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> List
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> Article 1 Principles
> Article 2 Determination of Dumping
> Article 3 Determination of Injury
> Article 4 Definition of Domestic Industry
> Article 5
Initiation and Subsequent Investigation
> Article 6
Evidence
> Article 7
Provisional
Measures
> Article 8 Price Undertakings
> Article 9 Imposition
and Collection of Anti-Dumping Duties
> Article 10 Retroactivity
> Article 11 Duration and Review of Anti-Dumping
Duties and Price Undertakings
> Article 12
Public
Notice and Explanation of Determinations
> Article 13 Judicial Review
> Article 14 Anti-Dumping
Action on Behalf of a Third Country
>
Article 15 Developing Country Members
>
Article 16
Committee on Anti-Dumping Practices
>
Article 17
Consultation and Dispute Settlement
>
Article 18
Final Provisions
> Annex I Procedures
for on-the-Spot Investigations Pursuant to Paragraph 7 of Article 6
> Annex
II Best
Information Available in Terms of Paragraph 8 of Article 6
|
Members hereby agree as follows:
Part I: Article 1 back to top
Principles
An
anti-dumping measure shall be applied only under the
circumstances provided for in Article VI of GATT 1994 and pursuant to investigations
initiated(1)
and conducted in accordance with the provisions of this Agreement.
The following provisions govern the application of Article VI
of GATT 1994 in so far as action is taken under
anti-dumping legislation or regulations.
Part I: Article 2 back to top
Determination of Dumping
2.1
For the purpose of this Agreement, a product is to be
considered as being dumped, i.e. introduced into the commerce of another country at less than
its normal value, if the export price of the product exported from one
country to another is less than the comparable price, in the ordinary
course of trade, for the like product when destined for consumption in
the exporting country.
2.2
When there are no sales of the like product in the ordinary course of
trade in the domestic market of the exporting country or when, because
of the particular market situation or the low volume of the sales in
the domestic market of the exporting country(2),
such sales do not permit a proper comparison, the margin of dumping
shall be determined by comparison with a comparable price of the like
product when exported to an appropriate third country, provided that
this price is representative, or with the cost of production in the
country of origin plus a reasonable amount for administrative, selling
and general costs and for profits.
2.2.1
Sales of the like product in the domestic market of the exporting country or sales to a third country at prices below per unit
(fixed and variable) costs of production plus administrative, selling and general costs may be treated as not
being in the ordinary course of trade by reason of price and may be
disregarded in determining normal value only if the authorities (3)
determine that such sales are made within an extended period of time(4)
in substantial quantities(5)
and are at prices which do not provide for the recovery of all costs
within a reasonable period of time. If prices which are below
per unit costs at the time of sale are above weighted average per unit
costs for the period of investigation, such prices shall be considered
to provide for recovery of costs within a reasonable period of time.
2.2.1.1 For the purpose of paragraph 2, costs shall normally be
calculated on the basis of records kept by the exporter or producer
under investigation, provided that such records are in accordance with
the generally accepted accounting principles of the exporting country
and reasonably reflect the costs associated with the production and
sale of the product under consideration. Authorities shall
consider all available evidence on the proper allocation of costs,
including that which is made available by the exporter or producer in
the course of the investigation provided that such allocations
have been historically utilized by the exporter or producer, in
particular in relation to establishing appropriate amortization and
depreciation periods and allowances for capital expenditures and
other development costs. Unless already reflected in the cost
allocations under this sub-paragraph, costs shall be adjusted
appropriately for those non-recurring items of cost which
benefit future and/or current production, or for circumstances in
which costs during the period of investigation are affected by
start-up operations.(6)
2.2.2 For the purpose of paragraph 2, the amounts for administrative,
selling and general costs and for profits shall be based on actual
data pertaining to production and sales in the ordinary course of
trade of the like product by the exporter or producer under
investigation. When such
amounts cannot be determined on this basis, the amounts may be
determined on the basis of:
(i)
the actual amounts incurred and realized by the exporter or
producer in question in respect of production and sales in the
domestic market of the country of origin of the same general category
of products;
(ii)
the weighted average of the actual amounts incurred and
realized by other exporters or producers subject to investigation in
respect of production and sales of the like product in the domestic
market of the country of origin;
(iii)
any other reasonable method, provided that the amount for
profit so established shall 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.
