WORLD TRADE
ORGANIZATIONG/ADP/11
18 December 2002
(02-6974)
Committee on Anti-Dumping Practices
CHAIRMAN'S REPORT ON THE COMMITTEE'S VIEWS AND RECOMMENDATIONS
PURSUANT TO THE MANDATE TO THE COMMITTEE AND ITS WORKING
GROUP ON IMPLEMENTATION IN THE DECISION ON IMPLEMENTATION-
RELATED ISSUES AND CONCERNS ADOPTED ON 14 NOVEMBER 2001
AT THE DOHA MINISTERIAL CONFERENCE
Mr. Chairman, I am presenting this report to the General Council, on my own responsibility
and without prejudice to the position of any Member, as Chairman of the Committee on Anti-
Dumping Practices ("ADP Committee").  This report is submitted pursuant to paragraph 7.4 of the
Decision on Implementation-Related Issues and Co ncerns adopted on 14 November 2001 at the Doha
Ministerial Conference ("Ministerial Decision"), where Ministers agreed "The Committee on Anti-Dumping Practices is instructed to draw up guidelines for the improvement of annual reviews and to
report its views and recommendations to the General Council for subsequent decision within
12 months".
I am also taking this opportunity, on my own responsibility and without prejudice to the
position of any Member, to report on the activities of the Committee and its Working Group on
Implementation pursuant to paragraphs 7.2 and 7.3 of the Ministerial Decision.  Although neither of
those paragraphs contains a specific obligation with respect to reporting, I consider it appropriate to
take advantage of this opportunity to report to Members on all of the Committee's, and the Working
Group's, efforts pursuant to the Ministerial Decision.
Paragraph 7.2 provides that Ministers recognize "that Article 15 of the Agreement on the
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 is a mandatory
provision, the modalities for its application would benefit from clarification.  Accordingly, the
Committee on Anti-Dumping Practices is instructed, through its working group on Implementation, to
examine this issue and to draw up appropriate recommendations within twelve months on how to
operationalize this provision".  Paragraph 7.3 provides that Ministers take note "Article 5.8 of theAgreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
does not specify the time-frame to be used in determining the volume of dumped imports, and that
this lack of specificity creates uncertainties in the implementation of the provision. The Committee on
Anti-Dumping Practices is instructed, through its working group on Implementation, to study this
issue and draw up recommendations within 12 months, with a view to ensuring the maximum possiblepredictability and objectivity in the application of time frames".
Since establishing a framework for discussing the issues referred to the Committee and its
Working Group on Implementation at a special meeting in December 2001, the Committee and
Working Group have been engaged in discussing proposals on each of the three topics underdisucssion.  The Committee and Working Group have held a series of informal meetings, and I have
also conducted informal consultations on numerous occasions.  Members have submitted documents
containing proposals, explanations, questions and answers, and draft recommendations, and have
engaged actively in discussions.  This process has led to a clarification and distillation of the issues.
A technical summary, giving an overview of the main points in Members' proposals, questions and
responses, and discussions, is attached to this report.G/ADP/11
Page 2
The discussions revealed that many Members recognize the importance of the issues raised.
During the course of the discussions, delegations expressed their understanding, and, in some cases,
support, in respect of some of the proposals or elements thereof.  In addition, my perception is that
many delegations, regardless of their views on the substance of the proposals made, found the
discussions useful in furthering their understanding of the proposals and the technical issues involved,and of other Members' views concerning the proposals.  This is confirmed by the high degree of
constructive spirit with which Members engaged in the detailed discussions on these highly technical
and complex issues.
As a result of the cooperative spirit shown by Members throughout the discussions, I am
pleased to report that the Committee has adopted two recommendations with respect to
implementation issues referred to it by Ministers.
First, with respect to the mandate in paragraph 7.4 of the Ministerial Decision, the Committee
adopted, on 27 November, a recommendation regarding annual reviews of the Anti-Dumping
Agreement, which has been circulated to Members in document G/ADP/9.  In order to provide useful
information to Members and the public, and to enhance transparency, the Committee hasrecommended that additional information, concerning the number of anti-dumping revocations
reported by Members, be included in the annual report, that the annual report include a comparison of
the number of preliminary and final actions reported by Members on an ad hoc basis and in their
semi-annual reports, and that developed country Members should include in their semi-annual reports
the manner in which the obligations of Article 15 of the Agreement have been fulfilled, whichinformation will be compiled and included in a table in the Committee's annual report, including
noting where Members have not provided such information.  I believe that this additional information
to be included in the Committee's annual reports will indeed improve those reports and promote
transparency.  I understand the Chairman intends to put this recommendation before Members for a
decision by the General Council, and I strongly endorse its adoption.
Second, with respect to the mandate in paragraph 7.3 of the Ministerial Decision, the
Committee adopted, on 27 November, a recommendation concerning the time-period to be considered
in making a determination of negligible import volumes for purposes of Article 5.8 of the Agreement,
which has been circulated to Members in document G/ADP/10.  In order to provide guidance in this
regard, the Committee has recommended that Members determine the volume of dumped imports
with reference to one of three defined time periods, notify the Committee as to the chosenmethodology to be used in all investigations, and if in any investigation the chosen methodology is
not used, provide an explanation in the public notice or separate public report of that investigation.  I
believe that this recommendation, implemented by Members, will ensure predictability and objectivity
in the application of time frames in anti-dumping investigations to determine negligible import
volumes for purposes of Article 5.8.
This said, however, my sense is that there continue to exist substantially divergent views on
the third implementation issue referred to the Committee and its Working Group, the matter of
operationalizing Article 15 of the Agreement.  Despite the many discussions, and the intensive efforts
of a number of Members in consultations, I am unable to identify any significant basis for consensuson a recommendation by the Committee responsive to the mandate under which the discussions have
been conducted.  While the discussions have revealed areas of common ground among Members with
respect to the proposals made, this has not proved adequate to attract support for a consensus on a
recommendation on these areas.  Certain delegations have expressed the view that the areas as to
which there is some degree of common understanding are insufficient as a substantive matter towarrant a recommendation.  Other delegations expressed disappointment in this regard, as they had
hoped that the Committee might be in a position to formulate some sort of recommendations on some
or all of the issues.  It is clear, however, that the issues raised in the proposals, as developed andG/ADP/11
Page 3
clarified through the discussions, may yet form the basis for further discussion, should any Member
submit proposals concerning them for discussion in an appropriate forum.
In light of all this, I consider that, in the context of the mandate of Ministers to the Committee
and its Working Group, the discussions of these issues have been taken as far as possible.  I realizethat what the Committee has succeeding in accomplishing may be less than was originally expected
by some Members.  However, to conclude on a positive note, I am pleased with the two
recommendations that were adopted, and confident that they will improve the quality of the
Committee's annual reports and the predictability and transparency of anti-dumping investigations.
Moreover, I am convinced that the exchange of idea s has, in itself, been valuable, and the quality of
the discussion and the information exchanged among Members supports my belief that we have
usefully spent this time.
I would like to take this opportunity to thank the Members of the Committee for their active
and cooperative engagement in this process, with each other and with me as Chairman.  I also would
like to thank the previous Vice Chairperson of the Committee for her work on these issues, as well as
the Secretariat for its support given to me in this process.
Finally, as the Committee has completed its work under the existing mandate, I would like to
express the hope that Members will find useful the information in the technical report of the
Committee's discussions on the matters referred to it and to its Working Group on Implementation by
Ministers.
