WTO ANALYTICAL INDEX: ANTI-DUMPING AGREEMENT

Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement)

back to top

Table of contents 

I. General   back to top

A. Object and Purpose of the Anti-Dumping Agreement

 
I. Article 1   back to top

A. Text of Article 1
B. Interpretation and Application of Article 1

1. General

(a) “anti-dumping measure”

(b) “initiated and conducted in accordance with the provisions of this Agreement”

(c) Relationship with other Articles

 
III. Article 2   back to top

A. Text of Article 2
B
. Interpretation and Application of Article 2

1. General

(a) Period of data collection

(i) Recommendation by the Committee Anti-Dumping Practices

(ii) Role of the period of investigation

2. Article 2.1

(a) General

(b) “Product”

(c) “like product”

(d) “less than its normal value”: calculation of normal value

(i) Use of sales transactions for calculating normal value

(ii) Use of downstream sales for calculating normal value

(e) Sales “in the ordinary course of trade”

(i) Definition of sales “in the ordinary course of trade”

(ii) Investigating authorities’ discretion under Article 2.1

(iii) Sales not in the ordinary course of trade

(f) Request for information

(g) Relationship with other paragraphs of Article 2

(i) Article 2.2.1

(ii) Article 2.4

(h) Relationship with other Articles

(i) Article 3.6

3. Article 2.2

(a) Request for cost information

(b) Article 2.2.1

(i) “Reasonable period of time”

(ii) Article 2.2.1.1

(c) Article 2.2.2

(i) Amounts based on actual data pertaining to production and sales of the like product

(ii) Use of low-volume sales in determining selling, general and administrative costs (SG&A) and profits for the purpose of calculating constructed normal value

(iii) Ordinary course of trade

(iv) Priority of options

(v) Relationship with Article 2.2.1.1

(vi) Article 2.2.2(i) — “same general category of products”

(vii) Article 2.2.2(ii) — “weighted average” and data from “other exporters or producers”

(viii) Article 2.2.2(ii) — production and sales amounts “incurred and realized”

(ix) Article 2.2.2(ii) — should “weighted” average be based on the value or the volume of sales?

(x) No separate “reasonability” test

(xi) Article 2.2.2(iii)

(d) Relationship with other paragraphs of Article 2

4. Article 2.3

5. Article 2.4

(a) First sentence

(i) Fair comparison of export price and normal value

(ii) Relationship with other sentences

(b) Second sentence

(i) “sales made at as nearly as possible the same time”

(c) Third sentence: “Due allowance”

(i) “in each case, on its merits”

(ii) “differences which are demonstrated to affect price comparability”

(iii) Differences in “terms and conditions of sale”

(d) Fourth sentence

(i) Legal effect (“should”)

(ii) “costs … incurred between importation and resale”

(e) Fifth sentence: “the authorities shall”

(f) Sixth sentence: “The authorities shall indicate… what information is necessary”

(g) Article 2.4.1

(i) Scope of Article 2.4.1

(ii) “required”

(iii) Relationship with Article 2.4

(h) Article 2.4.2

(i) “model zeroing” and “simple zeroing”

(ii) “margins”

(iii) Weighted average normal value / weighted average export price, the first methodology “

(iv) Transaction normal value / Transaction export price, the second methodology

(v) Weighted average normal value / individual transactions export price, the third methodology

(vi) “Zeroing procedures” as a measure that can be challenged “as such”

(vii) Zeroing as an allowance or adjustment

(viii) Relationship between subparagraphs Article 2.4

(i) Relationship with other paragraphs of Article 2

6. Article 2.6

7. Article 2.7

8. Relationship with other Articles

(a) Relationship with Article 2.1

(b) Relationship with Article 6

9. Relationship with other WTO Agreements

(a) Article VI of the GATT 1994

(b) Article X of the GATT 1994

(c) Protocols of Accession

 
IV. Article 3   back to top

A. Text of Article 3
B
. Interpretation and Application of Article 3

1. General

(a) Agreement on Subsidies and Countervailing Measures (SCM Agreement)

