RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/PER/11
G/SCM/Q1/PER/11
25 September 1998
(98-3705)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  Spanish
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Replies to Questions Posed by Brazil1 and the United States2
Regarding the Notification of Peru3
The following communication, dated 1 September 1998, has been received from the
Permanent Mission of Peru.
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CONTENTS
Page
REPLIES TO QUESTIONS POSED BY BRAZIL ........................................................................2
REPLIES TO QUESTIONS POSE D BY THE UNITED  STATES ..............................................3
                                                     
1 G/ADP/Q1/PER/9-G/SCM/Q1/PER/9.
2 G/ADP/Q1/PER/3-G/SCM/Q1/PER/3.
3 G/ADP/N/1/PER/1/Suppl.2-G/SCM/N/1/PER/1/Suppl.2.G/ADP/Q1/PER/11
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REPLIES TO QUESTIONS POSED BY BRAZIL
Question
Article 14 of the SCM Agreement establishes th at "any method used by the investigating
authority to calculate the benefit to the re cipient  conferred pursuant to paragraph 1 of
Article 1 shall be provided for in the national legislation or implementing regulations of the
Member concerned … ".
Decree No. 043-97-EF "Regulations on Dump ing and Subsidies" does not contain any
provision relating to the method the Peruvian investigating authorities would apply to calculate
the benefit to the recipient conferred pursu ant to paragraph 1 of Article 1 of the
SCM Agreement.  Could Peru explain how it complies with the provisions of Article 14 of the
SCM Agreement?  Could Peru indicate if the mentioned method of calculation is contained in
any other national implementing regulation?
Reply
It should be pointed out that, by Legislative Decision No. 26407, published on
18 December 1994, the Congress of Peru approved the Agreement Establishing the World Trade
Organization and the Agreements contained in th e Final Act of the Uruguay Round and incorporated
their provisions into Peruvian domestic law.  Accordingly, the Anti-Dumping Agreement and the
Agreement on Subsidies and Countervailing Measures came into force on 1 January 1995 and have
the status of domestic law, their provisions being directly applicable in this country.
Consequently, although Supreme Decree No. 043-97-EF does not specify any particular
method of calculating the amount of the subsidy, the Commission conforms in every respect to the
provisions of Article 14, subparagraphs (a) to (d), of the Agreement on Subsidies and Countervailing
Measures.G/ADP/Q1/PER/11
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REPLIES TO QUESTIONS POSED BY THE UNITED STATES
It should be pointed out that, by Legislative Decision No. 26407, published on
18 December 1994, the Congress of Peru approved the Agreement Establishing the World Trade
Organization and the Agreements contained in th e Final Act of the Uruguay Round and incorporated
their provisions into Peruvian domestic law.  Accordingly, the Anti-Dumping Agreement and the
Agreement on Subsidies and Countervailing Measures came into force on 1 January 1995 and have
the status of domestic law, their provisions being directly applicable in this country.  Peru has thus
issued Supreme Decree No. 043-97EF for the purpo se of regulating the legal and administrative
procedures needed to carry out investigations.
(a) A number of regulations (e.g. 18, 20, 21) specify that the "requirements of the
TUPA" must be met.  Article 2 defines the TUPA as "the sole text of
administrative procedures of the Na tional Institute for the Defence of
Competition and the Protection of Intellectual Property (INDECOPI), thesection corresponding to the Dumping and Subsidies Commission", i.e. the
administering agency.  Could Peru plea se explain how this relates to the
regulations contained in this notification?  Will this text be notified to the WTO
Anti-Dumping and Subsidies Committees?
The TUPA, the sole text of administrative procedures of INDECOPI, incorporates the
requirements of Article 5 of the Anti-Dumping Agreement and Article 11 of the Subsidies Agreement
such as identification of the applicant and of the economic activity, description of the product,
information on prices and so forth.
INDECOPI is a decentralized organ of the Ministry of Industry, Tourism, Integration and
International Trade Negotiations, having a legal capacity under public law and technical, economic,
budgetary and administrative autonomy, which is responsible for applying the legal rules designed,
inter alia,  to protect the market from monopoly practices that control and restrict competition and
practices which generate unfair competition and also to protect the rights to intellectual property and
product quality.
The Dumping and Subsidies Commission is a functional organ of INDECOPI which is
responsible for ensuring that the rules are observed and that distortions of competition in the market,
caused by dumping and subsidies, are prevented and corrected.
As for the notification of the sole text of ad ministrative procedures (TUPA) of INDECOPI to
the WTO Anti-Dumping and Subsidies Committees, we wish to point out that Supreme DecreeNo. 001-94-ITINCI, which approved the TUPA, was notified on 12 April 1996.
