WORLD TRADE
ORGANIZATIONTN/RL/W/56
10 February 2003
(03-0857)
Negotiating Group on Rules Original:  English
EGYPTIAN PAPER CONTAINING COMMENTS ON THE CONTRIBUTIONS
SUBMITTED IN THE FRAMEWORK OF THE DOHA NEGOTIATIONS
ON THE ANTI-DUMPING AGREEMENT
The following communication, dated 5 February 2003, has been received from the Permanent
Mission of Egypt.
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I. INTRODUCTION
In the current paper, we are providing preliminary comments on the contributions submitted
by the ”Friends of AD negotiations” and the US in November and December 2002 in the framework
of the negotiations conducted by the Negotiating Group on Rules on Anti-Dumping Measures.
As already mentioned in our comments on previous contributions, the scope of the
negotiations to be carried out on the Agreement on Implementation of Article VI of the GATT 1994
(hereinafter referred to as the “AD Agreement”) as a result of the Doha Declaration is to be limited to
areas where “ clarification and improvement ” would be required.  Also, as a recent anti-dumping user,
we believe that it is premature to expose Egypt and other such countries to increased disciplines and,
thus, greater scrutiny under the AD Agreement.
II. SPECIFIC COMMENTS
We will present below comments on the following contributions submitted with regard to the
negotiations on the AD Agreement:  (TN/RL/W/28-29-31-35).
1. Contributions submitted by the “Friends of AD negotiations”
(a) General contribution to the discussion of the Negotiating Group on Rules on Anti-Dumping
Measures: Document TN/RL/W/28
(i) The “Friends of AD negotiations” first outline the general concerns that they consider
need to be addressed when negotiating the modifications of the AD Agreement.
These Members consider that current anti-dumping rules are abused and misused and
that active use of anti-dumping remedies has lead to considerable divergences in the
application of AD rules.
The “Friends of AD negotiations” claim that the following objectives must be at the
centre of the negotiations on the AD rules:
- the prevention of the abusive and excessive use of AD rules;TN/RL/W/56
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- the avoidance of placing excessive burden on respondents and the reduction
of costs for interested parties; and
- the enhancement of transparency, predictability and fairness.
(ii) The point of view of the “Friends of AD negotiations” with regard to “ the abusive
and excessive use of anti-dumping ” is not supported by any evidence.  As previously
explained by Egypt in the first paper submitted in the context of the negotiations on
the AD Agreement, the recent increase in anti-dumping actions is a mere result of the
increase of world trade and trade remedy users.  It is simplistic and improper to draw
a conclusion on the excessive use of AD measures from the increase of anti-dumping
measures imposed.
Also, the point of view of the “Friends of AD negotiations” concerning the abusive
and arbitrary imposition of anti-dumping measures is not corroborated by any
evidence.  Of the 1,059 anti-dumping measures imposed by Members between the
entry into force of the AD Agreement in 1995 and 2001, less than 10 were foundinconsistent with the AD Agreement by the Dispute Settlement Body.  Contrary to
what is implied, the existing provisions of the AD Agreement already provide that
anti-dumping proceedings can only be initiated where warranted and that
discretionary and abusive anti-dumping measures cannot be imposed.
The proposals made by the “Friends of AD negotiations” in previous contributions in
order “ to prevent abusive and excessive anti-dumping measures” do not fall within
the scope of the negotiations carried out under the Doha Declaration.  Indeed, these
proposals would create substantial new obligations for Members and can therefore
not be considered as clarifying or improving existing AD rules.
(iii) The active participation of all the parties concerned, including the respondents, in an
AD proceeding is essential in order to en sure the transparency and fairness of the
system.  The imposition of lesser requirements on respondents would, most certainly,
lead to less objective determinations to the detriment of the respondents.  It must also
be emphasized that a balance must be maintained between the obligations imposed on
interested parties and investigating authorities.  Rules placing an excessive burden oninvestigating authorities should also be avoided.
(iv) It would be unrealistic and overly cumbersome to have a very detailed AD
Agreement.  The AD Agreement is applicable to all Members and, as such, cannot
foresee all the aspects of anti-dumping proceedings.  The purpose of the ADAgreement is to set forth the basic principles all Members must comply with in anti-
dumping proceedings and not to specify all the rules which should uniformly be
applied by investigating authorities.
