WORLD TRADE
ORGANIZATIONTN/RL/W/23
15 October 2002
(02-5570)
Negotiating Group on Rules Original:  English
COMMENTS ON DOCUMENT TN/RL/W/10 ON
ANTI-DUMPING MEASURES
Paper from Australia
The following communication, dated 14 October 2002, has been received from the Permanent
Mission of Australia.
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The following are Australia’s general comments and preliminary reactions to the second
paper submitted by a group of countries contained in Document TN/RL/W/10.  An earlier document
was originally circulated by Australia as a room document on 8 July 2002.  Australia thanks the group
of countries for their responses to the questions and comments contained in Document TN/RL/W/18of 4 October 2002 and reserves the right to provide further comments and questions on that
Document.
Australia welcomes Document TN/RL/W/10 as it raises a reasonable set of issues requiring
clarification and notes that a number of these issues have been the subject of dispute settlement action
or discussion within the Working Group on Implementation.
1. Definition of Product under Investigation/Consideration and Like Product
We recall that one of the topics suggested for examination within the Working Group on
Implementation last year related to the application of ‘like product’ in anti-dumping investigations.
• How do the proponents relate this proposal of more clearly defining the “product under
investigation” (a) with the concept of ‘like product’ which is reflected in the ADA and (b) toArticle 4.1(ii) relating to segmented markets?
There is considerable WTO case law on ‘like product’ which has identified the following
criteria in determining if a product is a ‘like product’: the product’s end use in a given market;consumer tastes and habits; the product’s properties, nature and qualities; and tariff classification.
This would seem to provide a sufficient basis for investigating authorities to determine properly a
‘like product’.
2.  Definition of Domestic Industry
Australia agrees that there would be some merit in examining the application of what
constitutes “major proportion” und er Article 4.1 of the ADA.  However, the second question posed by
the paper (namely, whether there should be criteria to determine when authorities are allowed, in
exceptional cases, not to use the definition of “domestic producers as a whole of the like products”)suggests turning the ADA on its head.  Notwithstanding that in exceptional circumstances productionTN/RL/W/23
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may be divided into segmented markets, Article 4.1(ii) does not undermine the basic definition (the
“major proportion of total domestic production”) contained in the chapeau of Article 4.1.
3. Standing Rules
Australia considers that there needs to be minimum standards for initiating anti-dumping
proceedings to ensure that there are no ‘frivolous’ unfounded applications designed purely to have a
trade chilling effect.  Of course, the issue of sta nding is a separate issue from that of definition of
domestic industry for the purposes of a determination of injury.  The second paragraph of the
illustrative example in the paper appears to confuse standing with definition of industry.
4. Initiation Standards
In principle, there is an argument to support  the claim that initiation standards are too low.
However the example given in the paper is very case specific.  In Australia’s case, other sources of
information would be examined to see if the application contained information that was correct.
However the initiation process is based on a prima facie test, so the starting point is always what iscontained in the application.
Australian practice may be helpful in consideration of this issue.  Amendments have been
made to Australia’s anti-dumping application form which now requires greater specification of
information.  This is aimed at weeding out unsubstantiated applications which would be unlikely toproceed due to lack of a basis of dumping/injury/causal link.
The last paragraph of the illustrative example suggests placing the burden on the investigating
authorities to rectify deficient applications.
• Do the proponents consider that the burden should rather be on the petitioners?
5. Determination of Normal Value – Affiliated Parties and Their Transactions
Australia considers that this is an area of the ADA where clarification would be helpful.
Australia notes the relevance of the US Hot Rolled Steel case which examined the issue of themeaning of “the ordinary course of trade”.
• How do the proponents relate this proposal with the provisions in the ADA relating to “in the
ordinary course of trade” and “fair comparison”?
6. Injury Determination
The proponents note that the ADA does not provide adequate guidance to evaluate the factors
to be considered when determining injury.  Evaluation of injury factors is a matter in which there
must be some degree of discretion.
• Consequently, do the proponents consider that this is an area where agreement could be
reached on criteria used to evaluate injury factors?
• Do the proponents consider that the ADA must specify all circumstances in relation to the
factors outlined in Article 3.4?  As Article 3.4 states in the last sentence, “this list is notexhaustive, nor can one or several of these factors necessarily give decisive guidance.”TN/RL/W/23
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• Could the proponents elaborate on what is meant by clarifying the relationship between
Article 3.4 and other provisions of Article 3?
7. Price Undertakings
Australia has no comments to make at this time in relation to price undertakings.
8. Reviews
Australia agrees that some clarification in relation to reviews could be useful.
• Are the proponents seeking to redress situations where the domestic selling prices have not
moved in response to dumping duties (in other words, the dumping duty has been absorbed by
the exporter)?
• What situations would give rise to dumping authorities reviewing the continuation of
measures “on their own initiative”?
• Do the proponents consider that Article 11.4 is insufficient in giving guidance in relation to
evidence and procedure?
9. Constructed Export Price:  methodology for construction
Australia agrees in principle that clarification on this issue would be useful.   
10. “All others” Rate
Australia also agrees that this issue warrants clarification.
11. The Authorities’ Discretion on the Use of Cost Data
Australia agrees that this issue warrants clarification in order to assist in defining what are
reasonable costs.
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