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October 2000
PROPOSAL TO THE NEGOTIATING GROUP ON SUBSIDIES, ANTIDUMPING AND COUNTERVAILING DUTIES
Canada is pleased to submit the following text proposals [The footnotes are explanatory and do not form part of the text proposals themselves].
Canada reserves the right to add new issues and text proposals as well as withdraw and amend existing issues and text proposals at any stage of the negotiations.
(1)
Text Proposals
Except as otherwise provided in this Chapter, the Marrakesh Agreement Establishing the World Trade Organization
(2) and any successor agreements (3), shall govern the rights and obligations of the Parties in respect of subsides and the application of antidumping and countervailing duties.
(4)
Export price may not be constructed unless the investigating authority has determined either that there is no export price or that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party. The investigating authority shall provide detailed reasons in support of such a determination.
(5)
After all the requirements for the imposition of an antidumping or countervailing duty have been fulfilled
(6), the investigating authority shall, on its own initiative or upon request by any domestic interested person, conduct a public interest inquiry if there are reasonable grounds to consider that the imposition of such a duty, or the imposition of such a duty in the full amount, might not be in the public interest.
(7) The procedures for such inquiries shall allow the investigating authority to take due account of the representations made by any domestic person whose interests might be affected by the imposition of the antidumping or countervailing duty
(8), including industrial users of the product under investigation and representative consumer organizations
(9). The procedures shall also allow the investigating authority to take due account of representations made by the domestic competition law authority.
Each Party domestic law shall allow for the imposition of an antidumping or countervailing duty that is less than the full margin of dumping or full amount of subsidy but sufficient to eliminate injury
(10) to the domestic industry.
Where antidumping or countervailing duty has been estimated and secured by cash deposit, bond or other security, a final assessment of the duty liability shall be made within twelve months of the date on which a request for a final assessment was made. If the final assessment is made after the twelve-month period, such assessment shall not result in the levying
(11) of antidumping or countervailing duties in addition to the amount of the estimated antidumping or estimated countervailing duty.
(12) The twelve-month period is subject to the normal time requirements for judicial review.
(13)
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1
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This right was affirmed in the Summary Report of the Chair for the Eighth Meeting of the Negotiating Group on Subsidies, Antidumping and Countervailing Duties [FTAA.ngadcv/rep/08 of September 14, 2000].
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2
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It would not appear necessary to specifically cite the General Agreement on Tariffs and Trade 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 and the Agreement on Subsidies and Countervailing Measures, since, by virtue of Article II:2 of the Marrakesh Agreement Establishing the World Trade Organization, these agreements are integral parts thereof. Moreover, this formulation would also subsume relevant provisions of other WTO covered agreements, (e.g., the Agreement on Agriculture).
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3
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The reference to successor agreements is necessary to ensure that the provisions of the FTAA prevail over any future agreement that amends the Marrakesh Agreement Establishing the World Trade Organization, (including any of the multilateral trade agreements annexed thereto).
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4
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This formulation is consistent with the Negotiating Group general mandate as framed in the Ministerial Declaration of San Jose, which takes existing (WTO) antidumping and countervailing duty rules/disciplines as its point of departure.
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5
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This text proposal builds upon existing language in Article 2.3 of the WTO Agreement on Implementation of Article VI of the GATT 1994. The requirement for a determination supported by detailed reasons is stronger than the current language in Article 2.3. This is consistent with Chile text proposal [FTAA.ngadcv/w/47].
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6
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This is based on existing language in Article 19.2 of the WTO Agreement on Subsidies and Countervailing Measures.
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7
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As noted in Canada information note [FTAA.ngadcv/inf/05], a separate and self-contained public interest inquiry conducted after a final determination of injury has established the basis for the application of definitive antidumping/countervailing duties would preserve the integrity of existing antidumping/countervailing duty concepts (in respect of which a substantial body of GATT/WTO law and jurisprudence has already been developed), and result in a more focused and thorough consideration of the matter.
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8
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This is based on existing language in Article 19.2 of the WTO Agreement on Subsidies and Countervailing Measures.
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9
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This is based on existing language in Article 6.12 of the WTO Agreement on Implementation of Article VI of the GATT 1994.
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10
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In the context, the term Ainjury would have the same meaning as in footnotes 9 and 45 to the WTO Agreement on Implementation of Article VI of the GATT 1994 and the Agreement on Subsidies and Countervailing Measures, respectively.
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11
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Refer to footnote 12 of the WTO Agreement on Implementation of Article VI of the GATT 1994, which defines the word Alevy to mean the definitive or final legal assessment or collection of a duty or tax.
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12
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Refunds would, however, still be required by virtue of Articles 9.3 and 19.4 of the WTO Agreement on Implementation of Article VI of the GATT 1994 and the Agreement on Subsidies and Countervailing Measures respectively, which prohibit the collection of antidumping or countervailing duties in excess of the margin of dumping or amount of subsidy found.
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13
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This proposal is intended to lessen uncertainty as to final duty liability, which can affect business decisions in respect of product sourcing, pricing, investment location, etc.
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Source:
Canadian Department of Foreign Affairs and International Trade
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