_________________
Cristian Espinosa Cañizares
Chairman
Committee on Anti-Dumping Practices
12 December 2002G/ADP/11
Page 4
Technical Summary
I. PROCEDURAL MATTERS
1. This report is submitted pursuant to paragraph 7.4 of the Decision on Implementation-Related
Issues and Concerns adopted on 14 November 2001 at the Doha Ministerial Conference ("MinisterialDecision"), where Ministers agreed
"The Committee on Anti-Dumping Practices is instructed to draw up guidelines for
the improvement of annual reviews and to  report its views and recommendations to
the General Council for subsequent decision within 12 months".
2. This report also addresses the activities of the Committee and its Working Group on
Implementation pursuant to paragraphs 7.2 and 7.3 of the Ministerial Decision.  Neither of those
paragraphs contains a specific obligation with respect to reporting.  This report serves as anopportunity to inform Members on all of the Committee's, and its Working Group's, efforts pursuant
to the Ministerial Decision.
3. Paragraph 7.2 of the Ministerial Decision provides that Ministers recognize
"that Article 15 of the Agreement on the Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 is a mandatory provision, the modalities for itsapplication would benefit from clarification.  Accordingly, the Committee on Anti-
Dumping Practices is instructed, through its working group on Implementation, to
examine this issue and to draw up appropriate recommendations within twelve
months on how to operationalize this provision".
Paragraph 7.3 of the Ministerial decision provides that Ministers take note that
"Article 5.8 of the Agreement on the Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 does not specify the time-frame to be used in
determining the volume of dumped imports, and that this lack of specificity creates
uncertainties in the implementation of the provision. The Committee on Anti-Dumping Practices is instructed, through its working group on Implementation, to
study this issue and draw up recommendations within 12 months, with a view to
ensuring the maximum possible predictability and objectivity in the application of
time frames".
4. At a special meeting on 7 December 2001, the Committee agreed that the issues referred to
the Committee and its Working Group should be examined on the basis of written submissions by
Members.
1  These papers should address the technical aspects of the issues, describe Members’
experiences of and/or concerns over the question at issue and suggest possible resolutions.  The
Committee also agreed that it and the Working Group would conduct the substantive discussions in
informal meetings, with formal meetings to be convened as necessary.  Written submissions, and
questions and answers regarding submissions, were to be submitted before the meetings.
5. Members recalled that at its last regular meeting, the Working Group had requested that the
Secretariat prepare a draft recommendation on the time-period to be considered in determining
whether imports are negligible under Article 5.8 for consideration at the next regular meeting of the
                                                     
1 See document G/ADP/M/20.G/ADP/11
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Working Group.  In light of the referral of this issue to the Group by the Ministers, Members agreed
that the Secretariat should prepare such a draft recommendation and circulate it by 25 January 2002.2
6. The first informal meetings of both the Committee and its Working Group were held on
25 March 2002, with subsequent informal meetings on 23-25 April, 18 June, 20 September, 21-
25 October, and 27 November, which meetings continued on 9 and 11-12 December.  In addition,following the informal meetings in June and October, certain Members engaged in informal
consultations on the issues in question.  Intensive consultations among certain Members continued
throughout November and until the informal meetings held on 12 December.  Open-ended informal
consultations were also held in November 2002.  Special formal meetings of the Committee and the
Working Group on Implementation were held on 27 November 2002, which meetings were resumed
on 12 December 2002.
3
7. In the following sections, the main points rais ed in the discussions are summarized.  To fully
appreciate the extent and nature of the issues discussed, this paper must be read in conjunction with
the papers exchanged by Members and the records of the Committee's and Working Group's meetings
on these issues.
II. SUMMARY OF MAIN POINTS IN PROPOSALS, QUESTIONS AND ANSWERS,
AND THE COMMITTEE'S AND ITS WORKING GROUP'S DISCUSSIONS
A. GUIDELINES FOR THE IMPROVEMENT OF THE ANNUAL REVIEWS UNDER ARTICLE 18.6 OF THE
AGREEMENT (WT/MIN(01)/17, PARA . 7.4)
8. Canada submitted a paper in relation to this  topic, G/ADP/AHG/W/13 0, in which it proposed
that the Committee discuss the objectives of regular reports and reviews, and determine the
appropriate statistics to meet those objectives, and then ask the Secretariat to compile the relevantstatistics and make a report to the Committee. Canada proposed that, once reviewed and adopted by
the Committee, these statistics would be released, with whatever clarifications were agreed
appropriate by the Committee, following the regular semi-annual meetings of the Committee, with
perhaps more detail in the fall release, which information would be included with the Committee’s
annual report to the Council on Trade in Goods.  Canada proposed a series of statistics which mightbe included in such reports, which Canada considered would give a comprehensive indication of anti-
dumping activity in the most recent reporting period, with information to allow the reader to put the
statistics in the proper context.  Canada's proposal provided the Committee with the opportunity to
make any notations that it feels appropriate, anomalous situations can be identified and proper
explanations included.  Canada also suggested that  the interest of transparency would be further
advanced by making a database containing the information gathered through Members’ semi-annual
reports of anti-dumping activity available through the WTO website.
9. Indonesia submitted a paper, G/ADP/W/422, in which it stated its support for the need for the
Committee on Anti-Dumping Practices to improve annual reviews, and also requested that the
Committee be more active in responding to concerns of Members that may arise at the regular
meetings held during the course of the year.  In this respect, Indonesia noted that it had tabled
concerns that remained unanswered, and stated that as dispute settlement is protracted, and representsa draw on financial and human resources, it was important for the Committee to play a more active
role in responding to the concerns of Members.
                                                     
2 Subsequently circulated as document G/ADP/AHG/W/124, dated 18 January 2002.
3 The minutes of the Committee's special formal meeting will circulate as document G/ADP/M/23, and
reports of the special formal meeting of the Work ing Group will circulate as document G/ADP/AHG/R/13.G/ADP/11
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10. The European Communities posed questions to both Canada and Indonesia concerning these
proposals in document G/ADP/W/423.  The EC que stioned Canada concerning what types of
"notations" it was envisioned the Committee might make, and whether the proposed database would
contain only semi-annual reports, or also individual decisions.  Canada responded, in document
G/ADP/W/424, that it had no specific suggestions as to notations, but was suggesting that theCommittee might provide additional explanations if it was agreed such were appropriate to clarify the
statistics.  With respect to the database, Canada stated that its proposal was limited to the data in the
semi-annual reports.
11. Concerning Indonesia's proposal, the EC asked Indonesia to expand on how the Committee
could play a more active role in responding to Members' concerns.  Indonesia indicated, in document
G/ADP/AHG/W/132, that th e Committee appeared unable to respond effectively to concerns
expressed regarding on-going anti-dumping proceedings. Indonesia proposed that the Committeeestablish a procedure whereby a Member could meet with the Investigating Authority concerned with
an official of the WTO Secretariat present as third party to discuss a particular proceeding, and that
the WTO Secretariat would express in writing or orally an opinion on the case.  Indonesia indicated
that this opinion would be non-binding, and that it could serve the purpose of clarification and could
be constructively used, if the Member so wishes, in the on-going proceeding concerned.  Indonesiaconsidered that such a mechanism would at least provide an outlet at the WTO level to discuss on-
going proceedings.
12. In discussions on these proposals and questions and answers at the March meeting, a number
of Members expressed support for Canada's proposal in a general sense, that is, to add additional
statistics to the Committee's reporting process, but questions were raised concerning what kind ofinformation was already available, and what information might usefully be added.  The Secretariat
was asked to prepare a background note addressing what statistical information was currently
available, and the technical and practical issues arising under Canada's proposal.
