Part VII: Notification and Surveillance
Article 25:
Notifications
25.1
Members agree that, without prejudice to the provisions of paragraph 1
of Article XVI of GATT 1994, their notifications of subsidies shall be
submitted not later than 30 June of each year and shall conform to the
provisions of paragraphs 2 through 6.
25.2
Members shall notify any subsidy as defined in paragraph 1 of
Article 1, which is specific within the meaning of Article 2, granted
or maintained within their territories.
25.3
The
content of notifications should be sufficiently specific to enable other Members
to evaluate the trade effects and to understand the operation of notified
subsidy programmes. In this connection, and without prejudice to the
contents and form of the questionnaire on subsidies(54),
Members shall ensure that their notifications contain
the following information:
(i)
form of a subsidy (i.e. grant, loan, tax concession, etc.);
(ii)
subsidy per unit or, in cases where this is not possible, the total
amount or the annual amount budgeted for
that subsidy (indicating, if possible, the average subsidy per unit in the
previous year);
(iii)
policy objective and/or purpose of a subsidy;
(iv)
duration of a subsidy and/or any other time-limits attached to it;
(v)
statistical data permitting an assessment of the trade effects of a
subsidy.
25.4
Where
specific points in paragraph 3 have not been addressed in a notification,
an explanation shall be provided in the notification itself.
25.5
If
subsidies are granted to specific products or sectors, the notifications should
be organized by product or sector.
25.6
Members
which consider that there are no measures in their territories requiring
notification under paragraph 1 of Article XVI of GATT 1994 and
this Agreement shall so inform the Secretariat in writing.
25.7
Members recognize that notification of a measure does not prejudge either
its legal status under GATT 1994 and this Agreement, the effects under this
Agreement, or the nature of the measure itself.
25.8
Any
Member may, at any time, make a written request for information on the nature
and extent of any subsidy granted or maintained by another Member (including any
subsidy referred to in Part IV), or for an explanation of the reasons for
which a specific measure has been considered as not subject to the requirement
of notification.
25.9
Members so requested shall provide such information as quickly as
possible and in a comprehensive manner, and shall be ready, upon request, to
provide additional information to the requesting Member. In particular, they shall provide sufficient details to enable the other
Member to assess their compliance with
the terms of this Agreement. Any
Member which considers that such information has not been provided may bring the
matter to the attention of the Committee.
25.10
Any
Member which considers that any measure of another Member having the effects of
a subsidy has not been notified in
accordance with the provisions of paragraph 1 of Article XVI of GATT 1994
and this Article may bring the matter to the attention of such other Member. If the alleged subsidy is not thereafter notified promptly, such Member
may itself bring the alleged subsidy in question to the notice of the Committee.
25.11
Members shall report without delay to the Committee all preliminary or
final actions taken with respect to countervailing duties. Such reports shall be available in the Secretariat for inspection by
other Members. Members shall also
submit, on a semi-annual basis, reports on any countervailing duty actions taken
within the preceding six months. The
semi-annual reports shall be submitted on an agreed standard form.
25.12
Each
Member shall notify the Committee (a) which of
its authorities are competent to initiate and conduct investigations referred to
in Article 11 and (b) its domestic
procedures governing the initiation and conduct of such investigations.
Article
26: Surveillance back to top
26.1
The Committee shall examine new and full notifications submitted under
paragraph 1 of Article XVI of GATT 1994 and paragraph 1 of
Article 25 of this Agreement at special sessions held every third year. Notifications
submitted in the intervening years (updating notifications) shall be examined at
each regular meeting of the Committee.
26.2
The Committee shall examine reports submitted under paragraph 11 of
Article 25 at each regular meeting of the Committee.
Part VIII: Developing Country Members
Article 27: Special and Differential Treatment of Developing Country Members back to top
27.1
Members recognize that subsidies may play an important role in economic
development programmes of developing country Members.
27.2
The prohibition of paragraph 1(a) of Article 3 shall not apply to:
(a)
developing country Members referred to in Annex VII.
(b)
other developing country Members for a period of eight years from
the date of entry into force of the WTO Agreement, subject to compliance with
the provisions in paragraph 4.