2.3
In cases where there is no export price or where it appears to
the authorities concerned that the export price is unreliable because
of association or a compensatory arrangement between the exporter and
the importer or a third party, the export price may be constructed on
the basis of the price at which the imported products are first resold
to an independent buyer, or if the products are not resold
to an independent buyer, or not resold in the condition as imported,
on such reasonable basis as the authorities may determine.
2.4
A fair comparison shall be made between the export price and the
normal value. This comparison shall be made at the same level of
trade, normally at the ex-factory level, and in respect of sales
made at as nearly as possible the same time. Due allowance shall
be made in each case, on its merits, for differences which
affect price comparability, 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.(7) In the cases referred to in paragraph 3,
allowances for costs, including duties and taxes, incurred between
importation and resale, and for profits accruing, should also be made.
If in these cases price comparability has been affected, the
authorities shall establish the normal value at a level of trade
equivalent to the level of trade of the constructed export price, or
shall make due allowance as warranted under this paragraph. The
authorities shall indicate to the parties in question what information
is necessary to ensure a fair comparison and shall not impose an
unreasonable burden of proof on those parties.
2.4.1 When the comparison under paragraph 4 requires a conversion of
currencies, such conversion should be made using the rate of
exchange on the date of sale(8), provided that when a sale of
foreign currency on forward markets is directly linked to the export
sale involved, the rate of exchange in the forward sale shall be used.
Fluctuations in exchange rates shall be ignored and in an
investigation the authorities shall allow exporters at least 60 days
to have adjusted their export prices to reflect sustained movements in
exchange rates during the period of investigation.
2.4.2 Subject to the provisions governing fair comparison in paragraph 4,
the existence of margins of dumping during the investigation phase
shall normally be established on the basis of a comparison of a
weighted average normal value with a weighted average of prices of all
comparable export transactions or by a comparison of normal value and
export prices on a transaction-to-transaction basis.
A normal value established on a weighted average basis may be compared
to prices of individual export transactions if the authorities find a
pattern of export prices which differ significantly among different
purchasers, regions or time periods, and if an explanation is provided
as to why such differences cannot be taken into account
appropriately by the use of a weighted average-to-weighted
average or transaction-to-transaction comparison.
2.5
In the case where products are not imported directly from the country
of origin but are exported to the importing Member from an
intermediate country, the price at which the products are sold from
the country of export to the importing Member shall normally be
compared with the comparable price in the country of export.
However, comparison may be made with the price in the country of
origin, if, for example, the products are merely transshipped through
the country of export, or such products are not produced in the
country of export, or there is no comparable price for them in the
country of export.
2.6
Throughout this Agreement the term “like product” (“produit
similaire”) shall be interpreted to mean a product which is
identical, i.e. alike in all respects to the product under
consideration, or in the absence of such a product, another product
which, although not alike in all respects, has characteristics closely
resembling those of the product under consideration.
2.7
This Article is without prejudice to the second Supplementary
Provision to paragraph 1 of Article VI in Annex I to
GATT 1994.
Part I: Article 3 back to top
Determination of Injury (9)
3.1
A determination of injury for purposes of Article VI of GATT 1994
shall be based on positive evidence and involve an objective
examination of both (a) the volume of the dumped imports
and the effect of the dumped imports on prices in the domestic market
for like products, and (b) the consequent impact of these
imports on domestic producers of such products.
3.2
With regard to the volume of the dumped imports, the investigating
authorities shall consider whether there has been a significant
increase in dumped imports, either in absolute terms or relative to
production or consumption in the importing Member. With
regard to the effect of the dumped imports on prices, the
investigating authorities shall consider whether there has been a
significant price undercutting by the dumped imports as compared with
the price of a like product of the importing Member, or whether the
effect of such imports is otherwise to depress prices to a significant
degree or prevent price increases, which otherwise would have
occurred, to a significant degree. No one or several of these
factors can necessarily give decisive guidance.
