ACT NO. XIV OF 2015

ANTI-DUMPING DUTIES ACT, 2015

An Act to reform and repeal the Anti-Dumping Duties Ordinance, 2000

[Gazette of Pakistan, Extraordinary, Part-I, 10th September, 2015]

No. F. 22(17)/2015-Legis., dated 8.9.2015.–The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on the 5th September, 2015 and is hereby published for general information:–

WHEREAS it is expedient to give effect in Pakistan to the provisions of Article VI of the General Agreement on Tariffs and Trade, 1994, and to the Agreement on Implementation thereof and to amend and consolidate the law relating to imposition of anti-dumping duties to offset such dumping, to provide a framework for investigation and determination of dumping and injury in respect of goods imported into Pakistan and for matters ancillary thereto or connected therewith;

AND WHEREAS the imposition of anti-dumping duties to offset injurious dumping is in the public interest;

AND WHEREAS it is expedient to provide for certain reforms in the Anti-Dumping Duties Ordinance, 2000 (LXV of 2000), by repealing the said Ordinance and re-enacting the law for the purposes hereinafter appearing;

It is hereby enacted as follows:–

PART I

PRELIMINARY

1.  Short title, extent and commencement.–(1) This Act may be called the Anti-Dumping Duties Act, 2015.

(2)      It extends to the whole of Pakistan.

(3)      It shall come into force at once.

2.     Definitions.–In this Act, unless there is anything repugnant in the subject or context,–

(a)      “Appellate Tribunal” means the Appellate Tribunal established under Section 64;

(b)      “Commission” means the National Tariff Commission established under the law for the time being in force;

(c)      “Country” means any country or territory whether a member of the World Trade Organisation or not and includes a customs union or separate customs territory;

(d)      “Domestic industry” means the domestic producers as a whole of a domestic like product or those whose collective output of that product constitutes a major proportion of the total domestic production of that product; except when any such domestic producers are related to the exporters or importers, or are themselves importers of the allegedly dumped investigated product. In such a case “domestic industry” may mean the rest of the domestic producers:

          Explanation.–For the purposes of this clause, producers shall be deemed to be related to exporters or importers only if–

(i)       one of them directly or indirectly controls the other;

(ii)      both of them are directly or indirectly controlled by the same third person; or

(iii)     together they directly or indirectly control a third person:

          Provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers. For that purpose one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter;

          Provided further that, in exceptional circumstances, as may be determined by the Commission, domestic industry in relation to a product in question may be divided into two or more competitive markets and producers within each such market may be regarded as a separate industry if–

(i)       the producers within such a market sell all or almost all of their production of the product in question in such a market; and

(ii)      the demand in such a market is not, to any substantial degree, supplied by producers of the product in question located elsewhere in Pakistan;

(e)      “Domestic like product” means a “like product” that is produced by the domestic Industry;

(f)       “Dumping margin” in relation to a product, means the amount by which its normal value exceeds its export price;

(g)      “Export price” means export price determined in accordance with Part IV of this Act;

(h)      “Exporting country” means, save as provided in sub-section (3) of Section 5, a country from which an investigated product is exported to Pakistan;

(i)       “Injury” means, unless otherwise specified, material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of a domestic industry, when dumped imports are causing such injury;

(j)       “interested party” includes–

(i)       any exporter or foreign producer of an investigated product;

(ii)      any importer of an investigated product;

(iii)     trade or business association a majority of the members of which are producers, exporters or importers of an investigated product;

(iv)     the government of an exporting country;

(v)      any producer of a domestic like product in Pakistan;

(vi)     trade or business associations a majority of the members of which produce a domestic like product in Pakistan; and

(vii)    such other person or group of persons as the Commission may, by notification in the official Gazette, specify;

(k)      “investigated product” means a product which is subject to an anti-dumping investigation as described in the notice of initiation of the investigation;

(l)       “investigation” means an investigation conducted under this Act;

(m)     “like product” means a product which is alike in all respects to an investigated product or, in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the investigated product;

(n)      “Normal value” means normal value determined in accordance with Part III of this Act;

(o)      “prescribed” means prescribed by rules made under this Act; and

(p)      “WTO” means the World Trade Organisation established pursuant to the Marrakesh Agreement concluded in Marrakesh, Morocco, on the 15th of April, 1994.