(b) Third contribution to discussion of the Negotiating Group on Rules on Anti-Dumping
Measures: Documents TN/RL/W/29
(i) Dumped Imports
A definition of the term “dumped imports” of Article 3.1 of the AD Agreement is proposed in
order to avoid the alleged misunderstanding of certain investigating authorities.  It is submitted that
such definition is unnecessary since a definition of the volume of imports considered to be dumped
under Articles 3.1 and 3.2 of the AD Agreement was given in the reports adopted in the context of the
EC – Bed Linen dispute.TN/RL/W/56
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(ii) Sufficient quantity of sales of the like produc t in the domestic market for the determination of
the normal value
It is suggested that a clarification of the second footnote of Article 2.2 of the AD Agreement
is necessary for cases where the product concerned has been classified into different categories.
Contrary to what is implied, the classification of the product concerned into different categories does
not require a clarification of the second footnote of Article 2.2.  Pursuant to the text of the second
footnote of Article 2.2, it is clear that in cases where the product concerned has been classified into
different categories, a two-step representativity test needs to be substituted to the one-step test which
is applicable when the product concerned has not been classified into different categories.  As
mentioned in the example given by the “Friends of AD negotiations”, investigating authorities are
first required to determine whether the total domestic sales of the product under consideration are
sufficient.  In the event that this first test is ne gative, the investigating authorities may consider that
the domestic sales as a whole are insufficient for the determination of dumping.  In the alternative,
investigating authorities must, then, conduct the sec ond step of the test in order to determine whether
the domestic sales of each of the categories defined are representative.  Again, if the second step ofthe test is negative for a category, the domestic sales of this category may be disregarded for the
determination of dumping.
(iii) Constructed Export Price – Association/Compensatory Agreement
It is proposed to define the terms “association” and “compensatory agreement” of Article 2.3
of the AD Agreement.  We do not believe this is necessary in view of the experience of most
Members.  The terms “association” and “compensatory agreement” are interpreted similarly by most
investigating authorities.  The lack of confusion is  also evidenced by the absence of claims in this
respect before the Dispute Settlement Body.
The “Friends of AD negotiations” suggest the insertion in Article 2.3 of a provision requiring
investigating authorities to explain in their determ ination the reasons for considering an export price
as unreliable.  It is submitted that such provision would be redundant with the general notification and
explanation obligations imposed on investigating authorities under Article 12 of the AD Agreement.
(iv) Cumulative assessment of imports
As correctly noted by the “Friends of AD negotiations”, Article 3.1 of the AD Agreement
does not define the term “negligible imports”.  Article 3.1 does not set the threshold to be used in
order to determine whether the volume of imports from countries concerned is to be considered as
negligible when determining if the effects of thes e imports must be cumulatively assessed.  However,
we consider such a definition would be superfluous since a precise definition of the volume of imports
which is to be regarded as negligible is provided for in Article 5.8.
(v) Price undertakings - Lesser price rule
The lesser duty and lesser price rules are both an application of the same principle to the
different types of anti-dumping measures provided for in the AD Agreement.  Consequently, as for
the lesser duty rule, we are of the opinion that the lesser price rule should be left to the discretion of
Members.
(vi) Public notice and explanation of the determinations
Articles 6 and 12 of the AD Agreement already provide ample opportunities for interested
parties to defend their interest throughout anti-dumping proceedings.  It is submitted that theTN/RL/W/56
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imposition of further information, notification and consultation requirements on investigating
authorities would only reinforce the burden imposed on all interested parties and would, thus, be
contradictory to other proposals formulated by the “Friends of AD negotiations”.  We believe that the
balance between the efficiency and the openness of the system which is struck by the AD Agreement
should remain unmodified.
(vii) Periods of data collection for anti-dumping investigations
The “Friends of AD negotiations” directly re fer to the introductory paragraph of the
Recommendation Concerning the Periods of Data Collection for Anti-Dumping Investigations ( paper
by the AD Committee on 5 May 2000) in order to support the insertion in the AD Agreement of
guidelines for determining what periods of data collection may be appropriate for examination ofdumping and injury.  We believe that it would be unrealistic to insert into the AD Agreement a
detailed set of rules taking into account the di fferent specific circumstances which investigating
authorities are often confronted to.
(viii) Treatment in case of a large number of exporters, producers, importers or types of products
The “Friends of AD negotiations” propose that the terms “reasonable number” and “largest
percentage” be defined in order to ensure that sampling is properly conducted under Article 6.10 of
the AD Agreement.  It is submitted that a definition of the terms of Article 6.10 may not lead to the
improvement sought by the “Friends of AD negotiations”.  Instead, the introduction of newmandatory tests to determine when and how investigating authorities could resort to the use of
samples would further complicate and lengthen anti-dumping investigations.  Also, the drafting of
clear definitions could prove itself difficult considering that the cases where sampling is required are
very different depending on the number of exporting countries concerned, companies involved in each
country and characteristics of the product concerned.  For these reasons, we believe that the flexibilityprovided for in the AD Ag reement should remain.