3.3
Where imports of a product from more than one country are
simultaneously subject to anti-dumping investigations, the
investigating authorities may cumulatively assess the effects of such
imports only if they determine that (a) the margin of dumping
established in relation to the imports from each country is more than de
minimis as defined in paragraph 8 of Article 5
and the volume of imports from each country is not negligible and (b)
a cumulative assessment of the effects of the imports is appropriate
in light of the conditions of competition between the imported
products and the conditions of competition between the imported
products and the like domestic product.
3.4
The examination of the impact of the dumped imports on the domestic
industry concerned shall include an evaluation of all relevant
economic factors and indices having a bearing on the state of the
industry, including actual and potential decline in sales, profits,
output, market share, productivity, return on investments, or
utilization of capacity; factors affecting domestic prices;
the magnitude of the margin of dumping; actual and potential
negative effects on cash flow, inventories, employment, wages, growth,
ability to raise capital or investments. This list is not
exhaustive, nor can one or several of these factors necessarily give
decisive guidance.
3.5
It must be demonstrated that the dumped imports are, through the
effects of dumping, as set forth in paragraphs 2 and 4,
causing injury within the meaning of this Agreement. The
demonstration of a causal relationship between the dumped imports and
the injury to the domestic industry shall be based on an examination
of all relevant evidence before the authorities. The authorities
shall also examine any known factors other than the dumped imports
which at the same time are injuring the domestic industry, and the
injuries caused by these other factors must not be attributed to the
dumped imports. Factors which may be relevant in this respect
include, inter alia, the volume and prices of
imports not sold at dumping prices, contraction in demand or changes
in the patterns of consumption, trade restrictive practices of and
competition between the foreign and domestic producers, developments
in technology and the export performance and productivity of the
domestic industry.
3.6
The effect of the dumped imports shall be assessed in relation to the
domestic production of the like product when available data permit the
separate identification of that production on the basis of such
criteria as the production process, producers’ sales and profits.
If such separate identification of that production is not possible,
the effects of the dumped imports shall be assessed by the examination
of the production of the narrowest group or range of products, which
includes the like product, for which the necessary information can be
provided.
3.7
A determination of a threat of material injury shall be based on facts
and not merely on allegation, conjecture or remote possibility.
The change in circumstances which would create a situation in which
the dumping would cause injury must be clearly foreseen and imminent.(10)
In making a determination regarding the existence of a threat of
material injury, the authorities should consider, inter alia,
such factors as:
(i)
a significant rate of increase of dumped imports into the domestic
market indicating the likelihood of substantially increased
importation;
(ii)
sufficient freely disposable, or an imminent, substantial increase in,
capacity of the exporter indicating the likelihood of substantially
increased dumped exports to the importing Member’s market, taking into
account the availability of other export markets to absorb any
additional exports;
(iii)
whether imports are entering at prices that will have a significant
depressing or suppressing effect on domestic prices, and would
likely increase demand for further imports; and
(iv)
inventories of the product being investigated.
No
one of these factors by itself can necessarily give decisive guidance
but the totality of the factors considered must lead to the conclusion
that further dumped exports are imminent and that, unless protective
action is taken, material injury would occur.
3.8
With respect to cases where injury is threatened by dumped imports,
the application of anti-dumping measures shall be considered and
decided with special care.
Part I: Article 4 back to top
Definition of Domestic Industry
4.1
For the purposes of this Agreement, the term “domestic
industry” shall be interpreted as referring to the domestic
producers as a whole of the like products or to those of them whose
collective output of the products constitutes a major proportion of
the total domestic production of those products, except that:
(i)
when producers are related(11) to the exporters or importers or
are themselves importers of the allegedly dumped product, the term “domestic industry” may be interpreted as referring to the
rest of the producers;
(ii)
in exceptional circumstances the territory of a Member may, for the
production in question, be divided into two or more competitive
markets and the producers within each market may be regarded as a
separate industry if (a) the producers within such market
sell all or almost all of their production of the product in question
in that market, and (b) the demand in that market is not
to any substantial degree supplied by producers of the product in
question located elsewhere in the territory. In such
circumstances, injury may be found to exist even where a major portion
of the total domestic industry is not injured, provided there is a
concentration of dumped imports into such an isolated market and
provided further that the dumped imports are causing injury to the
producers of all or almost all of the production within such market.
