  
  
G/ADP/Q1/COL/11  
G/SCM/Q1/COL/11  
26 October  2021 
(21-8108) Page: 1/5 
Committee on Anti -Dumping Practices  
Committee on Subsidies and  
Countervailing Measures  Original:  Spanish  
 
  
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS  
REPLIES TO THE QUESTIONS1 POSED BY THE UNITED STATES  
REGARDING THE NOTIFICATION OF COLOMBIA2 
The following communication dated and received on 26 October 2021, is being circulated at the 
request of the delegation of Colombia.  
 
_______________  
 
 
Question 1  
Section I provides the definition of who qualifies as an interested party. One category is 
identified as "Colombian or foreign persons other than those indicated above, as 
determined by the investigating authority." Please clarify what criteria the investigating 
authority would use to determine if such persons would be treated as an interested party? 
For example, would purchasers be treated as inter ested parties?  
Reply  
 
Paragraph (o), subparagraph 5 of Article 2.2.3.7.1.1 suggests  that there is no set list of persons 
who can be considered interested parties , which in turn implies that  the investigating authority  has 
discretionary power to determine whether someone other than the person named in that paragraph 
can be classified as an interested party within each investigation.  
 
That being said,  while it is clear  that the circumstances of each particular case should be reviewed 
without limiting the discretionary power of the investigating authority, the criterion to be used is 
whether the Colombian or foreign person could be affected by, or benefit from, the decis ion whether 
or not to impose trade defence measures.  
 
This is borne out by domestic provisions such as Article 38 of Law No. 1437 of 2011, according to 
which third parties may intervene in administrative proceedings, with the same rights, duties and 
respo nsibilities as the interested parties, in various situations, such as when they have the capacity  
to adduce evidence, when their rights or legal status may be affected by the administrative 
proceedings , or when the proceedings were instituted in the genera l interest.  
 
With regard to the latter, Article 2.2.3.7.1.4 provides that the investigation and the imposition of 
anti-dumping duties are in the public interest.  
 
Therefore, in the example given, if the purchasers are affected by, or benefit from, the tr ade defence 
measure in the specific case concerned, or are in situations such as those described, they may be 
regarded as interested parties within the investigation.  
 
 
1 G/ADP/Q1/COL/10 – G/SCM/Q1/COL/10  
2 G/ADP/N/1/COL/5  G/ADP/Q1/COL/11 • G/SCM/Q1/COL/11  
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  Question 2  
Section II, Article 2.2.3.7.2.9. describes the factors that the authority may  consider as 
adjustments to normal value. This latest amendment removes the reference to adjusting 
normal value for "costs of packaging the product in question." Please clarify whether the 
costs of packaging will continue to be considered as an adjustment for normal value.  
Reply  
In order to respond, we must first note the provisions of Article 2.4 of the Anti -Dumping  Agreement 
of the WTO, which states:  
"Due allowance shall be made in each case, on its merits, for differences which affect price 
comparabilit y, including differences in conditions and terms of sale, taxation, levels of trade, 
quantities, physical characteristics, and any other differences which are also demonstrated to 
affect price comparability ." (emphasis added)   
Accordingly, while Article 2. 2.3.7.2.9 of Decree No. 1794 of 2020 does not expressly indicate that 
adjustments can be made for packaging, Article 13(3)(a) of Decree No. 1750 of 2015 states, in line 
with the Anti -Dumping Agreement, that it is feasible to consider an adjustment for pack aging , 
provided it is demonstrated that such packaging exists and it affects price comparability.  
Question 3  
Section III, Article 2.2.3.7.3.1. outlines provisions regarding significant state intervention 
and normal value.  
• Please explain whether the initial  burden of proof is on the petitioner or the 
Investigating  Authority in determining whether a significant state intervention 
exists for the product from the exporting country.  
Reply  
 
The initial burden of proof to show significant state intervention falls on the petitioner, bearing in 
mind not only the concept of burden of proof as considered by various WTO panels, but also the 
national rules governing the terms under which an anti -dumping investigation must be requested.  
 
