RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/AHG/W/65
16 April 1999
(99-1521)
Committee on Anti-Dumping Practices
Ad Hoc Group on Implementation
SYNTHESIS OF DISCUSSION WITHIN THE AD HOC GROUP CONCERNING THE
TREATMENT OF CONFIDENTIAL INFORMATION (TOPIC 1)
Note from the Secretariat
1. Members recalled that, by virtue of Article 6.5, "information which is by nature confidential
…. or which is provided on a confidential basis … shall, upon good cause shown, be treated as suchby the authorities."  Certain Members stated that, in  principle, investigating authorities should provide
as much information to interested parties as possible, because restrictions on the dissemination of
information caused by confidential treatment run contrary to an interested party's right to defend  itself
on the basis of all information submitted to the investigating authority.  Other Members noted the
importance of balancing the interest of access against the interest of preserving confidentiality.
2. Members noted the Article 6.5 distinction between information which is "by nature
confidential", and information which is "provided on a confidential basis".  Some Members suggested
that the Article 6.5 requirement to show "good cause" for confidential treatment might only apply to
information that is not "by nature confidential".  Other Members noted the Article 6.5 requirement
that "good cause" for confidential treatment be demonstrated by the applicant in all cases, includinginstances of information which is "by nature confidential".  Some Members asserted that there could
be a rebuttable presumption that the confidential treatment is justified for information which is "by
nature confidential".  Other Members suggested that even if information is by nature confidential,
confidential treatment of such information in a pa rticular investigation should be justified.  These
Members acknowledged, however, that the nature of  the justification might vary depending on the
particular type of information in question.
3. Members discussed the desirability of preparing an illustrative list of information that could
be considered "by nature confidential".  Members noted that Article 6.5 states that information may be
"by nature confidential" if, for example, "its disclosure would be of significant competitive advantage
to a competitor or because its disclosure would have a significantly adverse effect upon a person
supplying the information or upon a person from whom that person acquired the information".  Some
Members suggested that information could be considered  to be "by nature confidential" if it is secret,
i.e., not in the public domain, and its disclosure would be likely inter alia :
- to be of significant competitive advantage to a competitor, e.g., production costs,
distribution costs, upstream and downstream pricing data, profit or loss margins,
certain conditions of sale, business sales statistics, research/invention data, technical
designs,  business or trade secrets concerning the nature of a product or productionprocess, specification of components, capacity data,  investment data, inventory data,
performance/profitability data, details of margin of dumping and adjustments
calculated by investigating authority, etc.G/ADP/AHG/W/65
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- to have a significant adverse effect upon the party who submitted the information, or
the party from whom the information was acquired by the party who submitted the
information, e.g., customer and supplier lists;
- to have a significant adverse effect upon any party to whom the information relates,
e.g., statistical/market share information;
- to prejudice the commercial position of a person who supplied or who is the subject
of the information, e.g., the names of the individual companies requesting the
initiation of an investigation, who may be subject to commercial retaliation by
customers who are also importers;
- to prejudice the security or defence of a Member, or the international relations of a
Member;
- to prejudice the entrusting of information to the authorities of a Member;- to prejudice the supply of similar information or information from the same source;- to disclose a trade secret;  or- to effect the maintenance of legal privilege.
4. A number of Members asserted that the above examples of what might constitute information
that is "by nature confidential" were illustrative  only, and that requests for confidential treatment
should be examined on a case-by-case basis.
5. Members noted that, according to Article 6.5.2, information may be disregarded if a request
for confidential treatment is not warranted, unless the accuracy of that information can bedemonstrated from appropriate sources.  In di scussing how an investigating authority should
determine whether or not a request for confidential treatment is warranted, Members identified criteria
similar to those identified above as illustrative of information that is "by nature confidential".
6. Some Members noted that investigating authorities have discretion in determining whether or
not information designated as confidential actually is confidential.  Certain Members stated that suchdiscretion should not be exercised arbitrarily.  Some Members indicated that they would not use
information for which they have rejected a reques t for confidential treatment, unless that request is
withdrawn (even if the accuracy of that info rmation could potentially be demonstrated from
appropriate sources).  Other Members stated that they would use such information, to the extent that
its accuracy can be demonstrated from appropriate sources.
7. Members discussed procedural arrangements concerning the submission of confidential
information to investigating authorities.  Members stated that confidential information should besubmitted separately from non-confidential information, and should be clearly identified as
confidential.  Some Members stated that information not designated as confidential would technically
be treated as non-confidential.  Certain Members stated that the party submitting information
designated as confidential should also submit a full justification for confidential treatment.
