Compendium of Antidumping and Countervailing Duty Laws
in the Western Hemisphere
- Steps of the Investigation
WTO Standard: Throughout the antidumping investigation all interested parties shall have a full opportunity for the defence of their interests. To this end, the authorities shall, on request, provide opportunities for all interested parties to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered. Provision of such opportunities must take account of the need to preserve confidentiality and of the convenience to the parties. There shall be no obligation on any party to attend a meeting, and failure to do so shall not be prejudicial to that party's case. Interested parties shall also have the right, on justification, to present other information orally. (AD Agreement, Art.6.2)
The cited standard of the Agreement is applicable. With respect to injury investigations, the Commission can hold, when it is considering conducting investigations, hearings with the concerned parties (Decree 766/94 - Art. 18). Such hearings are regulated by Resolution 02/96 of the Commission. Furthermore, the Under Secretariat of Foreign Trade can hold hearings with the participation of the concerned parties on the existence of dumping or subsidies.
During the investigation, preferably subsequent to the preliminary determination, the complainant, the importers and exporters of the product that is the subject of the investigation and in general any persons who have shown that they have a legitimate interest in the investigation may apply for the holding of joint hearings of interested parties representing different interests. Bi-ministerial Decision, Art. 13.
Throughout the investigation, the interested parties shall have every opportunity to defend their interests. To that end, where requested and within the time-limits indicated in the act determining the initiation of the investigation, hearings shall be held, in which the interested parties shall be given the opportunity to meet with parties having opposing interests, so that differing interpretations and arguments may be expressed. (Dec. 1602/95 - Art. 31.caput).
There shall be no obligation to appear at said hearings and the absence of any parties shall not be held against them. (Dec. 1602/95 - Art. 31.3). Upon requesting the hearing, the party making the request shall submit the list of specific issues to be discussed, which shall be passed on to the other interested parties. (Dec. 1602/95 - Art. 31.1 and 31.2).
The other interested parties shall submit the arguments they will be presenting, five days prior to the hearing. (Dec. 1602/95 - Art. 31.4). They may present additional information orally, where duly justified. (Dec. 1602/95 - Art. 31.4). The information submitted orally shall only be taken into consideration if it is reproduced in writing and made available to the other interested parties within 10 days following the hearing. (Dec. 1602/95 - Art. 31.5).
Where appropriate, the need for confidentiality and consideration for the parties shall be taken into account. (Dec. 1602/95 - Art. 31.6).
Upon receipt of a notice of preliminary determination under the Special Import Measures Act subsection 38(3), the Canadian International Trade Tribunal initiates an injury inquiry.
As part of its initiation, the Tribunal publishes a notice in the Canada Gazette setting out (pursuant to Rule 54), inter alia, time frames for submissions from interested parties.
The Tribunal's rule 10(1) requires that where a notice is published in the Canada Gazette with respect to a proceeding specifying the time and place fixed for a hearing in the proceeding, any person who proposes to appear at the hearing shall file with the Tribunal a Notice of Appearance on or before the date specified in the notice published in the Canada Gazette.
The Tribunal, in carrying out its responsibilities respecting an injury inquiry, conducts hearings that are open to the public.
The Tribunal has rules and procedures similar to a court of law, but not quite as strict or formal. The Tribunal Act states that hearings are to be conducted by a panel of three members.
In practice, the Tribunal sits in panels of three members. The Tribunal has the power to subpoena witnesses and require parties to submit information.
During its public hearings, in-camera sessions may be necessary to protect the confidentiality of sensitive business information used during the hearing process.
In addition to Tribunal staff, only independent and otherwise qualified counsel to interested parties (who have signed an undertaking not to disclose confidential third party information) may be present at the in-camera sessions and have access to this confidential third-party information.
Throughout any antidumping investigation, all interested parties must be given full opportunity to defend their interests and to be heard by the Commission, upon written application. To this end, the Commission shall give all interested parties who so request the opportunity to meet with those parties that have opposing interests, so that they can set out their respective arguments and rebuttals. In providing such an opportunity, due attention must be paid to the need to protect the confidentiality of information, and to accommodate the convenience of the parties. No party is obliged to attend such a meeting, and its absence may not be held prejudicial to its case.
Interested parties also have the right, with justification, to give supplementary oral evidence. (Supreme Decree No. 16, Ministry of External Relations, published in the Diario Oficial on May 17, 1995).
Within 15 calendar days following publication of the preliminary determination, the interested parties in the investigation and in general any persons who have shown that they have a legitimate interest in the investigation may apply for the holding of joint hearings of interested parties representing different interests.