(b) Relationship with other paragraphs of Article 3

(c) Period of data collection

(i) Jurisprudence

(ii) Recommendation by the Committee Anti-Dumping Practices

2. Footnote 9

3. Article 3.1

(a) Significance of paragraph 1 within the context of Article 3

(b) Period of investigation

(c) Investigating authorities’ obligation under Article 3.1

(i) “positive evidence”

(ii) “Objective examination”

(iii) Relationship with Article 3.4

(d) Volume and price effects

(e) Injury

(f) Causation / Non-attribution

(g) “the effect of dumped imports”

(h) Relationship with other paragraphs of Article 3

4. Article 3.2

(a) Choice of analytical methodology

(i) General

(ii) Frequency of analysis

(iii) Length of period of investigation

(b) “a significant increase in dumped imports”

(c) “the effect of the dumped imports on prices”

(d) “price undercutting”

(e) Relationship with other paragraphs of Article 3

5. Article 3.3

(a) Relationship with other paragraphs of Article 3

(b) Conditions for cumulation — general

(c) Conditions for cumulation — appropriate in light of the “conditions of competition”

6. Article 3.4

(a) “dumped imports”

(b) “domestic industry”

(i) Sectoral analysis

(ii) Domestic producers outside the “sample”

(iii) Companies outside the domestic industry

(c) “all relevant economic factors and indices having a bearing on the state of the industry”

(i) Mandatory or illustrative nature of the list of factors

(ii) Other factors not listed in Article 3.4

(iii) “having a bearing on”

(d) Evaluation of relevant factors

(i) Concept of evaluation

(ii) Evaluation of all listed factors

(e) Relationship with other paragraphs of Article 3

7. Article 3.5

(a) Article 3.5 requirements for investigating authorities

(b) Scope of the non-attribution language in Article 3.5

(c) “dumped imports”

(d) “any known factors other than dumped imports”

(i) Concept of known factors

(ii) Illustrative list of known factors

(e) Non-attribution methodology

(f) Relationship with other paragraphs of Article 3

8. Article 3.6

(a) Domestic industry production

9. Article 3.7: threat of material injury

(a) “change in circumstances”

(b) Requirement to “consider” factors of Article 3.7

(c) Article 3.7(i): “likelihood of substantially increased importation”

(d) Analysis of the “consequent impact” of dumped imports on the domestic industry

(e) Distinction between the roles of the investigating authorities and the Panel

(f) Relationship with other paragraphs of Article 3

10. Article 3.8

11. Relationship with other Articles

(a) Articles 1, 9 and 18

(b) Article 4

(c) Article 5

(d) Article 6

(e) Article 11

(f) Article 12

(g) Article 17

12. Relationship with other WTO Agreements

(a) Article VI of the GATT 1994

(b) Agreement on Safeguards

 
V. Article 4   back to top

A. Text of Article 4
B
. Interpretation and Application of Article 4

1. General

(a) Agreement on Subsidies and Countervailing Measures (SCM Agreement)

2. Article 4.1

(a) “domestic industry”

(b) “domestic producers”

(c) “a major proportion of the total domestic production”

3. Relationship with other Articles

 
VI. Article 5   back to top

A. Text of Article 5
B
. Interpretation and Application of Article 5

1. General

(a) The Doha mandate

(b) Agreement on Subsidies and Countervailing Measures (SCM Agreement)

2. Article 5.2

(a) General

(b) “evidence of … dumping”

(c) “evidence of … injury”

(d) “evidence of … causal link” subparagraph (iv)

(e) “simple assertion, unsubstantiated by relevant evidence”

(f) Relationship with other paragraphs of Article 5

3. Article 5.3

(a) “sufficient evidence to justify the initiation of an investigation”

(i) Distinction from the requirements under Article 5.2

(ii) Sufficiency of evidence to initiate

(iii) Sufficient evidence of dumping

(iv) Sufficient evidence of injury

(v) Standard of review — relationship with Article 17.6

(b) “shall examine the accuracy and adequacy of the evidence provided in the application”

(c) Relationship with other paragraphs of Article 5

4. Article 5.4

(a) General

(b) Relationship with Article 11.4 of the SCM Agreement

5. Article 5.5

(a) “before proceeding to initiate”

(b) “notify the government”

