   
  
WT/DS614/1, G/L/1432  
G/ADP/D141/1, G/SCM/D134/1   
6 September 2022  
(22-6623) Page: 1/6 
  Original: Spanish  
 
  
PERU - ANTI -DUMPING AND COUNTERVAILING MEASURES  
ON BIODIESEL FROM ARGENTINA  
REQUEST FOR CONSULTATIONS BY ARGENTINA  
The following communication, dated 2 September 2022, from the delegation of Argentina to the 
delegation of Peru, is circulated to the Dispute Settlement Body in accordance with Article 4.4 of the 
DSU. 
 
_______________  
 
 
My authorities have instructed me to request consultations with the Republic of Peru pursuant to 
Articles 1 and 4 of the Understanding on Rules and Proc edures Governing the Settlement of Disputes 
("DSU"), Article XXIII:1 of the General Agreement on Tariffs and Trade 1994 (" GATT 1994 "), 
Articles 17.2 and 17.3 of the Agreement on Implementation of Article VI of the General Agreement 
on Tariffs and Trade 199 4 ("Anti-Dumping Agreement ") and Article 30 of the Agreement on 
Subsidies and Countervailing Measures (" SCM Agreement ") with respect to the anti-dumping and 
countervailing measures on imports of biodiesel (B100) originating in the Argentine Republic.  
 
I.- Identification of the measures at issue  
 
The anti -dumping and countervailing measures concerned are contained in the following 
instruments:  
 
Measure 1 : Imposition of definitive countervailing duties ( original investigation).  
 
● Resolution No. 011-2016/CDB -INDECOPI, published in the Official Journal  El Peruano  on 
28 January 2016,  which,  on the basis of the conclusions of Report 
No. 007-2016/CDB -INDECOPI, stipulates  the imposition of definitive countervailing duties 
on imports of biodiesel (B100)  originating in Argentina, confirmed by Resolution 
No. 0144-2018/SDC -INDECOPI, published in the Official Journal  El Peruano  on 27 July 2018, 
and the underlying investigation, including the notice of initiation (Resolution 
No. 081-2014/CFD -INDECOPI, publish ed in the Official Journal  El Peruano  on 28 July 2014).  
 
Measure 2 : Imposition of definitive anti -dumping duties ( original investigation).  
 
● Resolution No. 189 -2016/CDB -INDECOPI, published in the Official Journal  El Peruano  on 
25 October 2016, which stipulates  the imposition of definitive anti -dumping duties on 
imports of biodiesel (B100) originating in the Argentine Republic, confirmed by Resolution 
No. 0145 -2018/SDC -INDECOPI, published in the Official Journal  El Peruano  on 27 Jul y 2018, 
and the underlying investigation, including the notice of initiation (Resolution 
No. 050-2015/CFD -INDECOPI,  published in the Official Journal  El Peruano  on 26 April 2015).  
 
These measures also include the final determinations in the changed circums tances and sunset 
reviews carried out by the Peruvian investigating authority, which are contained in:  
 
Measure 3 : Continued imposition of countervailing duties ( changed circumstances review) . 
 
● Resolution No. 187 -2021/CDB -INDECOPI, published in the Offic ial Journal  El Peruano  on 
16 June 2021, which extends the validity  of the countervailing duties imposed by Resolution 
No. 011 -2016/CDB -INDECOPI, confirmed by Resolution No.  144-2018-SDC-INDECOPI, on 
imports of biodiesel (B100) originating in Argentina, and  the underlying review process, WT/DS614/1 • G/L/1432 • G/ADP/D141/1 • G/SCM/D134/1  
 
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  including the notice of initiation (Resolution No.  165-2019/CDB -INDECOPI, published in the 
Official Journal  El Peruano  on 11 December 2019).  
 
Measure 4 : Continued imposition of anti -dumping duties ( changed circumstances revi ew). 
 
