WORLD TRADE
ORGANIZATIONTN/RL/W/86
30 April 2003
(03-2308)
Negotiating Group on Rules Original:  English
GENERAL CONTRIBUTION TO THE DISCUSSION
OF THE NEGOTIATING GROUP ON RULES
ON THE ANTI-DUMPING AGREEMENT
Submission from Australia
The following communication, dated 30 April 2003, has been received from the Permanent
Mission of Australia.
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Introduction
Australia submits this paper as a general contribution to discussion of trade remedy issues for
consideration by the Negotiating Group on Rules which are within the mandate agreed by Ministers at
the Doha Ministerial.  Australia notes that there are already a number of proposals before the Group,
some of which are broadly conceptual and others which propose specific amendments to the
Agreements.
Australia considers that it is important to recall that the mandate for negotiations is to clarify
and improve disciplines under the ADA and SCM Agreements while preserving the basic concepts,principles and effectiveness of these Agreements.
Anti-Dumping
There is a need to distinguish between dumping and the application of anti-dumping measures
and also between the so-called misuse or abus e of anti-dumping measures and a WTO Member’s
legitimate recourse to legal trade remedies.
Equally, however, Australia considers that anti-dumping measures should not be used as
disguised barriers to trade.  The trade-chilling effect of an application by a domestic industry shouldnot be underestimated.
The process leading to the imposition of anti-dumping measures is necessarily in response to
allegations by domestic industry of injurious dumping.  Once an application is received, investigating
authorities are obliged to consider whether there is a prima facie basis for initiation of aninvestigation.  The claim that an increase in anti-d umping activity connotes an increase in disguised
protectionism needs to recognize that domestic indust ries apply to their governments or investigating
authorities for such action.
There is always the need for a balance between the requirements for initiation standards and
the subsequent investigation with the trade restrictive effects of these actions.TN/RL/W/86
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While the WTO Anti-Dumping Agreement provides rules and disciplines relating to the
application of anti-dumping measures, there remain a number of areas where further clarification and
improvement could be made to improve predictability, transparency and due process which are vital
in a rules-based trading system.  At the same time,  there is a need to recognize that there may be
varying practices which are not necessarily inconsistent with the ADA.
Australia also sees merit in considering the codification of some case law on anti-dumping
matters.  Recommendations adopted by the Working Group on Implementation may also be a useful
starting-point.
Work within the Working Group on Implementa tion has indicated a range of issues which
reflects these varying practices yet it has been possible for consensus to be reached on providingguidance on convergence of these practices.  In some areas, it may be preferable to maintain the
discretion provided to investigating authorities by the ADA.
Cumulative assessment of injury
Australia considers that the possibility of developing criteria, being discussed within the
Working Group on Implementation, would assist in defining conditions of competition.  Australia also
considers that a flexible approach should be applied when taking into account the factors for assessing
the conditions of competition.  For example, the conditions of competition need to be considered over
the whole of the investigation period and not just a particular point in time.
Facts available
Australia’s preliminary comments were sent out in TN/RL/W/22 in response to a paper
submitted by a group of countries in document TN/RL/W/6.  Australia acknowledged the merit inexamining criteria that could be used to determine whether or not to grant an extension of time for
information and before facts available can be used.  Australia also drew attention to the Appellate
Body’s findings in the US – Hot-Rolled Steel case and the criteria outlined in that case in determining
whether or not to grant an extension.  Australia also noted that the Working Group on
Implementation’s recommendation could form the basis of criteria in the ADA.  The ADA is silent on
the degree of cooperation required; an exporter is required to act to the best of its abilities; there is an
obligation under ADA Article 6.13 for investigating authorities to assist a company supplying theinformation requested.
Sales in the Ordinary Course of Trade
Australia outlined its views briefly in document TN/RL/W/22.  Australia considers that it is
unfair to disregard sales below costs in determin ing normal value when the prices of these sales
provide for the recovery of all costs in the period of dumping investigation.
Lesser Duty Rule
Australia considers that a key issue is whether the lesser duty rule should be a mandatory
consideration or should be mandatory in application.  Australian legislation states that the decision-
maker must have regard to the desirability of applying the lesser duty rule.  A further issue whether
there should be some distinction in the application or consideration of the lesser duty rule depending
on the country of export.  If that were the case, would this create a two-tier system of anti-dumping
measures?  Are there situations where the lesser duty rule would be inappropriate?  For example,
where systematic and persistent dumping in a particular product has disrupted world markets?TN/RL/W/86
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Like Goods
Australia considers that there is merit in considering the provisions of ADA Article 2.6, in
particular whether separate criteria could be considered to give guidance on like product for the
purposes of determining a dumping margin, determining injury and defining domestic industry.  Thisis the subject of a separate paper.
Duty Absorption
“Duty absorption” arises where there appears to have been no or insufficient increase in the
export price in response to the imposition of measures.  Such non-movement or insufficient
movement of selling prices of dumped goods generally results from a decision of exporters to absorbthe cost of the duty.
Australia considers that there would be merit in discussions aimed at clarification of the issue
of duty absorption.
Other issues
Further areas which Australia considers merit examination by the Rules Group are:
• reviews;
• definition of domestic industry;
• standing;
• initiation standards;
• determination of normal value (affiliated parties);
• constructed export price;
• “all others” rate;
• authorities’ discretion on the use of cost data;
• treatment of confidential and non-confidential information;
• transparency in investigatory procedures.
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