4.2
When the domestic industry has been interpreted as referring to the
producers in a certain area, i.e. a market as defined in paragraph 1(ii),
anti-dumping duties shall be levied(12) only on the products in
question consigned for final consumption to that area. When the
constitutional law of the importing Member does not permit the levying
of anti-dumping duties on such a basis, the importing Member may levy
the anti-dumping duties without limitation only if (a) the
exporters shall have been given an opportunity to cease exporting at
dumped prices to the area concerned or otherwise give assurances
pursuant to Article 8 and adequate assurances in this regard have
not been promptly given, and (b) such duties cannot be
levied only on products of specific producers which supply the area in
question.
4.3
Where two or more countries have reached under the provisions of
paragraph 8(a) of Article XXIV of GATT 1994 such a
level of integration that they have the characteristics of a single,
unified market, the industry in the entire area of integration shall
be taken to be the domestic industry referred to in paragraph 1.
4.4
The provisions of paragraph 6 of Article 3 shall be
applicable to this Article.
Part I: Article 5 back to top
Initiation and Subsequent Investigation
5.1
Except as provided for in paragraph 6, an investigation to
determine the existence, degree and effect of any alleged dumping
shall be initiated upon a written application by or on behalf of the
domestic industry.
5.2
An application under paragraph 1 shall include evidence of (a) dumping,
(b) injury within the meaning of Article VI of GATT 1994
as interpreted by this Agreement and (c) a causal link
between the dumped imports and the alleged injury. Simple
assertion, unsubstantiated by relevant evidence, cannot be considered
sufficient to meet the requirements of this paragraph. The
application shall contain such information as is reasonably available
to the applicant on the following:
(i)
the identity of the applicant and a description of the volume and
value of the domestic production of the like product by the applicant.
Where a written application is made on behalf of the domestic
industry, the application shall identify the industry on behalf of
which the application is made by a list of all known domestic
producers of the like product (or associations of domestic producers
of the like product) and, to the extent possible, a description of the
volume and value of domestic production of the like product accounted
for by such producers;
(ii)
a complete description of the allegedly dumped product, the names of
the country or countries of origin or export in question, the identity
of each known exporter or foreign producer and a list of known persons
importing the product in question;
(iii)
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 (or, where appropriate, information on
the prices at which the product is sold from the country or countries
of origin or export to a third country or countries, or on the
constructed value of the product) and information on export prices or,
where appropriate, on the prices at which the product is first resold
to an independent buyer in the territory of the importing Member;
(iv)
information on the evolution of the volume of the allegedly dumped
imports, the effect of these imports on prices of the like product in
the domestic market and the consequent impact of the imports on the
domestic industry, as demonstrated by relevant factors and indices
having a bearing on the state of the domestic industry, such as those
listed in paragraphs 2 and 4 of Article 3.
5.3
The authorities shall examine the accuracy and adequacy of the
evidence provided in the application to determine whether there is
sufficient evidence to justify the initiation of an investigation.
5.4
An investigation shall not be initiated pursuant to paragraph 1
unless the authorities have determined, on the basis of an examination
of the degree of support for, or opposition to, the application
expressed(13) by domestic producers of the like product, that
the application has been made by or on behalf of the domestic
industry.(14) The application shall be considered to have been
made “by or on behalf of the domestic industry”
if it is supported by those domestic producers whose collective output
constitutes more than 50 per cent of the total production of the
like product produced by that portion of the domestic industry
expressing either support for or opposition to the application.
However, no investigation shall be initiated when domestic producers
expressly supporting the application account for less than 25 per
cent of total production of the like product produced by the domestic
industry.