27.3
The prohibition of paragraph 1(b) of Article 3 shall not apply
to developing country Members for a period of five years, and shall not apply to
least developed country Members for a period of eight years, from the date of
entry into force of the WTO Agreement.
27.4
Any developing country Member referred to in paragraph 2(b) shall phase out
its export subsidies within the eight‑year period, preferably in a
progressive manner. However, a developing country Member shall not
increase the level of its export subsidies(55), and
shall eliminate them within a period shorter than that provided for in this
paragraph when the use of such export subsidies is inconsistent with its
development needs. If a developing country Member deems it necessary to
apply such subsidies beyond the 8‑year period, it shall not later than one
year before the expiry of this period enter into consultation with the
Committee, which will determine whether an extension of this period is
justified, after examining all the relevant economic, financial and development
needs of the developing country Member in question. If the Committee
determines that the extension is justified, the developing country Member
concerned shall hold annual consultations with the Committee to determine the
necessity of maintaining the subsidies. If no such determination is
made by the Committee, the developing country Member shall phase out the
remaining export subsidies within two years from the end of the last authorized
period.
27.5
A developing country Member which has reached export competitiveness in
any given product shall phase out its export subsidies for such product(s) over
a period of two years. However, for a
developing country Member which is referred to in Annex VII and which has
reached export competitiveness in one or
more products, export subsidies on such products shall be gradually phased out
over a period of eight years.
27.6
Export competitiveness in a product exists if a developing country
Member's exports of that product have reached a share of at least 3.25 per cent
in world trade of that product for two consecutive
calendar years. Export competitiveness
shall exist either (a) on the basis of notification
by the developing country Member having reached export competitiveness, or (b)
on the basis of a computation undertaken by the Secretariat at the request of
any Member. For the purpose of this
paragraph, a product is defined as a section heading of the Harmonized System
Nomenclature. The Committee shall review
the operation of this provision five years from the date of the entry into
force of the WTO Agreement.
27.7
The provisions of Article 4 shall not apply to a developing country
Member in the case of export subsidies
which are in conformity with the provisions of paragraphs 2 through 5. The relevant provisions in such a case shall be those of Article 7
27.8
There shall be no presumption in terms of paragraph 1 of Article 6
that a subsidy granted by a developing country Member results in serious
prejudice, as defined in this Agreement. Such
serious prejudice, where applicable under the terms of paragraph 9, shall
be demonstrated by positive evidence, in accordance with the provisions of
paragraphs 3 through 8 of Article 6.
27.9
Regarding actionable subsidies granted or maintained by a developing
country Member other than those referred to in paragraph 1 of Article 6,
action may not be authorized or taken under Article 7 unless nullification
or impairment of tariff concessions or other obligations under GATT 1994 is
found to exist as a result of such a subsidy, in such a way as to displace or
impede imports of a like product of another Member into the market of the
subsidizing developing country Member or unless injury to a domestic industry in
the market of an importing Member occurs.
27.10
Any countervailing duty investigation of a product originating in a
developing country Member shall be terminated as soon as the authorities
concerned determine that:
(a)
the overall level of subsidies granted upon the product in question does
not exceed 2 per cent of its value calculated on a per unit basis; or
(b)
the volume of the subsidized imports represents less than 4 per cent
of the total imports of the like product in the importing Member, unless imports
from developing country Members whose individual shares of total imports
represent less than 4 per cent collectively account for more than 9 per cent
of the total imports of the like product in the importing Member.
27.11
For those developing country Members within the scope of paragraph 2(b)
which have eliminated export subsidies
prior to the expiry of the period of eight years from the date of entry into
force of the WTO Agreement, and for those developing country Members
referred to in Annex VII, the number in paragraph 10(a)
shall be 3 per cent rather than 2 per cent. This provision shall apply from the date that the elimination of export
subsidies is notified to the Committee, and for so long as export subsidies are
not granted by the notifying developing country Member. This provision shall expire eight years from the date of entry into
force of the WTO Agreement.
27.12
The provisions of paragraphs 10 and 11 shall govern any
determination of de minimis under paragraph 3
of Article 15.