● Resolution No. 182 -2021/CDB -INDECOPI, published in the Official Journal  El Peruano  on 
2 June 2021, which extends the validity of the definitive anti -dumping duties imposed by 
Resolution No. 189 -2016/CDB -INDECOPI on imports of biodiesel (B100) originating in the 
Argentine Republic, and the underlying review process, including the notice of initiation 
(Resolution No. 166 -2019/CDB -INDECOPI, published in the Official Journal  El Peruano  on 
11 December 2019).  
 
Measure 5 : Continued imposition of count ervailing duties ( sunset review).  
 
● Resolution No. 265 -2021/CDB -INDECOPI, published in the Official Journal  El Peruano  on 
3 November 2021, which extends  for five years the countervailing duties imposed by 
Resolution No. 011 -2016/CDB -INDECOPI on imports of  biodiesel (B100) originating in 
Argentina, and the underlying review process, including the notice of initiation (Resolution 
No. 104 -2020/CDB -INDECOPI, published in the Official Journal  El Peruano  on 
10 September  2020).  
 
Measure 6 : Continued imposition of  anti-dumping duties ( sunset review).  
 
● Resolution No. 266 -2021/CDB -INDECOPI, published in the Official Journal  El Peruano  on 
3 November 2021, which extends the validity of the definitive anti -dumping duties imposed 
by Resolution No. 189 -2016/CDB -INDECOPI  on imports of biodiesel (B100) originating in 
the Argentine Republic, and the underlying review process, including the notice of initiation 
(Resolution No. 105 -2020/CDB -INDECOPI, published in the Official Journal  El Peruano  on 
10 September 2020).  
 
These measures also include any annexes and amendments thereto, and the initiation and 
conduct of the underlying investigations that led to their publication.  
 
II.- Legal basis  
 
 Measure 1  (Imposition of definitive countervailing duties - Original investigation) appears to 
be inconsistent with Peru's obligations under the WTO Agreements, including those under the 
provisions of the SCM Agreement and the GATT 1994. Specifically, Peru appears to have violated 
the following:  
 
1. The introductory paragra ph of Article 14 of the SCM Agreement  because the 
method used by Peru to calculate the benefit to the recipient was not provided for in 
Peru's legislation or implementing regulations.  
 
2. Article 14(d) of the SCM Agreemen t and, therefore , Article 19.4 of t he 
SCM Agreement and Article VI:3 of the GATT 1994 , because Peru improperly 
calculated the amount of subsidization in terms of the benefit to the recipient due to , 
inter alia , its failure to determine the adequacy of remuneration in relation to prevailing 
conditions in the Argentine biodiesel market. As a result, Peru's miscalculation of the 
alleged benefit to Argentine exporters led it to impose countervailing duties that are 
higher than necessary to counteract the alleged subsidization.  
 
3. Article s 15.1 and 15.2 of the SCM Agreement because, with regard to the effect of 
the allegedly subsidized imports on prices, the analysis carried out by Peru was not 
based on positive evidence and did not involve an objective examination and, therefore, 
it improp erly found significant price undercutting and price suppression within the 
meaning of Article 15.2.  
 
4. Article s 15.1 and 15.5 of the SCM Agreement because, with regard to the 
demonstration of a causal relationship, Peru failed to carry out an objective ex amination 
based on positive evidence of factors other than  the allegedly subsidized imports  which  WT/DS614/1 • G/L/1432 • G/ADP/D141/1 • G/SCM/D134/1  
 
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  were injuring the domestic industry and, consequently, it improperly attributed the 
injury caused by those other factors to imports of biodiesel from Argentin a. 
 
5. Articles 10, 19.1 and 32.1 of the SCM Agreement and Article VI:6(a) of the 
GATT  1994 because Peru imposed countervailing duties not in conformity with  the 
provisions of those Agreements.   
 
6. Article XVI:4 of the Marrakesh Agreement Establishing the  World Trade 
Organization and Article 32.5 of the SCM Agreement  because Peru failed to take all 
necessary steps to ensure that the administrative procedures that led to the imposition 
of the countervailing duties on biodiesel originating in Argentina were in conformity with 
the provisions of those Agreements.  
 
