Part V: Countervailing Measures
Article 10: Application of Article VI of GATT 1994(35)
Members shall take all necessary steps to ensure that the imposition of a countervailing
duty(36) on any product of the territory of any Member
imported into the territory of another Member is in accordance with the
provisions of Article VI of GATT 1994 and the terms of this
Agreement. Countervailing duties may
only be imposed pursuant to investigations initiated(37)and conducted in accordance with the provisions of this Agreement and the
Agreement on Agriculture.
Article 11: Initiation and Subsequent
Investigation back to top
11.1
Except as provided in paragraph 6, an investigation to determine the
existence, degree and effect of any alleged subsidy shall be initiated upon a
written application by or on behalf of the domestic industry.
11.2
An application under paragraph 1 shall include sufficient evidence
of the existence of (a) a subsidy and, if
possible, its amount, (b) injury within the
meaning of Article VI of GATT 1994 as interpreted by this Agreement,
and (c) a causal link between the subsidized
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 subsidized 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)
evidence with regard to the existence, amount and nature of the subsidy
in question;
(iv)
evidence that alleged injury to a domestic industry is caused by
subsidized imports through the effects of the subsidies; this evidence includes information on the evolution of the volume of the
allegedly subsidized 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 15.
11.3
The authorities shall review the accuracy and adequacy of the evidence
provided in the application to determine
whether the evidence is sufficient to justify the initiation of an
investigation.
11.4
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(38)
by domestic producers of the like product, that the
application has been made by or on behalf of the domestic industry.(39)
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.
11.5
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.
11.6
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 the existence of a
subsidy, injury and causal link, as described in paragraph 2, to justify the
initiation of an investigation.
11.7
The evidence of both subsidy 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.
11.8
In cases where products are not imported directly from the country of
origin but are exported to the importing Member from an intermediate country,
the provisions of this Agreement shall be fully applicable and the transaction
or transactions shall, for the purposes of this Agreement, be regarded as having
taken place between the country of origin and the importing Member.
11.9
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 ofeither subsidization or of injury to justify proceeding with the case. There shall be immediate termination
in cases where the amount of a subsidy is de minimis ,
or where the volume of subsidized imports, actual or potential, or the injury,
is negligible. For the purpose of this
paragraph, the amount of the subsidy shall be considered to be de
minimis if the subsidy is less than 1 per cent ad valorem.
11.10
An investigation shall not hinder the procedures of customs clearance.
11.11
Investigations shall, except in special circumstances, be concluded
within one year, and in no case more than 18 months, after their
initiation.
12.1
Interested Members and all interested parties in a countervailing duty
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.
12.1.1
Exporters, foreign
producers or interested Members receiving questionnaires used in a
countervailing duty investigation shall be given at least 30 days for
reply.(40)
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.
12.1.2
Subject to the
requirement to protect confidential information, evidence presented in writing
by one interested Member or interested party shall be made available promptly to
other interested Members or interested parties participating in the
investigation.
12.1.3
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 11 to the known exporters(41)
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 protection of confidential information, as provided for in paragraph 4.
12.2.
Interested Members and interested parties also shall have the right, upon
justification, to present information orally. Where
such information is provided orally, the interested Members and interested
parties subsequently shall be required to reduce such submissions to writing.
Any decision of the investigating
authorities can only be based on such information and arguments as were on the
written record of this authority and which were available to interested Members
and interested parties participating in the investigation, due account having
been given to the need to protect confidential information.
12.3
The authorities shall whenever practicable provide timely opportunities
for all interested Members and interested parties to see all information that is
relevant to the presentation of their cases, that
is not confidential as defined in paragraph 4, and that is used by the
authorities in a countervailing duty investigation, and to prepare presentations
on the basis of this information
12.4
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 the supplier 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.(42)
12.4.1
The authorities shall require interested Members or 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 Members or 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.
12.4.2
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.(43)
12.5
Except in circumstances provided for in paragraph 7, the authorities
shall during the course of an investigation satisfy themselves as to the
accuracy of the information supplied by interested Members or interested parties
upon which their findings are based.
