This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.
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Summary of the dispute to date
The summary below was up-to-date at
Complaint by Indonesia
On 1 September 2017, Indonesia requested consultations with Australia with respect to measures relating to the imposition of an anti-dumping order on A4 copy paper and the investigation and determination leading thereto.
Indonesia claimed that the measures appear to be inconsistent with:
- Articles 2.2, 22.214.171.124 and 2.4 of the Anti-Dumping Agreement.
On 15 September 2017, China and the United States requested to join the consultations. On 25 September 2017, the European Union requested to join the consultations. Subsequently, Australia informed the DSB that it had accepted the requests of China, the European Union and the United States to join the consultations.
Panel and Appellate Body proceedings
On 14 March 2018, Indonesia requested the establishment of a panel. At its meeting on 27 March 2018, the DSB deferred the establishment of a panel.
At its meeting on 27 April 2018, the DSB established a panel. Canada, China, Egypt, the European Union, India, Israel, Japan, Korea, the Russian Federation, Singapore, Thailand, Ukraine, the United States and Viet Nam reserved their third-party rights.
Following agreement of the parties, the panel was composed on 12 July 2018.
On 12 October 2018, further to paragraph 1(3) of the panel's Working Procedures, the Chair of the panel requested the DSB in separate communications to circulate to Members: (i) a partial timetable, (ii) the panel's Working Procedures, and (iii) the additional Working Procedures of the panel concerning business confidential information, all adopted by the panel on 5 October 2018. On the same date, through a separate communication, the Chair of the panel informed the DSB that the beginning of the panel's work had been delayed due to a lack of personnel in the Secretariat available to staff disputes. In its communication, the Chair of the panel informed the DSB that the panel would proceed in accordance with the partial timetable adopted on 5 October, and that it expected to issue its final report to the parties in the second half of 2019.
On 30 November 2018, the Chair of the panel requested the DSB to circulate the panel's preliminary ruling concerning the request for enhanced third party rights submitted by Australia, China and the Russian Federation. The preliminary ruling that was issued to the parties on 29 November 2018 was circulated to Members pursuant to paragraph 1(3) of the panel's working procedures.
On 26 February 2019, the Chair of the panel requested the DSB to circulate a communication indicating changes to the dates of the second meeting, as well as subsequent changes to the timetable. In its communication, the Chair apprised the DSB that the panel expected to issue its final report to the parties in the second half of 2019.
On 13 May 2019 the Chair of the Panel requested the DSB to circulate a communication containing a decision from the panel, dated 24 April 2019, declining the European Union's request, submitted on 19 December 2018, at the third-party session and in writing on 11 January 2019, for third parties to observe the second substantive meeting of the panel.
On 22 July 2019, the Chair of the panel requested the DSB to circulate a communication indicating changes to the timetable.
This dispute concerned Australia's anti-dumping measures imposed on A4 copy paper exported from Indonesia following an investigation by the Australian Anti-Dumping Commission.
One of Indonesia's claims in this dispute concerned the second clause of Article 2.2 of the Anti-Dumping Agreement, which provides for the discarding of domestic sales as the basis for normal value when “because of a particular market situation, … such sales do not permit a proper comparison”. Australia found a “particular market situation” to exist in Indonesia's A4 copy paper market because certain alleged government-induced distortions affected Indonesia's pulp and paper industries, and the price of Indonesia's A4 copy paper was lower than regional benchmarks. Indonesia contested Australia's determination of the “particular market situation” because, in its view, the proper interpretation of that expression necessarily excludes: (i) situations where input costs of the product are allegedly distorted; (ii) situations that affect both domestic market sales and export sales of the product; and (iii) situations arising from government action. The Panel found that none of these situations are necessarily excluded from constituting a “particular market situation” and, on that basis, concluded that Indonesia did not demonstrate that Australia had acted inconsistently with Article 2.2 of the Anti-Dumping Agreement when the Anti-Dumping Commission found that a “particular market situation” existed in the Indonesian domestic market for A4 copy paper.
