Agreement Establishing the World Trade Organization
Agreement on Implementation of Article VI
of the General Agreement on Tariffs and Trade 1994
Members hereby agree as follows:
Article 1: Principles
An antidumping measure shall be applied only under the circumstances
provided for in Article VI of GATT 1994 and pursuant to investigations
initiated 1 and conducted in accordance with the provisions of this
Agreement. The following provisions govern the application of Article VI
of GATT 1994 in so far as action is taken under antidumping legislation
Article 2: Determination of Dumping
2.1 For the purpose of this Agreement, a product is to be considered
as being dumped, i.e. introduced into the commerce of another country at
less than its normal value, if the export price of the product exported
from one country to another is less than the comparable price, in the ordinary
course of trade, for the like product when destined for consumption in
the exporting country.
2.2 When there are no sales of the like product in the ordinary course
of trade in the domestic market of the exporting country or when, because
of the particular market situation or the low volume of the sales in the
domestic market of the exporting country 2, such sales do not permit
a proper comparison, the margin of dumping shall be determined by comparison
with a comparable price of the like product when exported to an appropriate
third country, provided that this price is representative, or with the
cost of production in the country of origin plus a reasonable amount for
administrative, selling and general costs and for profits.
2.2.1 Sales of the like product in the domestic market of the exporting
country or sales to a third country at prices below per unit (fixed and
variable) costs of production plus administrative, selling and general
costs may be treated as not being in the ordinary course of trade by reason
of price and may be disregarded in determining normal value only if the
authorities 3 determine that such sales are made within an extended
period of time 4 in substantial quantities 5 and are at prices which
do not provide for the recovery of all costs within a reasonable period
of time. If prices which are below per unit costs at the time of sale are
above weighted average per unit costs for the period of investigation,
such prices shall be considered to provide for recovery of costs within
a reasonable period of time.
126.96.36.199 For the purpose of paragraph 2, costs shall normally be calculated
on the basis of records kept by the exporter or producer under investigation,
provided that such records are in accordance with the generally accepted
accounting principles of the exporting country and reasonably reflect the
costs associated with the production and sale of the product under consideration.
Authorities shall consider all available evidence on the proper allocation
of costs, including that which is made available by the exporter or producer
in the course of the investigation provided that such allocations have
been historically utilized by the exporter or producer, in particular in
relation to establishing appropriate amortization and depreciation periods
and allowances for capital expenditures and other development costs. Unless
already reflected in the cost allocations under this subparagraph, costs
shall be adjusted appropriately for those nonrecurring items of cost which
benefit future and/or current production, or for circumstances in which
costs during the period of investigation are affected by startup operations.6
2.2.2 For the purpose of paragraph 2, the amounts for administrative,
selling and general costs and for profits shall be based on actual data
pertaining to production and sales in the ordinary course of trade of the
like product by the exporter or producer under investigation. When such
amounts cannot be determined on this basis, the amounts may be determined
on the basis of:
(i) the actual amounts incurred and realized by the exporter or producer
in question in respect of production and sales in the domestic market of
the country of origin of the same general category of products;
(ii) the weighted average of the actual amounts incurred and realized
by other exporters or producers subject to investigation in respect of
production and sales of the like product in the domestic market of the
country of origin;
(iii) any other reasonable method, provided that the amount for profit
so established shall not exceed the profit normally realized by other exporters
or producers on sales of products of the same general category in the domestic
market of the country of origin.