12.6
The investigating authorities may carry out investigations in the
territory of other Members as required, provided that they have notified in good
time the Member in question and unless that Member objects to the investigation.
Further, the investigating authorities may carry out investigations on
the premises of a firm and may examine the records of a firm if (a) the
firm so agrees and (b) the Member in question
is notified and does not object. The
procedures set forth in Annex VI shall apply to investigations on the
premises of a firm. 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 8, to the firms to which they pertain and may
make such results available to the applicants.
12.7
In cases in which any interested Member or 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.
12.8
The authorities shall, before a final determination is made, inform all
interested Members and 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.
12.9
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; and
(ii)
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.
12.10
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 subsidization,
injury and causality.
12.11
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.
12.12
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.
Article
13: Consultations back to top
13.1
As soon as possible after an application under Article 11 is
accepted, and in any event before the initiation of any investigation, Members
the products of which may be subject to such investigation shall be invited for
consultations with the aim of clarifying the situation as to the matters
referred to in paragraph 2 of Article 11 and arriving at a mutually
agreed solution.
13.2
Furthermore, throughout the period of investigation, Members the products
of which are the subject of the investigation shall be afforded a reasonable
opportunity to continue consultations, with a view to clarifying the factual
situation and to arriving at a mutually agreed solution.(44)
13.3
Without prejudice to the obligation to afford reasonable opportunity for
consultation, these provisions regarding consultations are not intended to
prevent the authorities of a Member from proceeding expeditiously with regard to
initiating the investigation, reaching preliminary or final determinations,
whether affirmative or negative, or from applying provisional or final measures,
in accordance with the provisions of this Agreement.
13.4
The Member which intends to initiate any investigation or is conducting
such an investigation shall permit, upon request, the Member or Members the
products of which are subject to such investigation
access to non-confidential evidence, including the non-confidential summary of
confidential data being used for initiating or conducting the investigation.
Article
14: Calculation of the Amount of a Subsidy in Terms of the Benefit to the Recipient back to top
For the purpose of Part V, any method used by the investigating
authority to calculate the benefit to the recipient conferred pursuant to
paragraph 1 of Article 1 shall be provided for in the national
legislation or implementing regulations of the Member concerned and its
application to each particular case shall be transparent and adequately
explained. Furthermore, any such
method shall be consistent with the following guidelines:
(a)
government provision of equity capital shall not be considered as
conferring a benefit, unless the investment decision can be regarded as
inconsistent with the usual investment practice (including for the provision of
risk capital) of private investors in the territory of that Member;
(b)
a loan by a government shall not be considered as conferring a benefit,
unless there is a difference between the amount that the firm receiving the loan
pays on the government loan and the amount the firm would pay on a comparable
commercial loan which the firm could actually obtain on the market. In this case the benefit shall be the difference between these two
amounts;
(c)
a loan guarantee by a government shall not be considered as conferring a
benefit, unless there is a difference between the amount that the firm receiving
the guarantee pays on a loan guaranteed by the government and the amount that
the firm would pay on a comparable commercial loan absent the government
guarantee. In this case the
benefit shall be the difference between these two amounts adjusted for any
differences in fees;
(d)
the provision of goods or services or purchase of goods by a government
shall not be considered as conferring a benefit unless the provision is made for
less than adequate remuneration, or the purchase is made for more than adequate
remuneration. The adequacy of remuneration shall be determined in relation to prevailing
market conditions for the good or service in question in the country of
provision or purchase (including price, quality, availability, marketability,
transportation and other conditions of purchase or sale).
Article
15: Determination
of Injury(45) back to top
15.1
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 subsidized imports and the effect of the subsidized imports on
prices in the domestic market for like products(46) and
(b) the consequent impact of these imports on the
domestic producers of such products.
15.2
With regard to the volume of the subsidized imports, the investigating
authorities shall consider whether there has been a significant increase in
subsidized imports, either in absolute terms or relative to production or
consumption in the importing Member. With
regard to the effect of the subsidized imports on prices, the investigating
authorities shall consider whether there has been a significant price
undercutting by the subsidized 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 to prevent price
increases, which otherwise would have occurred, to a significant degree. No one or several of these factors can necessarily give decisive
guidance.