5.5
The authorities shall avoid, unless a decision has been made to
initiate an investigation, any publicizing of the application for the
initiation of an investigation. However, after receipt of
a properly documented application and before proceeding to initiate an
investigation, the authorities shall notify the government of the
exporting Member concerned.
5.6
If, in special circumstances, the authorities concerned decide to
initiate an investigation without having received a written
application by or on behalf of a domestic industry for the initiation
of such investigation, they shall proceed only if they have sufficient
evidence of dumping, injury and a causal link, as described in
paragraph 2, to justify the initiation of an investigation.
5.7
The evidence of both dumping and injury shall be considered
simultaneously (a) in the decision whether or not to
initiate an investigation, and (b) thereafter, during the
course of the investigation, starting on a date not later than the
earliest date on which in accordance with the provisions of this
Agreement provisional measures may be applied.
5.8
An application under paragraph 1 shall be rejected and an
investigation shall be terminated promptly as soon as the authorities
concerned are satisfied that there is not sufficient evidence of
either dumping or of injury to justify proceeding with the case.
There shall be immediate termination in cases where the authorities
determine that the margin of dumping is de minimis,
or that the volume of dumped imports, actual or potential, or the
injury, is negligible. The margin of dumping shall be considered
to be de minimis if this margin is less than 2 per
cent, expressed as a percentage of the export price. The volume
of dumped imports shall normally be regarded as negligible if the
volume of dumped imports from a particular country is found to account
for less than 3 per cent of imports of the like
product in the importing Member, unless countries which individually
account for less than 3 per cent of the imports of the like
product in the importing Member collectively account for more than 7 per
cent of imports of the like product in the importing Member.
5.9
An anti-dumping proceeding shall not hinder the procedures of customs
clearance.
5.10
Investigations shall, except in special circumstances, be concluded
within one year, and in no case more than 18 months, after their
initiation.
Part I: Article 6 back to top
Evidence
6.1
All interested parties in an anti-dumping investigation shall be given
notice of the information which the authorities require and ample
opportunity to present in writing all evidence which they consider
relevant in respect of the investigation in question.
6.1.1 Exporters or foreign producers receiving questionnaires used in an
anti-dumping investigation shall be given at least 30 days for
reply.(15) Due consideration should be given to any
request for an extension of the 30-day period and, upon cause shown,
such an extension should be granted whenever practicable.
6.1.2
Subject to the requirement to protect confidential information,
evidence presented in writing by one interested party shall be
made available promptly to other interested parties participating in
the investigation.
6.1.3
As soon as an investigation has been initiated, the authorities shall
provide the full text of the written application received under
paragraph 1 of Article 5 to the known exporters(16)
and to the authorities of the exporting Member and shall make it
available, upon request, to other interested parties involved.
Due regard shall be paid to the requirement for the protection of
confidential information, as provided for in paragraph 5.
6.2
Throughout the anti-dumping investigation all interested parties shall
have a full opportunity for the defence of their interests. To
this end, the authorities shall, on request, provide opportunities for
all interested parties to meet those parties with adverse interests,
so that opposing views may be presented and rebuttal arguments
offered. Provision of such opportunities must take account of
the need to preserve confidentiality and of the convenience to the
parties. There shall be no obligation on any party to attend a
meeting, and failure to do so shall not be prejudicial to that party’s
case. Interested parties shall also have the right, on
justification, to present other information orally.
6.3
Oral information provided under paragraph 2 shall be taken into
account by the authorities only in so far as it is subsequently
reproduced in writing and made available to other interested parties,
as provided for in subparagraph 1.2.
6.4
The authorities shall whenever practicable provide timely
opportunities for all interested parties to see all information that
is relevant to the presentation of their cases, that is not
confidential as defined in paragraph 5, and that is used by the
authorities in an anti-dumping investigation, and to prepare
presentations on the basis of this information.
6.5
Any information which is by nature confidential (for example, because
its disclosure would be of significant competitive advantage to a
competitor or because its disclosure would have a significantly
adverse effect upon a person supplying the information or upon a
person from whom that person acquired the information), or which is
provided on a confidential basis by parties to an investigation shall,
upon good cause shown, be treated as such by the authorities.