13. The Secretariat's note, document G/ADP/W/425, was submitted for the April meeting.  It
explained that the Rules Division of the Secretariat maintains databases of the information providedby Members in their semi-annual reports of anti-dumping and countervailing activities, from which
information on the various categories of information provided in semi-annual reports can
automatically be compiled, and tables generated, sorting the information by dates, by individual
Members, and by various other criteria.  In addition, annual information on initiations of
investigations and measures imposed is available on  the WTO web-site.  The Secretariat informed the
Committee that statistics on anti-dumping activity concerning initiations, provisional and final
measures and price undertakings, and measures in force are set out in the Annual Report of the WTO,and the Annual Report of the Committee to the Council for Trade in Goods.  In addition, in
November 2001, the Secretariat instituted a practice of issuing semi-annual press releases containing
information on anti-dumping activity as reported by Members in their most recent semi-annual
reports, together with statistical tables.  Regarding the statistics specifically identified in the Canadian
proposal as possibly appropriate to be reported by the Committee, the Secretariat noted that certain ofthat information was already made available, as noted above. For reasons having principally to do
with the information submitted in semi-annual repor ts, certain information could not be entered into
the Rules Division database so as to automatically generate a reliable report of measures terminated
during a given period, and that certain other information was not requested to be provided in the semi-
annual reports.  Finally, the Secretariat's note indicated that the costs involved in making the anti-dumping database publicly accessible through the WTO web-site could not be met under the current
operating budget of the Secretariat.
14. With respect to Indonesia's proposal, a number of Members, including Canada, expressed
concern that the proposal went beyond the Ministerial mandate, and would put the Secretariat in a
difficult position of judging matters without all relevant information. Moreover, Indonesia's proposalG/ADP/11
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did not appear to involve the Committee so much as the Secretariat, and a number of Members
questioned whether the role envisaged for the Secretariat would be appropriate in any event.  In
particular, some Members questioned the notion of requesting even non-binding opinions from the
Secretariat on matters which might ultimately become the subject of dispute settlement.
15. In response to Canada, Indonesia, in document G/ADP/W/136, stated that, as a developing
country with relatively scant financial and human resources, Indonesia sought to optimize the value of
its representatives' attendance in Geneva at the meetings of the Committee on Anti-Dumping
Practices.  The proposal to extend the activities of the Committee was made with this purpose in
mind, and Indonesia believed that it would benefit all Members, and would enhance the role of the
Committee itself.
16. There was no further discussion of either the Canadian or Indonesian proposals after the
informal meeting held in April 2002.  However, at the meeting in September 2002, Membersconsidered it premature to consider a possible report on the Committee's discussions.  At the informal
meeting in October, the United States submitted a proposal, document G/ADP/W/427,
4 for providing
useful information to Members and the public and enhancing transparency under the Agreement on
the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (hereinafter
referred to as "the Agreement").  The US proposed that the Committee’s annual report underArticle 18.6 should include a listing of the number of anti-dumping revocations reported by each
Member during the reporting period, and that where a Member has not provided such information, the
report should note this omission.  The US proposal noted that Members were already requested to
report the number of revocations in an annex to their semi-annual reports of anti-dumping activity.
The United States also proposed that the Committee’s annual report should also include a chartcomparing for each Member the number of preliminary and final measures reported in its semi-annual
reports with the number of notices of preliminary and final measures the Member submitted to the
Secretariat for the comparable period.  Third, the United States proposed that Members should report
for each anti-dumping investigation whether or not a public hearing was held at which both interested
parties supporting the application, and interested parties opposing the application, had an opportunityto present their views, or whether all interested parties waived a right to a public hearing.  The
United States proposed that the Committee’s annual report should indicate for each Member the
number of investigations in which public hearings were held at which both interested parties
supporting the application, and interested parties opposing the application, had an opportunity to
present their views.
17. Several Members expressed general support for the US proposal.  However, some Members
raised questions with respect to the third aspect of the US proposal, concerning reporting of whetherhearings were held at which both interested parties supporting the application, and interested parties
opposing the application, had an opportunity to present their views.  These Members indicated that
such hearings were rarely, if ever, held under their domestic procedures for anti-dumping
investigations, and that to report that fact migh t be misleading.  It was also suggested that an
additional element that might be included in any draft recommendation would be for developed
countries to report the manner in which they complied with Article 15 of the Agreement in each
investigation.    India subsequently made a written proposal in this regard in informal consultations.
This latter suggestion resulted in questions concerning how such information, which several Members
categorized as not susceptible of summarization or quantification, could be reported.  Other Members
suggested in this regard that a narrative description might suffice, or that Members might agree on aseries of codes to address the question.   Members continued to discuss the draft recommendation put
forward by the United States, together with the su ggestion for additional information to be reported,
during consultations.  The Chairman put forward a draft text on 19 November for Members'
consideration, and a second draft text for consideration at the special meeting on 27 November.  After
                                                     
4 Subsequently re-circulated in the form of a draft recommendation, document G/ADP/W/429.G/ADP/11
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additional discussion of the draft texts, both in consultations and at the special meeting on
27 November, a recommendation was adopted, subseque ntly circulated as document G/ADP/9.  At
the time of adoption, the Chairman noted that Bulgaria held the view that obligations deriving from
Article 15 in this recommendation were not applicable to Bulgaria.  The Chairman also noted that this
was only Bulgaria's view, and did not prejudge in any way the rights and obligations of Members.
Bulgaria confirmed that this was the case.
B. RECOMMENDATION CONCERNING THE TIME -FRAME TO BE USED IN DETERMINING A
NEGLIGIBLE VOLUME OF IMPORTS UNDER ARTICLE 5.8 OF THE AGREEMENT
(WT/MIN(01)/17, PARA . 7.3)
18. Canada made a proposal in this regard in document G/ADP/AHG/W/125, recommending that
the time frame to be used in determining the volume  of imports in connection with an investigating
authority’s assessment of whether the volume of dumped imports is negligible for the purposes ofArticle 5.8 of the Agreement should be the same as the time period of data collection for the dumping
investigation, which should normally be twelve months, and in any case no less than six months,
ending as close to the date of the initiation of the investigation as is practicable.
19. Indonesia, in a proposal set out in document G/ADP/AHG/W/126, stated that the rule of
Article 5.8 should apply once the proceeding has been initiated.  Indonesia proposed that theinvestigation period should be the general benchmark for applying this rule, and that it should be
applied as soon as import volumes can be reliably established.  As the investigation period is known
before a proceeding is initiated, if the import figures are available (without the need for further
verification) to assess de minimis  requirements, Indonesia proposed that the requirements of
Article 5.8 should be exercised before the initiation.  Canada, in document G/ADP/AHG/W/130,asked Indonesia to clarify whether its proposal referred to the dumping investigation period or the
injury investigation period.  Indonesia, in do cument G/ADP/AHG/W/132, stated its view that, in
establishing a causal link between dumping and injury, the relevant period is the dumping
investigation period, and clarified that it considered that the dumping investigation period should be
used to establish whether imports are negligible or not.
20. Brazil, in a proposal set out in document G/ADP/AHG/W/127, stated the view that if the
volume of imports from a country is negligible, those imports cannot be cumulated with imports from
other origins, and the investigation shall be immedi ately terminated as regards the products from that
origin.  Brazil proposed that the share of imports of each country under investigation should be
calculated based on the period of investigation for the existence of dumping.
21. In light of discussions on this topic that had taken place in regular meetings of the Working
Group on Implementation, and at the request of Members, the Secretariat prepared a draftrecommendation on the time-period to be considered in determining whether imports are negligible
under Article 5.8.  That text, document G/ADP/AHG/W/124, set forth a draft recommendation that,
with respect to original investigations to determine the existence of dumping and consequent injury,
whether the volume of actual dumped imports from a particular country is negligible, shall normally
be determined with reference to the volume of imports from that country during the most recent
12 consecutive months prior to initiation for which data are available.