15.3
Where imports of a product from more than one country are simultaneously
subject to countervailing duty investigations, the investigating authorities may
cumulatively assess the effects of such imports only if they determine that (a) the
amount of subsidization established in relation to the imports from each country
is more than de minimis as defined in paragraph 9
of Article 11 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.
15.4
The examination of the impact of the subsidized imports on the domestic
industry 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 output, sales, market share, profits, productivity, return
on investments, or utilization of
capacity; factors affecting domestic
prices; actual and potential negative
effects on cash flow, inventories, employment, wages, growth, ability to raise
capital or investments and, in the case of agriculture, whether there has been
an increased burden on government support programmes. This list is not exhaustive, nor can one or several of these factors
necessarily give decisive guidance.
15.5
It must be demonstrated that the subsidized imports are, through the
effects(47) of
subsidies, causing injury within the
meaning of this Agreement. The
demonstration of a causal relationship between the subsidized 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 subsidized
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 subsidized
imports. Factors which may be relevant
in this respect include, inter alia, the volumes and
prices of non-subsidized imports of the product in question, 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.
15.6
The effect of the subsidized 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 subsidized 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.
15.7
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
subsidy would cause injury must be clearly foreseen and imminent. In making a determination
regarding
the existence of a threat of material injury, the investigating authorities
should consider, inter alia, such factors as:
(i)
nature of the subsidy or subsidies in question and the trade effects
likely to arise therefrom;
(ii)
a significant rate of increase of subsidized imports into the domestic
market indicating the likelihood of substantially increased importation;
(iii)
sufficient freely disposable, or an imminent, substantial increase in,
capacity of the exporter indicating the likelihood of substantially increased
subsidized exports to the importing Member’s market, taking into account the
availability of other export markets to absorb any additional exports;
(iv)
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
(v)
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
subsidized exports are imminent and that, unless protective action is taken,
material injury would occur.
15.8
With respect to cases where injury is threatened by subsidized imports,
the application of countervailing measures shall be considered and decided with
special care.
Article
16: Definition of Domestic Industry back to top
16.1
For the purposes of this Agreement, the term “domestic industry” shall,
except as provided in paragraph 2, 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 when
producers are related(48) to
the exporters or importers or are themselves importers of the allegedly
subsidized product or a like product from other countries, the term “domestic industry” may be interpreted as referring to the rest of the
producers.
16.2.
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 subsidized imports
into such an isolated market and provided further that the subsidized imports
are causing injury to the producers of all or almost all of the production
within such market.
16.3
When the domestic industry has been interpreted as referring to the
producers in a certain area, i.e. a
market as defined in paragraph 2, countervailing duties shall be levied
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 countervailing duties on such a basis, the importing Member may levy
the countervailing duties without limitation only if (a) the
exporters shall have been given an opportunity to cease exporting at subsidized
prices to the area concerned or otherwise give assurances pursuant to Article 18,
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.
16.4
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 paragraphs 1 and 2.
16.5
The provisions of paragraph 6 of Article 15 shall be applicable to this
Article.
Article
17: Provisional Measures back to top
17.1
Provisional measures may be applied only if:
(a)
an investigation has been initiated in accordance with the provisions of
Article 11, a public notice has
been given to that effect and interested Members and interested parties have
been given adequate opportunities to submit information and make comments;
(b)
a preliminary affirmative determination has been made that a subsidy
exists and that there is injury to a domestic industry caused by subsidized
imports; and
(c)
the authorities concerned judge such measures necessary to prevent injury
being caused during the investigation.
17.2
Provisional measures may take the form of provisional countervailing
duties guaranteed by cash deposits or bonds equal to the amount of the
provisionally calculated amount of subsidization.
17.3
Provisional measures shall not be applied sooner than 60 days from
the date of initiation of the investigation.
17.4
The application of provisional measures shall be limited to as short a
period as possible, not exceeding four months.