With regard to WTO rulings, it is worth mentioning , by way of example,  the Argentina – Poultry 
Anti-Dumping Duties  dispute , in which the Panel took the view that : 
 
"2. Burden of Proof  
 
7.50 In WTO dispute settlement proceedings, the burden of proof rests with the party that 
asserts the affirmative of a particular claim or defence. The complaining party must therefore 
make a prima  facie case of violation of the relevant provisions of the WTO a greements, which 
the respondent must refute. In these Panel proceedings, we thus observe that it is for Brazil, 
which has challenged the consistency of Argentina's measure, to bear the burden of 
demonstrating that the measure is not consistent with the rel evant provisions of the 
AD Agreement . We also note, however, that it is generally for each party asserting a fact, 
whether complainant or respondent, to provide proof thereof . In this respect, therefore, it is 
also for Argentina to provide evidence for the  facts which it asserts. We also recall that a 
prima facie  case is one which, in the absence of effective refutation by the other party, 
requires a panel, as a matter of law, to rule in favour of the party presenting the prima facie  
case. The role of the P anel is not to make the case for either party, but it may pose questions 
to the parties 'in order to clarify and distil the legal arguments'. In addition, we consider that 
both parties generally have a duty to cooperate in the proceedings in order to assis t us in 
fulfilling our mandate, through the provision of relevant information. We must draw 
inferences on the basis of all of the relevant facts of record, including, for example, where a 
party refuses to provide relevant information."3 (underlining added )  
 
3 Panel Report, Argentina – Definitive Anti -Dumping Duties on Poultry from Brazil , WT/DS241/R, 
22 April 2003 (adopted 19 May 2003), para. 7.50.  G/ADP/Q1/COL/11 • G/SCM/Q1/COL/11  
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  The above case is clear ; it is for each party to provide evidence for a fact which it asserts. Therefore, 
if the petitioner claims significant state intervention, it must prove such a claim pursuant to 
Article  2.2.3.7.3.1 of Decree No. 1794 of 2020.  
 
Furthermore, it should be borne in mind that Article 5.2(iii) of the Anti -Dumping  Agreement 
establishes the requirements that the application for the anti -dumping investigation must meet, 
which include information on prices at which the product in question is sold when destined for 
consumption in the domestic markets of the country or countries of origin or export. It also provides 
for the option of export to a third country. In other words, if the petitioner sees the need to gather 
information from a third country as part of its application, it must demonstrate that this is 
appropriate by virtue of the existence of significant state intervention.  
 
• Please clarify whether an Investigating Authority can declare significant state 
intervention to exist in an inv estigation conducted ex officio.  
Reply  
 
Along the same lines as the previous reply, it can be said that if the authority launches an 
investigation ex officio , the authority bears the burden of demonstrating that significant state 
intervention exists pursua nt to Article 2.2.3.7.3.1 of Decree No. 1794 of 2020.  
 
• When in the investigation process will firms be made aware of the allegations 
of significant state intervention and how will the investigation authority alert 
interested parties of alternative normal value calculations?  
Reply  
 
This will be done in the same manner  in which notification was given pursuant to Decree No.  1750 
of 2015, i.e. a reasoned resolution of initiation will be adopted and published in the Official Journal 
in accord ance with Article 2.2.3.7.6.6 of Decree No. 1794 of 2020. The interested parties will be able 
to find information on the alternative normal value calculations in the Official Journal. Furthermore, 
the known importers, exporters and foreign producers, as we ll as the diplomatic representative of 
the country of origin of the imports and other parties that may have an interest, are notified of the 
resolution.  
 
It is recalled that the resolution also contains a technical report on initiation, in which the inter ested 
parties can find further details of the considerations that the authority took into account in order to 
open the investigation.  
 
• Will significant state intervention allegations be considered on a country -wide 
basis or for particular products and markets?  
Reply  
 
The allegations must be submitted in accordance with Article 2.2.3.7.3.1 of Decree No.  1794 of 2020 
and they will be examined on a case -by-case basis.  
 
Question 4  
Section IV, Article 2.2.3.7.6.1. states, "the investigating authority shall conduct a process 
to continuously monitor trends in trade flows to Colombia, in accordance with the 
regulations issued by the Foreign Trade Directorate, taking into account the import and 
export prices of products of interest on the Colombian market. Shoul d elements relevant 
to the initiation of an investigation be found, the authority shall proceed in accordance 
with the rules laid down in this Decree, by first conducting an investigation."  
• Please identify the regulations issued by the Foreign Trade Direct orate 
regarding the monitoring of trade flows into Colombia that are referenced in 
Section IV, Article 2.2.3.7.6.1.  G/ADP/Q1/COL/11 • G/SCM/Q1/COL/11  
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  Reply  
 
The Trade Practices Subdirectorate is currently preparing a guide on the implementation of 
continuous monitoring of international tra de flows to Colombia, which is in the final stage of revision 
and approval for its entry into force.  
 