PART II

ANTI-DUMPING MEASURES

3.  Levy of anti-dumping duty.–(1) The Commission shall, by notification in the official Gazette, impose anti-dumping measures on products imported into Pakistan when it determines, pursuant to an investigation initiated and conducted in accordance with the provisions of this Act that–

(a)      an investigated product is dumped within the meaning of this Act; and

(b)      injury is being caused to domestic industry within the meaning of this Act.

PART III

IDENTIFICATION OF DUMPING AND DETERMINATION OF NORMAL VALUE

4.     Identification of dumping.–For the purposes of this Act an investigated product shall be considered to be dumped if it is introduced into the commerce of Pakistan at a price which is less than its normal value.

5.     Normal value based on prices in exporting country.–(1) Save as provided for in Section 6, the Commission shall establish normal value of an investigated product on the basis of comparable price paid or payable, in the ordinary course of trade, for sales of a like product when destined for consumption in an exporting country.

(2)      Notwithstanding anything contained in sub-section (1), the Commission may establish normal value of an investigated product on the basis of comparable price paid or payable in the ordinary course of trade for sales of a like product when destined for consumption in the country of origin of the investigated product if–

(a)      such products are not produced in an exporting country; or

(b)      there is no comparable price for them in an exporting country.

(3)      In the event the Commission decides to establish normal value on the basis of the country of origin of an investigated product pursuant to sub-section (2), any reference to an exporting country in this Act shall be deemed to refer to the country of origin of the investigated product.

6.     Normal value based on export price to a third country or on constructed value.–(1) When there are no sales of a like product in the ordinary course of trade in domestic market of an exporting country, or when such sales do not permit a proper comparison because of any particular market situation or low volume of the sales in the domestic market of the exporting country, the Commission shall establish normal value of an investigated product on the basis of either–

(a)      a comparable price of the like product when exported to an appropriate third country provided that this price is representative; or

(b)      the cost of production in the exporting country plus a reasonable amount for administrative, selling and general costs and for profits.

(2)  Sales of the like product destined for consumption in the domestic market of the exporting country or sales to an appropriate third country shall normally be considered to be a sufficient quantity for the determination of normal value if such sales constitute five per cent or more of the sales of the investigated product to Pakistan:

Provided that, if such sales constitute less than five per cent of the sales of the investigated product to Pakistan, the Commission shall accept a lower ratio if, on the basis of evidence submitted by interested parties or otherwise available to it, it is satisfied that sales at such lower ratio are nonetheless of sufficient magnitude to provide for a proper comparison.

7.     Circumstances in which certain sales may be disregarded in determining normal value.–(1) The Commission may treat sales of a like product in domestic market of an exporting country or sales to a third country at prices below per unit, fixed and variable, cost of production plus administrative, selling and other costs as not being in the ordinary course of trade by reason of price and may disregard such sales in determining normal value only if the Commission determines that such sales were made–

(a)      within an extended period of time which shall normally be a period of one year and in no case less than a period of six months;

(b)      in substantial quantities; and

(c)      at prices which do not provide for the recovery of all costs within a reasonable period of time.

(2)      For the purposes of sub-Clause (b) of sub-section (1), sales below per unit cost shall be deemed to be in substantial quantities if the Commission establishes that–

(a)      a weighted average selling price of transactions under consideration for the determination of normal value is below a weighted average cost; or

(b)      the volume of sales below per unit cost represents twenty per cent or more of the volume sold in transactions under consideration for the determination of normal value.

(3)      If prices which are below per unit cost at the time of sale are above the weighted average cost for the period of investigation, the Commission shall consider such prices as providing for recovery of costs within a reasonable period of time.

8.     Calculation of costs for the purposes of Sections 6 and 7.–(1) For the purposes of Sections 6 and 7, the Commission shall normally calculate costs on the basis of records kept by an exporter or a producer under investigation provided that such records are in accordance with the generally accepted accounting principles of an exporting country and reasonably reflect the costs associated with the production and sale of a like product.

