exporters, producers, importers or types of
products made under this paragraph shall preferably be chosen in
consultation with and with the consent of the exporters, producers or
importers concerned.
6.10.2 In cases where the authorities have limited their examination, as
provided for in this paragraph, they shall nevertheless determine an
individual margin of dumping for any exporter or producer not initially
selected who submits the necessary information in time for that
information to be considered during the course of the investigation,
except where the number of exporters or producers is so large that
individual examinations would be unduly burdensome to the authorities and
prevent the timely completion of the investigation. Voluntary responses
shall not be discouraged.
6.11 For the purposes of this Agreement, "interested parties" shall
include:
(i) an exporter or foreign producer or the importer of a product subject
to investigation, or a trade or business association a majority of the
members of which are producers, exporters or importers of such product;
(ii) the government of the exporting Member; and
(iii) a producer of the like product in the importing Member or a trade
and business association a majority of the members of which produce the
like product in the territory of the importing Member.
This list shall not preclude Members from allowing domestic or foreign
parties other than those mentioned above to be included as interested
parties.
6.12 The authorities shall provide opportunities for industrial users of
the product under investigation, and for representative consumer
organizations in cases where the product is commonly sold at the retail
level, to provide information which is relevant to the investigation
regarding dumping, injury and causality.
6.13 The authorities shall take due account of any difficulties
experienced by interested parties, in particular small companies, in
supplying information requested, and shall provide any assistance
practicable.
6.14 The procedures set out above are not intended to prevent the
authorities of a Member from proceeding expeditiously with regard to
initiating an investigation, reaching preliminary or final determinations,
whether affirmative or negative, or from applying provisional or final
measures, in accordance with relevant provisions of this Agreement.
Article 7 - Provisional Measures
7.1 Provisional measures may be applied only if:
(i) an investigation has been initiated in accordance with the provisions
of Article 5, a public notice has been given to that effect and interested
parties have been given adequate opportunities to submit information and
make comments;
(ii) a preliminary affirmative determination has been made of dumping and
consequent injury to a domestic industry; and
(iii) the authorities concerned judge such measures necessary to prevent
injury being caused during the investigation.
7.2 Provisional measures may take the form of a provisional duty or,
preferably, a security - by cash deposit or bond - equal to the amount of
the anti-dumping duty provisionally estimated, being not greater than the
provisionally estimated margin of dumping. Withholding of appraisement is
an appropriate provisional measure, provided that the normal duty and the
estimated amount of the anti-dumping duty be indicated and as long as the
withholding of appraisement is subject to the same conditions as other
provisional measures.
7.3 Provisional measures shall not be applied sooner than 60 days from the
date of initiation of the investigation.
7.4 The application of provisional measures shall be limited to as short a
period as possible, not exceeding four months or, on decision of the
authorities concerned, upon request by exporters representing a
significant percentage of the trade involved, to a period not exceeding
six months. When authorities, in the course of an investigation, examine
whether a duty lower than the margin of dumping would be sufficient to
remove injury, these periods may be six and nine months, respectively.
7.5 The relevant provisions of Article 9 shall be followed in the
application of provisional measures.
Article 8 - Price Undertakings
8.1 Proceedings may[19] be suspended or terminated without the imposition
of provisional measures or anti-dumping duties upon receipt of
satisfactory voluntary undertakings from any exporter to revise its prices
or to cease exports to the area in question at dumped prices so that the
authorities are satisfied that the injurious effect of the dumping is
eliminated. Price increases under such undertakings shall not be higher
than necessary to eliminate the margin of dumping. It is desirable that
the price increases be less than the margin of dumping if such increases
would be adequate to remove the injury to the domestic industry.
8.2 Price undertakings shall not be sought or accepted from exporters
unless the authorities of the importing Member have made a preliminary
affirmative determination of dumping and injury caused by such dumping.
8.3 Undertakings offered need not be accepted if the authorities consider
their acceptance impractical, for example, if the number of actual or
potential exporters is too great, or for other reasons, including reasons
of general policy. Should the case arise and where practicable, the
authorities shall provide to the exporter the reasons which have led them
to consider acceptance of an undertaking as inappropriate, and shall, to
the extent possible, give the exporter an opportunity to make comments
thereon.