22. Discussions at the meetings of March, April, June, and September 2002, focussed principally
on the draft text prepared by the Secretariat, which was revised several times during this period on the
basis of the comments and suggestions of Members, as reflected in documents
G/ADP/AHG/W/124/Rev.1- G/ADP/AHG/W/124/Rev.4.  Different options for the appropriate periodwere suggested and incorporated in the draft, on the basis of some Members' expressed view that the
recommendation should not suggest that existing national practice in this regard was not appropriate.
Members also disagreed on whether the text of the draft should state that Members "should" or "shall"G/ADP/11
Page 9
act in a particular fashion.  A number of Members expressed concern at the meeting in September,
and again in October, that the draft recommendation appeared to reflect increasingly divergent views,
in light of the multiple options and possibilities reflec ted in the draft texts, and thus failed to provide
for transparency and predictability in Members' practice.
23. In document G/ADP/AHG/W/140 & Corr.1, Thailand commented with respect to the draft
text that, even if negligibility were found to exist during an appropriate period, an investigating
authority might refuse to take such fact into acc ount on the basis that there is "potential" that the
import volume will exceed the negligible threshol d in the near future.  Consequently, Thailand
proposed, that the draft be amended to read "actual or imminent" instead of "actual or potential".  As
had several other Members, Thailand also expressed the view that the it was more appropriate to use
the word "shall" rather than "should" to ensure clarity and transparency, according to the preamble of
the draft.
24. Turkey, in document G/ADP/AHG/ W/141, commented with respect to the three possibilities
for the period for determining negligible import volume s set out in the draft text.  In Turkey's view,
there were concerns with respect to each possibility.  Moreover, Turkey considered it important to
establish a definite period for making a determination of negligible import volumes, which will secure
the predictability aim of this exercise.  Therefore, Turkey proposed that a period be specified in therecommendation.  In the light of these concerns, Turkey proposed that negligible import volume be
determined with reference to the volume of imports from that country during the most recent
12 consecutive months prior to initiation for which data are available.  Turkey also proposed that if a
Member's domestic legislation did not allow use of this period, such Member might use the most
recent 12 consecutive months prior to the date on which the application was filed for which data areavailable, provided that the application is public, and such Members shall notify to the Committee
regarding limitations in their legislation.  In Turkey's view, defining precisely the time-period for
negligible import volumes would contribute to transparency, predictability and consistency in
implementation without taking away rights of the investigating authorities concerning the Anti-
Dumping Agreement.
25. During the meeting in October 2002, Norway submitted a draft recommendation for
consideration by the Group in document G/ADP/ AHG/W/144.  Brazil also submitted a new text for a
draft recommendation for consideration by the Group, in document G/ADP/AHG/W/145.  Each of
these draft recommendations sought to bridge the divergent positions that had developed over the
course of the discussions in the informal meetings, as reflected in the revisions of the Secretariat draft
text.  The Chairman circulated a draft text on 19 November.  After additional discussion, both in
consultations and at the special meeting on 27 November, a recommendation was adopted,subsequently circulated as document G/ADP/10.
C. 
MODALITIES FOR THE APPLICATION OF ARTICLE 15 OF THE AGREEMENT AND
RECOMMENDATIONS ON HOW TO OPERATIONALIZE IT (WT/MIN(01)/17, PARA . 7.2)
26. Indonesia, Brazil, and India initially made proposals on this topic.
27. Indonesia proposed, in document G/ADP/AHG/W/126, that Article 15 should be
operationalized by ensuring that constructive remedies are implemented on a mandatory basis for all
developing countries and that this would require modification of vague terminology in the Agreement.
Indonesia considered that the most obvious remedies were price-undertakings and the lesser duty
principle, and that these should be made mandatory.  However, as these remedies are available to all
Members, Indonesia considered that further thought should be given to other constructive remedies,linked to the essential interests of developing countries.  In this respect, Indonesia proposed that
where imports from developing countries declined in relative and absolute terms in the twelve month
period following the investigation period, no measures should be imposed against the countriesG/ADP/11
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concerned, as the initiation process itself would have, in such circumstance, already impacted on the
essential interests of the developing countries concerned.
28. The European Communities posed questions with respect to Indonesia's proposals in
document G/ADP/AHG/W/129.  Specifically, the EC noted that after initiation of an anti-dumping
investigation imports may decline for several reasons,  e.g. as a mere reaction to the initiation of an
anti-dumping investigation or because anti-dumping practices have been abandoned on a lasting basis,
and asked Indonesia to expand on whether, and if so, how these two scenarios should be
distinguished.  The EC also asked how Indonesia envisaged the practical implementation of its
proposal, since data concerning the imports for the 12 months following the investigation period will
only be available with a certain delay, and asked whether the investigating authorities should carry out
a new ex officio  investigation following the end of the investigation period in order to find out
whether imports have declined.
29. Indonesia, in document G/ ADP/AHG/W/132, responde d to the European Communities'
questions.  Indonesia stated the view that possible s cenarios for the decline in imports in absolute and
relative terms did not need to be considered, as the emphasis was on the effect of the decline on the
essential interests of the developing countries con cerned. With respect to the practical implementation
of its proposal, Indonesia responded that while the availability of information may pose a problem incertain cases, most proceedings take at least one year to arrive at a final determination and the
investigation period is normally set to two to three m onths prior to the initiation.  This should provide
sufficient time to establish whether the imports have  declined in absolute and relative terms, and the
decision whether to impose measures for developing countries could be taken at the final
determination stage.  If the delay is not suffic ient, Indonesia suggested that consideration could be
given to estimated information for a twelve month period based on six months of actual data.
Indonesia considered that import levels following the investigation period could be determined within
the time limits of the proceeding, based on updated customs import statistics and domestic
sales/production.  Where necessary, additional information, including official export statistics from
the country concerned and supplementary information obtained from interested parties could be used.While Indonesia considered that the additional information required would not place a burden on the
investigating authorities concerned in terms of a new investigation, it acknowledged that proceedings
involving subject goods entering in ‘basket classifications’ could pose a problem, which would need
to be considered.
30. Canada posed questions regarding Indone sia's proposal in document G/ADP/AHG/W/130.
Specifically, Canada asked how Indonesia envisaged making its proposal regarding mandatory lesser
duty and undertakings operational, whether both an undertaking and a lesser duty would be mandatoryin each case involving imports from developing country Members, and if so, how Indonesia envisaged
this being applied by the investigating authorities.
31. Indonesia, in document G/ADP/AHG/W/132, responded to Canada's questions by stating that
the lesser duty principle and undertaking should be mandatory where measures are to be imposed
against a developing country Member.  Indonesia suggested that investigating authorities could applythis by setting an undertaking at the level of the lesser duty calculated for those cooperating
companies that would accept a price-undertaking.  For those companies that prefer an anti-dumping
measure other than a price-undertaking, the measures concerned should be set at the lesser duty rate.
For countrywide measures, Indonesia considered that the investigating authorities should be able to
impose the measures considered the most appropriate in the light of the cooperation rendered.Indonesia also stated the view that, if the lesser duty principle were to become mandatory, it would no
longer constitute a constructive remedy for the benefits of developing countries as it would be
available to all Members.G/ADP/11
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32. The United States posed a question regarding Indonesia's proposal in document
G/ADP/AHG/W/131, inquiring to what extent Indonesia’s proposals would require a change to the
Anti-Dumping Agreement.