Measure 2  (Imposition of definitive anti-dumping duties - Original investigation) appears 
to be inconsistent with Peru's obligations under the WTO Agreements, including those under the 
provisions of the Anti -Dumping Agreement and the GATT 1994. Specifically, Peru appears to have 
violated the following:  
 
1. Article 5.3 of the Anti -Dumping Agreement  because Peru failed to examine the 
accuracy and adequacy of the evidence provided in the ap plication to determine whether 
it was sufficient to justify the initiation of an anti -dumping investigation.  
 
2. The first sentence of Article 2.2.1.1 of the Anti -Dumping Agreement  because, by 
including costs not associated with the production and sale of the product under 
consideration, Peru failed to calculate costs on the basis of the records of the exporters  
under investigation . Furthermore, with regard to the second sentence of 
Article  2.2.1.1 of the Anti -Dumping Agreement , Peru failed to consider a ll available 
evidence on the proper allocation of costs when calculating an amount for administrative, 
selling and general costs.  As a result, Peru violated  Article 2.2 of the 
Anti-Dumping  Agreement , because it failed to determine the margin of dumping by a 
proper comparison with the cost of production in the country of origin plus a reasonable 
amount for administrative, selling and general costs and for profits.  
 
3. Article 2.2.2(iii) of the Anti -Dumping Agreement and , therefore , Article 2.2 of the 
Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994  because Peru 
failed to use a reasonable method to calculate the amount for profit . 
 
4. Article 2.2.2(iii) of the Anti -Dumping Agreement and , therefore , Article 2.2 of the 
Anti-Dumping Agreement and Article VI:1(b)(ii) of the GATT 1994  because Peru 
failed to ensure that the margin determined for profit did not exceed the profit normally 
realized by other exporters or producers on sales of products of the same general 
category  in the domestic market of the country of origin.  
 
5. Article VI:2 of the GATT 1994 and Article 9.3 of the Anti -Dumping Agreement  
because Peru imposed anti -dumping duties in excess of the margin of dumping that it 
should have established under Article 2 of  the Anti -Dumping Agreement . 
 
6. Article 3.1 and 3.2 of the Anti -Dumping Agreement  because, with regard to the 
effect of the allegedly dumped imports on prices, the analysis carried out by Peru was 
not based on positive evidence and did not involve an obje ctive examination and, 
therefore, it improperly found significant price undercutting, price suppression and price 
depression within the meaning of Article 3.2.   
 
7. Article 3.1 and 3.4 of the Anti -Dumping Agreement  because, with regard to the 
impact of the  allegedly dumped imports on the domestic industry, Peru's analysis did not 
involve an objective examination as it failed to include an adequate evaluation of all 
factors having a bearing on the state of the domestic industry.  
 
8. Article 3.1 and 3.5 of th e Anti -Dumping Agreement  because, with regard to the 
demonstration of a causal relationship, Peru failed to carry out an objective examination 
based on positive evidence of factors other than  the allegedly dumped imports which WT/DS614/1 • G/L/1432 • G/ADP/D141/1 • G/SCM/D134/1  
 
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  were injuring the domestic in dustry and, consequently, it improperly attributed the injury 
caused by those other factors to imports of biodiesel from Argentina.  
 
9. Article 18.1 of the Anti -Dumping Agreement  because Peru imposed anti -dumping 
duties in violation of the provisions of that Agreement.  
 
10. Article VI:5 of the GATT 1994  because Peru imposed both anti -dumping and 
countervailing duties on the same product to compensate for the same situation of alle ged 
dumping and subsidization.  
 
11. Article XVI:4 of the Marrakesh Agreement  Establishing the World Trade 
Organization and Article 18.4 of the Anti -Dumping Agreement  because Peru failed 
to take all necessary steps to ensure that the administrative procedur es that led to the 
imposition of the anti -dumping duties on biodiesel originating in Argentina were in 
conformity with the provisions of those Agreements.  
 