17.5
The relevant provisions of Article 19 shall be followed in the
application of provisional measures.
Article
18: Undertakings back to top
18.1 Proceedings may(49)
be suspended or terminated without the imposition of
provisional measures or countervailing duties upon receipt of satisfactory
voluntary undertakings under which:
(a)
the government of the exporting Member agrees to eliminate or limit the
subsidy or take other measures concerning its effects; or
(b)
the exporter agrees to revise its prices so that the investigating authorities are satisfied that the injurious effect of the subsidy is
eliminated. Price increases
under such undertakings shall not be higher than
necessary to eliminate the amount of the subsidy. It
is desirable that the price increases be
less than the amount of the subsidy if such increases
would be adequate to remove the injury to the domestic industry.
18.2
Undertakings
shall not be sought or accepted unless the authorities of the importing Member
have made a preliminary affirmative determination of subsidization and
injury caused by such subsidization and, in case of undertakings from exporters,
have obtained the consent of the exporting Member.
18.3
Undertakings
offered need not be accepted if the authorities of the importing Member 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.
18.4
If
an undertaking is accepted, the investigation of subsidization and injury shall
nevertheless be completed if the exporting Member so desires or the importing
Member so decides. In such a case, if a
negative determination of subsidization 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 an undertaking. In
such cases, the authorities concerned 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 subsidization and
injury is made, the undertaking shall continue consistent with its terms and the
provisions of this Agreement.
18.5
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 governments or 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 subsidized imports continue.
18.6
Authorities of an importing Member may require any government or 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.
Article
19: Imposition and Collection of Countervailing Duties back to top
19.1
If, after reasonable efforts have been made to complete consultations, a
Member makes a final determination of the existence and amount of the subsidy
and that, through the effects of the subsidy, the subsidized imports are causing
injury, it may impose a countervailing duty in accordance with the provisions of
this Article unless the subsidy or subsidies are withdrawn.
19.2
The decision whether or not to impose a countervailing duty in cases
where all requirements for the imposition have been fulfilled, and the decision
whether the amount of the countervailing duty to be imposed shall be the full
amount of the subsidy or less, are decisions to be made by the authorities of
the importing Member. It is desirable that the imposition should be
permissive in the territory of all Members, that the duty should be less than
the total amount of the subsidy if such lesser duty would be adequate to remove
the injury to the domestic industry, and that procedures should be established
which would allow the authorities concerned to take due account of
representations made by domestic interested parties(50)
whose interests
might be adversely affected by the imposition of a countervailing duty.
19.3
When a countervailing duty is imposed in respect of any product, such
countervailing duty shall be levied, in the appropriate amounts in each case, on
a non‑discriminatory basis on imports of such product from all sources
found to be subsidized and causing injury, except as to imports from those
sources which have renounced any subsidies in question or from which
undertakings under the terms of this Agreement have been accepted. Any exporter whose exports are subject to a definitive countervailing
duty but who was not actually investigated for reasons other than a refusal to cooperate, shall be entitled to an expedited review in order
that the investigating authorities promptly establish an individual
countervailing duty rate for that exporter.
19.4
No countervailing duty shall be levied (51) on
any imported product in excess of the amount of the subsidy found to exist,
calculated in terms of subsidization per unit of the subsidized and exported
product.
Article
20: Retroactivity back to top
20.1
Provisional measures and countervailing duties shall only be applied to
products which enter for consumption after the time when the decision under
paragraph 1 of Article 17 and paragraph 1 of Article 19,
respectively, enters into force, subject to the exceptions set out in this
Article.
20.2
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
subsidized imports would, in the absence of the provisional measures, have
led to a determination of injury, countervailing duties may be levied
retroactively for the period for which provisional measures, if any, have been
applied.
20.3
If the definitive countervailing duty is higher than the amount
guaranteed by the cash deposit or bond, the difference shall not be collected.
If the definitive duty is less than the amount guaranteed by the cash
deposit or bond, the excess amount shall be reimbursed or the bond released in
an expeditious manner.
20.4
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 countervailing 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.
20.5
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.