33. Indonesia, in document G/ADP/AHG/W/132, responded to the United States' question by
stating that its proposals would require a change to Article 15 of the Agreement to ensure that theconstructive remedies are defined and made mandatory.  Indonesia stated that it attached particular
importance to the third remedy, that no measures should be imposed where imports have declined in
relative and absolute terms in the twelve months following the investigation period. Indonesia further
proposed that anti-dumping measures should only apply for a maximum of five years for developing
countries.
34. Brazil set out its views and proposals in document G/ADP/AHG/W/127. Brazil proposed that
Article 15 be operationalized by elaborating on the idea of "constructive remedies", both in terms ofprocedures to offer the remedy and substance.  As for procedures, the obligation to explore
constructive remedies should imply that the authorities of the developed country take the initiative to
seek an alternative to the imposition of the anti-dum ping duty and to effectively get involved in the
process.  For instance, Brazil proposed that developed country authorities should suggest to the
exporters involved in the process the possibility of price undertakings, should actively involvethemselves in the process of discussing the undertaking and, if requested by the exporters, help in its
formulation.  Brazil also considered it important to define a time-frame for the authorities of the
developed country to take the initiative of suggesting the price undertaking.  Brazil proposed that the
investigating authorities shall take the initiative to explore such constructive measures before the
imposition of the preliminary duties, in view of the fact that such a measure bears a negative impacton exports of the product concerned.  Brazil proposed, as a concrete example of a "constructive
remedy" to be agreed upon by Members, the establishment of parameters for the level of the price
undertaking.  Brazil foresaw two situations:  (a) the undercutting margin is inferior to the margin of
dumping;  and (b) the margin of dumping is inferior to the undercutting.  Brazil proposed that in the
first scenario, the price undertaking should be guided by the price that is necessary to eliminate injury,whereas, in the second case, the price increase resulting from the undertaking should be that necessary
to eliminate dumping.  Brazil referred to this as a "lesser price" commitment, similar to the concept of
"lesser duty".  In the case of Members that do not use a "lesser duty" rule, Brazil suggested this as a
constructive measure to be explored by the authorities.
35. The European Communities posed questions regarding Brazil's proposal in document
G/ADP/AHG/W/129.  Specifically, the EC asked Brazil to  clarify whether, in its view, a "lesser duty"
rule which is applied on a general basis by a developed country Member would not be considered as a"constructive remedy" within the meaning of Article 15 second sentence, to explain why Brazil
referred to the undercutting margin as a basis fo r the "lesser price" commitment, and whether Brazil
considered that there are also other possibilities than undercutting to establish the non-injurious price
level for the purposes of an undertaking.
36. Brazil, in document G/ADP /AHG/W/133, in response to the European Communities'
questions, clarified that it considered the obligation for developed country Members to explore
constructive remedies relates to the principle of special and differential treatment for developing
country Members.  Brazil stated that in this sense, the application of  the “lesser duty” rule by
developed countries in all anti-dumping investigations (on imports from developed and developing
countries), although a constructive remedy, could not be considered as a procedure that materializesthe principle of special and differential treatment embedded in Article 15.  For this reason, Brazil had
suggested that, in the case of developed countries that do not use the “lesser duty” rule, the selective
application of lesser duty to developing country Members could be considered as a constructive
measure to be explored in the context of Article 15.  Brazil also clarified that the reason it referred to
the undercutting margin as a basis for the “lesser price” commitment is that, in a case where it wasG/ADP/11
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inferior to the margin of dumping, it would be enough to eliminate injury, as set forth in Article 9.1 of
the Agreement.
37. Canada posed a question regarding Brazil's proposal in document G/ADP/AHG/W/130.
Specifically, Canada asked, with respect to price undertakings, how Brazil's proposal that
investigating authorities take the initiative to explore constructive measures before the imposition ofthe preliminary duties would be reconciled with Article 8.2 of the Agreement, which specifies that
“[p]rice 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”.
38. Brazil, in document G/ADP/AHG/W/133, stated in  response to Canada's question that its
proposal was that the investigating authorities shall take the initiative to explore constructive
measures before preliminary duties are applied, but after a preliminary determination is made, inconformity with the present pertinent provision of the Agreement.
39. The United States posed questions regarding Brazil's proposal in document
G/ADP/AHG/W/131.  Specifically, the United States asked whether Brazil agreed with India’s
understanding of the relationship between the two se ntences of Article 15, namely that “the second
sentence of Article 15 read in the context of the first sentence suggests a possible way in which ‘thespecial regard’ could be given by developed country members to developing country members when
considering the application of anti-dumping measures", and whether Brazil agreed with India's
suggestion that "an examination of whether imposition of anti-dumping duties would affect the
essential interests of developing countries needs an enquiry which is specifically economic in
character”?  If so, the United States asked what measures and standards of economic impact Brazilwould propose using for this purpose.  If not, the United States asked what was Brazil's understanding
of the relevance of the phrase "where they would affect the essential interests of developing country
Members" in the second sentence of Article 15.  The United States asked Brazil to explain how the
proposal that investigating authorities take the initiative to explore price undertakings should be made
compatible with Article 8.2 of the Anti-Dumping Agreement, which states that “price undertakingsshall 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”.  The
United States also inquired as to what extent Brazil’s proposals would require a change to the Anti-
Dumping Agreement.
40. Brazil, in document G/ADP/AHG/W/133, stated in response to the United States' questions
that in its view, the first and second sentences of Article 15 establish clear obligations for developed
countries (special regard and exploration of constructive remedies).  Brazil also considered that thefulfilment of the second obligation does not necessarily imply that the first obligation has been
fulfilled.  Brazil also stated that both developed and developing country Members would greatly
benefit from further discussion on the technical feasibility and, in the appropriate forum, the political
convenience of establishing specific criteria to assess whether a particular anti-dumping duty would
affect the “essential interests“ of developing country Members.  As in response to Canada's question,Brazil clarified that its proposal was that the investigating authorities shall take the initiative to
explore constructive measures before preliminary duties are applied, but after a preliminary
determination is made, in conformity with the present pertinent provision of the Agreement.  Finally,
Brazil considered that its proposal did not require any change to the Agreement.  It simply intended to
clarify the meaning of Article 15 and suggest ways to make its provisions operational.
41. India set out its views and proposals in document G/ADP/AHG/W/128.  India proposed that,
to operationalize Article 15, special and differential treatment could be given to imports from
developing countries while considering the application of anti-dumping measures through
(a) acceptance of price undertakings offered by exporters from developing countries; (b) applicationG/ADP/11
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of the lesser duty rule; and (c) raised de minimis  margins and enhanced negligible volumes.
Elaborating on its proposal regarding acceptance of price undertakings offered by exporters from
developing countries, India proposed that during  an anti-dumping investigation, the investigating
authorities in developed countries should favourably consider accepting price undertakings offered by
exporters from developing countries, and that acceptance of price undertakings offered by exportersfrom developing countries should become the norm rather than remaining an exception.  Furthermore,
the price increases should be less than the margin of dumping if such increases would be adequate to
remove injury to the domestic industry.  India also proposed that investigating authorities in
developed countries should be required to give detailed reasons if undertakings offered by developing
country exporters are not accepted on grounds of being impractical or any other consideration.