(i) General

(ii) “Oral” notification

(iii) Content of notification

(c) “Harmless error” with respect to Article 5.5 violation/Rebuttal against nullification or impairment presumed from a violation of Article 5.5

6. Article 5.7

7. Article 5.8

(a) Rejection of an application to initiate an investigation

(b) “an immediate termination”

(c) “cases”

(d) de minimis” test

(e) “margin of dumping”

(f) Exclusion of exporters from subsequent administrative and changed circumstances reviews

(g) Negligible import volumes

(h) Relationship with other paragraphs of Article 5

8. Relationship with other Articles

(a) Article 1

(b) Article 2

(c) Article 3

(d) Article 6

(e) Article 9

(f) Article 10

(g) Article 12

(h) Article 17

(i) Article 18

9. Relationship with other WTO Agreements

(a) Article VI of the GATT 1994

 
VII. Article 6   back to top

A. Text of Article 6
B
. Interpretation and Application of Article 6

1. Article 6.1

(a) General: due process rights

(b) “notice of the information which the authorities require”

(c) “ample opportunity to present … evidence”

(d) Scope of Article 6.1

(e) Article 6.1.1

(i) “questionnaires”: Scope of Article 6.1.1

(ii) Failure to issue a questionnaire

(iii) Deadlines

(iv) “Due consideration should be given to any request for an extension of the 30- day period”

(v) Article 6.1.1, footnote 15

(f) Article 6.1.2

(i) “evidence presented … by one party shall be made available promptly to other interested parties”

(ii) “interested parties participating in the investigation”

(iii) “subject to the requirement to protect confidential information”

(g) Article 6.1.3

(h) Relationship with other paragraphs of Article 6

2. Article 6.2

(a) “shall have a full opportunity for the defence of their interests”

(i) Article 6.2, first sentence as a fundamental due process provision

(ii) Nature and extent of obligations under Article 6.2

(b) Relationship with other provisions of the Agreement

3. Article 6.4

(a) “information” that must be disclosed under Article 6.4

(i) “information … relevant to the presentation of their cases” and “used by the authorities”

(ii) Information already available to the interested parties

(b) “timely opportunities for all interested parties to see all information”

(c) No independent disclosure obligation

(d) Confidentiality: access to own confidential information

(e) Relationship with other paragraphs of Article 6

4. Article 6.5

(a) “Any information which is by its nature confidential”

(i) Nature of confidential information protected

(ii) Scope of information protected under Article 6.5

(b) “upon good cause shown”

(i) Scope of “good cause”

(ii) Requirement for “good cause” to be shown

(c) “Such information shall not be disclosed without specific permission”

(d) Article 6.5.1

(e) Disclosure of confidential information under protective order

(f) Article 6.5.2

(g) Relationship with other paragraphs of Article 6

5. Article 6.6

(a) “satisfy themselves as to the accuracy of the information”

(b) Burden on the investigating authorities

6. Article 6.7 and Annex I

(a) Relationship between Article 6.7 and Annex I

(b) On-the-spot verifications as an option

(c) Information verifiable on-the-spot

(d) Disclosure obligations in the on-the-spot verification

(e) Participation of non-governmental experts in the on-the-spot verification

7. Article 6.8 and Annex II: “facts available”

(a) General

(i) Function of Article 6.8 and Annex II

(ii) Relationship between Article 6.8 and Annex II

(iii) Mandatory nature of Annex II provisions

(b) Paragraph I of Annex II

(c) Authorities’ duty to “specify in detail the information required from an interested party”

(i) “as soon as possible”

(ii) Failure to specify in detail the information required

(d) When to resort to facts available

(e) When not to resort to facts available

(f) Information which is “verifiable”

(i) General

(ii) When is information verifiable?

