Part
I: Article 9
Imposition
and Collection of Anti-Dumping Duties
9.1 The decision whether or not to impose an anti-dumping duty in cases
where all requirements for the imposition have been fulfilled, and the
decision whether the amount of the anti-dumping duty to be imposed
shall be the full margin of dumping or less, are decisions to be made
by the authorities of the importing Member. It is desirable that
the imposition be permissive in the territory of all Members, and that
the duty be less than the margin if such lesser duty would be adequate
to remove the injury to the domestic industry.
9.2 When an anti-dumping duty is imposed in respect of any product, such
anti-dumping duty shall be collected in the appropriate amounts in
each case, on a non-discriminatory basis on imports of such product
from all sources found to be dumped and causing injury, except as to
imports from those sources from which price undertakings under the
terms of this Agreement have been accepted. The authorities
shall name the supplier or suppliers of the product concerned.
If, however, several suppliers from the same country are involved, and
it is impracticable to name all these suppliers, the authorities may
name the supplying country concerned. If several suppliers from
more than one country are involved, the authorities may name either
all the suppliers involved, or, if this is impracticable, all the
supplying countries involved.
9.3 The amount of the anti-dumping duty shall not exceed the margin of
dumping as established under Article 2.
9.3.1 When the amount of the anti-dumping duty is assessed on a
retrospective basis, the determination of the final liability
for payment of anti-dumping duties shall take place as soon as
possible, normally within 12 months, and in no case more than 18 months,
after the date on which a request for a final assessment of the amount
of the anti-dumping duty has been made.(20) Any refund shall be
made promptly and normally in not more than 90 days
following the determination of final liability made pursuant to this
sub-paragraph. In any case, where a refund is not made within 90 days,
the authorities shall provide an explanation if so requested.
9.3.2 When the amount of the anti-dumping duty is assessed on a prospective
basis, provision shall be made for a prompt refund, upon request, of
any duty paid in excess of the margin of dumping. A refund of
any such duty paid in excess of the actual margin of dumping shall
normally take place within 12 months, and in no case more than
18 months, after the date on which a request for a refund, duly
supported by evidence, has been made by an importer of the product
subject to the anti-dumping duty. The refund authorized should
normally be made within 90 days of the above-noted
decision.
9.3.3 In determining whether and to what extent a reimbursement should be
made when the export price is constructed in accordance with paragraph 3
of Article 2, authorities should take account of any change in
normal value, any change in costs incurred between importation and
resale, and any movement in the resale price which is duly reflected
in subsequent selling prices, and should calculate the export price
with no deduction for the amount of anti-dumping duties paid when
conclusive evidence of the above is provided.
9.4 When the authorities have limited their examination in accordance with
the second sentence of paragraph 10 of Article 6, any anti-dumping
duty applied to imports from exporters or producers not included in
the examination shall not exceed:
(i) the weighted average margin of dumping established with respect to the
selected exporters or producers or,
(ii) where the liability for payment of anti-dumping duties is calculated
on the basis of a prospective normal value, the difference between the
weighted average normal value of the selected exporters or producers
and the export prices of exporters or producers not individually
examined,
provided
that the authorities shall disregard for the purpose of this paragraph
any zero and de minimis margins and margins established
under the circumstances referred to in paragraph 8 of Article 6.
The authorities shall apply individual duties or normal values to
imports from any exporter or producer not included in the examination
who has provided the necessary information during the course of the
investigation, as provided for in subparagraph 10.2 of Article 6.
9.5 If a product is subject to anti-dumping duties in an importing Member,
the authorities shall promptly carry out a review for the purpose of
determining individual margins of dumping for any exporters or
producers in the exporting country in question who have not exported
the product to the importing Member during the period of
investigation, provided that these exporters or producers can show
that they are not related to any of the exporters or producers in the
exporting country who are subject to the anti-dumping duties on
the product. Such a review shall be initiated and carried out on
an accelerated basis, compared to normal duty assessment and review
proceedings in the importing Member. No anti-dumping duties
shall be levied on imports from such exporters or producers while the
review is being carried out. The authorities may, however,
withhold appraisement and/or request guarantees to ensure that, should
such a review result in a determination of dumping in respect of such
producers or exporters, anti-dumping duties can be levied
retroactively to the date of the initiation of the review.