(b) Similarly, Article 33 of the regulations provides that the form and amount of any
provisional measures shall be regulated by the relevant provisions of the sole
amended text of the Code of Civil Procedure.  Will the relevant provisions of thisCode be notified to the WTO Anti-Dumping and Subsidies Committees?
Article 33 of Supreme Decree No. 043-97-EF men tions that the amount of the provisional
measures and their significance in the investigation process are to be regulated by the Code of Civil
Procedure.
The Peruvian Code of Civil Procedure, a supplementary set of regulations, stipulates that the
purpose of the provisional measures is to prove the facts alleged by the parties so as to produce in theG/ADP/Q1/PER/11
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corresponding authority (in this case, the I NDECOPI Dumping and Subsidies Commission) a
certainty regarding the facts presented and provide support for its decisions.
Strictly speaking, Article 33 of the regulations does not govern the amount of the provisional
duties or the form in which they are determined since, in that regard, the Dumping and SubsidiesCommission is regulated by the provisions of the WTO Anti-Dumping Agreement and Agreement on
Subsidies and Countervailing Measures, as specified in Article 42 of Supreme Decree No. 043-97-EF.
2. Article 12 of the notified regulations provides that "[i]n the case of actionable subsidies,
the Commission may assume that there is injury to domestic industry in conformity with the
criteria laid down in Article 6 of the Subsidies Agreement".  Given that Article 6 of the
Subsidies Agreement refers not to injury to the domestic industry of another Member (seeArt. 5(a) of the Subsidies Agreement) but to serious prejudice to the interests of another
Member (see Art. 5(c) of the Subsidies Agreement), was Article 12 intended to refer to serious
prejudice rather than to injury to the domestic industry?  Can Peru confirm that, in the case of
actionable subsidies for which relief is sought under Peruvian law, injury to the domestic
industry will not be assumed, but will instead be examined pursuant to the provisions ofArticle 15 of the Subsidies Agreement and Title IV of the notified regulations?
Article 12 of the Regulations on Dumping a nd Subsidies (Supreme Decree No. 043-97-EF)
takes up the provisions of Articles 6 and 15 of the Agreement on Subsidies and Countervailing
Measures.  Consequently, the assessment of the prejudice must be made in conformity with Article 15
and with Title IV of the notified regulations.
3. Article 22 of the notified regulations provide s for the Secretariat to notify the persons
cited in the complaint following the publication of the decision to initiate an investigation.  With
the understanding that this provision appears to correspond to the notice requirements inArticles 6.1 of the Anti-Dumping Agreement and 12.1 of the Subsidies Agreement, could Peru
please confirm that, as required by Article 5.5 of the Anti-Dumping Agreement, its authoritiesnotify the government of the exporting Member concerned "before proceeding to initiate an
investigation".
Applying the provisions of Article 5.5 of the Anti-Dumping Agreement, in the investigation
process, the Commission notifies the Member concerned after having received a properly documented
application and before proceeding to initiate an investigation.
4. Article 23 of the notified regulations provides that the Commission may require
information from, inter alia , customs agents.  Given that much of the information collected by
the United States Customs Service cannot be released to a foreign government, even on a
confidential basis, can the Peruvian delegate conf irm that the "customs agents" referred to are
only the Peruvian customs agents?
Article 23 of Supreme Decree No. 043-97-EF provides that the Commission may require
information from customs agents.  This power of the Commission relates only to Peruvian customs
agents, its purpose being to check the import formalities that they carry out and obtain their
contribution to the investigation.
5. Article 32 of the notified regulations provide s that in cases in which any interested party
refuses access to, or otherwise does not provide, necessary information within the time-limit
fixed or significantly impedes the investigation, the Commission may decide to apply provisional
or definitive duties pursuant to Articles 6.8 of the Anti-Dumping Agreement and 12.7 of the
Subsidies Agreement.  The referenced Articles of the Agreements permit the administeringagency to make "preliminary and final determinations, affirmative or negative", on the basis of
the facts available.  Further, the Anti-Dumping and Subsidies Agreements both require that theG/ADP/Q1/PER/11
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application of either provisional or definitive dumping can only occur when there has been a
positive finding, not only of dumping or subsidization, but of consequent injury to the domestic
industry.
Can Peru please clarify that, even should a foreign exporter not provide information
necessary to determine whether dumping or subsid ization of its products has occurred, neither
provisional or definitive duties will be levied in the absence of an affirmation finding of injury
resulting from such dumping or subsidization?