In respect of the requirement to examine whether the domestic sales affected by the “particular market situation” “permit a proper comparison”, Indonesia argued that, even if the “particular market situation” existed in the A4 copy paper market of Indonesia, Australia should have considered whether the domestic sales permitted “a proper comparison” by examining whether an individual exporter's domestic prices can properly be compared to that individual exporter's export prices. The Panel found that, when a particular market situation affects domestic market sales prices solely as a result of a decreased cost for an input used identically to produce merchandise for the domestic and export markets, the investigating authority must assess the effect of the particular market situation on the domestic price in relation to the effect on the export price. The Panel concluded that Australia had acted inconsistently with Article 2.2, first sentence, of the Anti-Dumping Agreement because the Anti-Dumping Commission did not conduct the required analysis and disregarded domestic sales of A4 copy paper without properly determining that such sales did “not permit a proper comparison”.
Another claim advanced by Indonesia in this dispute was that in constructing the normal value of the exporters, Australia's Anti-Dumping Commission disregarded their properly recorded cost information in violation of Article 126.96.36.199 of the Anti-Dumping Agreement. Indonesia argued that Article 188.8.131.52 requires an investigating authority to use an exporter's actual costs unless they fail to meet one of the two express conditions set out in this provision. Australia countered that the term “normally” in Article 184.108.40.206 provides a separate ground to disregard an exporter' records where the circumstances are not “normal and ordinary”, and that the circumstances in respect of Indonesian exporters' pulp records were not “normal and ordinary” as they reflected the particular market situation. The Panel found that when the two conditions in the first sentence of Article 220.127.116.11 are satisfied, recorded costs may be rejected in some circumstances on the basis of the term “normally”. For purposes of resolving this dispute, the Panel found it unnecessary to define what those circumstances could be. However, the Panel found that Australia was not permitted to reject the recorded pulp costs on the basis of the term “normally” in the present investigation because it had not established that the prerequisite first and second express conditions in the first sentence of Article 18.104.22.168 of the Anti-Dumping Agreement were satisfied. Thus, the Panel found Australia had acted inconsistently with Article 22.214.171.124, first sentence, of the Anti-Dumping Agreement.
Finally, the Panel upheld Indonesia's claim that Australia's calculation of the cost of production of A4 copy paper in Indonesia, using a substitute for the rejected pulp costs of Indonesian producers, was inconsistent with Article 2.2 of the Anti-Dumping Agreement. As noted above, the Panel found that there was no basis to use substitute costs because the recorded costs had been rejected inconsistently with Article 126.96.36.199. The Panel also found that a reasoned and adequate explanation was lacking in relation to using substitute costs that included a profit component for one of the Indonesian integrated producers that produced its own pulp inputs. In relation to another producer that purchased pulp inputs, the Panel found that Indonesia had not demonstrated that Australia acted inconsistently with Article 2.2 of the Anti-Dumping Agreement when using substitute costs which included a profit component. The Panel found that a reasoned and adequate explanation was lacking as to why, with regard to the integrated producer's cost of producing pulp internally, the investigating authority did not utilize substitute woodchips costs in conjunction with the other recorded costs of producing pulp internally which were not affected by the particular market situation instead of utilizing substituted pulp costs.
In light of the above findings, the Panel found addressing Indonesia's consequential claim under Article 2.2 of the Anti-Dumping Agreement and Indonesia's claim under the chapeau of Article 9.3 of the Anti-Dumping Agreement was not necessary to resolve this dispute.
The Panel recommended that Australia bring its measure into conformity with its obligations under the Anti-Dumping Agreement but denied Indonesia's request to suggest ways in which Australia could implement the Panel's recommendations.
At its meeting on 27 January 2020, the DSB adopted the panel report.
Reasonable period of time
On 26 February 2020, Australia informed the DSB that it intended to implement the recommendations and rulings of the DSB in a manner consistent with its WTO obligations and that it would need a reasonable period of time to do so. On 12 March 2020, Australia and Indonesia informed the DSB that they had agreed that the reasonable period of time for Australia to implement the DSB's recommendations and rulings was 8 months, with an extension of 1 month in the event of unavoidable delays. Accordingly, the reasonable period of time was set to expire on 27 September 2020.
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