Part
I: Article 10 back to top
Retroactivity
10.1 Provisional measures and anti-dumping duties shall only be applied to
products which enter for consumption after the time when the decision
taken under paragraph 1 of Article 7 and paragraph 1 of
Article 9, respectively, enters into force, subject to the
exceptions set out in this Article.
10.2 Where a final determination of injury (but not of a threat thereof or
of a material retardation of the establishment of an industry) is made
or, in the case of a final determination of a threat of injury, where
the effect of the dumped imports would, in the absence of the
provisional measures, have led to a determination of injury, anti-dumping
duties may be levied retroactively for the period for which
provisional measures, if any, have been applied.
10.3 If the definitive anti-dumping duty is higher than the provisional
duty paid or payable, or the amount estimated for the purpose of the
security, the difference shall not be collected. If the
definitive duty is lower than the provisional duty paid or payable, or
the amount estimated for the purpose of the security, the difference
shall be reimbursed or the duty recalculated, as the case may be.
10.4 Except as provided in paragraph 2, where a determination of
threat of injury or material retardation is made (but no injury has
yet occurred) a definitive anti-dumping duty may be imposed only from
the date of the determination of threat of injury or material
retardation, and any cash deposit made during the period of the application of provisional
measures shall be refunded and any bonds released in an expeditious
manner.
10.5 Where a final determination is negative, any cash deposit made
during the period of the application of provisional measures shall be
refunded and any bonds released in an expeditious manner.
10.6 A definitive anti-dumping duty may be levied on products which
were entered for consumption not more than 90 days prior to the date
of application of provisional measures, when the authorities determine
for the dumped product in question that:
(i) there is a history of dumping which caused injury or that the
importer was, or should have been, aware that the exporter practises
dumping and that such dumping would cause injury, and
(ii) the injury is caused by massive dumped imports of a product in
a relatively short time which in light of the timing and the volume of
the dumped imports and other circumstances (such as a rapid build-up
of inventories of the imported product) is likely to seriously
undermine the remedial effect of the definitive anti-dumping duty to
be applied, provided that the importers concerned have been given an
opportunity to comment.
10.7 The authorities may, after initiating an investigation, take
such measures as the withholding of appraisement or assessment as may
be necessary to collect anti-dumping duties retroactively, as provided
for in paragraph 6, once they have sufficient evidence that the
conditions set forth in that paragraph are satisfied.
10.8 No duties shall be levied retroactively pursuant to paragraph 6
on products entered for consumption prior to the date of initiation of
the investigation.
Part
I: Article 11 back to top
Duration and Review of Anti-Dumping
Duties and Price Undertakings
11.1 An anti-dumping duty shall remain in force only as long as and
to the extent necessary to counteract dumping which is causing injury.
11.2 The authorities shall review the need for the continued
imposition of the duty, where warranted, on their own initiative or,
provided that a reasonable period of time has elapsed since the
imposition of the definitive anti-dumping duty, upon request by any
interested party which submits positive information substantiating
the need for a review.(21) Interested
parties shall have the right to request the authorities to examine
whether the continued imposition of the duty is necessary to offset
dumping, whether the injury would be likely to continue or recur if
the duty were removed or varied, or both. If, as a result of the
review under this paragraph, the authorities determine that the anti-dumping
duty is no longer warranted, it shall be terminated immediately.