Article 32 of Supreme Decree No. 043-97-EF should be interpreted in accordance with the
Dumping and Subsidies Agreements.  In the event that one or other of the parties concerned refuses or
fails to provide the information needed for the in vestigation, the Commission will decide whether to
levy provisional or definitive duties on the basis of the best information available (Article 6.8 of theAnti-Dumping Agreement and Article 12.7 of the Subsidies Agreement), after checking the
requirements laid down in Articles 7 and 9 of the Anti-Dumping Agreement and Articles 17 and 19 of
the Subsidies Agreement.
6. Article 39 of the notified regulations pr ovides that anti-dumping and countervailing
duties are "fines" rather than taxes.  What ar e the consequences of this distinction for
importers and their suppliers?
In accordance with the provisions of Article 39 of Supreme Decree No. 043-97-EF,
anti-dumping and countervailing duties are deemed to be fines and do not constitute taxes.  Theeffects or consequences of this distinction for importers are irrelevant, since in both cases, the dumped
or subsidized products will be subjected to the corresponding payment by the importers and this will
be collected by the customs authority.
7. Peru appears to have a prospective approach  to anti-dumping law.  However, although
Article 47 of the notified regulations provi des for a review to consider the continued
[prospective] application of duties if there is ad equate evidence of "significant change" in the
situation, these regulations do not appear to provide for the "refund review" to be provided to
importers in prospective systems pursuant to Article 9.3.2 of the Anti-Dumping Agreement.
Could Peru please clarify how this obligation is met under Peruvian law?
Although Supreme Decree No. 043-97-EF does not  provide for a refund review to importers
in prospective systems, the provisions of Article 9.3.2 of the Anti-Dumping Agreement will be
applied in these cases.
8. Has the Government of Peru issued the ad ministrative regulations for the Dumping and
Subsidies Commission of the National Institute for the Defence of Competition and theProtection of Intellectual Property ("Co mmission") that are referenced in Title I,
paragraph VI, of Supreme Decree No. 043-97- EF ("Supreme Decree")?  If so, will the
Government of Peru be notifyin g those regulations to the WTO?
The Dumping and Subsidies Commission of the National Institute for the Defence of
Competition and the Protection of Intellectual Property (INDECOPI) is the authority responsible in
Peru for investigating allegations of dumping or subsidization.
The Government of Peru published in the Official Journal, El Peruano, the National Institute
for the Defence of Competition and the Defence of Intellectual Property – INDECOPI (Organizationand Functions) Act, approved by Decree-Law No. 025868 of 24 November 1992, and the
amendments thereto, approved by Legislative Decree No. 807, of 24 May 1996 and Legislative
Decree No. 845 of 21 September 1996.  In the above-mentioned general regulations, the duties of theG/ADP/Q1/PER/11
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various functional organs of INDECOPI are establis hed, including those of the Technical Secretariat
of the Dumping and Subsidies Commission.
Article 18.5 of the Anti-Dumping Agreement and Article 32.6 of the Subsidies Agreement
require the Members to inform the Committee in ques tion of any changes in their laws and regulations
relevant to the Agreements and in the administration of such laws and regulations.  Peru has duly
complied with the provisions of the Agreements by giving notification of Supreme Decree
No. 043-97-EF and the INDECOPI sole text of administrative procedures (TUPA).
9. Will the Commission be permitted to cumulatively assess the effects of imports from
more than one country subject to investigatio n in an anti-dumping or countervailing duty
proceeding, as permitted under Article 3.3 of the Anti-Dumping Agreement and Article 15.3 ofthe Subsidies Agreement?  If so, how will the Government of Peru ensure that such an analysis
is consistent with the requirements of those Articles?
To date, the INDECOPI  Dumping and Subsidies Commission has made no assessment of
cases similar to those described.  In the event of such a situation occurring, the Commission will act inaccordance with the provisions of Article 3.3 of the Anti-Dumping Agreement and Article 15.3 of the
Agreement on Subsidies and Countervailing Measures.
10. Article 14(I)(b) of the Supreme Decree allows the Commission to assess the price effects
of imports subject to investigation for purposes of making a material injury determination byexamining the effects that are "caused or may be  caused" by such imports.  Is this consistent
with Article 3.2 of the Anti-Dumping Agreement and Article 15.3 of the Subsidies Agreement,
which require Member countries to examine whether the subject imports have actually
under-priced the domestic like product, depressed domestic prices or prevented price increases
that would have otherwise occurred?
Article 14(I)(b) of the Regulations on Dumping and Subsidies, approved by Supreme Decree
No. 043-97-EF, is compatible with Articles 3.2 and 3.7 of the Anti-Dumping Agreement and
Articles 15.2 and 15.7 of the Agreement on Subsidies and Countervailing Measures.
11. Article 23 of the Supreme Decree provides that various private entities must provide
information to the Commission within the time-limits fixed by the Commission "on pain ofliability".  What does the phrase "on pain of liability" mean?