2.3 In cases where there is no export price or where it appears to the
authorities concerned that the export price is unreliable because of association
or a compensatory arrangement between the exporter and the importer or
a third party, the export price may be constructed on the basis of the
price at which the imported products are first resold to an independent
buyer, or if the products are not resold to an independent buyer, or not
resold in the condition as imported, on such reasonable basis as the authorities
2.4 A fair comparison shall be made between the export price and the
normal value. This comparison shall be made at the same level of trade,
normally at the exfactory level, and in respect of sales made at as nearly
as possible the same time. Due allowance shall be made in each case, on
its merits, for differences which affect price comparability, including
differences in conditions and terms of sale, taxation, levels of trade,
quantities, physical characteristics, and any other differences which are
also demonstrated to affect price comparability 7. In the cases referred
to in paragraph 3, allowances for costs, including duties and taxes, incurred
between importation and resale, and for profits accruing, should also be
made. If in these cases price comparability has been affected, the authorities
shall establish the normal value at a level of trade equivalent to the
level of trade of the constructed export price, or shall make due allowance
as warranted under this paragraph. The authorities shall indicate to the
parties in question what information is necessary to ensure a fair comparison
and shall not impose an unreasonable burden of proof on those parties.
2.4.1 When the comparison under paragraph 4 requires a conversion of
currencies, such conversion should be made using the rate of exchange on
the date of sale8, provided that when a sale of foreign currency on
forward markets is directly linked to the export sale involved, the rate
of exchange in the forward sale shall be used. Fluctuations in exchange
rates shall be ignored and in an investigation the authorities shall allow
exporters at least 60 days to have adjusted their export prices to reflect
sustained movements in exchange rates during the period of investigation.
2.4.2 Subject to the provisions governing fair comparison in paragraph
4, the existence of margins of dumping during the investigation phase shall
normally be established on the basis of a comparison of a weighted average
normal value with a weighted average of prices of all comparable export
transactions or by a comparison of normal value and export prices on a
transaction-to-transaction basis. A normal value established on a weighted
average basis may be compared to prices of individual export transactions
if the authorities find a pattern of export prices which differ significantly
among different purchasers, regions or time periods, and if an explanation
is provided as to why such differences cannot be taken into account appropriately
by the use of a weighted average-to-weighted average or transaction-to-transaction comparison.
2.5 In the case where products are not imported directly from the country
of origin but are exported to the importing Member from an intermediate
country, the price at which the products are sold from the country of export
to the importing Member shall normally be compared with the comparable
price in the country of export. However, comparison may be made with the
price in the country of origin, if, for example, the products are merely
transshipped through the country of export, or such products are not produced
in the country of export, or there is no comparable price for them in the
country of export.
2.6 Throughout this Agreement the term "like product" ("produit
similaire") shall be interpreted to mean a product which is identical,
i.e. alike in all respects to the product under consideration, or in the
absence of such a product, another product which, although not alike in
all respects, has characteristics closely resembling those of the product
2.7 This Article is without prejudice to the second Supplementary Provision
to paragraph 1 of Article VI in Annex I to GATT 1994.
Article 3: Determination of Injury 9
3.1 A determination of injury for purposes of Article VI of GATT 1994
shall be based on positive evidence and involve an objective examination
of both (a) the volume of the dumped imports and the effect of the
dumped imports on prices in the domestic market for like products, and
(b) the consequent impact of these imports on domestic producers
of such products.
3.2 With regard to the volume of the dumped imports, the investigating
authorities shall consider whether there has been a significant increase
in dumped imports, either in absolute terms or relative to production or
consumption in the importing Member. With regard to the effect of the dumped
imports on prices, the investigating authorities shall consider whether
there has been a significant price undercutting by the dumped imports as
compared with the price of a like product of the importing Member, or whether
the effect of such imports is otherwise to depress prices to a significant
degree or prevent price increases, which otherwise would have occurred,
to a significant degree. No one or several of these factors can necessarily
give decisive guidance.
3.3 Where imports of a product from more than one country are simultaneously
subject to antidumping investigations, the investigating authorities may
cumulatively assess the effects of such imports only if they determine
that (a) the margin of dumping established in relation to the imports
from each country is more than de minimis as defined in paragraph
8 of Article 5 and the volume of imports from each country is not negligible
and (b) a cumulative assessment of the effects of the imports is
appropriate in light of the conditions of competition between the imported
products and the conditions of competition between the imported products
and the like domestic product.