(2)  For the purposes of Sections 6 and 7, the amounts for administrative, selling and general costs and for profits shall be based on actual data pertaining to production and sales in the ordinary course of trade of a like product for consumption in an exporting country by any exporter or producer under investigation:

Provided that where the Commission is satisfied that such amounts cannot be determined on the basis set out in sub-section (2), the amounts may be determined on the basis of–

(a)      the actual amounts incurred and realised by an exporter or a producer in question in respect of production and sales in domestic market of an exporting country of the same general category of products;

(b)      the weighted average of the actual amounts incurred and realised by other exporters or producers subject to investigation in respect of production and sales of a like product in domestic market of an exporting country; or

(c)      any other reasonable method provided that the amount for profit so established shall not exceed the profit normally realised by other exporters or producers on sales of products of the same general category in domestic market of an exporting country of a like product.

(3)      The Commission shall consider all available evidence on the proper allocation of costs, including such information as is made available by any exporter or producer of a like product in the course of an investigation provided that such allocations have been historically utilised by the exporter or producer, in relation to establishing appropriate amortisation and depreciation periods and allowances for capital expenditures and other development cost, as the case may be.

(4)      Unless already reflected in the cost allocations under this section, the Commission shall adjust costs appropriately for those non-recurring items of cost which benefit either future or current production or both, or, for circumstances in which costs during the period of investigation are affected by start-up operations. Such adjustment made for start-up operations shall reflect the costs at the end of the start-up period or, if that period extends beyond the period of investigation, the most recent costs which can reasonably be taken into account by the Commission during the investigation.

9.  Exports from a country in which the government exercises sufficient control over economic decisions so that the domestic market does not operate freely.–(1) Where the Commission determines that the government of an exporting country exercises sufficient control over economic decisions so that domestic market of such exporting country does not operate freely, the Commission may, determine normal value on the basis of–

(a)      a comparable price paid or payable, in the ordinary course of trade, for sales of a like product when destined for consumption in an appropriate market economy country;

(b)      where the Commission determines that the provisions of Clause (a) cannot be applied, a comparable price paid or payable, in the ordinary course of trade, for exports of a like product from an appropriate market economy country to other countries, including Pakistan;

(c)      where the Commission determines that the provisions of clauses (a) and (b) may not be applied, a price actually paid or payable in Pakistan for a domestic like product, duly adjusted if necessary to include a profit margin corresponding to the margin to be expected under the existing economic circumstances for the sector concerned; or

(d)      where the Commission determines that the provisions of clauses (a), (b) and (c) may not be applied, any other reasonable basis.

(2)  In identifying an appropriate market economy country for the purposes of sub-section (1), the Commission shall take into account factors such as,–

(a)      similarity of the product in terms of materials and end use;

(b)      similarity of production methods; and

(c)      availability of necessary information to the Commission.

PART IV

DETERMINATION OF EXPORT PRICE

10.  Export price.–(1) Save as provided for in sub-Sections (2) and (3), an export price shall be a price actually paid or payable for an investigated product when sold for export from an exporting country to Pakistan.

(2)      In cases where there is no export price or where it appears to the Commission that an export price is unreliable because of association or a compensatory arrangement between an exporter and an importer or a third party–

(a)      the export price may be constructed on the basis of a price at which imported products are first resold to an independent buyer; or

(b)      if the imported products are not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as the Commission may determine.

(3)      Where, the Commission determines normal value on the basis of the country of origin pursuant to sub-section (2) of Section 5, an export price shall be a price actually paid or payable, as determined by the Commission, for an investigated product when sold for export in the country of origin of the investigated product.

PART V

COMPARISON BETWEEN NORMAL VALUE AND EXPORT PRICE

11.   Comparison.–(1) To ensure a fair comparison between export price and normal value, the Commission shall, where possible, compare export price and normal value with the same characteristics in terms of level of trade, time of sale, quantities, taxes, physical characteristics, conditions and terms of sale and for delivery at the same place which shall normally be at ex-factory level. Where an interested party demonstrates to the Commission that any of the factors set out in this sub-section or any other factors identified by such interested party affect price comparability, the Commission shall make due allowance for differences in such factors to the extent that the same affect price comparability.

(2)      In cases where export price is constructed on the basis of a price at which imported products are first resold to an independent buyer pursuant to sub-Clause (a) of sub-section (2) of Section 10, allowances for costs including duties and taxes incurred between importation and resale, and a reasonable amount for profits accruing, may also be made. If in such cases price comparability has been affected, the Commission shall establish normal value at a level of trade equivalent to a level of trade of a constructed export price, or shall make due allowance as warranted under this section.