Such information shall not be disclosed without specific permission of
the party submitting it.(17)
6.5.1 The authorities shall require interested parties providing
confidential information to furnish non-confidential summaries
thereof. These summaries shall be in sufficient detail to permit
a reasonable understanding of the substance of the information
submitted in confidence. In exceptional circumstances, such
parties may indicate that such information is not susceptible of
summary. In such exceptional circumstances, a statement of the
reasons why summarization is not possible must be provided.
6.5.2 If the authorities find that a request for confidentiality is not
warranted and if the supplier of the information is either
unwilling to make the information public or to authorize its
disclosure in generalized or summary form, the authorities may
disregard such information unless it can be demonstrated to their
satisfaction from appropriate sources that the information is correct.(18)
6.6
Except in circumstances provided for in paragraph 8, the
authorities shall during the course of an investigation satisfy
themselves as to the accuracy of the information supplied by
interested parties upon which their findings are based.
6.7
In order to verify information provided or to obtain further details,
the authorities may carry out investigations in the territory of other
Members as required, provided they obtain the agreement of the firms
concerned and notify the representatives of the government of the
Member in question, and unless that Member objects to the
investigation. The procedures described in Annex I shall
apply to investigations carried out in the territory of other Members.
Subject to the requirement to protect confidential information, the
authorities shall make the results of any such investigations
available, or shall provide disclosure thereof pursuant to paragraph 9,
to the firms to which they pertain and may make such results available
to the applicants.
6.8
In cases in which any interested party refuses access to, or otherwise
does not provide, necessary information within a reasonable period or
significantly impedes the investigation, preliminary and final
determinations, affirmative or negative, may be made on the basis of
the facts available. The provisions of Annex II shall be
observed in the application of this paragraph.
6.9
The authorities shall, before a final determination is made, inform
all interested parties of the essential facts under consideration
which form the basis for the decision whether to apply definitive
measures. Such disclosure should take place in sufficient time
for the parties to defend their interests.
6.10
The authorities shall, as a rule, determine an individual margin of
dumping for each known exporter or producer concerned of the product
under investigation. In cases where the number of exporters,
producers, importers or types of products involved is so large as to
make such a determination impracticable, the authorities may limit
their examination either to a reasonable number of interested parties
or products by using samples which are statistically valid on the
basis of information available to the authorities at the time of the
selection, or to the largest percentage of the volume of the exports
from the country in question which can reasonably be investigated.
6.10.1 Any selection of exporters, producers, importers or types of products
made under this paragraph shall preferably be chosen in
consultation with and with the consent of the exporters, producers or
importers concerned.
6.10.2
In cases where the authorities have limited their examination, as
provided for in this paragraph, they shall nevertheless determine an
individual margin of dumping for any exporter or producer not
initially selected who submits the necessary information in time for
that information to be considered during the course of the
investigation, except where the number of exporters or producers is so
large that individual examinations would be unduly burdensome to the
authorities and prevent the timely completion of the investigation.
Voluntary responses shall not be discouraged.
6.11
For the purposes of this Agreement, “interested parties”
shall include:
(i)
an exporter or foreign producer or the importer of a product subject
to investigation, or a trade or business association a majority of the
members of which are producers, exporters or importers of such
product;
(ii)
the government of the exporting Member; and
(iii)
a producer of the like product in the importing Member or a trade and
business association a majority of the members of which produce
the like product in the territory of the importing Member.
This
list shall not preclude Members from allowing domestic or foreign
parties other than those mentioned above to be included as interested
parties.
6.12
The authorities shall provide opportunities for industrial users of
the product under investigation, and for representative consumer
organizations in cases where the product is commonly sold at the
retail level, to provide information which is relevant to the
investigation regarding dumping, injury and causality.
6.13
The authorities shall take due account of any difficulties experienced
by interested parties, in particular small companies, in supplying
information requested, and shall provide any assistance practicable.
