TWN Info Service on WTO and Trade Issues (Jul15/02)
3 July 2015
Third World Network
 
Proposal on transparency, due process in AD tabled in Rules Group
Published in SUNS #8051 dated 29 June 2015
 
Geneva, 26 Jun (Kanaga Raja) -- A proposal to ensure due process and transparency in anti-dumping (AD) proceedings has been presented in a paper at an informal meeting of the WTO Negotiating Group on Rules on Thursday.
 
The proposal (TN/RL/W/257) by members of the "Friends of Anti-Dumping Negotiations (FANs)" group, was presented by Japan. The co-sponsors of the paper are: Chile, Colombia, Costa Rica, Hong Kong-China, Israel, Japan, Korea, Norway, Singapore, Switzerland, Chinese Taipei and Thailand.
 
However, according to trade officials, a number of delegations reiterated at the informal meeting that they are not prepared to engage in substantive discussions on the issue of anti-dumping in the absence of progress on the core Doha Round issues of agriculture, non-agricultural market access (NAMA) and services.
 
Meanwhile, a new paper has been put forward by Argentina, Iceland, New Zealand, Norway, Peru and Uruguay at the Rules group informal meeting for effective disciplines on fisheries subsidies in the post-Bali work programme. Another meeting of the Rules Group is expected to be held on 1 July for members to comment on this paper (see below).
 
In opening remarks at the informal meeting, the Chair of the Rules Group, Ambassador Wayne McCook of Jamaica, said that he was "fully conscious" of the view held by some members that possible outcomes on rules cannot be identified until outcomes in other areas of the Doha Round are more clearly defined.
 
Nevertheless, he added, some delegations consider rules to be very important, are worried about the pending deadline for concluding the post-Bali work programme, and have submitted concrete proposals on how the issue could be addressed in the work programme.
 
According to the Chair, these delegations seek - and are entitled to - an opportunity to present their ideas to the group, to take questions, and to hear reactions.
 
In its presentation, Japan said the paper focused on "un-bracketed" elements of the draft 2011 Chairman's text on anti-dumping which relate to transparency and due process.
 
It said that these elements reflected areas of convergence which could form the "core deliverables" of the anti-dumping part of the post-Bali work programme which members are seeking to finalise by the end of July.
 
Japan underscored that it did not expect members to engage in line-by-line discussion of the proposal but was putting the paper forward in order to present its views on the issue as clearly as possible.
 
According to the paper, transparency of AD investigation procedures and due process rights are fundamental and are critical aspects for improving the disciplines, principles and effectiveness of the AD regime while preserving basic concepts.
 
"Transparency and due process are vital to interested parties. Parties need information and reasonable procedures in order to participate effectively in an investigation and defend their interests."
 
The paper said that this will be impossible unless the parties are kept fully informed of all individual steps and procedures undertaken by the authority from the initiation of the investigation until the imposition of AD duty; have the opportunity to access in a timely manner, all public/non-confidential information on the record of an investigation; are given sufficient time to prepare their factual and legal submissions; and are provided with an explanation (either in a published notice or a separate report) which details the authority's assessment of the evidence and its consideration of comments from interested parties.
 
According to the paper, transparency and due process also benefit the investigation authority, and enable the authority to make fair, impartial and even-handed determinations that can withstand eventual challenges.
 
Such determinations are possible only where both domestic and foreign interested parties are given sufficient opportunity to review evidence on record and submit comments and rebuttals.
 
Where transparency and due process are properly observed, that would leave fewer issues that could reasonably be raised in disputes against the authority's determinations that may be brought before courts and WTO Dispute Settlement Body, it said.
 
According to trade officials, Brazil, India, Argentina and Turkey said they were not in a position to determine what elements on anti-dumping could be part of the work programme until it becomes clearer what the outcomes on the core Doha issues, particularly agriculture, will be.
 
Brazil said that agriculture "is central and progress in the rules pillar is contingent on that."
 
The US said that in the absence of any consensus on the core issues, "everything else is academic."
 
Several delegations said that the proposal by the FANs appeared to be ambitious or was not "re-calibrated" to the outcomes now being foreseen in the core Doha issues.
 
