China – Anti-Dumping Measures on Imports of Cellulose
Pulp
from Canada
Request for the Establishment of a Panel by Canada
The following
communication, dated 12 February 2015, from the delegation of Canada to the Chairperson of
the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.
_______________
On 15
October 2014, the Government of Canada ("Canada") requested
consultations with the Government of the People's Republic of China ("China")
pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures
Governing the Settlement of Disputes ("DSU"), Article XXII:1 of
the General Agreement on Tariffs and Trade 1994 ("GATT 1994") and
Articles 17.2 and 17.3 of the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 ("Anti-Dumping Agreement")
with respect to China's measures imposing anti-dumping duties on imports of
cellulose pulp from Canada, as set forth in Ministry of Commerce of China ("MOFCOM")
Notice No. 75 of 2013 (6 November 2013), including its annex (the "Preliminary
Determination") and Notice No. 18 of 2014 (4 April 2014), including its
annex (the "Final Determination").[1]
Canada held consultations with
China on 2 November 2014. These consultations failed to settle the dispute.
Canada considers that the
measures at issue are inconsistent with China's obligations under the following
provisions of the Anti-Dumping Agreement and the GATT 1994:
1. Articles 2.2 and 2.2.1.1 of the Anti-Dumping Agreement because
China, in establishing constructed normal value for a Canadian producer, failed
to calculate costs on the basis of records kept by the producer which reasonably reflected the
costs associated with the production and sale of cellulose pulp and failed to
adjust costs appropriately for circumstances in which costs during the period
of investigation were affected by start-up operations.
2. Articles 2.2 and 2.2.2 of the Anti-Dumping Agreement because
China, in establishing constructed normal value for a Canadian producer, failed
to determine the amounts for administrative, selling and general costs on the
basis of the producer's actual data pertaining to production and sales in the
ordinary course of trade of cellulose pulp.
3. Articles 2.1 and 2.4 of the Anti-Dumping Agreement because China
failed to make a fair comparison between the export price and normal value by,
for instance, improperly deducting certain expenses from the export price and
by not making due allowance for differences in physical characteristics when
calculating the export price.
4. Articles 3.1 and 3.2 of the Anti-Dumping Agreement because
China's determination of injury was not based on positive evidence and did not
involve an objective examination of the volume of the dumped imports and the
effect of those imports on prices in the domestic market for like products.
China failed to properly consider whether there had been:
a. significant increase in
dumped imports;
b. significant price undercutting by the dumped imports as compared
with the price of a domestic like product, or whether the effect of such
imports was otherwise to depress prices to a significant degree or prevent
price increases, which otherwise would have occurred, to a significant degree.
5. Articles 3.1 and 3.4 of the Anti-Dumping Agreement because
China's determination of injury was not based on positive evidence, did not
involve an objective examination of the impact of dumped imports on domestic
producers of like products and failed to properly evaluate all relevant
economic factors and indices having a bearing on the state of the domestic
industry.
6. Articles 3.1 and 3.5 of the Anti-Dumping Agreement because China
failed to:
a.
demonstrate,
through an objective examination based on positive evidence, the causal
relationship between the dumped imports and the injury to the domestic industry
b. conduct an objective examination, based on positive evidence, of
known factors other than the dumped imports which at the same time were
injuring the domestic industry and improperly attributed the injuries caused by
those factors to the dumped imports.
7. Articles 3.1 and 4.1 of the Anti-Dumping Agreement because China
made a determination of injury having improperly defined the domestic industry
and, as a result, failed to base its determination on positive evidence and
conduct an objective examination of the facts with respect to the domestic
industry producing the like product.
8. Article 6.2 of the Anti-Dumping Agreement because China failed to
grant interested parties a full opportunity to defend their interests.
9. Articles 6.1 and 6.8 and paragraph 3 of Annex II to the
Anti-Dumping Agreement because China, in determining the margins of dumping,
failed to give Canadian producers ample opportunity to present in writing all
evidence they considered relevant in respect of the investigation and to take
into account all the information which was verifiable, appropriately submitted,
and supplied in a timely fashion.
10. Article 6.8 and paragraph 7 of Annex II to the Anti-Dumping
Agreement because China improperly relied on facts available to determine the
margins of dumping for Canadian exporters or producers of cellulose pulp for
which individual margins of dumping were not established.
11. Article 6.9 of the Anti-Dumping Agreement because China failed to
inform all interested parties of the essential facts under consideration
forming the basis for the decision to impose definitive anti-dumping measures
regarding Canadian exporters or producers of cellulose pulp for which
individual margins of dumping were not established.
12. Articles 6.10, 6.10.2 and 9.4 of the Anti-Dumping Agreement because
China did not determine individual margins of dumping for producers not
initially selected that voluntarily submitted the necessary information in time
for that information to be considered by China during the course of the
investigation.
13. Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement because
China failed to provide public notice, in sufficient detail, of all relevant
information on the matters of fact and law and reasons which led to the
imposition of final measures. China, inter alia, failed to:
-
provide a full
explanation of the reasons for the methodology used in the establishment and
comparison of the export price and the normal value under Article 2;
-
provide the
considerations relevant to the injury determination as set out in Article 3 of
the Anti-Dumping Agreement;
-
provide the
reasons for the rejection of relevant arguments or claims made by the
exporters;
-
provide the basis
for the decision under Article 6.10.2 of the Antidumping Agreement to reject
the voluntary responses by two Canadian producers.
14. Article 1 of the Anti-Dumping Agreement and Article VI of the GATT
1994 as a consequence of the breaches of the Anti-Dumping Agreement described
above.
The violations stated above
nullify or impair benefits accruing to Canada, directly or indirectly, under
the covered agreements.
Therefore, Canada respectfully
requests, pursuant to Article 6 of the DSU and Article 17.4 of the Anti-Dumping
Agreement, that the Dispute Settlement Body establish a panel to examine this
matter, with the standard terms of reference as set out in Article 7.1 of the
DSU.
Canada asks that this request be
placed on the agenda for the meeting of the Dispute Settlement Body to be held
on 23 February 2015.
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