(3)      The Commission shall indicate to the parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties.

12.   Comparison methods.–(1) Subject to Section 11, existence of dumping margin shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions or by a comparison of normal value and export prices on a transaction-to- transaction basis.

(2)  Normal value established on a weighted average basis may be compared to prices of individual export transactions if–

(a)      the Commission finds a pattern of export prices, which differs significantly among different purchasers, regions or time periods; and

(b)      the Commission provides an explanation as to why such differences cannot be taken into account appropriately by the use of a weighted average-to-weighted average or transaction-to-transaction comparison.

13.   Currency conversion.–(1) Should the price comparison under Sections 11 and 12 require a conversion of currencies, the Commission shall make such conversion using the rate of exchange on the date of sale.

(2)      For the purposes of sub-section (1) the date of sale shall normally be the date of contract, purchase order, order confirmation or invoice whichever establishes the material terms of sale.

(3)      Notwithstanding anything in sub-Sections (1) and (2), when a sale of foreign currency on forward markets is used in direct relation to an export sale, the Commission shall use the rate of exchange in the forward sale for all the related transactions.

(4)      The Commission shall ignore fluctuations in exchange rates and shall allow exporters at least sixty days to have adjusted their export prices to reflect sustained movements in exchange rates during the period of investigation.

14.   Individual dumping margin.–(1) The Commission shall determine an individual dumping margin for each known exporter or producer of an investigated product.

(2)      Notwithstanding anything contained in sub-section (1), where the Commission is satisfied that the number of exporters, producers or importers, or types of products involved is so large as to make it impracticable to determine an individual dumping margin for each known exporter or producer concerned of an investigated product, the Commission may limit its examination to a reasonable number of interested parties or investigated products by using samples which are statistically valid on the basis of information available to the Commission at the time of selection, or to the largest percentage of volume of exports from the country in question which can reasonably be investigated.

(3)      The selection of exporters, producers, importers or types of products shall normally be made by the Commission in consultation with the exporters, producers or importers concerned:

Provided that the final selection of the exporters, producers, importers or types of products shall rest with the Commission.

(4)      In cases where the Commission has limited its examination as provided for in sub-Sections (2) and (3), the Commission shall nevertheless determine an individual dumping margin for any exporter or producer who voluntarily submits the necessary information in time for that information to be considered during the course of an investigation:

Provided that where the Commission determines that the number of exporters or producers is so large that individual examinations would be unduly burdensome to the Commission and prevent the timely completion of the investigation, the Commission may decline to determine an individual dumping margin on the basis of such voluntary responses and limit its examination to such exporters and producers selected pursuant to sub-section (2).

PART VI

DETERMINATION OF INJURY

15.  Determination of injury.–(1) A determination of injury, for the purposes of this Act shall be based on an objective examination of all relevant factors by the Commission which shall include but shall not be limited to–

(a)      volume of dumped imports;

(b)      effect of dumped imports on prices in domestic market for like products; and

(c)      consequent impact of dumped imports on domestic producers of such products.

(2)      With regard to volume of dumped imports, the Commission shall consider whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in Pakistan.

(3)      With regard to effect of dumped imports on prices in domestic market, the Commission shall consider whether–

(a)      there has been a significant price undercutting by the dumped imports as compared with price of a domestic like product; or

(b)      whether the effect of dumped imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree.

(4)      No one or several of the factors identified in sub-section (2) or (3) shall be deemed to necessarily give decisive guidance and the Commission may take into account such other factors as it considers relevant for the determination of injury.

(5)      In circumstances where domestic industry in relation to a product in question has been divided into two or more competitive markets, and producers within each such market are regarded as a separate industry under the second proviso to the explanation to Clause (e) of Section 2, injury may be found to exist even where a major portion of the total domestic industry does not suffer injury provided that, there is a concentration of dumped imports into such a market, and provided further that dumped imports are causing injury to the producers of all or almost all of the production within such market.

16.   Cumulation.–Where imports of a like product from more than one country are the subject of simultaneous investigations under this Act the Commission may cumulatively assess the effects of such imports on domestic industry only if it determines that–

(a)      dumping margin in relation to an investigated product from each country is more than the negligible amount as specified in Clause (a) of sub-section (3) of Section 41, and volume of dumped imports from each investigated country is not less than the negligible quantity as specified in Clause (b) of sub-section (3) of Section 41; and

(b)      a cumulative assessment of the effects of the imports is appropriate in the light of–

(i)       the conditions of competition between the imports; and

(ii)      the conditions of competition between the imports and a domestic like product.