8.4 If an undertaking is accepted, the investigation of dumping and injury
shall nevertheless be completed if the exporter so desires or the
authorities so decide. In such a case, if a negative determination of
dumping or injury is made, the undertaking shall automatically lapse,
except in cases where such a determination is due in large part to the
existence of a price undertaking. In such cases, the authorities may
require that an undertaking be maintained for a reasonable period
consistent with the provisions of this Agreement. In the event that an
affirmative determination of dumping and injury is made, the undertaking
shall continue consistent with its terms and the provisions of this
Agreement.
8.5 Price undertakings may be suggested by the authorities of the
importing Member, but no exporter shall be forced to enter into such
undertakings. The fact that exporters do not offer such undertakings, or
do not accept an invitation to do so, shall in no way prejudice the
consideration of the case. However, the authorities are free to determine
that a threat of injury is more likely to be realized if the dumped
imports continue.
8.6 Authorities of an importing Member may require any exporter from whom
an undertaking has been accepted to provide periodically information
relevant to the fulfilment of such an undertaking and to permit
verification of pertinent data. In case of violation of an undertaking,
the authorities of the importing Member may take, under this Agreement in
conformity with its provisions, expeditious actions which may constitute
immediate application of provisional measures using the best information
available. In such cases, definitive duties may be levied in accordance
with this Agreement on products entered for consumption not more than 90
days before the application of such provisional measures, except that any
such retroactive assessment shall not apply to imports entered before the
violation of the undertaking.
Article 9 - Imposition and Collection of Anti-Dumping Duties
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. It is desirable that the imposition
be permissive in the territory of all Members, and that the duty be less
than the margin if such lesser duty would be adequate to remove the injury
to the domestic industry.
9.2 When an anti-dumping duty is imposed in respect of any product, such
anti-dumping duty shall be collected in the appropriate amounts in each
case, on a non-discriminatory basis on imports of such product from all
sources found to be dumped and causing injury, except as to imports from
those sources from which price undertakings under the terms of this
Agreement have been accepted. The authorities shall name the supplier or
suppliers of the product concerned. If, however, several suppliers from
the same country are involved, and it is impracticable to name all these
suppliers, the authorities may name the supplying country concerned. If
several suppliers from more than one country are involved, the authorities
may name either all the suppliers involved, or, if this is impracticable,
all the supplying countries involved.
9.3 The amount of the anti-dumping duty shall not exceed the margin of
dumping as established under Article 2.
9.3.1 When the amount of the anti-dumping duty is assessed on a
retrospective basis, the determination of the final liability for payment
of anti-dumping duties shall take place as soon as possible, normally
within 12 months, and in no case more than 18 months, after the date on
which a request for a final assessment of the amount of the anti-dumping
duty has been made.[20] Any refund shall be made promptly and normally in
not more than 90 days following the determination of final liability made
pursuant to this sub-paragraph. In any case, where a refund is not made
within 90 days, the authorities shall provide an explanation if so
requested.
9.3.2 When the amount of the anti-dumping duty is assessed on a
prospective basis, provision shall be made for a prompt refund, upon
request, of any duty paid in excess of the margin of dumping. A refund of
any such duty paid in excess of the actual margin of dumping shall
normally take place within 12 months, and in no case more than 18 months,
after the date on which a request for a refund, duly supported by
evidence, has been made by an importer of the product subject to the
anti-dumping duty. The refund authorized should normally be made within 90
days of the above-noted decision.
9.3.3 In determining whether and to what extent a reimbursement should be
made when the export price is constructed in accordance with paragraph 3
of Article 2, authorities should take account of any change in normal
value, any change in costs incurred between importation and resale, and
any movement in the resale price which is duly reflected in subsequent
selling prices, and should calculate the export price with no deduction
for the amount of anti-dumping duties paid when conclusive evidence of the
above is provided.