• Please explain how Colombia determines which industries to monitor.  
Reply  
 
According to the aforementioned guide, the products of interest to monitor will  be selected and 
defined based on a series of technical criteria, taking into account their importance on the Colombian  
market and their vulnerability to trade flows  into Colombia  from abroad. Background information 
regarding trade defence  and sectors and strategic products within the Colombia n economy will be 
considered , among other selection criteria . 
 
• Please identify which industries Colombia is currently monitoring.  
Reply  
 
Since the guide on the implementation of continuous monitoring of international trade flows to 
Colombia is still being prepared, a monitoring test is currently being carried out on products of 
interest.  
 
• Please clarify whether information collected by Colombia through monitoring 
of trade flows will be made publicly available.  
Reply  
 
Decree No. 1794 of 2020 does not provide for the publication of technical monitoring reports. 
However, it is established that the interested parties will be informed, in due time, of the opening of 
an investigation only after the  formal evaluation of the grounds. Only then will the opening of an 
investigation for alleged dumping be made public.  
 
Furthermore, in accordance with Article 5.5 of the Anti -Dumping Agreement, Colombia notifies the 
exporting Member concerned of the filing  of an application to initiate an anti -dumping investigation 
and its evaluation of the grounds.  
 
Question 5  
Section IV, Article 2.2.3.7.6.17. states, "within five days following the formulation of the 
recommendation by the Committee referred to in the pre ceding Article, the Foreign Trade 
Directorate shall adopt the appropriate decision in a reasoned resolution."  
• Please clarify whether the Foreign Trade Directorate can terminate a 
proceeding that the Trade Practices Committee recommends continuing.  
Reply  
 
Although decisions whether to continue or terminate the investigation are made by a reasoned 
resolution of the Director for Foreign Trade according to the particular circumstances of each 
investigation and in line with the recommendation of the Trade Practi ces Committee, it is important 
for the Foreign Trade Directorate to consider the recommendations of the Committee since it is a 
national collegiate body comprised of experts on the topics covered by anti -dumping investigations 
and, furthermore, it has the opportunity to hear the administrative investigation in its entirety.  
 
• Please clarify whether the Foreign Trade Directorate can continue a proceeding 
that the Trade Practices Committee recommends terminating.  
Reply  
 
Same reply as above.  G/ADP/Q1/COL/11 • G/SCM/Q1/COL/11  
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  • Please describe the  decision -making process within the Foreign 
Trade  Directorate.  
Reply  
 
While this question could be interpreted broadly, a response will be given on the assumption that it 
refers to the adoption or otherwise of anti -dumping duties. The procedure is establis hed in 
Articles  2.2.3.7.6.16, 2.2.3.7.6.17 and 2.2.3.7.7.5 of Decree No. 1794 of 2020. In other words, 
comments on the document containing the essential facts are submitted to the Trade Practices 
Committee in order for it to issue a recommendation to the D irector for Foreign Trade, who shall 
adopt the appropriate decision in a reasoned resolution within five days following the formulation of 
the recommendation.  
 
Question 6  
Section XI describes procedures regarding the review of antidumping duties and price 
undertakings, but removes reference to what occurs if an investigation is conducted 
ex officio and interested parties do not accept the invitation to participate.  
• Please confirm that the Investigating Authority will terminate a sunset review 
proceedi ng if there is no participation by an interested party.  
• Please confirm that in a changed circumstance review initiated ex officio the 
definitive duty and any price undertakings shall be maintained unchanged if 
there is an absence of participants.  
Reply  
 
If no interested parties take part in the reviews mentioned above, the authority may terminate the 
investigation.  
 
Question 7  
Throughout the amended legislation timelines are shortened including time to evaluate 
an antidumping application, extensions for a preliminary determination, comment periods 
for interested parties, and notification of intended verification visits.  
• Please explain why the Investigating Authority has shortened these 
investigatory timelines.  
Reply  
 
In general, the time frames for investigation are shortened under Decree No. 1794 of 2020 in line 
with the general principles of administrative proceedings, such as economy and efficiency, 
established in Article 3, paragraphs 11 and 12 of Law No. 1437 of 2011.  
 
• The ability for the Invest igating Authority to extend the period indicated for 
the preliminary determination was shortened from 20 days to 10 days. This 
short time frame could be problematic for complicated cases or where there is 
substantial record evidence. Please explain why thi s deadline specifically was 
altered.  
Reply  
 
The reasons for reducing this time frame are the same as those for shortening the other time frames, 
as explained in the reply above.  
 
__________  