3.4 The examination of the impact of the dumped imports on the domestic
industry concerned shall include an evaluation of all relevant economic
factors and indices having a bearing on the state of the industry, including
actual and potential decline in sales, profits, output, market share, productivity,
return on investments, or utilization of capacity; factors affecting domestic
prices; the magnitude of the margin of dumping; actual and potential negative
effects on cash flow, inventories, employment, wages, growth, ability to
raise capital or investments. This list is not exhaustive, nor can one
or several of these factors necessarily give decisive guidance.
3.5 It must be demonstrated that the dumped imports are, through the
effects of dumping, as set forth in paragraphs 2 and 4, causing injury
within the meaning of this Agreement. The demonstration of a causal relationship
between the dumped imports and the injury to the domestic industry shall
be based on an examination of all relevant evidence before the authorities.
The authorities shall also examine any known factors other than the dumped
imports which at the same time are injuring the domestic industry, and
the injuries caused by these other factors must not be attributed to the
dumped imports. Factors which may be relevant in this respect include,
inter alia, the volume and prices of imports not sold at dumping
prices, contraction in demand or changes in the patterns of consumption,
trade-restrictive practices of and competition between the foreign and
domestic producers, developments in technology and the export performance
and productivity of the domestic industry.
3.6 The effect of the dumped imports shall be assessed in relation to
the domestic production of the like product when available data permit
the separate identification of that production on the basis of such criteria
as the production process, producers' sales and profits. If such separate
identification of that production is not possible, the effects of the dumped
imports shall be assessed by the examination of the production of the narrowest
group or range of products, which includes the like product, for which
the necessary information can be provided.
3.7 A determination of a threat of material injury shall be based on
facts and not merely on allegation, conjecture or remote possibility. The
change in circumstances which would create a situation in which the dumping
would cause injury must be clearly foreseen and imminent 10. In making
a determination regarding the existence of a threat of material injury,
the authorities should consider, inter alia, such factors as:
(i) a significant rate of increase of dumped imports into the domestic
market indicating the likelihood of substantially increased importation;
(ii) sufficient freely disposable, or an imminent, substantial increase
in, capacity of the exporter indicating the likelihood of substantially
increased dumped exports to the importing Member's market, taking into
account the availability of other export markets to absorb any additional
(iii) whether imports are entering at prices that will have a significant
depressing or suppressing effect on domestic prices, and would likely increase
demand for further imports; and
(iv) inventories of the product being investigated.
No one of these factors by itself can necessarily give decisive guidance
but the totality of the factors considered must lead to the conclusion
that further dumped exports are imminent and that, unless protective action
is taken, material injury would occur.
No one of these factors by itself can necessarily give decisive guidance
but the totality of the factors considered must lead to the conclusion
that further dumped exports are imminent and that, unless protective action
is taken, material injury would occur.
3.8 With respect to cases where injury is threatened by dumped imports,
the application of antidumping measures shall be considered and decided
with special care.
Article 4: Definition of Domestic Industry
4.1 For the purposes of this Agreement, the term "domestic industry"
shall be interpreted as referring to the domestic producers as a whole
of the like products or to those of them whose collective output of the
products constitutes a major proportion of the total domestic production
of those products, except that:
(i) when producers are related 11 to the exporters or importers or
are themselves importers of the allegedly dumped product, the term "domestic
industry" may be interpreted as referring to the rest of the producers;
(ii) in exceptional circumstances the territory of a Member may, for
the production in question, be divided into two or more competitive markets
and the producers within each market may be regarded as a separate industry
(a) the producers within such market sell all or almost all of
their production of the product in question in that market, and
the demand in that market is not to any substantial degree supplied
by producers of the product in question located elsewhere in the territory.
In such circumstances, injury may be found to exist even where a major
portion of the total domestic industry is not injured, provided there is
a concentration of dumped imports into such an isolated market and provided
further that the dumped imports are causing injury to the producers of
all or almost all of the production within such market.