The phrase "on pain of liability" refers to the fa ct that it is obligatory for the interested parties
to submit to the Commission the information which it requests.  Parties which do not submit the
information requested must bear the consequences of their behaviour.  The Commission will decideon the basis of the best information available (Article 6.8 of the Anti-Dumping Agreement and
Article 12.7 of the Subsidies Agreement).
12. For purposes of the Supreme Decree, what is th e definition of an "interested party" who
is entitled to participate in an anti-d umping or countervailing duty proceeding?
Supreme Decree No. 043-97-EF does not define what  is meant by an interested party entitled
to participate in an anti-dumping or countervailing proceeding.  In such cases, the Commission will be
governed by the provisions of Article 6.11 of the Anti-Dumping Agreement and Article 12.9 of the
Subsidies Agreement, which do define the interested parties.
13. Article 32 of the Supreme Decree allows the Commission to decide to "apply provisional
or definitive [anti-dumping or countervailing] duties" whenever an interested party refuses to
provide necessary information within the time-limits established by the Commission or
significantly impedes the investigation.  Is this  consistent with Article 6.8 of the Anti-DumpingG/ADP/Q1/PER/11
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Agreement and Article 12.7 of the Subsidies Agreement, which provide only that a Member
State may make its preliminary or final determin ations on the basis of the "facts available" in
these circumstances?
In cases where an interested party refuses access to, or otherwise does not provide, the
necessary information within the time-limits established or impedes the investigation, the
Commission will proceed in accordance with the provisions of Article 6.8 of the Anti-Dumping
Agreement and Article 12.7 of the Subsidies Agreement which provide that preliminary or final
determinations may be made, whether positive or negative, on the basis of the best information
available.
It should be made clear that the Commission will proceed, in accordance with the provisions
in the above-mentioned Agreements, on the basis of the facts available.
14. Is the Commission required by the Supreme Decree or other law to inform all parties of
the "essential facts under consideration" which form the basis of its determination before
making its final determination, as required by  Article 6.8 of the Anti-Dumping Agreement and
Articles 12.8 of the Subsidies Agreement?
In these cases, the Commission will proceed in accordance with the provisions of Article 6.9
of the Anti-Dumping Agreement and Article 12.8 of the Subsidies Agreement.
15. Article 38 of the Supreme Decree provides that the volume of dumped imports will be
deemed negligible if "the volume from a particular country is found to account for less than
3 per cent of imports of the like product in that country".  Does this mean that negligibility
determinations in an anti-dumping proceeding will be based on a comparison of the volume ofimports from a country with all imports into Peru, as required by Article 5.8 of the
Anti-Dumping Agreement?
Article 38 of Supreme Decree No. 043-97-EF is in keeping with the provisions of Article 5,
paragraph 8, of the Anti-Dumping Agreement.
16. Will the Commission publish the type of explanation of its preliminary and final
determinations in anti-dumping and countervailing duty investigations required by Article 12.2of the Anti-Dumping Agreement and Article 22.3 of the Subsidies Agreement?
Article 26 of Supreme Decree No. 043-97-EF states that decisions to initiate an investigation,
to fix provisional or definitive anti-dumping or countervailing duties and to lift or modify such duties
and terminate or suspend the investigation are to be published in El Peruano , the Official Journal.
17. Article 47 of the Supreme Decree provides th at the Commission may review the need for
an order at the request of a party if more than six months have passed since the conclusion of an
investigation.  How does the Supreme Decree ensure that this review is consistent with
Article 11.2 of the Anti-Dumping Agreement and Article 21.2 of the Subsidies Agreement,which provide that, in such a review, the Co mmission should determine whether continued
imposition of the duty is necessary to offset dumping or subsidization and/or whether injury
would be likely to continue or recur if the duty were removed or varied?
Article 11.2 of the Anti-Dumping Agreement and Article 21.2 of the Subsidies Agreement do
not establish a minimum time-limit for the review of the anti-dumping or countervailing duties
applied by simply state that such duties shall be reviewed once a reasonable time has elapsed.  There
is also the provision that anti-dumping or countervailing duties shall be terminated on a date not later
than five years from their imposition.G/ADP/Q1/PER/11
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The provisions of the above-mentioned Articles have been reflected in Article 47 of Supreme
Decree No. 043-97-EF which provides that, after at least six months have elapsed since the conclusion
of the investigation, at the request of any interested party or ex officio, the Commission may review
the need for the continued imposition of the anti-dumping or countervailing duties in effect.  Such a
review will be based on evidence that the injury to domestic production and its causal relationship todumping or subsidization would remain if the measure were withdrawn.
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