27.13
The provisions of Part III shall not apply to direct forgiveness of
debts, subsidies to cover social costs, in whatever form, including
relinquishment of government revenue and other transfer of liabilities when such
subsidies are granted within and directly linked to a privatization programme of
a developing country Member, provided that both such programme and the subsidies
involved are granted for a limited period and notified to the Committee and that
the programme results in eventual privatization of the enterprise concerned.
27.14
The Committee shall, upon request by an interested Member, undertake a
review of a specific export subsidy practice of a developing country Member to
examine whether the practice is in conformity with its development needs.
27.15
The Committee shall, upon request by an interested developing country
Member, undertake a review of a specific countervailing measure to examine
whether it is consistent with the provisions of paragraphs 10 and 11 as
applicable to the developing country Member in question.
Part
IX: Transitional Arrangements
Article
28: Existing Programmes back to top
28.1
Subsidy programmes which have been established within the territory of
any Member before the date on which such a Member signed the WTO Agreement and
which are inconsistent with the provisions of this Agreement shall be:
(a)
notified to the Committee not later than 90 days after the date of
entry into force of the WTO Agreement for such Member; and
(b)
brought into conformity with the provisions of this Agreement within
three years of the date of entry into force of the WTO Agreement for such Member
and until then shall not be subject to Part II.
28.2
No Member shall extend the scope of any such programme, nor shall such a
programme be renewed upon its expiry.
Article 29: Transformation into a Market Economy back to top
29.1
Members in the process of transformation from a centrally-planned into a
market, free‑enterprise economy may apply programmes and measures
necessary for such a transformation.
29.2
For such Members, subsidy programmes falling within the scope of Article
3, and notified according to paragraph 3, shall be phased out or brought
into conformity with Article 3 within a period of seven years from the
date of entry into force of the WTO Agreement. In
such a case, Article 4 shall not apply. In
addition during the same period:
(a)
Subsidy programmes falling within the scope of paragraph 1(d) of
Article 6 shall not be actionable under Article 7;
(b)
With respect to other actionable subsidies, the provisions of paragraph 9
of Article 27 shall apply.
29.3
Subsidy programmes falling within the scope of Article 3 shall be
notified to the Committee by the earliest practicable date after the date of
entry into force of the WTO Agreement. Further
notifications of such subsidies may be made up to two years after the date of
entry into force of the WTO Agreement.
29.4
In exceptional circumstances Members referred to in paragraph 1 may
be given departures from their notified programmes and measures and their
time-frame by the Committee if such departures are deemed necessary for
the process of transformation.
Part X: Dispute Settlement
The provisions of Articles XXII and XXIII of GATT 1994 as
elaborated and applied by the Dispute Settlement Understanding shall apply to
consultations and the settlement of disputes under this Agreement, except as
otherwise specifically provided herein.
Part XI: Final Provisions
Article 31: Provisional Application back to top
The provisions of paragraph 1 of Article 6 and the provisions
of Article 8 and Article 9 shall apply for a period of five years,
beginning with the date of entry into force of the WTO Agreement. Not later than 180 days before the end of this period, the Committee
shall review the operation of those provisions, with a view to determining
whether to extend their application, either as presently drafted or in a
modified form, for a further period.
Article 32: Other Final Provisions back to top
32.1
No specific action against a subsidy of another Member can be taken
except in accordance with the provisions of GATT 1994, as interpreted by
this Agreement.(56)
32.2
Reservations may not be entered in respect of any of the provisions of
this Agreement without the consent of the other Members.
32.3
Subject to paragraph 4, 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.
32.4
For the purposes of paragraph 3 of Article 21, existing countervailing
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 at that date already included a clause
of the type provided for in that paragraph.
32.5
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 to the Member in question.
32.6
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.
32.7
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.
32.8
The Annexes to this Agreement constitute an integral part thereof.
Annex I: Illustrative List of Export Subsidies back to top
(a)
The provision by governments of direct subsidies to a firm or an industry
contingent upon export performance.
(b)
Currency retention schemes or any similar practices which involve a bonus
on exports.