4.2 When the domestic industry has been interpreted as referring to
the producers in a certain area, i.e. a market as defined in paragraph
1(ii), antidumping duties shall be levied 12 only on the products in
question consigned for final consumption to that area. When the constitutional
law of the importing Member does not permit the levying of antidumping
duties on such a basis, the importing Member may levy the antidumping duties
without limitation only if
(a) the exporters shall have been given
an opportunity to cease exporting at dumped prices to the area concerned
or otherwise give assurances pursuant to Article 8 and adequate assurances
in this regard have not been promptly given, and
(b) such duties
cannot be levied only on products of specific producers which supply the
area in question.
4.3 Where two or more countries have reached under the provisions of
paragraph 8(a) of Article XXIV of GATT 1994 such a level of integration
that they have the characteristics of a single, unified market, the industry
in the entire area of integration shall be taken to be the domestic industry
referred to in paragraph 1.
4.4 The provisions of paragraph 6 of Article 3 shall be applicable to
Article 5: Initiation and Subsequent Investigation
5.1 Except as provided for in paragraph 6, an investigation to determine
the existence, degree and effect of any alleged dumping shall be initiated
upon a written application by or on behalf of the domestic industry.
5.2 An application under paragraph 1 shall include evidence of
(b) injury within the meaning of Article VI of GATT 1994
as interpreted by this Agreement and
(c) a causal link between the
dumped imports and the alleged injury. Simple assertion, unsubstantiated
by relevant evidence, cannot be considered sufficient to meet the requirements
of this paragraph.
The application shall contain such information as is
reasonably available to the applicant on the following:
(i) the identity of the applicant and a description of the volume and
value of the domestic production of the like product by the applicant.
Where a written application is made on behalf of the domestic industry,
the application shall identify the industry on behalf of which the application
is made by a list of all known domestic producers of the like product (or
associations of domestic producers of the like product) and, to the extent
possible, a description of the volume and value of domestic production
of the like product accounted for by such producers;
(ii) a complete description of the allegedly dumped product, the names
of the country or countries of origin or export in question, the identity
of each known exporter or foreign producer and a list of known persons
importing the product in question;
(iii) information on prices at which the product in question is sold
when destined for consumption in the domestic markets of the country or
countries of origin or export (or, where appropriate, information on the
prices at which the product is sold from the country or countries of origin
or export to a third country or countries, or on the constructed value
of the product) and information on export prices or, where appropriate,
on the prices at which the product is first resold to an independent buyer
in the territory of the importing Member;
(iv) information on the evolution of the volume of the allegedly dumped
imports, the effect of these imports on prices of the like product in the
domestic market and the consequent impact of the imports on the domestic
industry, as demonstrated by relevant factors and indices having a bearing
on the state of the domestic industry, such as those listed in paragraphs
2 and 4 of Article 3.
5.3 The authorities shall examine the accuracy and adequacy of the evidence
provided in the application to determine whether there is sufficient evidence
to justify the initiation of an investigation.
5.4 An investigation shall not be initiated pursuant to paragraph 1
unless the authorities have determined, on the basis of an examination
of the degree of support for, or opposition to, the application expressed 13
by domestic producers of the like product, that the application has been
made by or on behalf of the domestic industry 14. The application shall
be considered to have been made "by or on behalf of the domestic industry"
if it is supported by those domestic producers whose collective output
constitutes more than 50 per cent of the total production of the like product
produced by that portion of the domestic industry expressing either support
for or opposition to the application. However, no investigation shall be
initiated when domestic producers expressly supporting the application
account for less than 25 per cent of total production of the like product
produced by the domestic industry.
5.5 The authorities shall avoid, unless a decision has been made to
initiate an investigation, any publicizing of the application for the initiation
of an investigation. However, after receipt of a properly documented application
and before proceeding to initiate an investigation, the authorities shall
notify the government of the exporting Member concerned.
5.6 If, in special circumstances, the authorities concerned decide to
initiate an investigation without having received a written application
by or on behalf of a domestic industry for the initiation of such investigation,
they shall proceed only if they have sufficient evidence of dumping, injury
and a causal link, as described in paragraph 2, to justify the initiation
of an investigation.