9.4 When the authorities have limited their examination in accordance with
the second sentence of paragraph 10 of Article 6, any anti-dumping duty
applied to imports from exporters or producers not included in the
examination shall not exceed:
(i) the weighted average margin of dumping established with respect to the
selected exporters or producers or,
(ii) where the liability for payment of anti-dumping duties is calculated
on the basis of a prospective normal value, the difference between the
weighted average normal value of the selected exporters or producers and
the export prices of exporters or producers not individually examined,
provided that the authorities shall disregard for the purpose of this
paragraph any zero and de minimis margins and margins established under
the circumstances referred to in paragraph 8 of Article 6. The authorities
shall apply individual duties or normal values to imports from any
exporter or producer not included in the examination who has provided the
necessary information during the course of the investigation, as provided
for in subparagraph 10.2 of Article 6.
9.5 If a product is subject to anti-dumping duties in an importing Member,
the authorities shall promptly carry out a review for the purpose of
determining individual margins of dumping for any exporters or producers
in the exporting country in question who have not exported the product to
the importing Member during the period of investigation, provided that
these exporters or producers can show that they are not related to any of
the exporters or producers in the exporting country who are subject to the
anti-dumping duties on the product. Such a review shall be initiated and
carried out on an accelerated basis, compared to normal duty assessment
and review proceedings in the importing Member. No anti-dumping duties
shall be levied on imports from such exporters or producers while the
review is being carried out. The authorities may, however, withhold
appraisement and/or request guarantees to ensure that, should such a
review result in a determination of dumping in respect of such producers
or exporters, anti-dumping duties can be levied retroactively to the date
of the initiation of the review.
Article 10 - Retroactivity
10.1 Provisional measures and anti-dumping duties shall only be applied to
products which enter for consumption after the time when the decision
taken under paragraph 1 of Article 7 and paragraph 1 of Article 9,
respectively, enters into force, subject to the exceptions set out in this
Article.
10.2 Where a final determination of injury (but not of a threat thereof or
of a material retardation of the establishment of an industry) is made or,
in the case of a final determination of a threat of injury, where the
effect of the dumped imports would, in the absence of the provisional
measures, have led to a determination of injury, anti-dumping duties may
be levied retroactively for the period for which provisional measures, if
any, have been applied.
10.3 If the definitive anti-dumping duty is higher than the provisional
duty paid or payable, or the amount estimated for the purpose of the
security, the difference shall not be collected. If the definitive duty is
lower than the provisional duty paid or payable, or the amount estimated
for the purpose of the security, the difference shall be reimbursed or the
duty recalculated, as the case may be.
10.4 Except as provided in paragraph 2, where a determination of threat of
injury or material retardation is made (but no injury has yet occurred) a
definitive anti-dumping duty may be imposed only from the date of the
determination of threat of injury or material retardation, and any cash
deposit made during the period of the application of provisional measures
shall be refunded and any bonds released in an expeditious manner.
10.5 Where a final determination is negative, any cash deposit made during
the period of the application of provisional measures shall be refunded
and any bonds released in an expeditious manner.
10.6 A definitive anti-dumping duty may be levied on products which were
entered for consumption not more than 90 days prior to the date of
application of provisional measures, when the authorities determine for
the dumped product in question that:
(i) there is a history of dumping which caused injury or that the importer
was, or should have been, aware that the exporter practises dumping and
that such dumping would cause injury, and
(ii) the injury is caused by massive dumped imports of a product in a
relatively short time which in light of the timing and the volume of the
dumped imports and other circumstances (such as a rapid build-up of
inventories of the imported product) is likely to seriously undermine the
remedial effect of the definitive anti-dumping duty to be applied,
provided that the importers concerned have been given an opportunity to
comment.
10.7 The authorities may, after initiating an investigation, take such
measures as the withholding of appraisement or assessment as may be
necessary to collect anti-dumping duties retroactively, as provided for in
paragraph 6, once they have sufficient evidence that the conditions set
forth in that paragraph are satisfied.
10.8 No duties shall be levied retroactively pursuant to paragraph 6 on
products entered for consumption prior to the date of initiation of the
investigation.
Article 11 - Duration and Review of Anti-Dumping Duties and Price
Undertakings
11.1 An anti-dumping duty shall remain in force only as long as and to the
extent necessary to counteract dumping which is causing injury.