INCOMEX has five working days to convene the meeting.
This meeting shall be held within one month from the date upon which the application is submitted. (Decree 299, Chapter 7, Art. 40).
Throughout the anti-dumping investigation all interested parties shall have a full opportunity for the defense of their interests.
To this end, the authorities shall, on request, provide opportunities for all interested parties to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered.
Provision of such opportunities must take account of the need to preserve confidentiality and of the convenience to the parties.
There shall be no obligation on any party to attend a meeting, and failure to do so shall not be prejudicial to that party's case.
Interested parties shall also have the right, on justification, to present other information orally.
Notified in accordance with Article 6.2 of the Antidumping Agreement.
The Board will hear any person it considers affected by an investigation if a written request for a hearing has been made by the person. (Sec. 20(2)).
The request must show that the person is an interested party likely to be affected by the result of the investigation and that there are particular reasons why he or she should be heard orally. (Sec. 20(2)).
The Board is required to take into account the need to preserve confidentiality in holding a hearing. (Sec. 20(3)).
In accordance with the Law, there are two kinds of hearings in the antidumping or antisubsidy procedures, which are conciliatory and public.
I. Conciliatory hearings
Article 61 of the Law itself establishes that hearings of this kind may be held during the course of the investigation, where ways for solution and conclusion of the investigation may be proposed, in accordance with the text of the same Law.
Article 86 of the Regulations indicates that the parties concerned may petition the Secretariat in writing to convoke a conciliatory hearing after publishing in the Official Daily Gazette the decision to initiate the investigation and up to 15 days before the end of the evidentiary period.
It should be explained that the Secretariat may invite the parties to hold a conciliatory hearing provided that it deems this necessary without the petition of a party concerned being involved.
II. Public hearings
In accordance with the provisions of Article 81 of the same Law, the notification of the decision to initiate must indicate the date for holding the public hearing, at which the parties concerned, and if appropriate their assistants, will question or refute their counterparts concerning the information, data and evidence they may have presented, as indicated in Article 166 of the Regulations.
The aforementioned hearing shall be held after publication of the preliminary decision and before publication of the final decision.
Moreover, Article 81 of the Regulations indicates that, in the decision for initiation, the investigating authority must indicate the day, hour and place in which the public hearing is to occur.
Once the evidence has been finalized, and before a final decision has been issued, the all of the interested parties will be summoned to a hearing to be informed and heard with respect to the essential facts considered and used as the basis for the decision to apply or not to apply final measures.
The parties will have three working days to present arguments in defense of their interests. Article 167.
In the case of an investigation of subsidized imports, the Ministry of Industry and Commerce, within five working days after receiving an application, shall give the authorities of those countries whose products will be investigated, the opportunity, within a period not to exceed one month, to hold meetings of the Paraguayan authorities with the authorities of the country of origin or the exporting country to elucidate the facts of the case and arrive at a mutually satisfactory solution. The invitation to hold consultations shall not constitute an obstacle to the initiation of the investigation.
Trinidad and Tobago
The Authority will ensure that all interested parties are given reasonable opportunity to present all evidence relevant to the investigation orally. (Sec. 19(a)).
After Commerce issues a preliminary AD determination and conducts verification, any interested party may request that Commerce hold a hearing.
Only issues raised in an interested party's legal briefs may be discussed at the hearing.
Business confidential information may not be discussed at the public hearing.
In the ITC's preliminary phase injury investigation, the Commission's Director of Operations generally schedules a conference in connection with the investigation.
Conference procedures (i.e., date, time, arrangements for party participation, oral argument, and witness testimony) are published as part of the ITC institution notice in the Federal Register.
In the final phase injury investigation, the ITC is required to hold a public hearing before making a final determination.
A hearing is held after a notice is published in the Federal Register.
Parties participating in the hearing are required to limit their presentations to a summary and analysis of the information and arguments contained in their pre-hearing briefs and information not available at the time their pre-hearing briefs were filed.
Upon a request filed by a party to the investigation no later that seven days prior to the date of the hearing which justifies the need for a closed session in order to discuss business proprietary information, the ITC may close a portion of a hearing to persons who do not have authorized access to business proprietary information.
Within sixty working days from the date of initiation of the investigation, the Technical Secretariat shall give the applicant, importers and exporters involved in an investigation and other interested parties, "if they so desire, the opportunity to meet in order to exchange views and make any replies.
For this purpose, the Technical Secretariat shall take into account the need to preserve the confidential nature of the information and the interests of the parties.
No person shall be obliged to attend such a meeting and their absence shall not be detrimental to their case". (1992 Law, Art. 45).