Elaborating on its proposal regarding application of the lesser duty rule, India proposed that the lesser
duty rule should mandatorily be followed in respect of imports from developing countries.Elaborating on its proposal regarding raised de minimis  margins and enhanced negligible volumes,
India proposed that de minimis  dumping margin of 2 per cent should be raised to 5 per cent for
exports from developing countries, and the negligible volume below which anti-dumping measures on
imports from developing countries will not be made applicable should be increased from 3 per cent to
7 per cent from individual countries, without there being any requirement of cumulation.Alternatively, India proposed that imports from developing countries up to a specified percentage of
total domestic consumption of the like product in the importing developed country Member would
lead to negligible injury and no anti-dumping measures made applicable.  In this regard, India noted
that certain developed country Members have specified 1 per cent of total domestic consumption as
constituting negligible imports.  India proposed that the specific percentage of imports could bearrived at after further discussions with other Members.  India also proposed monitoring compliance
with Article 15.  In this regard, India proposed that the public notices required to be given under
Articles 12.2.1, 12.2.2 and 12.2.3 should set out in sufficient detail the manner in which the
obligations under Article 15 have been complied with.  In case undertakings were offered but were
not accepted by the investigating authority, the public notice should set forth the reasons for rejectionof the undertaking.  India further proposed that to ensure compliance with obligations under
Article 15 of the Agreement, the standard form for Members' semi-annual report should include a
column wherein Members should clearly indicate how special regard was given and what constructive
remedies were explored as required under Article 15.
42. The European Communities posed questions regarding India's proposal in document
G/ADP/AHG/W/129.  Specifically, the EC asked whether India's proposal was suggesting that the
first sentence of Article 15 imposed a separate obligation on developed country Members from theobligation in the second sentence of that Article, and if so, what this obligation would add in practical
terms to the obligation set out in the second sentence.  The EC noted India's suggestion that the
application of an anti-dumping duty against export ers from a developing country could be presumed
to adversely affect the essential interests of this developing country, and asked India to explain in
more detail whether, and if so why, it thinks that essential interests of a developing country are alwaysaffected when anti-dumping measures are imposed on imports from that developing country, and to
clarify whether such a presumption could be rebutted, and if yes, on what basis.  With respect to the
proposed enhanced negligible import volumes, th e EC asked India to expand on the term "without
there being any requirement of cumulation", and to explain why the volume of imports would have a
different impact on the injury suffered by the domestic industry depending on whether the exporter issituated in a developing or a developed country.  The EC also asked whether, in India's view, its
proposals with respect to de minimis  and negligible import volumes could be implemented without
changing the Agreement.
43. India, in document G/ADP/AHG/ W/135, responded to the European Communities' questions,
stating that in its view, the distinction between the language of the first and second sentences of
Article 15 is crucial.  India considered that the term “considering the application of anti-dumping
measures” in the first sentence must be interpreted as including the investigative process.  Any otherG/ADP/11
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interpretation would mean that the drafters of the Agreement did not take into account the special
situation of developing country Members in relation to the investigative process even though
Article 6.13 of the Agreement evidences a special concern for the problems of small companies,
including from developed country Members.  India stated that this interpretation was reinforced by the
Decision of 5 May 1980 of the (Tokyo Round) Committee on Anti-Dumping Practices, whichinterpreted the obligations of developed country Members under the first sentence of Article 13 of the
1979 Anti-Dumping Code, the language of which was identical to Article 15 of the Agreement.  India
indicated its view that the Tokyo Round Committee had interpreted Article 13 as permitting it to
modify the provisions relating to the determination of the existence of dumping under the 1979 Code.
India considered it clear that the first sentence of Article 15 imposes an obligation on developed
country Members to pay special regard to the special situation of developing countries during the
entire anti-dumping investigation beginning with the initiation of an investigation and extendingthrough the imposition of anti-dumping duties and the process of review, if any.  The second sentence
of Article 15 concretises the nature of the obligat ion imposed under the first sentence at the specific
stage of imposition of duties, imposing a positive obligation on the developed countries to explore all
constructive remedies before actually imposing anti-dumping duties.  India suggested that the first
sentence of Article 15 can be operationalized during the investigative process, proposing thatdeveloped country Members, rather than resortin g to “facts available” and rejecting the entire
questionnaire response, attempt to fill in the gaps in the questionnaire responses of developing country
exporters by asking specific questions and giving them additional time to reply; and, in all cases
where the developing country exporter has attempted to cooperate by responding to the questionnaire,
resort to facts available under Article 6.8 in a manner that is most favourable to the developingcountry exporter rather than most adverse, as suggested by paragraph 7 of Annex II to the Agreement.
44. India modified its position with respect to its expressed view that the essential interests of a
developing country are always affected when anti-dumping measures are imposed on imports from
that developing country.  India noted that the effect of anti-dumping duties imposed on a product by a
developed country Member was generally to shut out the developing country Member’s exports to animportant export market.  While there may be cases in which there could be a distinction between
“essential” as opposed to “inessential” or “non-essential” interests relating to the imposition of anti-
dumping duties by a developed country Member, in India’s view, in the majority of developing
countries their essential interests are always affected by the imposition of anti-dumping duties on any
export product.  It was in this context that India had proposed that there should be a presumption that
the imposition of anti-dumping duties on imports affects the essential interests of developing country
Members.  Since, in the case of most developing country Members, essential interests are alwaysaffected when anti-dumping measures are imposed on imports from such Members, in India’s view,
an irrebuttable presumption was fully justified especially since the result would only be to impose an
obligation on developed country Members an obligation to explain how and why there is no
possibility of a constructive remedy.
45. With respect to the term "without there being an y requirement of cumulation", India clarified
that, with respect to the two thresholds for neglig ible import volumes in Article 5.8 of the Agreement,
India’s proposal was to raise the 3 per cent threshold to 7 per cent in the case of developing country
Members and to make the second threshold inapplicable to them.  Thus, India was proposing that
once a developing country Member is shown to have less than a 7 per cent share of total imports in
the importing Member, the investigation should be te rminated in respect of that developing country
Member without applying collective thresholds of  any kind.  India explained its view that the
thresholds specified in Article 5.8 have no scientific basis and err in favour of the importing Member
that wishes to protect its domestic industry.  In India's view, that injury is not negligible cannot be
inferred automatically as soon as imports cross the thresholds specified in Article 5.8.  The rationale
behind India’s proposal for enhancing the negligible volume thresholds in the case of developingcountry Members is that special rules should apply to developing countries.G/ADP/11
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46. Finally, India explained that, in its view, it was desirable that the Agreement be formally
amended to incorporate new de minimis thresholds for imports from developing country Members
into Article 5.8.  Alternatively, under Article IX:2 of the Marrakesh Agreement Establishing the
World Trade Organization, India’s proposal may be implemented through a binding interpretation by
the Ministerial Conference and General Council of the provisions of Article 15.  In the meantime,following the example of the Decision of 5 May 1980 of the Tokyo Round Committee, developed
country Members could implement the new de minimis  thresholds on the basis of an understanding
arrived at in the Committee.
47. Canada posed questions regarding India's proposal in document G/ADP/AHG/W/130.
Specifically, Canada inquired, with respect to objective standards for determining whether the
essential interests of developing country Members were affected, what objective standards India
would propose be used to make this determinati on and which country would make the determination.
Canada also noted India's suggestion that, in the context of application of a mandatory lesser duty, a
“margin of injury” be calculated in addition to the margin of dumping, and asked how India would
propose that the “injury margin” be calculated.
48. India, in document G/ADP/AHG/W/135, in response  to Canada's questions, reiterated the
points it had made in response to the European Comm unities with respect to the view that in the case
of most developing country Members, essential interests are always affected when anti-dumping
measures are imposed on imports from such Members.  In these circumstances, in India’s view, an
irrebuttable presumption would be fully justified.  India also indicated that its proposal concerning
lesser duty was limited in nature, seeking a commi tment that investigating authorities should also
calculate an injury margin, in addition to the dumping margin, and that the lesser duty rule should bemade applicable to imports from developing countries. The issue of how injury margin should be
calculated, was a larger issue to be addressed during the course of on-going negotiations.
