 
  WORLD TRADE  
ORGANIZATION  TN/RL/GEN/10 
14 July 2004 
 (04-3031) 
Negotiating Group on Rules Original:   English 
 
  
REVIEWS
1 
 
Communication from Brazil;  Chile;  Colombia;  Costa Rica;  Hong Kong, China;  Israel;   
Japan;  Korea;  Norway;  Singapore;  Switzerland;  Separate Customs Territory of  
Taiwan, Penghu, Kinmen and Matsu; and Thailand  
 
 The following communication, dated 24 May 2004, is being circulated at the request of the 
Delegations of Brazil;  Chile;  Colombia;  Costa Rica;  Hong Kong, China;  Israel;  Japan;  Korea;  
Norway;  Singapore; Switzerland;  Separate Cust oms Territory of Taiwan, Penghu, Kinmen and 
Matsu;  and Thailand. 
 
 The submitting delegations have requested that  this paper, which was submitted to the Rules 
Negotiating Group as an informal document (JOB(04)/59), also be circulated as a formal document.  
_______________ 
 
I.  BASIC PRINCIPLE 
 
• There shall be clear and objective rules applicable to reviews
 under Article 9.3, 9.5 and 11.2 
of AD Agreement. 
• The same rules  applied to the original investigation shall be applied to reviews, whenever 
applicable.  
 
II.  PROBLEM OF THE CURRENT AD AGREEMENT 
 
• The current AD Agreement does not clearly articulate the concepts, procedures and 
methodologies applicable to reviews under Article 9.3 (anti-dumping duty assessment), 
Article 9.5 (new shipper reviews)  and Article 11.2 (revocation re views).  The lack of explicit 
rules makes it possible for the authorities to arbitrarily introduce ru les, procedures, and 
methodologies  into these reviews that differ substantially from those in the original 
investigations  and thereby place an undue burden on the respondent.  Such practices are also 
pursued to artificially inflate the calculated dumpi ng margins and/or to continue to impose an 
anti-dumping duty that is not necessary to offset dumping.  
III.  AMENDMENT 
 
Issue 1: Rules applied to Reviews
 
  Proposal: 
 
 Clarify that the provisions of Articles 2 (D etermination of Dumping), 3 (Determination of 
Injury), 4 (Definition of Domestic Industry), 5 (Initiation and Subsequent  Investigation), and 6 
                                                     
 
1 This issue has been referred to by Members in documents TN/RL/W/1, 4, 7, 10, 47, 66, 72, 83, 86 and 
138. TN/RL/GEN/10 
Page 2  
 
 (Evidence) shall apply to the reviews, whenever applicable, under Articles 9.3, 9.5 and 11.2, with the 
exception of the specific rules concerning these reviews.  In particular, the de minimis  rule and/or its 
threshold in Article 5.8 should be applied to these re views to the extent that it is appropriate.  In any 
case, the de minimis  threshold should be applied to duty a ssessment conducted under Article 9.3.  In 
addition, the same methodology that  was applied to the original investigation for comparison between 
the normal price and the export price as stipulated in  Article 2.4.2 should be applied to these reviews 
unless a different methodology is requested by the exporters 
 
 Explanation: 
 
• The importance of establishing multilateral control applies not only to the original 
investigation, but also with equal force to all the subsequent phases of an anti-dumping 
procedure, including the various review s provided for in Articles 9 and 11. 
 
• However, Articles 9 and 11, per se, do not contain detailed substantive provisions governing 
the conduct of the reviews provided for in those Articles.  This has resulted in the application of arbitrary rules by many Members and to th e inability of the WTO to establish multilateral 
control with respect to the application of th ese Articles seen in conjunction with other 
substantive and procedural provisions.  Thus, the detailed substantive provisions of the ADA, 
in particular those contained in Articles 2- 6, should apply not only to the original 
investigation, but also to  the Articles 9 and 11 reviews whenever applicable. 
 