11.2 The authorities shall review the need for the continued imposition of
the duty, where warranted, on their own initiative or, provided that a
reasonable period of time has elapsed since the imposition of the
definitive anti-dumping duty, upon request by any interested party which
submits positive information substantiating the need for a review.[21]
Interested parties shall have the right to request the authorities to
examine whether the continued imposition of the duty is necessary to
offset dumping, whether the injury would be likely to continue or recur if
the duty were removed or varied, or both. If, as a result of the review
under this paragraph, the authorities determine that the anti-dumping duty
is no longer warranted, it shall be terminated immediately.
11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive
anti-dumping duty shall be terminated on a date not later than five years
from its imposition (or from the date of the most recent review under
paragraph 2 if that review has covered both dumping and injury, or under
this paragraph), unless the authorities determine, in a review initiated
before that date on their own initiative or upon a duly substantiated
request made by or on behalf of the domestic industry within a reasonable
period
of time prior to that date, that the expiry of the duty would be likely to
lead to continuation or recurrence of dumping and injury.[22] The duty may
remain in force pending the outcome of such a review.
11.4 The provisions of Article 6 regarding evidence and procedure shall
apply to any review carried out under this Article. Any such review shall
be carried out expeditiously and shall normally be concluded within 12
months of the date of initiation of the review.
11.5 The provisions of this Article shall apply mutatis mutandis to price
undertakings accepted under Article 8.
Article 12 - Public Notice and Explanation of Determinations
12.1 When the authorities are satisfied that there is sufficient evidence
to justify the initiation of an anti-dumping investigation pursuant to
Article 5, the Member or Members the products of which are subject to such
investigation and other interested parties known to the investigating
authorities to have an interest therein shall be notified and a public
notice shall be given.
12.1.1 A public notice of the initiation of an investigation shall
contain, or otherwise make available through a separate report[23],
adequate information on the following:
(i) the name of the exporting country or countries and the product
involved;
(ii) the date of initiation of the investigation;
(iii) the basis on which dumping is alleged in the application;
(iv) a summary of the factors on which the allegation of injury is based;
(v) the address to which representations by interested parties should be
directed;
(vi) the time-limits allowed to interested parties for making their views
known.
12.2 Public notice shall be given of any preliminary or final
determination, whether affirmative or negative, of any decision to accept
an undertaking pursuant to Article 8, of the termination of such an
undertaking, and of the termination of a definitive anti-dumping duty.
Each such notice shall set forth, or otherwise make available through a
separate report, in sufficient detail the findings and conclusions reached
on all issues of fact and law considered material by the investigating
authorities. All such notices and reports shall be forwarded to the Member
or Members the products of which are subject to such determination or
undertaking and to other interested parties known to have an interest
therein.
12.2.1 A public notice of the imposition of provisional measures shall set
forth, or otherwise make available through a separate report, sufficiently
detailed explanations for the preliminary determinations on dumping and
injury and shall refer to the matters of fact and law which have led to
arguments being accepted or rejected. Such a notice or report shall, due
regard being paid to the requirement for the protection of confidential
information, contain in particular:
(i) the names of the suppliers, or when this is impracticable, the
supplying countries involved;
(ii) a description of the product which is sufficient for customs
purposes;
(iii) the margins of dumping established and a full explanation of the
reasons for the methodology used in the establishment and comparison of
the export price and the normal value under Article 2;
(iv) considerations relevant to the injury determination as set out in
Article 3;
(v) the main reasons leading to the determination.
12.2.2 A public notice of conclusion or suspension of an investigation in
the case of an affirmative determination providing for the imposition of a
definitive duty or the acceptance of a price undertaking shall contain, or
otherwise make available through a separate report, all relevant
information on the matters of fact and law and reasons which have led to
the imposition of final measures or the acceptance of a price undertaking,
due regard being paid to the requirement for the protection of
confidential information. In particular, the notice or report shall
contain the information described in subparagraph 2.1, as well as the
reasons for the acceptance or rejection of relevant arguments or claims
made by the exporters and importers, and the basis for any decision made
under subparagraph 10.2 of Article 6.
12.2.3 A public notice of the termination or suspension of an
investigation following the acceptance of an undertaking pursuant to
Article 8 shall include, or otherwise make available through a separate
report, the non-confidential part of this undertaking.