(iii) Relevance of good faith cooperation

(g) Information “appropriately submitted so that it can be used in the investigation without undue difficulties”

(h) Necessary information submitted in a timely fashion

(i) Timeliness

(ii) “necessary information”

(iii) Information submitted after a deadline

(iv) “within a reasonable period” and “within reasonable time”

(i) Information submitted in the medium or computer language requested

(j) Non-cooperation: “refuse access to, or otherwise does not provide”

(i) Meaning of cooperation

(ii) Degree of cooperation: “to the best of its ability”

(iii) Justification for non-cooperation

(iv) Cooperation as a two-way process

(k) Information used in case of resorting to facts available

(i) “secondary source … with special circumspection”

(ii) “Adverse” facts available

(l) Authorities’ duty to inform on reasons for disregarding information

(m) No right to submit further information

(n) Confidential versus non-confidential information

(o) Scope of Panel’s review: national authorities’ justification at the time of its determination

(p) Consistency of domestic legislation with Article 6.8 and Annex II

(q) Relationship with other paragraphs of Article 6

(r) Relationship with other provisions of Anti-Dumping Agreement

(i) Relationship with Article 5.3

8. Article 6.9

(a) “shall, before a final determination is made, inform all interested parties of the essential facts under consideration”

(i) Means to inform all interested parties of the essential facts

(ii) “the essential facts … which form the basis for the decision whether to apply definitive measures”

(iii) Relevance of the fact that information is made available in the authorities’ record

(iv) Disclosure of information forming the basis of a preliminary ruling

(v) Failure to inform the changes in factual foundation from a preliminary determination to final determination

(b) Relationship with other paragraphs of Article 6

9. Article 6.10

(a) “shall, as a rule”: nature of obligations under Article 6.10

(b) “individual margin of dumping for each known exporter or producer”

(i) “each … exporter or producer”

(ii) Treatment of distinct legal entities as a single exporter or producer

(iii) “known exporter or producer”

(c) “the authorities may limit their examination either to a reasonable number of interested parties or products”: sampling and Article 6.10

(d) “the largest percentage of exports that could reasonably be investigated”

(e) Article 6.10.2

10. Article 6.13

(a) Relationship with paragraphs 2 and 5 of Annex II

11. Relationship with other Articles and other WTO Agreements

(a) Article 1, 9 and 18 and Article VI of the GATT 1994

(b) Article 2

(c) Article 3

(d) Article 9

(e) Article 12

 
VIII. Article 7   back to top

A. Text of Article 7
B
. Interpretation and Application of Article 7

1. General

2. Relationship with other Articles and other WTO Agreements

(a) Article 1, 9 and 18 and Article VI of the GATT 1994

(b) Article 6

(c) Article 17

(d) Article VI of the GATT 1994

 
IX. Article 8   back to top

A. Text of Article 8
B
. Interpretation and Application of Article 8

 
X. Article 9   back to top

A. Text of Article 9
B
. Interpretation and Application of Article 9

1. General

2. Article 9.1

3. Article 9.2

(a) General; mandatory nature of Article 9.2

(b) “appropriate amounts”

(c) “all sources”

(d) “The authorities shall name the supplier or suppliers of the product concerned”

(e) Third sentence of Article 9.2

4. Article 9.3

(a) “de minimis” test

(b) Variable duties

(c) Conditions to carry out duty assessment and changed circumstances reviews

(i) Exhaustiveness of the conditions listed

(ii) When a duty becomes final

(d) Concept of “product as a whole” in reviews under Article 9 of the Anti-Dumping Agreement

(e) Retrospective system: reviews and zeroing

(f) Prospective normal value system: reviews and zeroing

(g) Are “dumping” and “margins of dumping” exporter- or importer-related concepts?

(h) Relationship with Article 9.2

(i) Relationship with Article 2

(j) Relationship to the Note Ad Article VI, Paragraphs 2 and 3

5. Article 9.4

(a) Purpose of Article 9.4

(b) Ceiling for “all others” rate

(c) Article 9.4(i): “weighted average margin of dumping with respect to selected exporters or producers”

(i) “margins”

(ii) “exporters or producers”

(iii) “non-cooperating companies”

(d) Prohibitions in the calculation of “all others” rate: zero and de minimis margins, margins based on facts available

(i) Exclusion of margins based on facts available

(ii) Calculating an “all others” rate in a “lacuna situation”

(iii) Requirement to use WTO-consistent margins to establish the maximum “ others” rate

6. Relationship with other Articles

(a) Article 9.3 with Article 5.8

(b) Article 9.3 with Article 6.8

(c) Article 9.4 with Article 6.8

(d) Article 9.4(ii)