Measure 3  (Continued imposition of countervailing duties - Changed circumstances review) 
appears to be inconsistent with Peru's obligations under the WTO Agreements, including those under 
the provisions of the SCM Agreement and the GATT 1994.  Specifically, Peru appears to have violated 
the following:  
 
1. Article 21.2 of the SCM Agreement  and, therefore, Article 21.1 of that Agreement  
because Peru improperly reviewed the need for the continued imposition of the duty to 
offset the alleged subsidy, as it failed to make a determination based on a sufficient 
factual basis to allow it to draw reasoned and adequ ate conclusions concerning the 
likelihood of recurrence or continuation of subsidization and injury.  Consequently, Peru 
failed to ensure that the countervailing duties remained in force only as long as and to 
the extent necessary to counteract the alleged subsidization.  
 
2. Second sentence of Article 21.4 of the SCM Agreement  because Peru failed to carry 
out the changed circumstances review expeditiously and to conclude it within the normal 
12-month period provided for in that Article, without any abnormal circumstances that 
would justify such non -compliance.  
 
3. Article 32.1 of the SCM Agreement  because Peru continued to impose countervailing 
duties in violation of the provisions of that Agreement.  
 
4. Article XVI:4 of the Marrakesh Agreement  Establishing the World Trade 
Organization and Article 32.5 of the SCM Agreement  becau se Peru failed to take all 
necessary steps to ensure that the administrative procedures that led to the continued 
imposition of the countervailing duties on biodiesel originating in Argentina were in 
conformity with the provisions of those Agreements.  
 
Measure 4  (Continued imposition of anti -dumping duties - Changed circumstances review) 
appears to be inconsistent with Peru's obligations under the WTO Agreements, including those under 
the provisions of the Anti -Dumping Agreement and the GATT 1994. Specifica lly, Peru appears to 
have violated the following:  
 
1. Article 11.2 of the Anti -Dumping Agreement  and, therefore, Article 11.1 of that 
Agreement  because Peru improperly reviewed the need for the continued imposition of 
the duty to offset the alleged dumping , as it failed to make a determination based on a 
sufficient factual basis to allow it to draw reasoned and adequate conclusions concerning 
the likelihood of recurrence or continuation of dumping and injury.  Consequently, Peru 
failed to ensure that the ant i-dumping duties remained in force only as long as and to 
the extent necessary to counteract the alleged dumping.  
 
2. Article 6.8 and Annex II of the Anti -Dumping Agreement , through Article 11.4 
of the that Agreement (first sentence) , because Peru made det erminations 
improperly on the basis of the facts available ("best information available"), when the 
requirements of Article 6.8 and Annex II of the Anti -Dumping Agreement had not been 
met. Specifically, and among other issues, (a) Peru failed to take into account verifiable 
information that was appropriately submitted in a timely fashion by the Argentine WT/DS614/1 • G/L/1432 • G/ADP/D141/1 • G/SCM/D134/1  
 
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  companies (paragraph 3 of Annex II); (b) Peru did not immediately inform the 
Argentine  companies of the reasons for rejecting the evidence and information supplied 
by the authorities or provide them with an opportunity to provide further explanations 
within a reasonable period (paragraph 6 of Annex II); and (c) Peru did not use special 
circumspection when basing its conclusions on information from a secondar y source as, 
inter alia , it failed to check the accuracy of the secondary source information used by 
comparing it to the information obtained from the Argentine exporters (paragraph 7 of 
Annex II).  
 
3. Second sentence of Article 11.4 of the Anti -Dumping Ag reement  because Peru 
failed to carry out the changed circumstances review expeditiously and to conclude it 
within the normal 12 -month period provided for in that Article, without any abnormal 
circumstances that would justify such non -compliance.  
 
4. Article 18.1 of the Anti -Dumping Agreement  because Peru continued to impose 
anti-dumping duties in violation of the provisions of that Agreement.  
 
