Analysis on the Practice of

Sunset Reviews
in Anti-dumping Measures
in WTO Cases

Group Project of International Economic Law Class
2013/2014
Group 3 Members:
1. Ayup Suran Ningsih (P72115)
2. Dechry G.R. Simatupang (P72119)
3. Muhammad Faiz Aziz (P72110)
4. Norhaini Binti Nion (P72109)

Contents
I
II
IV
III
What is Sunset Reviews & its
Relations To Anti-Dumping
Sunset Review Cases in WTO: In
Numbers
Analysis on the Practice of Sunset
Reviews in WTO cases

Conclusion & The Way Forward

What is Sunset Reviews (SR)?
Sunset Reviews simply means review that
initiated by specific authority before a definitive
anti-dumping duty lapses to determine whether to
continue or terminate the anti-dumping duties
imposed against exporters or producers of the
particulars goods. (WTO 2013 Report, pg. 47).
Sometimes it is called as Expiry Review.
Sunset reviews became part of the member
states law when they implemented the
Uruguay Round agreements through Uruguay
Round Agreements Act (URAA)
Relation between SR and Anti-Dumping
Measures
ARTICLE VI GATT 1994 (ANTI-DUMPING
AGREEMENT)

The contracting parties recognize that dumping, by
which products of one country are introduced into
the commerce of another country at less than
the normal value of the products, is to be
condemned if it causes or threatens material injury
to an established industry in the territory of a
contracting party or materially retards the
establishment of a domestic industry.
SR is Part of the WTO Anti-Dumping Agreement
Expiry Period of Dumping
The expiry of the respective anti-dumping
duty would be likely to lead to
continuation or recurrence of dumping
(and injury)
5 years
Part of Uruguay Round Agreements Act
(URAA)
Where is SR regulated?
11.3 Notwithstanding the provisions of paragraphs 1 and 2, any
definitive anti-dumping 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
dumping 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 dumping and injury. The duty may remain in force
pending the outcome of such a review.

AGREEMENT ON IMPLEMENTATION OF ARTICLE VI
OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE
1994 (Article 11.3)
Language in Article 11.3 makes clear that it envisages a
process combining both investigatory and adjudicatory
aspects. In other words, Article 11.3 assigns an active
rather than a passive decision-making role to the
authorities. The words review and determine in Article
11.3 suggest that authorities conducting a sunset review
must act with an appropriate degree of diligence and
arrive at reasoned conclusion on the basis of information
gathered as part of a process of reconsideration and
examination.

(The Appellate Body Reports on DS US Sunset Review
of Anti-Dumping Duties on Corrosion-Resistant Carbon
Steel Flat Products from Japan, para 111)
Where is SR regulated?
The Procedural Requirement under the Anti-
Dumping Agreement
Provide for judicial review of final determinations in
reviews

The review will be conducted by tribunal in
pursuant with its domestic procedures and
independent from the authorities that responsible
in initiating the reviews.
The Procedural Requirement under the
Anti-Dumping Agreement
The process of review must be concluded
within one year from the date where the review
is initiated. Any dissatisfaction on the review
conducted by state authority can be brought
before the WTO Dispute Settlement body for
settlement process .
The Procedural Requirement under the Anti-
Dumping Agreement (summarized from ADA)
Authorized trading agency (ATA) announces sunset reviews
Notify and inform local industries to submit evidences
whether material injury still continues or not
Positive Evidences
Negative evidences or does not submit
Anti-dumping duties
shall be revoked
ATA send questionnaires to exporting company (EC)
EC respond
No Respond from EC or
resist
Best information available
ATA investigates and analyze
Decision/Results
Anti-Dumping
Continued
Anti-Dumping
Terminated
Contents
I
II
IV
III
Conclusion & The Way Forward

Sunset Review Cases in WTO: In
Numbers
Analysis on the Practice of Sunset
reviews in WTO cases

What is Sunset Reviews & its
Relations To Anti-Dumping
Sunset Review Cases: In Numbers
Important to see thoroughly sunset review cases to
know sunset review cases in practice.
Read case by case of sunset review cases in
WTO.