According to trade officials, India said a number of elements in the paper risks imposing onerous requirements on developing and least developed countries.
 
Australia said the paper appeared to be based on the same proposals in the 2011 draft text which failed to secure consensus support from the membership.
 
On the other hand, the European Union said that members should focus on what is realistic and doable, and that the issue of transparency met that requirement.
 
The Russian Federation said that Rules was an important part of the Doha agenda and needed to be treated with respect. It said that the talks on transparency and due process were a good initial step forward.
 
New Zealand said there was much in the FANs paper it could agree with, while Mexico said that it saw a "great deal of merit" in the paper.
 
According to trade officials, China said that transparency was an essential principle and that the paper was a good basis for discussions. However, it had concerns with some aspects of the FANs proposal.
 
Ambassador McCook said that he will convene the next meeting of the Rules negotiating group on 1 July, where members will be able to comment on a new paper from Argentina, Iceland, New Zealand, Norway, Peru, and Uruguay on fisheries subsidies.
 
NEW PAPER ON FISHERIES SUBSIDIES
 
In their paper on elements for effective disciplines on fisheries subsidies in the post-Bali work programme, Argentina, Iceland, New Zealand, Norway, Peru and Uruguay say that they remain deeply concerned at the state of the world's fisheries resources given the critical importance of the fisheries sector to poverty reduction, livelihood and food security concerns particularly in developing countries.
 
The paper (TN/RL/W/258) said that the desire and need to negotiate new effective disciplines on fisheries subsidies is demonstrated by the support for such disciplines coming from all four corners of the globe and spanning LDCs, developing and industrialised Members.
 
In fact, almost 60% of the WTO's membership (which includes well over two-thirds of developing country Members) has called for disciplines on fisheries subsidies.
 
"Subsidies to the fishing sector distort the trade, economics and politics of fishing. Subsidies distort trade by creating conditions of unfair competition. Subsidies which underwrite the costs of harvesting or the costs of production contribute to overcapacity in global fleets and global overfishing, by encouraging fishing when it may otherwise not be profitable."
 
Fisheries are a key resource for many Members, and subsidies can undermine the sustainable use of their stocks, said the paper, adding that subsidies can also affect political decision-making over management of the resource, as well as creating uneven competition between fishing nations which harvest and trade fish.
 
The paper noted that the United Nations Food and Agriculture Organization (FAO), in its 2014 report on the State of World Fisheries and Aquaculture
(SOFIA), reported that fish now accounts for almost 17% of the global population's intake of protein - in some coastal and island countries it can top 70%.
 
Fish provided nearly 3 billion people with almost 20% of their intake of animal protein, and 4.3 billion with about 15% of such protein.
 
FAO estimates that fisheries and aquaculture support the livelihoods of 10-12% of the world's population. Since 1990 employment in the sector has grown at a faster rate than the world's population and in 2012 provided jobs for some 60 million people engaged in capture fisheries and aquaculture.
 
According to the paper, while fish remains among the most traded food commodities worldwide, the state of the world's fisheries have deteriorated since the launch of the Doha Round, with almost 29% of global stocks reported as over-fished by FAO in 2014.
 
"There is also diminishing room for growth in catches through increased fishing effort, with over 60% of stocks reported as fully exploited. This is in the context of harmful fisheries subsidies having increased over the same period to an estimated US$20 billion and continuing to be a major contributing factor."
 
The paper noted that in September 2015, world leaders will adopt the new Sustainable Development Goals (SDGs).
 
"Prohibiting certain forms of fisheries subsidies and the conclusion of new effective WTO disciplines will be the focus of one of the targets under an SDG on conserving and sustainably using the oceans, seas and marine resources for sustainable development."
 
The proponents of the paper consider that any outcome on fisheries subsidies, that provides effective and meaningful disciplines, should contain the following elements: prohibitions focusing on some of the most obvious subsidies around which all Members should be able to agree to; appropriate and effective special and differential treatment; transitional arrangements; standstill provision; transparency, monitoring and review provisions; and continuation of the fisheries subsidies reform process. +