(c)
Internal transport and freight charges on export shipments, provided or
mandated by governments, on terms more favourable than for domestic shipments
(d)
The provision by governments or their agencies either directly or
indirectly through government-mandated schemes, of imported or domestic products
or services for use in the production of exported goods, on terms or conditions
more favourable than for provision of like or directly competitive
products or services for use in the production of goods for domestic
consumption, if (in the case of products) such terms or conditions are more
favourable than those commercially available(57) on
world markets to their exporters.
(e)
The full or partial exemption remission, or deferral specifically related
to exports, of direct taxes(58) or social
welfare charges paid or payable by industrial or commercial enterprises.(59)
(f)
The allowance of special deductions directly related to exports or export
performance, over and above those granted in respect to production for domestic
consumption, in the calculation of the base on which direct taxes are charged.
(g)
The exemption or remission, in respect of the production and distribution
of exported products, of indirect taxes in excess of those levied in respect
of the production and distribution of like products when sold for domestic
consumption.
(h)
The exemption, remission or deferral of prior‑stage cumulative indirect
taxes on goods or services used in the production of exported products in
excess of the exemption, remission or deferral of like prior-stage cumulative
indirect taxes on goods or services used in the production of like
products when sold for domestic consumption; provided, however, that prior-stage
cumulative indirect taxes may be exempted, remitted or deferred on exported
products even when not exempted, remitted or deferred on like products when sold
for domestic consumption, if the prior‑stage cumulative indirect taxes are
levied on inputs that are consumed in the production of the exported product
(making normal allowance for waste).(60) This
item shall be interpreted in accordance with the guidelines on consumption of
inputs in the production process contained in Annex II.
(i)
The remission or drawback of import charges58 in excess of those levied
on imported inputs that are consumed in the production of the exported product
(making normal allowance for waste); provided,
however, that in particular cases a firm may use a quantity of home market inputs equal to, and having the same quality and characteristics as, the
imported inputs as a substitute for them in order to benefit from this provision
if the import and the corresponding export operations both occur within a
reasonable time period, not to exceed two years. This item shall be interpreted in
accordance with the guidelines on consumption of inputs in the production
process contained in Annex II and the guidelines in the determination of
substitution drawback systems as export subsidies contained in Annex III.
(j)
The provision by governments (or special institutions controlled by
governments) of export credit guarantee or insurance programmes, of insurance or
guarantee programmes against increases in the cost of exported products or of
exchange risk programmes, at premium rates which are inadequate to cover the
long-term operating costs and losses of the programmes.
(k)
The grant by governments (or special institutions controlled by and/or
acting under the authority of governments) of export credits at rates below
those which they actually have to pay for the funds so employed (or would have
to pay if they borrowed on international capital markets in order to obtain
funds of the same maturity and other credit terms and denominated in the same
currency as the export credit), or the payment by them of all or part of the
costs incurred by exporters or financial institutions in obtaining credits, in
so far as they are used to secure a material advantage in the field of export
credit terms.
Provided,
however, that if a Member is a party to an international undertaking on official
export credits to which at least twelve original Members to this Agreement are
parties as of 1 January 1979 (or a successor undertaking which has
been adopted by those original Members), or if in practice a Member applies the
interest rates provisions of the relevant undertaking,
an export credit practice which is in conformity with those provisions shall not
be considered an export subsidy prohibited by this Agreement.
(l)
Any other charge on the public account constituting an export subsidy in
the sense of Article XVI of GATT 1994.
Annex II: Guidelines on Consumption of Inputs in the Production Process (61)
back to top
I
1.
Indirect tax rebate schemes can allow for exemption, remission or
deferral of prior-stage cumulative indirect taxes levied on inputs that are
consumed in the production of the exported product (making normal allowance for
waste). Similarly, drawback
schemes can allow for the remission or drawback
of import charges levied on inputs that are consumed in the production of the
exported product (making normal allowance for waste).
2.
