CRITICAL ANALYSIS OF THE PROVISIONS ON EVIDENCE AND FACTS AVAILABLE IN THE WTO AGREEMENT ON ANTIDUMPING

Abstract

This study critically examines the provisions on evidence and facts available under the World Trade Organization (WTO) Agreement on Antidumping (ADA), with a focus on Article 6.8 and Annex II. These provisions allow authorities to base determinations on the best facts available when interested parties fail to provide the necessary information or submit unverifiable data. While intended to facilitate effective antidumping investigations, their application has raised concerns regarding fairness, transparency, and consistency. Specifically, the use of adverse facts available (AFA) may disproportionately penalize foreign exporters, potentially leading to the unjust imposition of antidumping duties. The study explores the historical and theoretical framework of these provisions, identifies key legal and practical challenges, and examines landmark disputes such as United States – Antidumping Measures on Certain Shrimp from Viet Nam (DS404) and EC – Tube or Pipe Fittings (Brazil) (DS219). By analysing the complexities of evidence and facts available, the research highlights the tensions between domestic protection and equitable treatment of foreign exporters, as well as the inconsistencies in interpretations across WTO members. The study concludes with a set of recommendations aimed at enhancing the clarity, consistency, and fairness of antidumping investigations under the WTO framework, proposing reforms that align with the principles of due process and non-discrimination in international trade law.