7. Relationship with other WTO Agreements

(a) Article VI: 2 of the GATT 1994

8. Article 9.5

 
XI. Article 10   back to top

A. Text of Article 10
B
. Interpretation and Application of Article 10

1. Article 10.1

2. Article 10. 6

3. Article 10.7

(a) “such measures”

(b) “sufficient evidence” that the conditions Article 10.6 are satisfied

(i) Concept of “sufficient evidence”

(ii) Extent of the authorities’ determination

(iii) Conditions of Article 10.6 

4. Relationship with other Articles

 
XII. Article 11   back to top

A. Text of Article 11
B. Interpretation and Application of Article 11

1. Article 11.1

(a) Necessity

(b) Relationship with other paragraphs of Article 11

2. Article 11.2

(a) “whether the continued imposition of the duty is necessary to offset dumping”

(b) “injury”

(c) “likely to lead to continuation or recurrence”

(d) “warranted”

(e) Relationship with other paragraphs of Article 11

3. Article 11.3

(a) General

(i) Mandating rule / exception

(ii) Difference between original investigation and sunset reviews

(iii) Active role of investigating authorities

(iv) Positive evidence

(b) No specific methodology

(c) Use of presumptions in a likelihood determination

(d) Determination regarding likelihood or continuation or recurrence of dumping

(i) Likely past dumping

(ii) Volume analysis

(e) Order-wide basis of a likelihood determination

(f) No prescribed time-frame for likelihood of continuation or recurrence of injury

(g) Applicability of procedural obligations

(i) Evidentiary standards for initiation

(ii) New factual basis

(iii) De minimis standard in sunset reviews

(iv) Cumulation

(h) “likely”

(i) Relationship with other paragraphs of Article 11

(j) Relationship with the standard of review in Article 11 of the DSU

(k) Existence of a causation requirement in sunset reviews

(l) Cumulation in sunset reviews

(m) Qualitative assessment of determinations under Article 11.3

4. Article 11.4

5. Relationship with other Articles

(a) Article 3

 
XIII. Article 12   back to top

A. Text of Article 12
B
. Interpretation and Application of Article 12

1. Article 12.1

(a) General

(b) Obligation to notify “interested parties known to the investigating parties to have an interest” in the investigation

(c) Article 12.1.1

(i) General

(ii) Article 12.1.1(iv): “a summary of the factors on which the allegation of injury is based”

2. Article 12.2

(a) General

(b) Article 12.2.1

(c) Article 12.2.2

3. Relationship with other Articles

(a) General

(b) Article 1, 9, and 18, and Article VI: 1 of the GATT

(c) Article 3

(d) Article 5

(e) Article 6

(f) Article 15

(g) Article 17

 
XIV. Article 13   back to top

A. Text of Article 13
B
. Interpretation and Application of Article 13

 
XV. Article 14   back to top

A. Text of Article 14
B
. Interpretation and Application of Article 14

 
XVI. Article 15   back to top

A. Text of Article 15
B
. Interpretation and Application of Article 15

1. General

2. First sentence

(a) Extent of Members’ obligation

(b) When and to whom “special regard” should be given

3. Second sentence

(a) “constructive remedies provided for by this Agreement”

(b) “shall be explored”

(c) “before applying anti-dumping duties”

4. Relationship with other Articles

 
XVII. Article 16   back to top

A. Text of Article 16
B
. Interpretation and Application of Article 16

1. Article 16.1

(a) Rules of procedure

(b) “shall meet not less than twice a year and otherwise”

2. Articles 16.4 and 16.5

(a) Reporting on anti-dumping actions

 
XVIII. Article 17   back to top

A. Text of Article 17
B
. Interpretation and Application of Article 17

1. General

(a) Articles of the Anti-Dumping Agreement invoked in panel and Appellate Body proceedings

(b) Ministerial Decisions

(c) Concurrent application of Article 17 of the Anti-Dumping Agreement and the rules and procedures of the DSU

(d) Challenge against anti-dumping legislation as such

(e) Mandatory versus discretionary legislation

(i) General

(ii) Rejection of the distinction?