11.3 Notwithstanding the provisions of paragraphs 1 and 2, any
definitive anti-dumping duty shall be terminated on a date not later
than five years from its imposition (or from the date of the most
recent review under paragraph 2 if that review has covered both
dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before
that date on their own initiative or upon a
duly substantiated request made by or on behalf of the domestic
industry within a reasonable period of time prior to that date, that
the expiry of the duty would be likely to lead to continuation or
recurrence of dumping and injury.(22) The
duty may remain in force pending the outcome of such a review.
11.4 The provisions of Article 6 regarding evidence and
procedure shall apply to any review carried out under this Article. Any such review shall be carried out expeditiously and shall
normally be concluded within 12 months of the date of initiation of
the review.
11.5 The provisions of this Article shall apply mutatis mutandis
to price undertakings accepted under Article 8.
Part
I: Article 12 back to top
Public
Notice and Explanation of Determinations
12.1 When the authorities are satisfied that there is sufficient
evidence to justify the initiation of an anti-dumping investigation
pursuant to Article 5, the Member or Members the products of
which are subject to such investigation and other interested parties
known to the investigating authorities to have an interest therein
shall be notified and a public notice shall be given.
12.1.1 A public notice of the initiation of an
investigation shall
contain, or otherwise make available through a separate report(23)
adequate
information on the following:
(i) the name of the exporting country or countries and the product
involved;
(ii) the date of initiation of the investigation;
(iii) the basis on which dumping is alleged in the application;
(iv) a summary of the factors on which the allegation of injury is based;
(v) the address to which representations by interested parties should be
directed;
(vi) the time-limits allowed to interested parties for making their views
known.
12.2 Public notice shall be given of any preliminary or final
determination, whether affirmative or negative, of any decision to
accept an undertaking pursuant to Article 8, of the termination
of such an undertaking, and of the termination of a definitive anti-dumping
duty. Each such notice shall
set forth, or otherwise make available through a separate report, in
sufficient detail the findings and conclusions reached on all issues
of fact and law considered material by the investigating authorities. All such notices and reports shall be forwarded to the Member
or Members the products of which are subject to such determination or
undertaking and to other interested parties known to have an interest
therein.
12.2.1
A public notice of the imposition of provisional measures shall
set forth, or otherwise make available through a separate report,
sufficiently detailed explanations
for the preliminary determinations on dumping and injury and shall
refer to the matters
of fact and law which have led to arguments being accepted or
rejected. Such a notice or
report shall, due regard being paid to the requirement for the
protection of confidential information, contain in particular:
(i) the names of the suppliers, or when this is impracticable, the
supplying countries involved;
(ii) a description of the product which is sufficient for customs
purposes;
(iii) the margins of dumping established and a full explanation of
the reasons for the methodology used in the establishment and
comparison of the export price and the normal value under Article 2;
(iv) considerations relevant to the injury determination as set out
in Article 3;
(v) the main reasons leading to the determination.
12.2.2 A public notice of conclusion or suspension of an investigation
in the case of an affirmative determination providing for the
imposition of a definitive duty or the acceptance of a price
undertaking shall contain, or otherwise make available through a
separate report, all relevant information on the matters of fact and
law and reasons which have led to the imposition of final measures or
the acceptance of a price undertaking,
due regard being paid to the requirement for the protection of
confidential information. In particular, the notice or report shall contain the
information described in subparagraph 2.1, as well as the reasons
for the acceptance or rejection of relevant arguments or claims made
by the exporters and importers, and the basis for any decision made
under subparagraph 10.2 of Article 6.
12.2.3 A public notice of the termination or suspension of an
investigation following the acceptance of an undertaking pursuant to
Article 8 shall include, or otherwise make available through a
separate report, the non-confidential part of this undertaking.
12.3 The provisions of this Article shall apply mutatis mutandis
to the initiation and completion of reviews pursuant to Article 11
and to decisions under Article 10 to apply duties retroactively.
Part
I: Article 13
back to top
Judicial Review
Each Member whose
national legislation contains provisions on anti-dumping measures
shall maintain judicial, arbitral or administrative tribunals or
procedures for the purpose, inter alia,
of the prompt review of administrative actions relating to final
determinations and reviews of determinations within the meaning of
Article 11. Such
tribunals or procedures shall be independent of the authorities
responsible for the determination or review in question.