The Illustrative List of Export Subsidies in Annex I of this Agreement
makes reference to the term
“inputs that are consumed in the production of
the exported product” in paragraphs (h) and (i). Pursuant to paragraph (h), indirect tax rebate schemes can
constitute an export subsidy to the extent that
they result in exemption, remission or deferral of prior‑stage cumulative
indirect taxes in excess of the amount of such taxes actually levied on inputs
that are consumed in the production of the exported product. Pursuant to paragraph (i), drawback schemes can constitute an export
subsidy to the extent that they result
in a remission or drawback of import charges in excess of those actually levied
on inputs that are consumed in the production of the exported product. Both paragraphs stipulate that normal allowance for waste must be made in
findings regarding consumption of inputs in the production of the exported
product. Paragraph (i) also
provides for substitution, where appropriate.
II back to top
In examining whether inputs are consumed in the production of the
exported product, as part of a countervailing duty investigation pursuant to
this Agreement, investigating authorities should proceed on the following basis:
1.
Where it is alleged that an indirect tax rebate scheme, or a drawback
scheme, conveys a subsidy by reason of over-rebate or excess drawback of
indirect taxes or import charges on inputs consumed in the production of the
exported product, the investigating authorities should first determine whether
the government of the exporting Member has in place and applies a system or
procedure to confirm which inputs are consumed in the production of the exported
product and in what amounts. Where
such a system or procedure is determined to be applied, the investigating
authorities should then examine the system or procedure to see whether it is
reasonable, effective for the purpose intended, and based on generally accepted
commercial practices in the country of export. The investigating authorities may deem it necessary to carry out, in
accordance with paragraph 6 of Article 12, certain practical tests in
order to verify information or to satisfy themselves that the system or
procedure is being effectively applied.
2.
Where there is no such system or procedure, where it is not reasonable, or where
it is instituted and considered reasonable but is found not to be applied or not
to be applied effectively, a further examination by
the exporting Member based on the actual inputs involved would need to be
carried out in the context of determining whether an excess payment occurred.
If the investigating authorities deemed it necessary, a further examination
would be carried out in accordance with paragraph 1.
3.
Investigating authorities should treat inputs as physically incorporated
if such inputs are used in the production process and are physically present in
the product exported. The Members
note that an input need not be present in the final product in the same form in
which it entered the production process.
4.
In determining the amount of a particular input that is consumed in the
production of the exported product, a “normal allowance for waste”
should be taken into account, and such waste should be treated as consumed in
the production of the exported product. The
term “waste” refers to that portion of a given input which does not
serve an independent function in the production process, is not consumed in the
production of the exported product (for reasons such as inefficiencies) and is
not recovered, used or sold by the same manufacturer.
5.
The investigating authority's determination of whether the claimed
allowance for waste is
“normal” should take into account the
production process, the average experience of the industry in the country of
export, and other technical factors, as appropriate. The investigating authority should bear in mind that an important
question is whether the authorities in the exporting Member have reasonably
calculated the amount of waste, when such an amount is intended to be included
in the tax or duty rebate or remission.
Annex III: Guidelines in the Determination of Substitution Drawback Systems as Export Subsidies
I back to top
Drawback systems can allow for the refund or drawback of import charges
on inputs which are consumed in the production process of another product and
where the export of this latter product contains domestic inputs having the same
quality and characteristics as those substituted for the imported inputs. Pursuant to paragraph (i) of the Illustrative List of Export Subsidies in
Annex I, substitution drawback systems can constitute an export subsidy to
the extent that they result in an excess drawback of the import charges levied
initially on the imported inputs for which drawback is being claimed.
II
back to top
In examining any substitution drawback system as part of a countervailing
duty investigation pursuant to this Agreement, investigating authorities should
proceed on the following basis:
1.
Paragraph (i) of the Illustrative List stipulates that home market inputs
may be substituted for imported inputs in the production of a product for export
provided such inputs are equal in quantity to, and have the same quality and
characteristics as, the imported inputs being substituted. The existence of a verification system or procedure is important because
it enables the government of the exporting Member to ensure and demonstrate that
the quantity of inputs for which drawback is claimed does not exceed the
quantity of similar products exported, in whatever form, and that there is not
drawback of import charges in excess of those originally levied on the imported
inputs in question.
2.