(f) Challenge of a “practice” as such

2. Article 17.1

(a) “settlement of disputes”

3. Article 17.2

(a) “any matter affecting the operation of this Agreement”

4. Article 17.3

(a) Exclusion of Article 17.3 of the Anti-Dumping Agreement from Appendix 2 of the DSU

5. Article 17.4

(a) Scope of Article 17.4: “if final action has been taken”

(b) Concept of “matter”

(c) Claims

(i) Abandoned claims

6. Article 17.5

(a) Article 17.5(i)

(b) Article 17.5(ii)

(i) Documents not available to the investigating authorities

(ii) Undisclosed facts

(iii) Documents created for the purpose of a dispute

(c) Relationship with other paragraphs of Article 17

7. Article 17.6

(a) Ministerial Decision

(b) Relationship with the standard of review in Article 11 of the DSU

(c) Article 17.6(i)

(i) General

(ii) “establishment of the facts was proper”

(iii) “the evaluation of facts was unbiased and objective”

(iv) Relevance of the different roles of panels and investigating authorities

(v) No ex post rationalization

(vi) Relationship of Article 17.6(i) with Article 11 of the DSU

(d) Article 17.6(ii)

(i) First sentence: customary rules of interpretation

(ii) Second sentence: more than one permissible interpretation

(iii) Relationship with standard of review in Article 11 of the DSU

(e) Relationship between subparagraphs (i) and (ii) of Article 17.6

8. Relationship with other Articles

(a) Article 3

(b) Article 5

(c) Article 7

(d) Article 18

9. Relationship with other WTO Agreements

(a) GATT 1994

(i) Articles XXII and XXIII

(b) DSU

(i) Article 1

(ii) Article 3.8

(iii) Article 6.2

(iv) Article 7

(v) Article 11

(vi) Article 19.1

 
XIX. Article 18   back to top

A. Text of Article 18
B
. Interpretation and Application of Article 18

1. Article 18.1

(a) “specific action against dumping”

(b) “except in accordance with the provisions of GATT 1994”

(c) Footnote 24

(d) Relationship between Article 18.1, GATT Article VI and the Note Ad Paragraphs 2 and 3 of Article VI 

2. Article 18.3

(a) “reviews of existing measures”

(b) Application of the Anti-Dumping Agreement

3. Article 18.4

(a) Maintenance of inconsistent legislation after entry into force of WTO Agreement

(b) Mandatory versus discretionary legislation

(c) Measures subject to dispute settlement

4. Article 18.5

5. Article 18.6

(a) Annual reviews

6. Relationship with other Articles

(a) General

(b) Article 17

7. Relationship with other WTO Agreements

(a) Article VI of the GATT 1994

(b) SCM Agreement

 
XX. Annex I   back to top

A. Text of Annex I
B. Interpretation and Application of Annex I

1. On-the-spot verifications as an option

2. Participation of non-governmental experts in the on-the-spot verification

3. Information verifiable on-the-spot

4. Relationship with other Articles

 
XX. Annex II  back to top

A. Text of Annex II
B
. Interpretation and Application of Annex II

1. “best information available”

2. Paragraph 1

3. Paragraph 3

4. Paragraph 5

5. Paragraph 6

(a) Duty to inform of reasons for disregarding evidence or information

(b) “reasonable period, due account being taken of the time-limits of the investigation”

 6. Paragraph 7

7. Relationship with Article 6

(a) Relationship with Article 6.1

(b) Relationship with Article 6.2

(c) Relationship with Article 6.8

 
XXII. Relationship with other WTO Agreements   back to top

A. Article VI of the GATT 1994
B
. Article XI of the GATT 1994
C
. Article 3.2 of the DSU
D
. Article 11 of the DSU
E
. Agreement on Safeguards
F
. SCM Agreement
G
. Accession Agreements 

 
XXIII. Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing Measures   back to top

A. Text
B
. Interpretation and Application

 
XXIV. Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994   back to top

A. Text
B
. Interpretation and Application

 
XXV. Decision on Anti-Circumvention   back to top

A. Text of the Decision on Anti-Circumvention
B
. Interpretation and Application of the Decision on Anti-Circumvention