• In fact, it should be pointed out that some WT O Members apply the same rules to reviews.  
For example, a relevant regulation of a WTO Member reads; “the relevant provisions of this 
Regulation with regard to procedures and th e conduct of investigations, excluding those 
relating to time limits, shall apply to any review carried out pursuant to paragraphs 2, 3, and 4 
[governing sunset, changed circumst ances, and newcomer reviews].”
2  (emphasis added.) 
 
• The comparison methodology stipulated in Article 2.4.2 is a useful discipline to prevent a 
possible source of distortion in the calculation of the dumping margin.  Without such a 
discipline, there is a possibility that Members might apply an arbitrary methodology regarding 
the comparison of the normal va lue and the export price,  resulting in an unjustified finding of 
dumping or a bloated margin of dumping.  Article 2.4.2 should apply to Article 9.3 reviews even under the current Agreement, in light of the chapeau of Article 9.3 which provides that "the amount of the anti-dumping duty shall not exceed the margin of dumping as established 
under Article 2."  If Article 2.4.2 does not appl y to Article 9.3, and consequently authorities 
may 'zero' dumping margins in average to tran saction comparisons, this will result in a duty 
calculation exceeding the margin of dumping as established under Article 2.  This point must 
be clarified and stipulated in precise form. 
 
• The current de minimis  standard of 2 per cent for dumping margins is set out in Article 5.8.  
There is no reason why this standard should not be applied to reviews to the extent that it is 
appropriate.  In fact, the 2 per cent de minimis  standard is used in reviews by some WTO 
Members, including the EC.
3   
 
                                                      
2 Article 11(5) of EC’s Basic Regulation. 
3 See Article 11(9) of the Basic Regulation.  TN/RL/GEN/10 
 Page 3 
 
 
 Issue 2: Request for Article 9.3 Review  
 
 Proposal: 
 
Clarify that the request for Article 9.3 reviews ca n only be made by exporters or importers.   
 
 Explanation: 
  
• Article 9.3 sets forth the procedures for determ ining the amount of refund from the deposited 
or collected anti-dumping duty.  Whether or not the deposit is made by the importer or by the 
exporter of the product subject to a measure, th e refund-procedure exclusively relates to these 
interested parties and not to the domestic industry.   It is, therefore, natural to set forth that 
only the importer or the exporter may reques t Article 9.3 reviews.  Indeed, neither the 
domestic industry nor the authorities have interests in the refund of the AD duty.  
Furthermore, if an Article 9.3 review can be initiated upon the request of the domestic 
industry, it can be used to harass importers and exporters because the review imposes substantial administrative and economic burdens.  
 Issue 3: Import Period for Dumping Margin under Article 9.3
 
  Proposal: 
 
Clarify that the margin of dumping in an Artic le 9.3 review shall be based on all imports from 
a specific exporter that were entered into the importing Member for not less than one year, and not 
on an individual import basis.  
 
 Explanation: 
 
• Article 9.3 does not provide the period of imports for which the margin of dumping shall be 
calculated in a review.  This ambiguity allows  the authorities to calculate the margin of 
dumping on an individual import basis in a revi ew, and consequently, a llows the authorities to 
use a dumping margin calculation methodology that is substantially different from the 
methodology in the original investigation.  In  an original investigation, the authorities are 
required to calculate the margin of dumping based on the sales and cost data for a certain period of time, normally for one year.  The margin of dumping in an Article 9.3 review, 
therefore, should also be calculated with resp ect to all imports as a whole, and not with 
respect to an individual import and/or not for a period of less than one year.  This clarification also will contribute to increased transparency and predictability of reviews under Article 9.3. 
 
Issue 4: Review Periods
 
 
 Proposal: 
  Improve the rule so that the reviews are not  unfairly extended to the prejudice of the 
responding parties.  To this end, clarify (1) th at reviews under Articles 9.3 and 11.2 must be 
completed within 12 months, (2) that authorities are enco uraged to pay interest at a reasonable rate if 
duties are not refunded within 90 days following the completion of the review and (3) that reviews 
under Article 9.5 must be completed within 9 months  after the date on which a request for a review 
has been made, unless an extension of the pr ocedure is requested by the new shipper.  
 TN/RL/GEN/10 
Page 4  
 
  Explanation: 
 
• Although Article 11.4 states that reviews should “normally” be concluded within 12 months, 
too often authorities do not complete the revi ew in a year.  Twelve months should be 
sufficient to conduct a review under Articles 9.3 and 11.2 and provide an answer to 
respondents about their possibilities to trade in a foreign market.  
 