6.14
The procedures set out above are not intended to prevent the
authorities of a Member from proceeding expeditiously with regard to
initiating an investigation, reaching preliminary or final
determinations, whether affirmative or negative, or from applying
provisional or final measures, in accordance with relevant provisions
of this Agreement.
Part
I: Article 7 back to top
Provisional Measures
7.1
Provisional measures may be applied only if:
(i)
an investigation has been initiated in accordance with the provisions
of Article 5, a public notice has been given to that effect and
interested parties have been given adequate opportunities to submit
information and make comments;
(ii)
a preliminary affirmative determination has been made of dumping and
consequent injury to a domestic industry; and
(iii)
the authorities concerned judge such measures necessary to prevent
injury being caused during the investigation.
7.2
Provisional measures may take the form of a provisional duty or,
preferably, a security - by cash deposit or bond - equal to
the amount of the anti-dumping duty provisionally estimated, being not
greater than the provisionally estimated margin of dumping.
Withholding of appraisement is an appropriate provisional
measure, provided that the normal duty and the estimated amount of the
anti-dumping duty be indicated and as long as the withholding of
appraisement is subject to the same conditions as other provisional
measures.
7.3
Provisional measures shall not be applied sooner than 60 days from the
date of initiation of the investigation.
7.4
The application of provisional measures shall be limited to as short a
period as possible, not exceeding four months or, on decision of the
authorities concerned, upon request by exporters representing a
significant percentage of the trade involved, to a period not
exceeding six months. When authorities, in the course of an
investigation, examine whether a duty lower than the margin of dumping
would be sufficient to remove injury, these periods may be six and
nine months, respectively.
7.5
The relevant provisions of Article 9 shall be followed in the
application of provisional measures.
Part I: Article 8 back to top
Price Undertakings
8.1
Proceedings may(19) be suspended or terminated without the
imposition of provisional measures or anti-dumping duties upon receipt
of satisfactory voluntary undertakings from any exporter to revise its
prices or to cease exports to the area in question at dumped prices so
that the authorities are satisfied that the injurious effect of the
dumping is eliminated. Price increases under such undertakings
shall not be higher than necessary to eliminate the margin of dumping.
It is desirable that the price increases be less than the margin of
dumping if such increases would be adequate to remove the injury to
the domestic industry.
8.2
Price undertakings shall not be sought or accepted from exporters
unless the authorities of the importing Member have made a preliminary
affirmative determination of dumping and injury caused by such
dumping.
8.3
Undertakings offered need not be accepted if the authorities consider
their acceptance impractical, for example, if the number of actual or
potential exporters is too great, or for other reasons, including
reasons of general policy. Should the case arise and where
practicable, the authorities shall provide to the exporter the reasons
which have led them to consider acceptance of an undertaking as
inappropriate, and shall, to the extent possible, give the exporter an
opportunity to make comments thereon.
8.4
If an undertaking is accepted, the investigation of dumping and injury
shall nevertheless be completed if the exporter so desires or
the authorities so decide. In such a case, if a negative
determination of dumping or injury is made, the undertaking shall
automatically lapse, except in cases where such a determination is due
in large part to the existence of a price undertaking. In such
cases, the authorities may require that an undertaking be maintained
for a reasonable period consistent with the provisions of this
Agreement. In the event that an affirmative determination of
dumping and injury is made, the undertaking shall continue consistent
with its terms and the provisions of this Agreement.
8.5
Price undertakings may be suggested by the authorities of the
importing Member, but no exporter shall be forced to enter into such
undertakings. The fact that exporters do not offer such
undertakings, or do not accept an invitation to do so, shall in no way
prejudice the consideration of the case. However, the
authorities are free to determine that a threat of injury is more
likely to be realized if the dumped imports continue.
8.6
Authorities of an importing Member may require any exporter from whom
an undertaking has been accepted to provide periodically information
relevant to the fulfilment of such an undertaking and to permit
verification of pertinent data. In case of violation of an
undertaking, the authorities of the importing Member may take, under
this Agreement in conformity with its provisions, expeditious actions
which may constitute immediate application of provisional measures
using the best information available. In such cases, definitive
duties may be levied in accordance with this Agreement on products
entered for consumption not more than 90 days before the application
of such provisional measures, except that any such retroactive
assessment shall not apply to imports entered before the violation of
the undertaking.