17.   Examination of impact of dumped imports on domestic industry.–(1) An examination of impact of dumped imports on domestic industry concerned shall include an evaluation by the Commission of all relevant economic factors and indices having a bearing on the state of the domestic industry, including, but not limited to–

(a)      actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilisation of capacity;

(b)      factors affecting domestic prices;

(c)      magnitude of dumping margin; and

(d)      actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments.

          Explanation.–The list of factors specified in sub-section (1) shall not be exhaustive, nor shall one or several of these factors be deemed to necessarily give decisive guidance.

(2)  The Commission shall assess effect of dumped imports in relation to production of a domestic like product in Pakistan when available data permit separate identification of that production on the basis of criteria of production process, producer’s sales and profits:

Provided that if such separate identification of that production is not possible, the Commission shall assess effects of dumped imports by examination of the production of the narrowest group or range of products, which includes a domestic like product, for which necessary information can be provided.

18.   Causation.–(1) The Commission shall satisfy itself that dumped imports are, through the effects of dumping, as provided in Sections 15 and 17, causing injury within the meaning of this Act. The consideration of a causal relationship between dumped imports and injury to domestic industry shall be based on an examination by the Commission of all relevant evidence before it.

(2)      The Commission shall examine any known factors other than dumped imports which are injuring domestic industry and injuries caused by such other factors shall not be attributed by the Commission to the dumped imports.

(3)      Factors which may be relevant for the purposes of an examination by the Commission pursuant to sub-section (2) may include the following, namely:–

(a)      volume and price of imports not sold at dumping prices;

(b)      contraction in demand or changes in the patterns of consumption;

(c)      trade restrictive practices of and competition between foreign and domestic producers;

(d)      developments in technology; and

(e)      export performance and productivity of domestic industry.

19.   Threat of material injury.–(1) In making a determination regarding existence of a threat of material injury, the Commission shall consider all relevant factors, including but not limited to, such factors as–

(a)      a significant rate of increase of dumped imports into domestic market indicating the likelihood of substantially increased importation;

(b)      sufficient freely disposable, or an imminent and substantial increase in capacity of an exporter indicating the likelihood of substantially increased dumped exports to market in Pakistan, taking into account the availability of other export markets to absorb any additional exports;

(c)      whether imports are entering at prices that shall have a significant depressing or suppressing effect on prices in Pakistan, and would likely increase demand for further imports; and

(d)      inventories of an investigated product.

(2)  No one factor specified in sub-section (1) shall by itself, be deemed to necessarily give decisive guidance and in making a determination regarding a threat of material injury the Commission shall, on the basis of the totality of the factors considered, satisfy itself that further dumped exports are imminent and that, unless protective action is taken, material injury shall occur.

PART VII

INITIATION AND CONDUCT OF INVESTIGATIONS

20.   Requirement of a written application.–(1) Subject to Section 24 and save as provided for in Section 25, an investigation by the Commission shall only be initiated upon a written application by or on behalf of domestic industry.

(2)  An application under sub-section (1) shall–

(a)      be submitted to the Commission in such manner, number and form and with such fee as may be prescribed;

(b)      include evidence of dumping and injury within the meaning of this Act and the causal link between the dumped imports and the alleged injury, as is reasonably available to the applicant; and

(c)      contain such further information as may be prescribed.

21.   Notice to Government of exporting country.–Upon receipt of a duly documented application compliant with the requirements of Sections 20 and 24, the Commission shall promptly give notice to the government of each exporting country of the receipt of such application.

22.  Withdrawal of application before initiation.–An application under Section 20 may be withdrawn prior to initiation, in which case it shall be considered not to have been made:

Provided that upon the withdrawal of an application any fee paid along with the application pursuant to Clause (i) of sub-section (2) of Section 20 shall stand forfeited in favour of the Commission.

23.  Initiation of an investigation.–(1) Subject to Section 24, the Commission shall examine accuracy and adequacy of evidence provided in an application to determine whether it is compliant with the requirements of Section 20 and if so whether there is sufficient evidence to justify initiation of an investigation.