There are 469 cases submitted before WTO.
21 of 469 cases (representing 4.47%) are
sunset review cases. (as of 20/11/2013)

12 countries being participated in sunset
review cases (complainant and respondent
parties)
Sunset Review Cases: In Numbers
0 1 2 3 4 5 6
Argentina
Indonesia
India
Japan
South Korea
Viet Nam
China
Mexico
EC/EU
Participating as Complainant
European Union being
the most complaining
party (5 cases).

Followed by China and
Mexico (each 3 cases).

These 3 countries
challenge US
regarding the Article of
11.3



Sunset Review Cases: In Numbers
United States being
the most respondent
country (17 of 21
sunset review cases).

The rest 4 cases are
distributed to EU (2
cases), Brazil (1) and
South Africa (1).


1
1
2
17
0 5 10 15 20
Brazil
South Africa
EC/EU
US
Participating as Respondents
Sunset Review Cases: In Numbers
The number of 17 from 21 SR cases show that US
provisions or regulations regarding anti-dumping sunset
review is subject to challenge to Article VI of GATT 1994
(ADA) and is allegedly inconsistent with ADA especially
Article 11.3.
Continued imposing of anti-dumping duties after 5-year
term is amongst reasonably background that encourage
complaining countries to challenge US provisions on Anti-
Dumping, especially against Sunset Policy Bulletin and
Zeroing Methodology regulated.
Sunset Review related to Zeroing Methodology: DS 281,
DS294, DS322, DS325, DS344, DS350, DS382, DS420,
DS422, DS424, 429, DS464
Sunset Review Cases: In Numbers
1
1
1
1
1
1
1
1
2
2
2
3
3
3
4
5
6
6
6
6
9
9
10
11
12
0 2 4 6 8 10 12 14
Venezuela
New Zealand
Egypt
Colombia
Honduras
Ecuador
Russia
US
Hong Kong
Australia
Chile
Turkey
Viet Nam
Argentina
Canada
India
Brazil
Norway
Chinese Taipei
Mexico
South Korea
Thailand
China
EC/EU
Japan
Participating as Third Party/Observer
Sunset Review Cases: In Numbers
25 Countries being third party or observers. Almost
all observe when US being respondent party.

Japan being the most third party countries (12
cases). Followed by EU (11 cases)

Except Indonesia, all complaining countries have
also participated as observers.

Sunset Review Cases: In Numbers
8
38.10%
13
61.90%
Proceeding-Ended Level
Consultation
Panel
No. Level
Nbr of
Cases
1 Panel 13
2 Appellate 7
3
Compliance
Proceeding
5
Sunset Review Cases: In Number
The data show that sunset review cases are
almost solely belong to US.
US regulations are subject to be challenged US
regulations or provisions are allegedly against
and inconsistent with Article 11.3 of the Anti-
Dumping Agreement.
In addition, the data also show that it is possible
that many countries has well implemented
sunset review regime. Less number of sunset
review cases compared to other WTO cases.

Contents
I
II
IV
III
Activities of Study
Conclusion & The Way Forward

Sunset Review Cases in WTO: In
Numbers
Analysis on the Practice of Sunset
reviews in WTO cases

Article 11.3 does not prescribe any particular methodology to
be used by the investigating authorities in making likelihood
determination in a sunset review.
investigation authority may have its own initiatives in
determining any continuation or recurrence of dumping and
injury.
no requirement on the part of the investigation authority to
calculate or rely on the dumping margin in making a
determination of recurrence of dumping.

BUT in carrying out the determination under Article 11.3, it is
clear provision that it must be based on positive evidence, have
a sufficient factual basis, involve rigorous examination, and be
supported by reasoned and adequate conclusion
Practice by the United States:
1. reliance on the previous dumping margin
the United States Department of Commerce (USDOC) would refer
to the dumping margin that found in the original investigation or
from the previous administrative review in determination of
sunset review.

