home
***
CD-ROM
|
disk
|
FTP
|
other
***
search
/
Shareware Overload Trio 2
/
Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO
/
dir33
/
gatt.zip
/
GATT2_8.TXT
< prev
next >
Wrap
Text File
|
1994-01-11
|
82KB
|
1,469 lines
AGREEMENT ON IMPLEMENTATION OF
ARTICLE VI OF GATT 1994
PART I
Article 1
Principles
An anti-dumping measure shall be applied only under the circumstances
provided for in Article VI of the 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
the 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 any other costs and for profits.
2.2.1Sales 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 selling, general
and administrative 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
costs at the time of sale are above weighted average 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 of this Article, 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]
2.2.2For the purpose of paragraph 2 of this Article, the amounts for
administrative selling and any other 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 of Article 2, 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
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.
2.4.1When the price comparison under this paragraph 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 during the period of
investigation.
2.4.2Subject to the provisions governing fair comparison in paragraph
4 of this Article, 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 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 country of importation from an
intermediate country, the price at which the products are sold from the
country of export to the country of importation 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 trans-shipped 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 the GATT 1994.
Article 3
Determination of Injury[9]
3.1 A determination of injury for purposes of Article VI of the 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 country. 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
country, 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 effects of such imports only if they
determine that (1) 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 that the volume of imports from each country is not
negligible and (2) a cumulative assessment of the effects of the imports is
appropriate in light of the conditions of competition between 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 of this Article,
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 importations;
(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 country'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 country 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 (1) 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 of this Agreement, and
adequate assurances in this regard have not been promptly given, and (2)
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 the 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 above.
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 of Article 5, 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 the 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) 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 importing country;
(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 country
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 country unless countries which
individually account for less than 3 per cent of the imports of the like
product in the importing country collectively account for more than 7 per
cent of imports of the like product in the importing country.
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 after their initiation, and in no case more than 18 months.
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.
6.1.1Exporters or foreign producers receiving questionnaires used in
an anti-dumping investigation shall be given at least thirty days
for reply.[15] Due consideration should be given to any request
for an extension of the thirty day period and, upon cause shown,
such an extension should be granted whenever practicable.
6.1.2Subject 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.
6.1.3As 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 country and 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 below.
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 insofar as it is subsequently reproduced in
writing and made available to other interested parties, as provided for in
sub-paragraph 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 he 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]
6.5.1The 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.
6.5.2If 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 other countries as required,
provided they obtain the agreement of the firms concerned and provided they
notify the representatives of the government of the country in question and
unless the latter object to the investigation. The procedures described in
Annex I shall apply to verifications carried out in exporting countries.
The authorities shall, subject to the requirement to protect confidential
information, make the results of any verifications available or 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.
6.10.1Any 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.
6.10.2In 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 country; and
(iii)a producer of the like product in the importing country or a
trade and business association a majority of the members of which
produce the like product in the importing country.
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 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 country 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 the undertakings are 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 country, but no exporter shall be forced to enter into such an
undertaking. 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 country may require any exporter from whom
undertakings have been accepted to provide periodically information relevant
to the fulfilment of such undertakings, and to permit verification of
pertinent data. In case of violation of undertakings, the authorities of
the importing country 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 goods
entered for consumption not more than ninety 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 country or customs territory. It is desirable
that the imposition be permissive in all countries or customs territories
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.
9.3.1When 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 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.
9.3.2When 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.
9.3.3In 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 of 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:
(a) the weighted average margin of dumping established with respect
to the selected exporters or producers or,
(b) 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
sub-paragraph 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 country. 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 above, 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 twelve
months of the date of initiation of the review.
11.5 The provisions of this Article shall mutatis mutandis apply 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.
12.1.1A 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 revocation of a determination. 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.
12.2.1A 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.
12.2.2A 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. The notice or report shall in particular contain
the information described .in sub-paragraph 2.1 of Article 12, 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 sub-paragraph 10.2 of Article
6.
12.2.3A 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 of this Agreement. 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 The authorities of the importing country in considering such an
application 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 export 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 shall be established under this Agreement a Committee on
Anti-Dumping Practices (hereinafter referred to 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 MTO 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 report will be available in the MTO
Secretariat for inspection by government representatives. The Members shall
also submit, on a semi-annual basis, reports of any anti-dumping actions
taken within the preceding six months.
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 Understanding on Rules and
Procedures Governing the Settlement of Disputes 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 of Article 17 have failed to achieve a
mutually agreed solution and 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 considers the measure was taken contrary
to the provisions of paragraph 1 of Article 7 of this Agreement, 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:
(a) 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
(b) the facts made available in conformity with appropriate domestic
procedures to the authorities of the importing Member.
17.6 In examining the matter 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 the GATT 1994, as
interpreted by this Agreement.[26]
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 sub-paragraphs 1 and 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 Agreement Establishing the MTO.
18.3.1With respect to the calculation of margins of dumping in refund
procedures under Article 9.3, 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 Agreement
Establishing the MTO, except in cases in which the domestic
legislation of a Member in force at that date already included a
clause of the type provided for in that paragraph.
18.4 (a) Each government accepting or acceding to the MTO shall take all
necessary steps, of a general or particular character, to ensure,
not later than the date of entry into force of the Agreement
Establishing the MTO 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.
(b) 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.
18.5 The Committee shall review annually the implementation and operation
of this Agreement taking into account the objectives thereof. The Committee
shall annually inform the Council for Trade in Goods of developments during
the period covered by such reviews.
18.6 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
country 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 country 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 country 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 country 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 the
authorities of the importing country notify the representatives of the
government of the country in question and unless 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 country 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 f
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 countries 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 way 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 request 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
company to use for its response a computer system other than that used
by the firm. 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
and which is supplied in a timely fashion, and, where applicable,
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, this 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 thereof and 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 rejection of such evidence or
information should be given in any published findings.
7. If the authorities have to base their determinations, including those
with respect to normal value, on information from a secondary source,
including the information supplied in the request 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 co-operate 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 co-operate.
1. The term "initiated" as used hereinafter 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 country, 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 cost 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 unit cost 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 importations 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 day on which it was sent to
the respondent or transmitted to the appropriate diplomatic representative
of the exporting country or in the case of a separate customs territory
Member of the MTO, 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 country 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 sub-paragraph and in sub-paragraph 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
sub-paragraph 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.
26. This is not intended to preclude action under other relevant provisions
of the GATT 1994, as appropriate.