Where it is alleged that a substitution drawback system conveys a
subsidy, the investigating authorities should first proceed to determine whether
the government of the exporting Member has in place and applies a verification
system or procedure. Where such a
system or procedure is determined to be applied, the investigating authorities
should then examine the verification procedures to see whether they are
reasonable, effective for the purpose intended, and based on generally accepted
commercial practices in the country of export. To the extent that the procedures are determined to meet this test and
are effectively applied, no subsidy should be presumed to exist. It may be deemed necessary by the investigating authorities to carry out,
in accordance with paragraph 6 of Article 12, certain practical tests
in order to verify information or to satisfy themselves that the verification
procedures are being effectively applied.
3.
Where there are no verification procedures, where they are not
reasonable, or where such procedures are instituted and considered reasonable
but are found not to be actually applied or not applied effectively, there may
be a subsidy. In such cases a
further examination by the exporting Member based on the actual transactions
involved would need to be carried out to determine whether an excess payment
occurred. If the investigating
authorities deemed it necessary, a further examination would be carried out in
accordance with paragraph 2.
4.
The existence of a substitution drawback provision under which exporters
are allowed to select particular import shipments on which drawback is claimed
should not of itself be considered to convey a subsidy.
5.
An excess drawback of import charges in the sense of paragraph (i)
would be deemed to exist where
governments paid interest on any monies refunded under their drawback schemes,
to the extent of the interest actually paid or payable.
Annex IV: Calculation of the Total Ad Valorem Subsidization (Paragraph 1(A) of Article 6) (62) back to top
1.
Any calculation of the amount of a subsidy for the purpose of paragraph 1(a)
of Article 6 shall be done in terms of the cost to the granting government.
2.
Except as provided in paragraphs 3 through 5, in determining whether the
overall rate of subsidization exceeds 5 per cent of the value of the product,
the value of the product shall be calculated as the total value of the recipient
firm's(63) sales
in the most recent 12-month period, for which sales data is available, preceding
the period in which the subsidy is granted.(64)
3.
Where the subsidy is tied to the production or sale of a given product,
the value of the product shall be calculated as the total value of the recipient
firm's sales of that product in the most recent 12-month period, for which sales
data is available, preceding the period in which the subsidy is granted.
4.
Where the recipient firm is in a start-up situation, serious prejudice
shall be deemed to exist if the overall rate of subsidization exceeds 15 per
cent of the total funds invested. For
purposes of this paragraph, a start-up
period will not extend beyond the first year of production.(65)
5.
Where the recipient firm is located in an inflationary economy country,
the value of the product shall be calculated as the recipient firm's total sales
(or sales of the relevant product, if the subsidy is tied) in the preceding
calendar year indexed by the rate of inflation experienced in the 12 months
preceding the month in which the subsidy is to be given.
6.
In determining the overall rate of subsidization in a given year,
subsidies given under different programmes and by different authorities in the
territory of a Member shall be aggregated.
7.
Subsidies granted prior to the date of entry into force of the WTO
Agreement, the benefits of which are allocated to future production, shall be
included in the overall rate of subsidization.
8.
Subsidies which are non-actionable under relevant provisions of this
Agreement shall not be included in the calculation of the amount of a subsidy
for the purpose of paragraph 1(a) of Article 6.
Annex V: Procedures For Developing Information Concerning Serious Prejudice back to top
1.
Every Member shall cooperate in the development of evidence to be
examined by a panel in procedures under paragraphs 4 through 6 of
Article 7. The parties to the
dispute and any third-country Member concerned shall notify to the DSB, as soon
as the provisions of paragraph 4 of Article 7 have been invoked, the organization responsible for administration of this
provision within its territory and the procedures to be used to comply with
requests for information.
2.
In cases where matters are referred to the DSB under paragraph 4 of
Article 7, the DSB shall, upon request, initiate the procedure to obtain
such information from the government of the subsidizing Member as necessary to
establish the existence and amount of subsidization, the value of total sales of
the subsidized firms, as well as information necessary to analyze the adverse
effects caused by the subsidized product.(66) This
process may include, where appropriate, presentation of questions to the
government of the subsidizing Member and of the complaining Member to collect
information, as well as to clarify and obtain elaboration of information
available to the parties to a dispute through the notification procedures set
forth in Part VII.(67)
3.
