The same decision included a provision to negotiate improvements and clarifications of the Dispute Settlement Understanding (DSU) with a view for completion as early as May 2003.  

II. Issues:

The negotiations on the Anti-Dumping Agreement (ADA) and Subsidies and Countervailing measures (ASCM) have focused on issues affecting the conduct of investigations by domestic authorities in the event of injurious dumped or subsidized imports.  A related topic being discussed under the ASCM is fisheries subsidies. 

The various proposals are meant to define and/or re-define certain terms and to prescribe the rules on the implementation of specific concepts under the related agreements, all of which have a bearing on the determination of whether anti-dumping measures or countervailing measures are appropriate and at what level and duration.  The related topic on fisheries subsidies intends to determine which ones are to be prohibited.

The issues affecting RTAs include systemic issues related with the "Multilateral Trading System (MTS)".  With the proliferation of regional trading arrangements (RTAs), questions now arise as to whether RTAs should be reviewed and disciplined solely under GATT Article XXIV.  Developing countries for example are allowed to implement preferences among themselves under the "Enabling Clause".  Article XXIV RTAs are reviewed by the Committee on RTAs while preferences under the "Enabling Clause" are within the purview of the Committee on Trade and Development.

The issues affecting dispute settlement include questions on participation by parties and non-parties to the dispute.

The following list provides a rundown of the issues and the motivation behind the proposals:

• Anti-Dumping

1. On-Site Investigations - to determine topics and documents to be reviewed.

2. Use of an All-Others Rate and Facts Available - to determine appropriate use.

3. Fair Comparisons - to determine appropriate methods.

4. Affiliated Parties - to define.

5. Initiation/Completion of Investigations - to determine appropriate periods.

6. Preliminary Determination and Provisional Measures' to determine whether or not mandatory.

7. Same Level of Trade - to define.

8. Like Products and Products for Consideration - to define in the importing Member in order to determine margins of dumping and in the exporting Member to determine the normal value.

9. Domestic Industry - to re-define.

10. Indicators of Injury as well as Causation - to define.

11. Accrual Of Interest In Computing Dumping Margins - to determine appropriate use.

12. De-Minimis and Negligible - to define margins of dumping and volume of imports, respectively.

13. Standard Questionnaires - to design.

14. Lesser Duty Rule - to determine if to be made mandatory.

15. Public Interest Rule - to factor in.

16. Material Retardation - to define and determine its use.

17. Conversion of Currencies - to determine appropriate methods.

18. Changed Circumstances - to define.

19. Conditions of Competition - to define.

20. Concept of Cumulation - to determine appropriate use.

21. Disclosure of Essential Facts - to determine appropriate use.

22. Sunset Reviews - to determine necessity and timing.
    

• Subsidies and Countervailing Measures

1. On-Site Investigations - to determine topics and documents to be reviewed.

2. Serious Prejudice - to re-instate the use.

3. Cost-to-Government and Benefit-to-Recipient Approaches - to determine ad valorem subsidization.

4. Market Share Analysis - to determine causation.

5. Expensing Versus Allocating Subsidy Benefits - to prescribe appropriate methods to attribute subsidies per year or allocated over time.

6. Initiation/Completion of Investigations - to prescribe appropriate periods.

7. Preliminary Determination - to determine whether or not mandatory.

8. Like Products, etc. - to define rules for comparison.

9. Causation - to prescribe appropriate methods to determine.
   

• Subsidies Including Fisheries Subsidies

1. Permissible Areas - to define allowable fisheries subsidies.

2. Prohibited Areas - to define prohibited fisheries subsidies.

3. Structure of Negotiations - to prescribe appropriate approaches to the negotiations.

4. Top-Down/Bottoms-Up Approach - to prescribe appropriate approaches to the negotiations.  Top-Down would imply prohibition of all subsidies in the first instance and defining exceptions to the prohibitions (includes the US, Australia, Brazil, Chile, Pakistan, Venezuela and the Philippines), while Bottoms-Up (Japan and Korea) will imply defining first what is to be prohibited and then negotiate disciplines for the remaining subsidies.  The EU is open to a combination of the two approaches.

5. Aquaculture - to define and prescribe inclusion or otherwise of assistance provided in the definition of subsidies and the appropriate disciplines.

6. Small Vulnerable Coastal States - to define and prescribe inclusion or otherwise of assistance provided in the definition of subsidies and the appropriate disciplines. Includes issues on what to do with assistance provided for "artisanal" and small scale fishing.
   

• Regional Trading Arrangements (RTAs)

1. Systemic Issues/Coherence of WTO Rules - to prescribe the relationships under the MTS.

2. Development-Related Flexibilities - to define and prescribe rules that will benefit developing countries.

3. RTAs and the MTS - to prescribe the relationships under the MTS.

4. Effects on Non-Parties - to prescribe rules.

5. Retroactivity - to prescribe rules.

6. Way Forward - to prescribe rules.

7. Transparency of RTAs - to prescribe rules on notifications and subsequent reviews.

8. Scope - to prescribe extent of information required for notifications.

9. Early Announcement - to determine necessity and when.

10. Notification to WTO - to prescribe period and information required.

11. First Review of Notified RTAs - to prescribe period and content.

12. Subsequent Notification and Reporting - to prescribe period and content.

13. Role of WTO Bodies - to define inter-relationships.

14. Substantially All Trade - to define either by tariff lines or by trade volumes.

15. Enabling Clause - to determine the appropriate application to developing countries and to define its relationship with the MTS where developing countries are involved in FTAs with developed countries or by themselves.

16. Accession by Third Parties - to prescribe rules.
    

• Dispute Settlement Understanding

1. Transparency - to prescribe rules for participation of interested and other parties.

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III.  Status

There has been practically no movement towards consensus even while a big number of proposals have been tabled particularly in the areas of anti-dumping and subsidies and countervailing measures. 

In respect of RTAs, the chair has indicated that Members cannot seem to agree on anything.  

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IV.  Unofficial Policy Thinking and Suggestions

The Philippines should work to retain existing investigative discretion of authorities in pursuing trade remedies like anti-dumping and countervailing duties.  The Philippines should also work towards the development of further disciplines on subsidy practices, especially by developed countries.  In this regard, the country should endeavour to develop predictable disciplines on fisheries subsidies to reverse over-capacity and over-fishing.

In the area of RTAs, the Philippines should ensure that the rules will remain faithful to the MFN principle and not lead to the marginalization of non-RTA participants.  The Philippines should also ensure that any resulting rules on RTAs should be able to accommodate existing RTAs and provide the leeway to negotiate other bilateral and/or regional FTAs and EPAs particularly in respect of any agreed disciplines on transparency and related definitions on "substantially all trade".

The Philippines should support the "outlawing" of the "carousel" practice during retaliation and should join those who oppose the proposal on external transparency and modalities for amicus curiae submissions.

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