12.3 The provisions of this Article shall apply mutatis mutandis to the
initiation and completion of reviews pursuant to Article 11 and to
decisions under Article 10 to apply duties retroactively.
Article 13 - Judicial Review
Each Member whose national legislation contains provisions on anti-dumping
measures shall maintain judicial, arbitral or administrative tribunals or
procedures for the purpose, inter alia, of the prompt review of
administrative actions relating to final determinations and reviews of
determinations within the meaning of Article 11. Such tribunals or
procedures shall be independent of the authorities responsible for the
determination or review in question.
Article 14 - Anti-Dumping Action on Behalf of a Third Country
14.1 An application for anti-dumping action on behalf of a third country
shall be made by the authorities of the third country requesting action.
14.2 Such an application shall be supported by price information to show
that the imports are being dumped and by detailed information to show that
the alleged dumping is causing injury to the domestic industry concerned
in the third country. The government of the third country shall afford all
assistance to the authorities of the importing country to obtain any
further information which the latter may require.
14.3 In considering such an application, the authorities of the importing
country shall consider the effects of the alleged dumping on the industry
concerned as a whole in the third country; that is to say, the injury
shall not be assessed in relation only to the effect of the alleged
dumping on the industry's exports to the importing country or even on the
industry's total exports.
14.4 The decision whether or not to proceed with a case shall rest with
the importing country. If the importing country decides that it is
prepared to take action, the initiation of the approach to the Council for
Trade in Goods seeking its approval for such action shall rest with the
importing country.
Article 15 - Developing Country Members
It is recognized that special regard must be given by developed country
Members to the special situation of developing country Members when
considering the application of anti-dumping measures under this Agreement.
Possibilities of constructive remedies provided for by this Agreement
shall be explored before applying anti-dumping duties where they would
affect the essential interests of developing country Members.
PART II
Article 16 - Committee on Anti-Dumping Practices
16.1 There is hereby established a Committee on Anti-Dumping Practices
(referred to in this Agreement as the "Committee") composed of
representatives from each of the Members. The Committee shall elect its
own Chairman and shall meet not less than twice a year and otherwise as
envisaged by relevant provisions of this Agreement at the request of any
Member. The Committee shall carry out responsibilities as assigned to it
under this Agreement or by the Members and it shall afford Members the
opportunity of consulting on any matters relating to the operation of the
Agreement or the furtherance of its objectives. The WTO Secretariat shall
act as the secretariat to the Committee.
16.2 The Committee may set up subsidiary bodies as appropriate.
16.3 In carrying out their functions, the Committee and any subsidiary
bodies may consult with and seek information from any source they deem
appropriate. However, before the Committee or a subsidiary body seeks such
information from a source within the jurisdiction of a Member, it shall
inform the Member involved. It shall obtain the consent of the Member and
any firm to be consulted.
16.4 Members shall report without delay to the Committee all preliminary
or final anti-dumping actions taken. Such reports shall be available in
the Secretariat for inspection by other Members. Members shall also
submit, on a semi-annual basis, reports of any anti-dumping actions taken
within the preceding six months. The semi-annual reports shall be
submitted on an agreed standard form.
16.5 Each Member shall notify the Committee (a) which of its authorities
are competent to initiate and conduct investigations referred to in
Article 5 and (b) its domestic procedures governing the initiation and
conduct of such investigations.
Article 17 - Consultation and Dispute Settlement
17.1 Except as otherwise provided herein, the Dispute Settlement
Understanding is applicable to consultations and the settlement of
disputes under this Agreement.
17.2 Each Member shall afford sympathetic consideration to, and shall
afford adequate opportunity for consultation regarding, representations
made by another Member with respect to any matter affecting the operation
of this Agreement.
17.3 If any Member considers that any benefit accruing to it, directly or
indirectly, under this Agreement is being nullified or impaired, or that
the achievement of any objective is being impeded, by another Member or
Members, it may, with a view to reaching a mutually satisfactory
resolution of the matter, request in writing consultations with the Member
or Members in question. Each Member shall afford sympathetic consideration
to any request from another Member for consultation.