8. One Member stated that there remains a substantial amount of information which should not
normally be considered as confidential. For instance, data and analysis provided by complainants as
part of the injury claim will often be in the form of a narrative assessment based on widely available
statistics; company information such as annual reports and organizational charts is similarly public.G/ADP/AHG/W/65
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That Member suggested that such information should only be granted confidential treatment in
exceptional circumstances.
9. Some Members explained that they disclose confidential information to interested parties
under narrowly-drawn protective orders, as envi saged by note 17 to Article 6.5.  These Members
provided details concerning the administration and operation of such protective orders.  It was noted
that although public versions of parties' submissions are made available, such public versions do notalways contain non-confidential summaries of confidential information.  In certain cases, confidential
information may simply be redacted from the public version of submissions.  Furthermore, not all
information is disclosed under protective orders;  privileged and classified information is excluded.
One Member asked how, under regimes where confidential information is not disclosed (under
protective orders), interested parties defend their interests in the context of injury.
10. Other Members stated that parties were able to fully defend their interests on the basis of non-
confidential summaries of confidential information.  Certain Members noted the complexity of asystem for providing access to confidential information.  Some Members questioned how to reconcilestrict adherence to the Article 6.5 confidentiality  requirement with disclosure under some form of
protective order system.  Certain Members commented that the size of their economies, with manyone producer industries, restrict ed the possibility  of disclosure.  More over, different types of
investigative process, such as inquisitorial ministerial investigations, resulted in differentconsiderations on whether to disclose any conf idential information in any way.  Thus, it was
commented that disclosure systems might be more useful in adversarial or judicial type systems ofinvestigation.  One Member commented that it was rare for a particular piece of confidentialinformation to be pivotal to a case, thus the failure to disclose did not usually restrict parties ability todefend their interests.  In this Member's view, the key was in the use of non-confidential summaries.
11. In this regard, Members noted the Article 6.5.1 requirement that, whenever confidential
treatment is accorded for particular information,  a non-confidential summary of that information
should generally be provided.  Some Members stated that such non-confidential summary should be
submitted at the same time as the confidential information, whereas one Member suggested that a24 hour lag between the submission of confidential and non-confidential versions helps to avoid any
confusion between confidential and non-confidential information.
12. Members noted that, according to Article 6.5.1, non-confidential summaries "shall be in
sufficient detail to permit a reasonable understanding of the substance of the information submitted".
Members emphasised the need for non-confidential summaries to provide the recipient with areasonable understanding of the issue or subject-matter, so that the recipient may adequately defend
its interests.  Members referred to the use of co nsistent ranges or indices for providing meaningful
summaries of confidential numerical data.
13. Members recalled that Article 6.5.1 envisages circumstances where confidential information
is not susceptible of non-confidential summary, and that a statement of the reasons whysummarization is not possible must be provided in such circumstances.  Certain Members expressed
the view that circumstances in which confidential information cannot be summarized in non-
confidential form are rare.
14. One Member addressed an apparent lacuna in Article 6.5, noting that it does not address the
situation where a party submitting confidential information fails to submit a non-confidentialsummary because it claims that the confidential information is not susceptible of non-confidential
summary, whereas the investigating authority (which accepts the designation of the information as
confidential) does consider that the information is susceptible of non-confidential summary.  That
Member understood that investigating authorities could disregard such information in such cases,G/ADP/AHG/W/65
Page 4
unless it is proved to be correct by means of, for example, on-the-spot investigations.  Another
Member indicated that in such cases it would use other information available in the case file.  It was
noted that this was an area of some concern in light of the provisions of Article 6.5.2.  For instance,
assume an authority granted confidential treatment, but no non-confidential summary was provided,
and the authority was aware from other sources that the information was correct – would it be
obligated to consider that information?  Some Me mbers observed that in such a case, the information
would nonetheless be disregarded, unless and until a non-confidential summary was provided.  Other
Members suggested that, in view of the language of  the provision, if the condition (the correctness of
the information in question) was satisfied, the discretion to reject it disappeared.  It was also noted
that to reject and not consider information known to be correct could cause problems in the context of
domestic judicial review.  However, it was observed that if the information was rejected, it would not
be subject to verification.  Therefore it was unlikely that the authorities could ever be satisfied that the
information was nonetheless correct, and the issue simply did not arise.  One Member observed thatthe investigating authorities themselves could disc lose a non-confidential summary of the information
if it was relied upon in making a decision.
15. In light of the above, the Ad Hoc Group may wish to pursue the following issues:
• Is there any practical relevance to the Article 6.5 distinction between information which is "by
nature confidential", and information which is "provided on a confidential basis"?  In particular, is
there (or should there be) a rebuttable presumption that information deemed to be "by natureconfidential" should be accorded confidential treatment?
• How should an investigating authority proceed in cases where a party supplying information
deemed confidential by the investigating auth ority fails to provide a non-confidential summary
thereof?
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