5. Article XVI:4 of the Marrakesh Agreement  Establishing the World Trade 
Organization and Article 18.4 of the  Anti-Dumping Agreement  because Peru failed 
to take all necessary steps to ensure that the administrative procedures that led to the 
continued imposition of the anti -dumping duties on biodiesel originating in Argentina 
were in conformity with the provision s of those Agreements.  
 
Measure 5  (Continued imposition of countervailing duties - Sunset review) appears to be 
inconsistent with Peru's obligations under the WTO Agreements, including those under the provisions 
of the SCM Agreement and the GATT 1994.  Specifically, Peru appears to have violated the following:  
 
1. Article 21.3 of the SCM Agreement  and, therefore, Article 21.1 of that Agreement  
because Peru did not terminate the definitive countervailing duties imposed on 
Argentine biodiesel exports, despite the passing of five years since the date of their 
imposition, as it failed to make a determination based on a sufficient factual basis to 
allow it to draw reasoned and adequate conclusions concerning the likelihood of 
recurrence or continuation of subsidiz ation and injury. Consequently, Peru failed to 
ensure that the countervailing duties remained in force only as long as and to the extent 
necessary to counteract the alleged subsidization.  
 
2. Second sentence of Article 21.4 of the SCM Agreement  because Peru failed to 
carry out the sunset review expeditiously and to conclude it within the normal 
12-month  period provided for in that Article, without any abnormal circumstances that 
would justify such non -compliance.  
 
3. Article 32.1 of the SCM Agre ement  because Peru continued to impose countervailing 
duties in violation of the provisions of that Agreement.  
 
4. Article XVI:4 of the Marrakesh Agreement  Establishing the World Trade 
Organization and Article 32.5 of the SCM Agreement  because Peru failed to take all 
necessary steps to ensure that the administrative procedures that led to the continued 
imposition of the countervailing duties on biodiesel originating in Argentina were in 
conformity with the provisions of those Agreements.  
 
Measure 6  (Continu ed imposition of anti -dumping duties - Sunset review) appears to be 
inconsistent with Peru's obligations under the WTO Agreements, including those under the provisions 
of the Anti -Dumping Agreement and the GATT 1994. Specifically, Peru appears to have viol ated the 
following:  
 
1. Article 11.3 of the Anti -Dumping Agreement  and, therefore, Article 11.1 of that 
Agreement  because Peru did not terminate the definitive anti -dumping duties imposed 
on Argentine biodiesel exports, despite the passing of five years si nce the date of their 
imposition, as it failed to make a determination based on a sufficient factual basis to 
allow it to draw reasoned and adequate conclusions concerning the likelihood of 
recurrence or continuation of dumping and injury.  Consequently, Pe ru failed to ensure WT/DS614/1 • G/L/1432 • G/ADP/D141/1 • G/SCM/D134/1  
 
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  that the anti -dumping duties remained in force only as long as and to the extent 
necessary to counteract the alleged dumping.  
 
2. Second sentence of Article 11.4 of the Anti -Dumping Agreement  because Peru 
failed to carry out the sunset review expeditiously and to conclude it within the normal 
12-month period provided for in that Article, without any abnormal circumstances that 
would justify such non -compliance.  
 
3. Article 18.1 of the Anti -Dum ping Agreement  because Peru continued to impose 
anti-dumping duties in violation of the provisions of that Agreement.  
 
4. Article XVI:4 of the Marrakesh Agreement  Establishing the World Trade 
Organization and Article 18.4 of the Anti -Dumping Agreement  because Peru failed 
to take all necessary steps to ensure that the administrative procedures that led to the 
continued imposition of the anti -dumping duties on biodiesel originating in Argentina 
were in conformity with the provisions of those Agreements.  
 
Peru's measures appear to nullify or impair the benefits accruing to Argentina, directly or indirectly, 
under the cited Agreements.  
 
Argentina reserves the right to address additional measures and claims under other provisions of 
the WTO Agreement regarding th e above matters during the course of the consultations.  
 
I look forward to receiving your reply to this request and to setting a mutually convenient date for 
these consultations.  
 
__________  