Part
I:
Article 14
back to top
Anti-Dumping Action on Behalf of a
Third Country
14.1 An application for anti-dumping action on behalf of a third
country shall be made by the authorities of the third country
requesting action.
14.2 Such an application shall be supported by price information to
show that the imports are being dumped and by detailed information to
show that the alleged dumping is causing injury to the domestic
industry concerned in the third country. The government of the third country shall afford all assistance
to the authorities of the importing country to obtain any further
information which the latter may require.
14.3 In considering such an application, the authorities of the
importing country shall consider the effects of the alleged dumping on
the industry concerned as a whole in the third country; that is to say, the injury shall not be assessed in relation
only to the effect of the alleged dumping on the industry’s exports to
the importing country or even on the industry’s total exports.
14.4 The decision whether or not to proceed with a case shall rest
with the importing country. If
the importing country decides that it is prepared to take action, the
initiation of the approach to the Council for Trade in Goods seeking
its approval for such action shall rest with the importing country.
Part
I:
Article 15
back to top
Developing Country Members
It is recognized that special regard must be given by developed
country Members to the special situation of developing country Members
when considering the application of anti-dumping measures under this
Agreement. Possibilities of
constructive remedies provided for by this Agreement shall be explored
before applying anti-dumping duties where they would affect the
essential interests of developing country Members.
Part
II:
Article 16
back to top
Committee on Anti-Dumping Practices
16.1 There is hereby established a Committee on Anti-Dumping
Practices (referred to in this Agreement as the
“Committee”)
composed of representatives from each of the Members. The Committee shall elect its own Chairman and shall meet not
less than twice a year and otherwise as envisaged by relevant
provisions of this Agreement at the request of any Member. The Committee shall carry out responsibilities as assigned to
it under this Agreement or by the Members and it shall afford Members
the opportunity of consulting on any matters relating to the operation
of the Agreement or the furtherance of its objectives. The WTO Secretariat shall act as the secretariat to the
Committee.
16.2 The Committee may set up subsidiary bodies as appropriate.
16.3 In carrying out their functions, the Committee and any
subsidiary bodies may consult with and seek information from any
source they deem appropriate. However,
before the Committee or a
subsidiary body seeks such information from a source within the
jurisdiction of a Member, it shall inform the Member involved. It shall obtain the consent of the Member and any firm to be
consulted.
16.4 Members shall report without delay to the Committee all
preliminary or final anti-dumping actions taken. Such reports shall be available in the Secretariat for
inspection by other Members. Members
shall also submit, on a semi-annual basis, reports of any anti-dumping
actions taken within the preceding six months. The semi-annual reports shall be submitted on an agreed
standard form.
16.5 Each Member shall notify the Committee (a)
which of its authorities are competent to initiate and conduct
investigations referred to in Article 5 and (b)
its domestic procedures governing the initiation and conduct of such
investigations.
Part
II:
Article 17
back to top
Consultation and Dispute Settlement
17.1 Except as otherwise provided herein, the Dispute Settlement
Understanding is applicable to consultations and the settlement of
disputes under this Agreement.
17.2 Each Member shall afford sympathetic consideration to, and
shall afford adequate opportunity for consultation regarding,
representations made by another Member with respect to any matter
affecting the operation of this Agreement.
17.3 If any Member considers that any benefit accruing to it,
directly or indirectly, under this Agreement is being nullified or
impaired, or that the achievement of any objective is being impeded,
by another Member or Members, it may, with a view to reaching a
mutually satisfactory resolution of the matter, request in writing
consultations with the Member or Members in question. Each Member shall afford sympathetic consideration to any
request from another Member for consultation.