Both methods used either original investigation or an
administrative review is calculated by the zeroing method.

investigating authorities make reliance on the previous
dumping margin in determining the sunset review, the margin
must be consistent with the Article 2.4 of the Anti-Dumping
Agreement.

DS244 (US Corrosion Resistant Steel Sunset Review)
Appellate Body Report

In the CRS sunset review, USDOC based its determination that
dumping is likely to continue if the [CRS] order were revoked on the
existence of existence of dumping margins calculated in the
administrative review. If these margins were indeed calculated
using methodology that inconsistent with Article 2.4 an issue
that we examine below then USDOCs likelihood determination
could not constitute a proper foundation for the continuation
of anti-dumping duties under Article 11.3. Moreover, a legal
defect of this kind cannot be cured by Nippon Steel Corporations
failure to take issue with it in the CRS sunset review or the
administrative review

Most of the cases related to the practice of sunset review that
involves the United States, Appellate Body always come to the
conclusion that USDOC reliance on the past margins in
determining the sunset review is inconsistent with Article 11.3
of the Anti-Dumping Agreement.
DS350 (US Continued Zeroing), DS322 (US Zeroing
(Japan), DS244 (US Corrosion Resistant Steel Sunset
Review).

Even though the United States submitted argument that USDOC
has no longer use zeroing model in their original investigation,
but the Appellate body often found otherwise.

2. Cumulating imports from one country with imports from
other countries without applying the negligibility standard

the investigating authority in a sunset review from the United
States did not establish that there is no negligence on the
part of other countries before cumulating the imports.
determination of likelihood of continuation or recurrence of
injury will be inconsistent with the Anti-Dumping Agreement.
not fair to impose duties only on the ground that cumulative
assessment was made along with others exporters
3. USDOC will base its likelihood determination on an order-
wide basis and not company-specific basis. Refer to anti-
dumping duty that imposed on specific product. See also
Article 9.2.
order-wide : Refer to anti-dumping duty that imposed on
specific product.
company-specific :Refer to imposition of a duty in respect of
individual exporters or producers.

USDOC is to make a single determination of whether
revocation of the order would likely to lead continuation or
recurrence of dumping.
investigation has to be carried out on company-specific basis
where it is unfair to continue the anti-dumping duty to other
entity which is no longer or not engaging in dumping.

Similar principle applied to cumulative investigation.

Contents
I
II
IV
III
Activities of Study
Conclusion & The Way Forward

Sunset Review Cases in WTO: In
Numbers
Analysis on the Practice of Sunset
reviews in WTO cases

Conclusions and The Way Forward
US is being the most respondent country (17 of 21 cases).
The methodology (i.e. relying on initial anti-dumping margin,
zeroing, order-wide basis and company-specific basis) and
duration of review it implements to conduct this expiry review
seems inconsistent with Article 11.3 of the Anti Dumping
Agreement.
Sunset review is initiated by specific authority before a definitive anti-
dumping duty lapses to determine whether to continue or terminate the
anti-dumping duties imposed against exporters or producers of the
particulars goods. Sunset review is a new legal action agreed in the URAA
and GATT 1994. Since WTO established until now, there are 21 cases of
SR challenged in WTO (4.47% from the total 469 cases as of 20 November
2013).
Conclusions and The Way Forward
However, unclear methodology prescribed by Article 11.3
can be another cause. It may encourage investigation
authority to have its own initiatives in determining
continuation or recurrence of dumping and injury.
Conclusions and The Way Forward
In the future, it is necessary that the Anti-Dumping
Agreement is subject to revision especially relating to
sunset review methodology.
WTO should have clear provision regarding this to avoid
much unnecessary interpretations.
For country that does not have intention to implement
the DSB recommendation, the DSB or the WTO may
impose sanction of alienation of this countrys product
and encourage other countries to make retaliation
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