5.7 The evidence of both dumping and injury shall be considered simultaneously
(a) in the decision whether or not to initiate an investigation,
and (b) thereafter, during the course of the investigation, starting
on a date not later than the earliest date on which in accordance with
the provisions of this Agreement provisional measures may be applied.
5.8 An application under paragraph 1 shall be rejected and an investigation
shall be terminated promptly as soon as the authorities concerned are satisfied
that there is not sufficient evidence of either dumping or of injury to
justify proceeding with the case. There shall be immediate termination
in cases where the authorities determine that the margin of dumping is
de minimis, or that the volume of dumped imports, actual or potential,
or the injury, is negligible. The margin of dumping shall be considered
to be de minimis if this margin is less than 2 per cent, expressed
as a percentage of the export price. The volume of dumped imports shall
normally be regarded as negligible if the volume of dumped imports from
a particular country is found to account for less than 3 per cent of imports
of the like product in the importing Member, unless countries which individually
account for less than 3 per cent of the imports of the like product in
the importing Member collectively account for more than 7 per cent of imports
of the like product in the importing Member.
5.9 An antidumping proceeding shall not hinder the procedures of customs
5.10 Investigations shall, except in special circumstances, be concluded
within one year, and in no case more than 18 months, after their initiation.
Continue with the Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994
1 The term "initiated" as used in this Agreement means the procedural action by which a Member formally commences an investigation
as provided in Article 5.
2 Sales of the like product destined for consumption in the domestic
market of the exporting country shall normally be considered a sufficient
quantity for the determination of the normal value if such sales constitute
5 per cent or more of the sales of the product under consideration to the
importing Member, provided that a lower ratio should be acceptable where
3 When in this Agreement the term "authorities" is used, it shall be interpreted as meaning authorities at an appropriate senior level.
4 The extended period of time should normally be one year but shall in no case be less than six months.
5 Sales below per unit costs are made in substantial quantities when the authorities establish that the weighted average selling price of the
transactions under consideration for the determination of the normal value
is below the weighted average per unit costs, or that the volume of sales
below per unit costs represents not less than 20 per cent of the volume
sold in transactions under consideration for the determination of the normal value.
6 The adjustment made for start-up operations shall reflect the costs at the end of the start-up period or, if that period extends beyond the
period of investigation, the most recent costs which can reasonably be
taken into account by the authorities during the investigation.
7 It is understood that some of the above factors may overlap, and authorities shall ensure that they do not duplicate adjustments that have
been already made under this provision.
8 Normally, the date of sale would be the date of contract, purchase order, order confirmation, or invoice, whichever establishes the material
terms of sale.
9 Under this Agreement the term "injury" shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat
of material injury to a domestic industry or material retardation of the
establishment of such an industry and shall be interpreted in accordance
with the provisions of this Article.
10 One example, though not an exclusive one, is that there is convincing reason to believe that there will be, in the near future, substantially
increased importation of the product at dumped prices.
11 For the purpose of this paragraph, producers shall be deemed to be related to exporters or importers only if (a) one of them directly
or indirectly controls the other; or (b) both of them are directly
or indirectly controlled by a third person; or (c) together they
directly or indirectly control a third person, provided that there are
grounds for believing or suspecting that the effect of the relationship
is such as to cause the producer concerned to behave differently from non-related
producers. For the purpose of this paragraph, one shall be deemed to control
another when the former is legally or operationally in a position to exercise
restraint or direction over the latter.
12 As used in this Agreement "levy" shall mean the definitive or final legal assessment or collection of a duty or tax.
13 In the case of fragmented industries involving an exceptionally large number of producers, authorities may determine support and opposition
by using statistically valid sampling techniques.
14 Members are aware that in the territory of certain Members employees of domestic producers of the like product or representatives of those employees
may make or support an application for an investigation under paragraph 1.