49. The United States posed questions regarding India's proposal in document
G/ADP/AHG/W/131.  Specifically, the United States as ked, with regard to India’s statement that “an
examination of whether imposition of anti-dumping duties would affect the essential interests ofdeveloping countries needs an enquiry which is specifically economic in character”, what measures
and standards of economic impact India would propose using for this purpose.  The United States also
asked, with respect to India's statement that “cooperation by exporters from developing countries
during the course of an anti-dumping investigation re sults in financial costs which these concerns are
ill-positioned to bear”, that India elaborate upon this view that the financial position of the exporter in
question has a bearing on whether the essential interests of the relevant country are affected.  With
respect to the proposed higher de minimis standard, the United States asked to what extent a higher de
minimis standard constituted an alternative to anti-dumping duties.  The United States also inquired as
to what extent India’s proposals would require a change to the Anti-Dumping Agreement.
50. India, in document G/ADP/AHG/W/135, in response to the United States' questions, stated
again the points it had made in response to the European Communities with respect to the view that
in the case of most developing country Members, essential interests are always affected when anti-dumping measures are imposed on imports from such Members.  With respect to the US question with
respect to the bearing of the financial position of the exporter in question on whether the essential
interests of the relevant country are affected, India stated that it did not contend that the financial
position of the exporter facing an anti-dumping investigation has a direct bearing on whether the
essential interests of the relevant country are affected.  However, in India's view, the financial positionof exporters from developing countries does have an indirect bearing on the essential interests of these
countries.  With respect to the issue of whether a higher de minimis  standard can be considered as “an
alternative to anti-dumping duties”, India considered that it was not clear why a constructive remedy
must always be an alternative to anti-dumping duties.   In any case, India reiterated its view that the
thresholds specified in Article 5.8 have no scientific basis and err in favour of the importing MemberG/ADP/11
Page 16
that wishes to protect its domestic industry.  Therefore, that injury is not negligible cannot be inferred
automatically as soon as imports cross the thresholds specified in Article 5.8.  The rationale behind
India’s proposal for enhancing the negligible volume thresholds in the case of developing country
Members is that special rules should apply to deve loping countries.  In India's view, this can be
justified either as a matter of special regard for the special situation of developing country Membersunder the first sentence of Article 15 of the Anti-Dumping Agreement or as a constructive remedy
under the second sentence of that provision.  Finally, India reiterated the view that it was desirable
that the Agreement be formally amended to incorporate the new de minimis thresholds for imports
from developing country Members into Article 5.8, or through a binding interpretation by the
Ministerial Conference and General Council of the provisions of Article 15.  In the meantime,
following the example of the Decision of 5 May 1980 of the Committee on Anti-Dumping Practices,
developed country Members could implement the new de minimis  thresholds on the basis of an
understanding arrived at in the Tokyo Round Committee on Anti-Dumping Practices.
51. The United States, in document G/ADP/AHG/W/137, asked India to clarify its reference to
the decision of 5 May 1980 in its response to the earlier round of questions.  Specifically, the
United States inquired as to the basis for India’s conclusion that the cited decision constituted a
modification of a provision of the Code, and asked what portion of that decision represents such amodification, in India’s view.
52. India, in document G/ADP/AHG/W/139, responded to the United States' question,
emphasizing that the issue was not whether a decision of the Tokyo Round Committee could modify
the provisions of the 1979 Tokyo Round Code, or whether that Committee's Decision of 1980 actually
modifies, varies or adds to the obligations of the Contracting Parties under the provisions of the 1979Code.  The real issue was whether that Committee, in its 1980 Decision, interpreted the language of
the first sentence of Article 13 of the 1979 Code as covering the pre-initiation and investigation stage
of an anti-dumping proceeding prior to the stag e of application of anti-dumping duties. India
explained the basis for its view that the Tokyo Round Committee did so interpret the first sentence.
Accordingly, India stated that under Article 15 of the Agreement, special regard is required to begiven by a developed country Member to developi ng country Members during the entire anti-dumping
investigation.
53. In document G/ADP/AHG/W/136, Indonesia replied to comments during the discussions in
the informal meetings.  With respect to comments by the United States that there is no need to change
Article 15 for developing countries, Indonesia stated that it supported the Doha Declaration due to the
emphasis placed on putting into effect special and differential treatment for developing countries.  In
the case of the Agreement, Indonesia considers that special and differential treatment requires layingout the constructive remedies under Article 15 that should be applied.  Indonesia considered that,
should Article 15 remain unchanged, the spirit, intent and letter of the Doha Declaration are
undermined, and that this would cast a shadow over the new round at the initial stages of the
negotiating process.  Furthermore, Indonesia reiterated its view that price undertakings or the
application of lesser duty do not represent differential treatment for developing countries, as they areavailable to all Members.  As a consequence, constructive remedies need to be defined and made
obligatory in the Agreement.
54. With respect to the view, expressed by the European Communities and other Members, that
there were many practical difficulties in implementing Indonesia's proposal regarding declines in
imports following the investigation period, Indonesia disagreed, considering that the time-lag between
the original investigation period and the applicati on of measures should provide the basis for the
required data collection for import volumes.  Furthermore, Indonesia recalled an EC anti-dumping
proceeding on PET from, inter alia , Indonesia, in which an exporting country was excluded at the
petition phase based on an import share of less than 3 per cent, and for subject goods entering under a
basket classification.  At that time, Indonesia expressed surprise that such data were available at suchG/ADP/11
Page 17
short-notice.  However, this illustrated that th e European Communities would be able to implement
the Indonesian proposal.  Indonesia did not consider that the practical problems highlighted are
justified.
55. With respect to the view that Indonesia's proposa l that duties for developing countries should
automatically lapse after a five-year period, some Members had commented that this does not takeaccount of the fact that the five-year period may not provide recovery for the domestic industry.
Indonesia considered the issue in a different light.  A meaningful and effective special and differential
special treatment for developing countries can only be translated by adopting measures (if at all) that
would, in any case, provide less protection for the domestic industry in the importing country.
Indonesia requested both the European Communities and the United States to confirm whether this
understanding is correct.  In Indonesia's opinion, this understanding is pivotal to achieving a
meaningful progress in the Round.  Furthermore, Indonesia would accept this consequence for casesbrought by Indonesia against developing countries.
56. The United States, in document G/ADP/AHG/W/138, made a proposal with respect to
operationalizing Article 15.  The United States stated that, in its view, one constructive remedy which
must be considered in relation to Article 15 is price undertakings.  The United States noted that while
price undertakings must be mutually agreeable, Members would greatly benefit from clarification ofthe modalities for consideration of such a constructive remedy, and that identification of normative
principles for consideration of such a constructive remedy would go a long way towards
operationalizing Article 15 for the benefit of developing and developed countries alike.  Therefore,
the United States proposed that, in exploring the possibility of such a constructive remedy in
situations in which Article 15 applies, certain principles be observed.  In this regard, the United Statesproposed that (1) Members publish or otherwise make known to all developing country exporters
subject to anti-dumping investigations, the procedures to be followed in requesting consideration of a
price undertaking, including the deadline for concluding any such undertaking;  (2) In Article 15
situations, developed country Members shall pr ovide at least two weeks after issuance of a
preliminary determination for developing country exporters to submit a proposed price undertaking;(3) In Article 15 situations, developed country Members shall provide an opportunity, upon request
and to the extent practicable, for developing country exporters to meet with the investigating authority
and to explain to it the provisions of, and need for, any proposed price undertaking, including
explaining the essential interests of the developing country which would be affected by application of
anti-dumping duties absent such an undertaking; (4) In Article 15 situations, the investigating
authority of the developed country Member shall notify and provide a copy of any preliminarily
accepted price undertaking to all parties to an investigation; (5) In Article 15 situations, theinvestigating authority of the developed country Member shall provide all interested parties an
opportunity to submit written argument and factual information concerning any proposed price
undertaking, and all such submissions shall be subject to the terms of Article 6; and (6) In Article 15
situations, developed country Members shall not impose a price undertaking unless the terms of that
undertaking are accepted by substantially all exporters or producers of the merchandise subject toinvestigation.