• When the authorities do not promptly return duties wrongly collected from respondents 
within 90 days, they should be encouraged to pay a reasonable rate of interest to the 
respondents, as if the respondents had been refunded their duties, within the time-frame 
provided for in the Agreement. 
 
• Although Article 9.5 states that new shipper re views shall be carried out on an accelerated 
basis, there have been many instances where these reviews have not been completed on such 
a basis.  A more specific time-period should be applied to avoid the unjustifiable 
circumstance for new shippers who have not exported and are not related to any of the 
exporters and producers subject to the anti-dumping duties on the product.  In special 
circumstances, a longer period for the review may be necessary, but in any case no more than 12 months.  It is also important to set a time-limit for the Authorities to initiate new shipper reviews after the date on which a request for a review has been made.  In addition, it seems to 
be necessary to define requireme nt conditions for such a request. 
 
Issue 5: Assessment of Dumping and “Likelihood of Injury” under Article 11.2
 
 
 Proposal: 
 
Clarify, through the development of harmonized indicative lists relating to the  assessment of 
dumping and the “likelihood of injury” under Article 11.2, that the burden of proof is on those parties 
advocating the continuation of the antidumping order.   As for the assessment of dumping, the following points shall be included in the harmonized 
indicative list ; (1) dumping margins to be considered are those based on current market conditions and 
pricing, not the pricing during the period of the original investigation; and (2) in case the measure is 
subject to reviews after the original measure, the au thorities shall rely on the margin found in the most 
recent review; (3) if no dumping margin has been f ound, the “likelihood of injury” test shall not apply 
and the measure shall be terminated.  
 As for the assessment of the “likelihood of inju ry”, the following points shall be included in 
the harmonized indicative list ; (1) the likelihood of injury caused by the imports shall be based on the 
current competitive circumstances of the domestic industry and the relevant exporters, and not on 
information from the original investigation; (2) the authorities shall conduct their examination in accordance with Article 3 of the ADA, based on f acts, and not merely on allegation, conjecture or 
speculation.  (3) The determination made by the authorities whether the continuation of the 
antidumping duty is warranted or not, shall be based on the current volume of the dumped imports. 
 
 Explanation: 
 
• Article 11.2 does not provide a guideline for the assessment of dumping and the likelihood 
assessment of injury.  As a consequence, Memb ers have developed widely differing standards 
for the assessment, undermining the ability of th e WTO to maintain discipline on revocation 
reviews.  Therefore, the present situation calls for the development of harmonized  indicative 
lists.  TN/RL/GEN/10 
 Page 5 
 
 
  
- In the practice of certain Members, the de termination of whether the anti-dumping duty 
is no longer warranted is often based on the unsubstantiated assumption that, if the 
measure were terminated, the exporters would revert to the export price prior to the imposition of the measure.  Such unsubstantiated assumptions are made, even though Article 11.2 does not provide for the use of a “likelihood test” for dumping.  In fact, 
Article 11.2 provides for the “likelihood test” exclusively with respect to the injury.  In 
addition, Members following th is practice require the exporters to demonstrate that, 
irrespective of the termination of the measur e, they will not revert to the old price. 
 
- There is no basis for such an interpretation of Article 11.2.  It also reverses the burden of 
proof, as pursuant to Article 11.2, it is not th e respondents that should demonstrate that 
the termination of the measure is not likely to lead to continuation or recurrence of 
dumping. 
 
• For this reason, in all cases, including where th ere has been no import since the imposition of 
the measure, it should be made clear in the harmonized  indicative list that the presumption is 
that the termination of measure will not lead to continuation or recurrence of dumping. 
 
- The indicative list should make it clear that the authorities or domestic industries bear 
the burden to demonstrate that there in fact is  likelihood of continuation or recurrence of 
injury.   
 
__________ 
  
 