17.4 If the Member that requested consultations considers that the
consultations pursuant to paragraph 3 have failed to achieve a mutually
agreed solution, and if final action has been taken by the administering
authorities of the importing Member to levy definitive anti-dumping duties
or to accept price undertakings, it may refer the matter to the Dispute
Settlement Body ("DSB"). When a provisional measure has a significant
impact and the Member that requested consultations considers that the
measure was taken contrary to the provisions of paragraph 1 of Article 7,
that Member may also refer such matter to the DSB.
17.5 The DSB shall, at the request of the complaining party, establish a
panel to examine the matter based upon:
(i) a written statement of the Member making the request indicating how a
benefit accruing to it, directly or indirectly, under this Agreement has
been nullified or impaired, or that the achieving of the objectives of the
Agreement is being impeded, and
(ii) the facts made available in conformity with appropriate domestic
procedures to the authorities of the importing Member.
17.6 In examining the matter referred to in paragraph 5:
(i) in its assessment of the facts of the matter, the panel shall
determine whether the authorities' establishment of the facts was proper
and whether their evaluation of those facts was unbiased and objective. If
the establishment of the facts was proper and the evaluation was unbiased
and objective, even though the panel might have reached a different
conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the Agreement in
accordance with customary rules of interpretation of public international
law. Where the panel finds that a relevant provision of the Agreement
admits of more than one permissible interpretation, the panel shall find
the authorities' measure to be in conformity with the Agreement if it
rests upon one of those permissible interpretations.
17.7 Confidential information provided to the panel shall not be disclosed
without formal authorization from the person, body or authority providing
such information. Where such information is requested from the panel but
release of such information by the panel is not authorized, a
non-confidential summary of the information, authorized by the person,
body or authority providing the information, shall be provided.
PART III
Article 18 - Final Provisions
18.1 No specific action against dumping of exports from another Member can
be taken except in accordance with the provisions of GATT 1994, as
interpreted by this Agreement.[24]
18.2 Reservations may not be entered in respect of any of the provisions
of this Agreement without the consent of the other Members.
18.3 Subject to subparagraphs 3.1 and 3.2, the provisions of this
Agreement shall apply to investigations, and reviews of existing measures,
initiated pursuant to applications which have been made on or after the
date of entry into force for a Member of the WTO Agreement.
18.3.1 With respect to the calculation of margins of dumping in refund
procedures under paragraph 3 of Article 9, the rules used in the most
recent determination or review of dumping shall apply.
18.3.2 For the purposes of paragraph 3 of Article 11, existing
anti-dumping measures shall be deemed to be imposed on a date not later
than the date of entry into force for a Member of the WTO Agreement,
except in cases in which the domestic legislation of a Member in force on
that date already included a clause of the type provided for in that
paragraph.
18.4 Each Member shall take all necessary steps, of a general or
particular character, to ensure, not later than the date of entry into
force of the WTO Agreement for it, the conformity of its laws, regulations
and administrative procedures with the provisions of this Agreement as
they may apply for the Member in question.
18.5 Each Member shall inform the Committee of any changes in its laws and
regulations relevant to this Agreement and in the administration of such
laws and regulations.
18.6 The Committee shall review annually the implementation and operation
of this Agreement taking into account the objectives thereof. The
Committee shall inform annually the Council for Trade in Goods of
developments during the period covered by such reviews.
18.7 The Annexes to this Agreement constitute an integral part thereof.
ANNEX I - PROCEDURES FOR ON-THE-SPOT INVESTIGATIONS PURSUANT TO PARAGRAPH
7 OF ARTICLE 6
1. Upon initiation of an investigation, the authorities of the exporting
Member and the firms known to be concerned should be informed of the
intention to carry out on-the-spot investigations.
2. If in exceptional circumstances it is intended to include
non-governmental experts in the investigating team, the firms and the
authorities of the exporting Member should be so informed. Such
non-governmental experts should be subject to effective sanctions for
breach of confidentiality requirements.
3. It should be standard practice to obtain explicit agreement of the
firms concerned in the exporting Member before the visit is finally
scheduled.