(c) Replies to additional questions to our second contribution: Document TN/RL/W31
This document lists the questions of Members concerning the contribution of the “Friends of
AD negotiations” dated 28 June 2002 (TN/RL/W/10) and provides answers to these questions.
(i) Domestic industry
It is suggested to specifically mention in the AD Agreement that the primary definition of
domestic industry is the “domestic producers as a whole of the like product”  and that the terms
“major proportion”  should be understood as representing more than 50 per cent of the producers.  We
continue to consider that such definitions would be contrary to the intention of the drafters of the AD
Agreement for whom an investigation could be initiated even if it was filed with the support of those
domestic producers only representing a minority, as long as those producers represented over 50 per
cent of the producers expressing either support or opposition to the petition.
(ii) Initiation standards
It is suggested that in some cases an investigation can be initiated solely on the basis on the
facts alleged in the petition and that it is, therefore, necessary to improve the initiation standards.  We
are of the opinion that a clarification of the terms of Article 5.2 of the AD Agreement is not necessary.Indeed, as confirmed by adopted dispute settlement reports, the AD Agreement clearly requires
investigating authorities only to initiate an inves tigation on the condition that substantiated evidence
of dumping, material injury and causal link has been provided to them.TN/RL/W/56
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(iii) Injury determination
The “Friends of AD negotiations” consider that Article 3.4 of AD Agreement fails to provide
sufficient guidance on how the injury factors listed therein must be evaluated by investigating
authorities.  We believe that the panel and Appellate Body reports have provided sufficient guidanceon the obligations imposed on investigating authoritie s in injury determinations and that the case-
specific analysis of the injury factors should be le ft to the discretion of the investigating authorities.
(iv) Price undertaking
The “Friends of AD negotiations” propose to clarify the criteria for the acceptance and/or
rejection of price undertakings.  We are of the opinion that since price undertakings constitute analternative to the imposition of duties, investigating authorities should have some discretion in
determining whether or not to accept a price undertaking and the conditions for such acceptance.
2. Investigatory procedures under the Anti-Dumping and Subsidies Agreements:
Document TN/RL/W/35
The contribution of the US focuses on procedural issues and establishes a parallel between the
AD Agreement and the Agreement on Subsidies and Countervailing Measures (hereinafter referred to
as  the “Subsidies Agreement”).  The advocated intent of the US is only to improve transparency and
procedural fairness.  Indeed, for the rest, the US is of the opinion that the AD Agreement should notbe amended.
(i) Timely access for interested parties to non-confidential information
The US proposes that access to non-confidential information be made available as soon as the
information is received by an investigating author ity, regardless of whether it will ultimately be used
in making a determination.  The US considers that this modification would be to the interest of the
parties concerned and the investigating author ities who would have complete and accurate
information on which to base their determination.  Although we agree with the US that interested
parties should be granted timely access to the non-confidential file, we do not share the view that the
investigating authorities should not conduct a prior examination of the information and data submitted
to them before disclosing it to interested parties.  Indeed, we consider that investigating authorities
can constitute a beneficial “filter” of the information submitted to them to the benefit of all interested
parties.  Moreover, the immediate communication of non-confidential information submitted to them
to all interested parties may be reveal technically difficult for investigating authorities, in particular
from developing Members.
(ii) Public Record
We believe that the issue of access to the non-confidential file is to be addressed by each
Member at a domestic level.  Also, we do not consider it necessary to request each investigating
authority to maintain a public record of all the non-confidential information submitted and of all thedetermination issued as this would create a particularly burdensome obligation for investigating
authorities.
(iii) Explanations and determinations
The US suggests that investigating authorities c onsider providing interested parties with more
detailed determinations and explanations.  The suggestion of the US is praiseworthy but could reveal
difficult for investigating authorities from deve loping Members to implement considering the tight
deadline within which findings must be reached under the AD Agreement.TN/RL/W/56
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(iv) Conduct of verifications
In view of their very limited resources, most investigating authorities are not in a position to
provide much support to interested parties throughout an investigation.  In particular, investigatingauthorities cannot issue too detailed guidelines to in terested parties prior to on-the-spot verifications.
(v) Protection and disclosure of confidential information
We agree with the US that it is essential for interested parties to be certain that the
confidential information submitted to investigating pa rties in the course of an investigation will not be
disclosed.  It is indispensable for all Members, in order to guarantee the cooperation of interestedparties and the proper functioning of the system to guarantee the confidentiality of the information
submitted.  However, we believe that the question of confidentiality is to be addressed by each
Member at a domestic level.
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