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Read a summary of the
Agreement on Implementation of Article VI (Anti-dumping)
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Notes:
1. The term
“initiated” as used in this
Agreement means the procedural action by which a Member formally
commences an investigation as provided in Article 5. back to text
2. Sales of the like product destined for
consumption in the domestic market of the exporting country shall
normally be considered a sufficient quantity for the determination of
the normal value if such sales constitute 5 per cent or more of the
sales of the product under consideration to the importing Member,
provided that a lower ratio should be acceptable where the evidence
demonstrates that domestic sales at such lower ratio are nonetheless of
sufficient magnitude to provide for a proper comparison. back to text
3.
When in this Agreement the term “authorities” is used, it
shall be interpreted as meaning authorities at an appropriate senior
level. back to text
4.
The extended period of time should normally be one year but shall in no
case be less than six months. back to text
5.
Sales below per unit costs are made in substantial quantities when the
authorities establish that the weighted average selling price of the
transactions under consideration for the determination of the normal
value is below the weighted average per unit costs, or that the volume
of sales below per unit costs represents not less than 20 per cent of
the volume sold in transactions under consideration for the
determination of the normal value. back to text
6.
The adjustment made for start-up operations shall reflect the costs at
the end of the start-up period or, if that period extends beyond the
period of investigation, the most recent costs which can reasonably be
taken into account by the authorities during the investigation. back to text
7.
It is understood that some of the above factors may overlap, and authorities
shall ensure that they do not duplicate adjustments that
have been already made under this provision. back to text
8.
Normally, the date of sale would be the date of contract, purchase
order, order confirmation, or invoice, whichever establishes the
material terms of sale. back to text
9.
Under this Agreement the term “injury” shall, unless
otherwise specified, be taken to mean material injury to a domestic
industry, threat of material injury to a domestic industry or material
retardation of the establishment of such an industry and shall be
interpreted in accordance with the provisions of this Article. back to text
10.
One example, though not an exclusive one, is that there is convincing
reason to believe that there will be, in the near future,
substantially increased importation of the product at dumped prices. back to text
11.
For the purpose of this paragraph, producers shall be deemed to be
related to exporters or importers only if (a) one of them
directly or indirectly controls the other; or (b) both
of them are directly or indirectly controlled by a third person;
or (c) together they directly or indirectly control a
third person, provided that there are grounds for believing or
suspecting that the effect of the relationship is such as to cause the
producer concerned to behave differently from non-related producers.
For the purpose of this paragraph, one shall be deemed to control
another when the former is legally or operationally in a position to
exercise restraint or direction over the latter. back to text
12.
As used in this Agreement “levy” shall mean the definitive
or final legal assessment or collection of a duty or tax. back to text
13.
In the case of fragmented industries involving an exceptionally large
number of producers, authorities may determine support and opposition
by using statistically valid sampling techniques. back to text
14.
Members are aware that in the territory of certain Members employees
of domestic producers of the like product or representatives of those
employees may make or support an application for an investigation
under paragraph 1. back to text
15.
As a general rule, the time-limit for exporters shall be counted
from the date of receipt of the questionnaire, which for this purpose
shall be deemed to have been received one week from the date on which
it was sent to the respondent or transmitted to the appropriate
diplomatic representative of the exporting Member or, in the case of a
separate customs territory Member of the WTO, an official
representative of the exporting territory. back to text
16.
It being understood that, where the number of exporters involved is
particularly high, the full text of the written application should
instead be provided only to the authorities of the exporting Member or
to the relevant trade association. back to text
17.
Members are aware that in the territory of certain Members disclosure
pursuant to a narrowly-drawn protective order may be required. back to text
18.
Members agree that requests for confidentiality should not be
arbitrarily rejected. back to text
19.
The word “may” shall not be interpreted to allow the
simultaneous continuation of proceedings with the implementation of
price undertakings except as provided in paragraph 4. back to text
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