57. The US proposal was made available as a room document for the September 2002 meeting.
At that meeting, several Members welcomed the US effort, but a number of questions were
preliminarily raised concerning specifics of the proposals, including the suggestion that developing
country exporters explain the essential interests of the developing country that would be affected, andthe provision of an opportunity for all interested parties to see and comment on proposed price
undertakings, and the limitation on price undertakings unless accepted by substantially all exporters or
producers.  A number of Members expressed concern that these provisions in particular were
disadvantageous for developing countries, and thus contrary to the intent of the discussions on
operationalizing Article 15.G/ADP/11
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58. Turkey made a proposal in document G/ADP/AHG/W/141. Turkey noted that since
Article 15 does not give clear modalities for a common and transparent application of "special
treatment" by developed countries, it had produced very limited results in favour of the developing
country Members.  Turkey supported to a certain extent the proposals submitted by India that special
and differential treatment in favour of developing country Members could be had by means of raisedde minimis  dumping margin and increased negligible import volume.  However, Turkey noted that in
recent years the number of anti-dumping investigations initiated by developing countries had
increased significantly.  Turkey believed that, even if all Members reached agreement on the proposed
amendments in favour of developing country Memb ers, application would prove that the additional
benefit to the developing country Members would still remain limited unless these amendments bind
all Members whether they are "developed" or "developing".  Due to this, Turkey believed that
Article 5.8 should aim at paying special regard to the exports of developing country Members without
making any distinction for the investigating country.  If the target country is a developing country,
differential treatment should be made irrespec tive of the investigating country, that is, the
investigating country can either be a developed or a developing country.  In order to have an
operational outcome and more concrete results, Turkey supported the proposals on raised de minimis
margins and increased negligible volumes as long as the relevant amendments bound all Membersirrespective of development level of the investigating country.  To achieve this result, necessary
amendments can be made in Article 15 or directly in Article 5.8.
59. Following Turkey's proposal, a number of developing country Members explicitly stated the
view that the obligations of Article 15 were imposed on developed country Members with respect to
their conduct of investigations involving exports fro m developing countries.  In the view of these
Members, the present discussion was focussed on special and differential treatment for developing
countries, and any discussion of the treatment of developing country exporters by other developing
countries was beyond the scope of the present discussion.
60. During the course of the October 2002 meeting of the Working Group, Brazil submitted, on
behalf of itself, India and Indonesia, a document for the room which combined proposals previouslymade by all three countries, in light of questions that had been asked, and structured the proposals.
Brazil noted that proposals not reflected in the joint submission were maintained as originally
circulated, and were not abandoned.  The joint paper set out proposals with respect to questionnaires
in anti-dumping investigations, the level of de minimis  dumping margins and negligible import
volumes, application of the lesser duty rule, price undertakings, compliance, and the period of
application of anti-dumping duties.  A number of Members welcomed the joint paper as a useful,
comprehensive presentation, but concerns were expressed with respect to certain of the specificproposals made.  A number of Members posed questions with respect to the joint paper, to which
Brazil provided answers in the meeting.
61. Among the questions and concerns were, with respect to questionnaires, whether it was
appropriate to treat all companies in developing countries in the same way, or whether it might not be
more appropriate to distinguish among companies based on the degree of sophistication of theiroperations, including accounting systems, and their resources.  With respect to the proposals
concerning de minimis  dumping margins and negligible import volumes, several Members indicated
that changes to the levels set out in the Agreem ent would constitute amendments to the Agreement,
which these Members considered beyond the scope of the mandate, and beyond the competence of the
Working Group and Committee.  With respect to price undertakings, concerns were expressed withrespect to, inter alia , the suggestion of time limits for the offer of price undertakings, the suggestion
of "favorable" consideration of offers of price undertakings, suggestions allowing comments with
respect to offers of price undertakings, and the suggestion that price undertakings should reflect a
"lesser price" if such price would suffice to eliminate injury.G/ADP/11
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62. At the October 2002 meeting of the Working Group, the United States submitted a draft
recommendation on operationalizing Article 15 in document G/ADP/AHG/W/143.  Based on its
earlier proposal, and in light of the discussions in the September and October meetings, the
United States proposed that in situations in which Article 15 applies (“Article 15 situations”), the
Working Group should recommend that Members observe the following principles with respect toprice undertakings: (1) Members should publish or otherwise make known to all developing country
exporters subject to anti-dumping investigations, either on a case-by-case basis or, preferably, through
generally applicable provisions, the procedures to be followed in requesting consideration of a price
undertaking, including the deadline for concluding any such undertaking; (2) In Article 15 situations,
developed country Members should provide no less than two weeks after issuance of a preliminary
determination in which developing country exporters may submit a proposed price undertaking; (3) In
Article 15 situations, developed country Members should provide an opportunity, upon request, fordeveloping country exporters to meet with the inves tigating authority and to explain the provisions of,
and need for, any proposed price undertaking, including explaining the essential interests of the
developing country which would be affected by ap plication of anti-dumping duties absent such an
undertaking; (4) In Article 15 situations, if the investigating authority of the developed country
Member preliminarily accepts a proposed price undertaking, the investigating authority should notifyand provide a non-confidential copy of that preliminarily accepted price undertaking to all parties to
the investigation; and (5) in Article 15 situations , if the investigating authority of the developed
country Member preliminarily accepts a proposed price undertaking, the investigating authority
should provide all interested parties an opportunity to submit written argument and factual
information concerning the proposed price undertaking, and all such submissions shall be subject tothe terms of Article 6.
63. One Member raised a concern with respect to the references to developed country and
developing country in both the US proposal and the joint paper.  This Member indicated that, in the
absence of an accepted definition of developed and developing country, it would be necessary to
specify to whom the rights and obligations under discussion belonged, in order to make special anddifferential treatment more operational.  Subsequently, this Member proposed a relative standard, with
reference to the Member at a more advanced level of development or a less advanced level of
development, or alternatively, reference to high income countries or middle or low-income countries.
64. Following the October 2002 meeting, certain Members, who had expressed views during the
course of the meeting, engaged in a series of intensive informal consultations.  During these
consultations, Brazil submitted a draft recommendation for operationalizing Article 15 which
included proposals with respect to questionnaires, price undertakings, and compliance with Article 15.Discussions continued on the basis of the Brazilia n proposal and the US proposal addressing price
undertakings, with many of the points made earlier reiterated by Members.  During the consultations,
Canada made a proposal which sought to identify common ground between the Brazilian and US
proposals with respect to the issue of price undertakings.  Following additional consultations, the
Chairman prepared a text setting out common ground text for a recommendation on operationalizingArticle 15 (price undertakings), and other elements proposed for a recommendation on
operationalizing Article 15 where common ground was yet to be identified (compliance and
questionnaires).  After further consultations, the Chairman prepared a draft recommendation on
operationalizing Article 15, including bracketed text in areas where Members had been unable to
reach agreement in consultations, which was consid ered by Members when the informal meetings of
27 November were resumed on 9 and 11-12 December 2002.
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