4. As soon as the agreement of the firms concerned has been obtained, the
investigating authorities should notify the authorities of the exporting
Member of the names and addresses of the firms to be visited and the dates
agreed.
5. Sufficient advance notice should be given to the firms in question
before the visit is made.
6. Visits to explain the questionnaire should only be made at the request
of an exporting firm. Such a visit may only be made if (a) the authorities
of the importing Member notify the representatives of the Member in
question and (b) the latter do not object to the visit.
7. As the main purpose of the on-the-spot investigation is to verify
information provided or to obtain further details, it should be carried
out after the response to the questionnaire has been received unless the
firm agrees to the contrary and the government of the exporting Member is
informed by the investigating authorities of the anticipated visit and
does not object to it; further, it should be standard practice prior to
the visit to advise the firms concerned of the general nature of the
information to be verified and of any further information which needs to
be provided, though this should not preclude requests to be made on the
spot for further details to be provided in the light of information
obtained.
8. Enquiries or questions put by the authorities or firms of the exporting
Members and essential to a successful on-the-spot investigation should,
whenever possible, be answered before the visit is made.
ANNEX II - BEST INFORMATION AVAILABLE IN TERMS OF PARAGRAPH 8 OF ARTICLE 6
1. As soon as possible after the initiation of the investigation, the
investigating authorities should specify in detail the information
required from any interested party, and the manner in which that
information should be structured by the interested party in its response.
The authorities should also ensure that the party is aware that if
information is not supplied within a reasonable time, the authorities will
be free to make determinations on the basis of the facts available,
including those contained in the application for the initiation of the
investigation by the domestic industry.
2. The authorities may also request that an interested party provide its
response in a particular medium (e.g. computer tape) or computer language.
Where such a request is made, the authorities should consider the
reasonable ability of the interested party to respond in the preferred
medium or computer language, and should not request the party to use for
its response a computer system other than that used by the party. The
authority should not maintain a request for a computerized response if the
interested party does not maintain computerized accounts and if presenting
the response as requested would result in an unreasonable extra burden on
the interested party, e.g. it would entail unreasonable additional cost
and trouble. The authorities should not maintain a request for a response
in a particular medium or computer language if the interested party does
not maintain its computerized accounts in such medium or computer language
and if presenting the response as requested would result in an
unreasonable extra burden on the interested party, e.g. it would entail
unreasonable additional cost and trouble.
3. All information which is verifiable, which is appropriately submitted
so that it can be used in the investigation without undue difficulties,
which is supplied in a timely fashion, and, where applicable, which is
supplied in a medium or computer language requested by the authorities,
should be taken into account when determinations are made. If a party does
not respond in the preferred medium or computer language but the
authorities find that the circumstances set out in paragraph 2 have been
satisfied, the failure to respond in the preferred medium or computer
language should not be considered to significantly impede the
investigation.
4. Where the authorities do not have the ability to process information if
provided in a particular medium (e.g. computer tape), the information
should be supplied in the form of written material or any other form
acceptable to the authorities.
5. Even though the information provided may not be ideal in all respects,
this should not justify the authorities from disregarding it, provided the
interested party has acted to the best of its ability.
6. If evidence or information is not accepted, the supplying party should
be informed forthwith of the reasons therefor, and should have an
opportunity to provide further explanations within a reasonable period,
due account being taken of the time-limits of the investigation. If the
explanations are considered by the authorities as not being satisfactory,
the reasons for the rejection of such evidence or information should be
given in any published determinations.
7. If the authorities have to base their findings, including those with
respect to normal value, on information from a secondary source, including
the information supplied in the application for the initiation of the
investigation, they should do so with special circumspection. In such
cases, the authorities should, where practicable, check the information
from other independent sources at their disposal, such as published price
lists, official import statistics and customs returns, and from the
information obtained from other interested parties during the
investigation. It is clear, however, that if an interested party does not
cooperate and thus relevant information is being withheld from the
authorities, this situation could lead to a result which is less
favourable to the party than if the party did cooperate.
[1] The term "initiated" as used in this Agreement means the procedural
action by which a Member formally commences an investigation as provided
in Article 5.