In the case of effects in third-country markets, a party to a dispute may
collect information, including through the use of questions to the government of
the third-country Member, necessary to analyse adverse effects, which is not
otherwise reasonably available from the complaining Member or the subsidizing Member. This
requirement should be administered in such a way as not to impose an
unreasonable burden on the third-country Member. In particular, such a Member is not expected to make a market or price
analysis specially for that purpose. The
information to be supplied is that which is already available or can be readily
obtained by this Member (e.g. most recent statistics which have already been
gathered by relevant statistical services but which have not yet been published,
customs data concerning imports and declared values of the products concerned,
etc.). However, if a party to a
dispute undertakes a detailed market analysis at its own expense, the task of
the person or firm conducting such an
analysis shall be facilitated by the authorities of the third‑country
Member and such a person or firm shall be given access to all information which
is not normally maintained confidential by the government.
4.
The DSB shall designate a representative to serve the function of
facilitating the information-gathering process. The sole purpose of the representative shall be to ensure the timely
development of the information necessary to facilitate expeditious subsequent
multilateral review of the dispute. In
particular, the representative may suggest ways to most efficiently solicit
necessary information as well as encourage the cooperation of the parties.
5.
The information-gathering process outlined in paragraphs 2 through 4
shall be completed within 60 days of the date on which the matter has been
referred to the DSB under paragraph 4 of Article 7. The information obtained during this process shall be submitted to the
panel established by the DSB in accordance with the provisions of Part X. This information should include, inter alia,
data concerning the amount of the subsidy in question (and, where appropriate,
the value of total sales of the subsidized firms), prices of the subsidized
product, prices of the non‑subsidized product, prices of other suppliers
to the market, changes in the supply of the subsidized product to the market in
question and changes in market shares. It
should also include rebuttal evidence, as well as such supplemental information
as the panel deems relevant in the course of reaching its conclusions.
6.
If the subsidizing and/or third-country Member fail to cooperate in the
information-gathering process, the complaining Member will present its case of
serious prejudice, based on evidence available to it, together with facts and
circumstances of the non-cooperation of the subsidizing and/or third-country
Member. Where information is
unavailable due to non-cooperation by the subsidizing and/or third-country
Member, the panel may complete the record as necessary relying on best
information otherwise available.
7.
In making its determination, the panel should draw adverse inferences
from instances of non- cooperation by any party involved in the information-gathering
process.
8.
In making a determination to use either best information available or
adverse inferences, the panel shall consider the advice of the DSB
representative nominated under paragraph 4 as to the reasonableness of any
requests for information and the efforts made by parties to comply with these
requests in a cooperative and timely manner.
9.
Nothing in the information‑gathering process shall limit the
ability of the panel to seek such additional
information it deems essential to a proper resolution to the dispute, and which
was not adequately sought or developed during that process. However, ordinarily the panel should not request additional information
to complete the record where the information would support a particular party's
position and the absence of that information in the record is the result of
unreasonable non-cooperation by that party in the information-gathering process.
Annex VI: Procedures for On-the-Spot Investigations Pursuant to Paragraph 6 of Article 12 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. In case of such a
request the investigating authorities may place themselves at the disposal of
the firm; such a visit may only be made
if (a) the authorities of the importing Member
notify the representatives of the government 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 VII: Developing Country Members Referred to in Paragraph 2(A) of Article 27 back to top
The developing country Members not subject to the provisions of paragraph 1(a) of Article 3 under the terms of paragraph 2(a)
of Article 27 are:
(a)
Least-developed countries designated as such by the United Nations which
are Members of the WTO.
(b)
Each of the following developing countries which are Members of the WTO
shall be subject to the provisions which are applicable to other developing
country Members according to paragraph 2(b) of Article 27 when GNP per
capita has reached $1,000 per annum(68):
Bolivia, Cameroon, Congo, Côte d'Ivoire, Dominican Republic, Egypt, Ghana,
Guatemala, Guyana, India, Indonesia, Kenya, Morocco, Nicaragua, Nigeria,
Pakistan, Philippines, Senegal, Sri Lanka and Zimbabwe.
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