Agreement Establishing the World Trade Organization
(Continued)
Agreement on Subsidies and Countervailing Measures
Article 17: Provisional Measures
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
18.1 Proceedings may49 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
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 parties50
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 nondiscriminatory 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 levied51 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
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
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. 52The
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
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 timelimits 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 nonconfidential
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
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.
Continue with the Agreement on Subsidies and Countervailing
measures
49 The word "may" shall not be interpreted to allow the simultaneous continuation of proceedings with the implementation of undertakings, except as provided in paragraph 4.
50 For the purpose of this paragraph, the term "domestic interested parties" shall include consumers and industrial users of the imported product subject to investigation.
51 As used in this Agreement "levy" shall mean the definitive or final legal assessment or collection of a duty or tax.
52 When the amount of the countervailing duty is assessed on a retrospective basis, a finding in the most recent assessment proceeding that no duty is to be levied shall not by itself require the authorities to terminate the definitive duty.
53 Where authorities provide information and explanations under the provisions of this Article in a separate report, they shall ensure that such report is readily available to the public.
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