[2] Sales of the like product destined for consumption in the domestic
market of the exporting country shall normally be considered a sufficient
quantity for the determination of the normal value if such sales
constitute 5 per cent or more of the sales of the product under
consideration to the importing Member, provided that a lower ratio should
be acceptable where the evidence demonstrates that domestic sales at such
lower ratio are nonetheless of sufficient magnitude to provide for a
proper comparison.
[3] When in this Agreement the term "authorities" is used, it shall be
interpreted as meaning authorities at an appropriate senior level.
[4] The extended period of time should normally be one year but shall in
no case be less than six months.
[5] Sales below per unit costs are made in substantial quantities when the
authorities establish that the weighted average selling price of the
transactions under consideration for the determination of the normal value
is below the weighted average per unit costs, or that the volume of sales
below per unit costs represents not less than 20 per cent of the volume
sold in transactions under consideration for the determination of the
normal value.
[6] The adjustment made for start-up operations shall reflect the costs at
the end of the start-up period or, if that period extends beyond the
period of investigation, the most recent costs which can reasonably be
taken into account by the authorities during the investigation.
[7] It is understood that some of the above factors may overlap, and
authorities shall ensure that they do not duplicate adjustments that have
been already made under this provision.
[8] Normally, the date of sale would be the date of contract, purchase
order, order confirmation, or invoice, whichever establishes the material
terms of sale.
[9] Under this Agreement the term "injury" shall, unless otherwise
specified, be taken to mean material injury to a domestic industry, threat
of material injury to a domestic industry or material retardation of the
establishment of such an industry and shall be interpreted in accordance
with the provisions of this Article.
[10] One example, though not an exclusive one, is that there is convincing
reason to believe that there will be, in the near future, substantially
increased importation of the product at dumped prices.
[11] For the purpose of this paragraph, producers shall be deemed to be
related to exporters or importers only if (a) one of them directly or
indirectly controls the other; or (b) both of them are directly or
indirectly controlled by a third person; or (c) together they directly or
indirectly control a third person, provided that there are grounds for
believing or suspecting that the effect of the relationship is such as to
cause the producer concerned to behave differently from non-related
producers. For the purpose of this paragraph, one shall be deemed to
control another when the former is legally or operationally in a position
to exercise restraint or direction over the latter.
[12] As used in this Agreement "levy" shall mean the definitive or final legal assessment or collection of a duty or tax.
[13] In the case of fragmented industries involving an exceptionally large number of producers, authorities may determine support and opposition by using statistically valid sampling techniques.
[14] Members are aware that in the territory of certain Members employees of domestic producers of the like product or representatives of those employees may make or support an application for an investigation under paragraph 1.
[15] As a general rule, the time-limit for exporters shall be counted from the date of receipt of the questionnaire, which for this purpose shall be
deemed to have been received one week from the date on which it was sent to the respondent or transmitted to the appropriate diplomatic
representative of the exporting Member or, in the case of a separate customs territory Member of the WTO, an official representative of the
exporting territory.
[16] It being understood that, where the number of exporters involved is particularly high, the full text of the written application should instead
be provided only to the authorities of the exporting Member or to the relevant trade association.
[17] Members are aware that in the territory of certain Members disclosure pursuant to a narrowly-drawn protective order may be required.
[18] Members agree that requests for confidentiality should not be arbitrarily rejected.
[19] The word "may" shall not be interpreted to allow the simultaneous continuation of proceedings with the implementation of price undertakings except as provided in paragraph 4.
[20] It is understood that the observance of the time-limits mentioned in this subparagraph and in subparagraph 3.2 may not be possible where the product in question is subject to judicial review proceedings.
[21] A determination of final liability for payment of anti-dumping duties, as provided for in paragraph 3 of Article 9, does not by itself
constitute a review within the meaning of this Article.
[22] When the amount of the anti-dumping duty is assessed on a retrospective basis, a finding in the most recent assessment proceeding
under subparagraph 3.1 of Article 9 that no duty is to be levied shall not by itself require the authorities to terminate the definitive duty.
[23] Where authorities provide information and explanations under the provisions of this Article in a separate report, they shall ensure that
such report is readily available to the public.
[24] This is not intended to preclude action under other relevant provisions of GATT 1994, as appropriate.
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