RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/AHG/W/120
18 September 2001
(01-4393)
Committee on Anti-Dumping Practices
Ad Hoc Group on ImplementationOriginal:  English
PRACTICAL ISSUES AND EXPERIENCE IN APPLYING
ARTICLE 2.4.2
PRACTICAL ISSUES AND EXPERIENCES IN PROVIDING OPPORTUNITIES
FOR INDUSTRIAL USERS AND CONSUMER ORGANIZATIONS
TO PROVIDE INFORMATION UNDER ARTICLE 6.12
Paper from Indonesia
The following communication, dated 14 September 2001, has been received from the
Permanent Mission of Indonesia.
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Transaction-to-transaction analysis under Article 2.4.2 (G/ADP/AHG/W/106)
The Government of Indonesia considers a transaction-to-transaction comparison poses a
number of practical problems which would tend to limit the criteria that could be used for establishing
comparisons, and it also tends to render the transaction-by-transaction approach redundant.
According to Indonesian Regulation (Governm ent Regulation No. 34/1996) investigating
authorities are not necessarily in a position to know the level of trade, or clients of customers in theexport market.  It is frequently the case that exporters sell on an f.o.b. basis through traders, and
traders may then sell on to importers, retailers, etc.  Furthermore, the experience of Indonesia is that
traders and importers in general are reticent to cooperate with investigations.  As a consequence, such
criteria, while desirable, may be difficult to fulfil in practice.  This also influences the date of sales.  In
this respect, while it is desirable to match dates as closely as possible, Indonesia considers that thedate to be used should be the invoice date of domestic and export sales as this information would be
available in the exporters questionnaire response.  However, dates of sales within the export market
would be difficult to obtain.
On the other hand, Indonesia also considers that the like product comparisons and similar
sales volume are verifiable.  However, problems are to be envisaged:  in particular, if an investigating
authority has to establish like product on a transaction basis, the burden this would impose on all
investigating authorities, not to mention interested parties, would be substantial.  Similar sales volume
is also a useful criteria, but it would again impose considerable problems on all parties to identify and
compare transactions on a comparable basis.  In this respect, it is important to bear in mind thatdomestic sales are often made at much smaller quantities than for export and that this in many
respects renders a transaction-by-transaction approach difficult, and possible meaningless, from the
outset.
Another problem that is likely to arise is where there are several transactions on the same date
but no export sales during the period concerned;  and conversely there could be periods in which there
are export sales and no domestic transactions.  In the case of export sales, this would require thatG/ADP/AHG/W/120
Page 2
normal value has to be established on the cost of production.  Furthermore, if there are several
domestic and export transactions on the same day, it would then be required to identify on a
transaction basis, within the same day, like comparisons, if this was possible.
The above then raises a more general question as to whether the transaction-by-transaction
would require a profitability analysis for each sale made.  In this context, Indonesia considers that it
would, in that a transaction-by-transaction comparison also requires an assessment on a transaction
basis whether the sale concerned is made at a profit, in the ordinary course of trade and is
representative, that is represents more than 5 per cent of the domestic sales upon which the
comparison is made.  This poses considerable proble ms to all interested parties as the information
requirements in the questionnaire response would require cost of production to be verified on a daily
basis.
The above-mentioned problems depend on the approach of the investigating authorities
concerned.  The transaction approach of the US and EC, which is also that adopted by Indonesia,
would raise all these problems, whereas, in contrast, the approach of Australia, selecting customers
and transactions, could well accommodate at least some of the criteria mentioned.  However, ourGovernment considers that defining criteria for a transaction-by-transaction approach would render
the WTO Agreement inoperable.
Application of the lesser duty rule and considerations of public interest (G/ADP/AHG/W/107)
Concerning the lesser duty principle and considerations of national interest, the Government
of Indonesia wishes to briefly address some views for further discussion in the Committee meeting.
In the anti-dumping proceedings, the Government of Indonesia maintains a non-confidential
file, although it is not publicly available.  Nevertheless, consumer and industrial end users that can
show that they are directly affected by the measures concerned will be given access to the file.
Therefore, consumers and industrial end users are provided the opportunity to provide information
throughout the proceeding on condition that they are able to show that they will be affected by the
outcome of the proceeding.  There are no verification procedures established for consumers and end
users.  In this respect, the Indonesian authorities focus on those parties that can directly provide
information related to verifying the allegations of dumping, injury and causality, that is the producers,exporters and importers.  However, in some cases, the importers may well be the end users.
In general, the concerns of industrial end users and consumers are focused on the implication
of the imposition of measures, and the Indonesian authorities will address these concerns in the light
of the public interest.  In addition, it is the opinion of the Indonesian authorities that a verificationprocess for consumers and end users could impose an unreasonable burden on the investigating
authorities.  All issues submitted by industrial end users and consumers concerned will be considered
and taken into account in the disclosures issued;  and suppliers of raw materials may make their views
known to the Indonesian authorities.  As raw materi al costs have a significant impact on the cost of
production and selling prices, information from raw material suppliers is considered relevant to aninvestigation.  Industrial end users and consumers are allowed to give comment throughout a
proceeding both at the preliminary and final determination stage.
Regarding the impact of the imposition of measures, this will be taken into account in
assessing public interest.  However, information on pricing, and quality issues, market segmentationwill directly be taken into account in considering issues of like product, causality, price effects of the
dumped imports through the disclosure issued and the comments received from interested parties.
Consumer and industrial end users often raise competition issues.  While the Indonesian anti-
dumping authorities will address concerns of compet ition in terms of the impact it has on the dumpingG/ADP/AHG/W/120
Page 3
proceeding, no inputs are sought or allowed from the competition authorities as the issue of unfair
trade and unfair competition are treated separately under Indonesian law.  The representation made
from end users and consumers will generally not result in a reduction of duties as the duties
themselves are based on factual information submitted by the interested parties concerned.
The Indonesian Authority (the KADI) also considers that the public interest is a judgement to
be made solely by the Indonesian authorities though interested parties are entitled to provide their
view within the context of the proceeding.  While the enforcement of anti-dumping laws may not
necessarily be in the public interest.  For exampl e, the loss of employment that may result from the
imposition of measures in downstream industries may offset the benefits resulting from the
elimination of unfair trade.  The Indonesian author ities consider that the public interest is to be
determined by the sovereign state and that the WTO Agreement should not regulate this matter.
The Indonesian authorities do not seek testimony from producers or employees regarding the
public interest.  The facts established during an investigation are used to assess whether it is in the
public interest to impose measures.  The application of the lesser duty principle may effect the
evaluation of the public interest depending on the difference between the dumping margin and thelesser duty.  Where the difference is large, the lesser duty principle may reduce concerns regarding
public interest related to the possible elimination of suppliers from the market, etc.
The lesser duty principle and the information upon which it is based is not provided to the
competition authorities of Indonesia.  Importers may choose to make representation on behalf ofdownstream users should they wish, though the Indonesian authorities encourage direct access to the
investigating process.
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