17.4 If the Member that requested consultations considers that the
consultations pursuant to paragraph 3 have failed to achieve a
mutually agreed solution, and if final action has been taken by the
administering authorities of the importing Member to levy definitive
anti-dumping duties or to accept price undertakings, it may refer the
matter to the Dispute Settlement Body (“DSB”). When a provisional measure
has a significant impact and the Member that requested consultations
considers that the measure was taken contrary to the provisions of
paragraph 1 of Article 7, that Member may also refer such
matter to the DSB.
17.5 The DSB shall, at the request of the complaining party,
establish a panel to examine the matter based upon:
(i) a written statement of the Member making the request indicating
how a benefit accruing to it, directly or indirectly, under this Agreement has been nullified or impaired, or that the achieving of the
objectives of the Agreement is being impeded, and
(ii) the facts made available in conformity with appropriate
domestic procedures to the authorities of the importing Member.
17.6 In examining the matter referred to in paragraph 5:
(i) in its assessment of the facts of the matter, the panel shall
determine whether the authorities’ establishment of the facts was
proper and whether their evaluation of those facts was unbiased and
objective. If the
establishment of the facts was proper and the evaluation was unbiased
and objective, even though the panel might have reached a different
conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant provisions of the
Agreement in accordance with customary rules of interpretation of
public international law. Where
the panel finds that a relevant provision of the Agreement admits of
more than one permissible interpretation, the panel shall find the
authorities’ measure to be in conformity with the Agreement if it
rests upon one of those permissible interpretations.
17.7 Confidential information provided to the panel shall not be
disclosed without formal authorization from the person, body or
authority providing such information. Where such information is requested from the panel but release
of such information by the panel is not authorized, a non-confidential
summary of the information, authorized by the person, body or
authority providing the information, shall be provided.
Part
III:
Article 18
back to top
Final Provisions
18.1 No specific action against dumping of exports from another
Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.(24)
18.2 Reservations may not be entered in respect of any of the
provisions of this Agreement without the consent of the other Members.
18.3 Subject to subparagraphs 3.1 and 3.2, the provisions of this
Agreement shall apply to investigations, and reviews of existing
measures, initiated pursuant to applications which have been made on
or after the date of entry into force for a Member of the WTO
Agreement.
18.3.1 With respect to the calculation of margins of dumping in refund
procedures under paragraph 3 of Article 9, the rules used in the most
recent determination or review of dumping shall apply.
18.3.2 For the purposes of paragraph 3 of Article 11, existing anti-dumping
measures shall be deemed to be imposed on a date not later than the
date of entry into force for a Member of the WTO Agreement, except in cases in which the domestic legislation of a Member in force
on that date already included a clause of the type provided for in
that paragraph.
18.4 Each Member shall take all necessary steps, of a general or
particular character, to ensure, not later than the date of entry into
force of the WTO Agreement for it, the conformity of its laws,
regulations and administrative procedures with the provisions of this
Agreement as they may apply for the Member in question.
18.5 Each Member shall inform the Committee of any changes in its
laws and regulations relevant to this Agreement and in the
administration of such laws and regulations.
18.6 The Committee shall review annually the implementation and
operation of this Agreement taking into account the objectives
thereof. The Committee shall
inform annually the Council for Trade in Goods of developments during
the period covered by such reviews.
18.7 The Annexes to this Agreement constitute an integral part
thereof.
Annex
I:
Procedures
for on-the-Spot Investigations Pursuant to Paragraph 7 of Article 6
back to top
1. Upon initiation of an investigation, the authorities of the
exporting Member and the firms known to be concerned should be
informed of the intention to carry out on-the-spot investigations.
2. If in exceptional circumstances it is intended to include non-governmental
experts in the investigating team, the firms and the authorities of
the exporting Member should be so informed. Such non-governmental experts should be subject to effective
sanctions for breach of confidentiality requirements.
3. It should be standard practice to obtain explicit agreement of
the firms concerned in the exporting Member before the visit is
finally scheduled.