20.6
In critical circumstances where for the subsidized product in question
the authorities find that injury which is difficult to repair is caused by
massive imports in a relatively short period of a product benefiting from
subsidies paid or bestowed inconsistently with the provisions of GATT 1994
and of this Agreement and where it is deemed necessary, in order to preclude the
recurrence of such injury, to assess countervailing duties retroactively on
those imports, the definitive countervailing duties may be assessed on imports
which were entered for consumption not more than 90 days prior to the date of
application of provisional measures.
Article 21: Duration and Review of Countervailing Duties and Undertakings
back to top
21.1
A countervailing duty shall remain in force only as long as and to the
extent necessary to counteract subsidization which is causing injury.
21.2
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 countervailing
duty, upon request by any interested party which submits positive information substantiating the need for a review.
Interested parties shall have the right to request the authorities to
examine whether the continued imposition of the duty is necessary to offset
subsidization, 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 countervailing duty is no longer warranted, it shall be terminated
immediately.
21.3
Notwithstanding the provisions of paragraphs 1 and 2, any definitive
countervailing 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 subsidization 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 subsidization and injury.(52) The
duty may remain in force pending the outcome of such a review.
21.4
The provisions of Article 12 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.
21.5
The provisions of this Article shall apply mutatis
mutandis to undertakings accepted under Article 18.
Article 22: Public
Notice and Explanation of Determinations back to top
22.1
When the authorities are satisfied that there is sufficient evidence to
justify the initiation of an
investigation pursuant to Article 11, 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.
22.2
A public notice of the initiation of an investigation shall contain, or
otherwise make available through a separate report(53),
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)
a description of the subsidy practice or practices to be investigated;
(iv)
a
summary of the factors on which the allegation
of injury is based;
(v)
the
address to which representations by interested Members and interested parties
should be directed; and
(vi)
the time-limits allowed to interested Members and interested parties for
making their views known.
22.3
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 18, of the termination of such an undertaking, and of the
termination of a definitive countervailing 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.
22.4
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 the existence of a subsidy 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 amount of subsidy established and the basis on which the existence of
a subsidy has been determined;
(iv)
considerations
relevant to the injury determination as set out in Article 15;
(v)
the main reasons leading to the determination.
22.5
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 an 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 an 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 paragraph 4, as well as the reasons for the acceptance or
rejection of relevant arguments or claims made by interested Members and by the
exporters and importers.
22.6
A public notice of the termination or suspension of an investigation
following the acceptance of an undertaking pursuant to Article 18 shall include,
or otherwise make available through a separate report, the non-confidential part
of this undertaking.
22.7
The provisions of this Article shall apply mutatis mutandis
to the initiation and completion of reviews pursuant to Article 21 and to
decisions under Article 20 to apply duties retroactively.
Article 23: Judicial Review back to top
Each Member whose national legislation contains provisions on
countervailing duty 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 21. Such tribunals or procedures shall be independent of the authorities
responsible for the determination or review in question, and shall provide all
interested parties who participated in the administrative proceeding and are
directly and individually affected by the administrative actions with access to
review.
Part
VI: Institutions
Article 24: Committee
on Subsidies and Countervailing Measures and Subsidiary Bodies back to top
24.1
There is hereby established a Committee on Subsidies and Countervailing
Measures 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 matter relating to the operation of the Agreement or the
furtherance of its objectives. The WTO
Secretariat shall act as the secretariat to the Committee.
24.2
The Committee may set up subsidiary bodies as appropriate.
24.3
The Committee shall establish a Permanent Group of Experts composed of
five independent persons, highly qualified in the fields of subsidies and trade
relations. The experts will be elected
by the Committee and one of them will be replaced every year. The PGE may be requested to assist a panel, as provided for in paragraph 5
of Article 4. The Committee may
also seek an advisory opinion on the existence and nature of any subsidy.
24.4
The PGE may be consulted by any Member and may give advisory opinions on
the nature of any subsidy proposed to be introduced or currently maintained by
that Member. Such advisory opinions will
be confidential and may not be invoked in proceedings under Article 7.
24.5
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.
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