4. As soon as the agreement of the firms concerned has been
obtained, the investigating authorities should notify the authorities
of the exporting Member of the names and addresses of the firms to be
visited and the dates agreed.
5. Sufficient advance notice should be given to the firms in
question before the visit is made.
6. Visits to explain the questionnaire should only be made at the
request of an exporting firm. Such
a visit may only be made if (a) the
authorities of the importing Member notify the representatives of the
Member in question and (b) the latter do
not object to the visit.
7. As the main purpose of the on-the-spot investigation is to
verify information provided or to obtain further details, it should be
carried out after the response to the questionnaire has been received
unless the firm agrees to the contrary and the government of the
exporting Member is informed by the investigating authorities of the
anticipated visit and does not object to it; further, it should be standard practice prior to the visit to
advise the firms concerned of the general nature of the information to
be verified and of any further information which needs to be provided,
though this should not preclude requests to be made on the spot for
further details to be provided in the light of information obtained.
8. Enquiries or questions put by the authorities or firms of the
exporting Members and essential to a successful on-the-spot
investigation should, whenever possible, be answered before the visit
is made.
Annex
II: Best
Information Available in Terms of Paragraph 8 of Article 6
back to top
1. As soon as possible after the initiation of the investigation,
the investigating authorities should specify in detail the information
required from any interested party, and the manner in which that
information should be structured by the interested party in its
response. The authorities
should also ensure that the party is aware that if information is not
supplied within a reasonable time, the authorities will be free to
make determinations on the basis of the facts available, including
those contained in the application for the initiation of the
investigation by the domestic industry.
2. The authorities may also request that an interested party
provide its response in a particular medium (e.g. computer tape) or
computer language. Where such
a request is made, the authorities should consider the reasonable
ability of the interested party to respond in the preferred medium or
computer language, and should not request the party to use for its
response a computer system other than that used by the party. The authority should not maintain a request for a computerized
response if the interested party does not maintain computerized
accounts and if presenting the response as requested would result in
an unreasonable extra burden on the interested party, e.g. it would
entail unreasonable additional cost and trouble. The authorities should not maintain a request for a response in
a particular medium or computer language if the interested party does
not maintain its computerized accounts in such medium or computer
language and if presenting the response as requested would result in
an unreasonable extra burden on the interested party, e.g. it would
entail unreasonable additional cost and trouble.
3. All information which is verifiable, which is appropriately
submitted so that it can be used in the investigation without undue
difficulties, which is supplied in a timely fashion, and, where
applicable, which is supplied in a medium or computer language
requested by the authorities, should be taken into account when
determinations are made. If a
party does not respond in the preferred medium or computer language
but the authorities find that the circumstances set out in paragraph 2
have been satisfied, the failure to respond in the preferred medium or
computer language should not be considered to significantly impede the
investigation.
4. Where the authorities do not have the ability to process
information if provided in a particular medium (e.g. computer tape),
the information should be supplied in the form of written material or
any other form acceptable to the authorities.
5. Even though the information provided may not be ideal in all
respects, this should not justify the authorities from disregarding
it, provided the interested party has acted to the best of its
ability.
6. If evidence or information is not accepted, the supplying party
should be informed forthwith of the reasons therefor, and should have an opportunity to provide further
explanations within a reasonable period, due account being taken of
the time-limits of the investigation. If the explanations are
considered by the authorities as not being satisfactory, the reasons
for the rejection of such evidence or information should be given in
any published determinations.
7. If the authorities have to base their findings, including those
with respect to normal value, on information
from a secondary source, including the information supplied in the
application for the initiation of the investigation, they should do so
with special circumspection. In
such cases, the authorities should, where practicable, check the
information from other independent sources at their disposal, such as
published price lists, official import statistics and customs returns,
and from the information obtained from other interested parties during
the investigation. It is
clear, however, that if an interested party does not cooperate and
thus relevant information is being withheld from the authorities, this
situation could lead to a result which is less favourable to the party
than if the party did cooperate.
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