(2)  An application under Section 20 shall be rejected as soon as the Commission is satisfied that sufficient evidence is not available to indicate dumping or any injury to justify initiation of an investigation.

(3)      The Commission may seek additional information from an applicant before deciding whether to initiate an investigation and such information shall be provided by the applicant to the Commission within such time and in such manner as may be prescribed.

(4)      When the Commission is satisfied that–

(a)      an application under Section 20 has been made by or on behalf of domestic industry; and

(b)      there is sufficient evidence of dumping and injury within the meaning of this Act,

the Commission shall initiate an investigation.

(5)      Where the Commission does not consider it appropriate to initiate an investigation, it shall inform all the applicants of the reasons for not initiating the investigation and shall inform the exporting country of its decision.

24.   Application by or on behalf of domestic industry.–(1) For the purposes of Section 20, an application shall be considered to have been made by or on behalf of domestic industry only if it is supported by those domestic producers whose collective output constitutes more than fifty per cent of the total production of a domestic like product produced by that portion of the domestic industry expressing either support for or opposition to the application.

(2)      For the purposes of Section 23, no investigation shall be initiated when domestic producers expressly supporting an application account for less than twenty-five percent of the total production of a domestic like product produced by domestic industry.

(3)      In the case of fragmented industries involving an exceptionally large number of producers, the Commission may determine support and opposition for an application submitted under Section 20 by using statistically valid sampling techniques.

25.   Self-initiation.–The Commission may, suo moto, initiate an investigation without having received a written application by or on behalf of domestic industry if it has sufficient evidence of dumping and injury, within the meaning of this Act to justify initiation of an investigation.

26.   Imposition of anti-dumping measures on behalf of a third country.–(1) An application for imposition of anti-dumping measures may be made to the Commission on behalf of a third country by its authorities provided that–

(a)      such application is supported by price information to show that imported goods are being dumped and by detailed information to show that such dumping is causing injury to domestic industry concerned in the third country; and

(b)      the government of the third country affords all assistance to the Commission to obtain such further information as the Commission may require.

(2)      In considering an application received under sub-section (1), the Commission shall consider the effects of alleged dumping on the industry concerned as a whole in the third country and injury shall not be assessed in relation only to the effect of the alleged dumping on the industry’s exports to Pakistan or on the industry’s total exports of the product.

(3)      The decision whether or not to initiate an investigation pursuant to an application received under sub-section (1) shall rest with the Commission:

Provided that the Commission shall not initiate such investigation until the Federal Government has requested and received approval for such an initiation from the Council for Trade in Goods of the WTO.

27.   Notice of decision to initiate investigation.–(1) When the Commission has decided to initiate an investigation it shall:-

(a)      give notice to all exporters, importers and any representative associations of importers or exporters known to the Commission to be concerned, as well as representatives of the exporting country, the applicant and other interested parties known to the Commission to have an interest therein; and

(b)      publish a copy of such notice in the official Gazette and in at least one issue each of a daily newspaper in the English language and a daily newspaper in the Urdu language having wide circulation in Pakistan.

(2)  The notice of initiation of an investigation referred to in sub-section (1) shall be in such form and contain such information as may be prescribed and the initiation of investigation shall be effective on the date on which such notice is published in the newspapers as provided for in Clause (b) of sub-section (1).

28.   Provision of copy of an application.–Subject to the requirement to protect confidential information pursuant to Section 31, the Commission shall, after initiation of an investigation, provide to any interested party the full text of the written application received by the Commission under sub-section (1) of Section 20:

Provided that where the Commission determines that the number of interested parties is particularly high, the Commission shall only provide the full text of the written application received by it under sub-section (1) of Section 20 to exporting country or to the relevant trade association of exporting country.

PART VIII

CONDUCT OF INVESTIGATIONS

29.   Duration of investigation.–The Commission shall, except in special circumstances, conclude an investigation within twelve months, and  in no case more than eighteen months, after its initiation.

30.   Customs clearance.–Any proceedings or investigation under this Act shall not hinder the procedures of customs clearance.

31.   Confidentiality.–(1) Subject to sub-section (2), the Commission shall, during and after an investigation, keep confidential any information submitted to it and such information shall not be disclosed without specific permission of the party submitting it.

(2)      Any information which is–

(a)      by nature confidential, because its disclosure shall be of significant competitive advantage to a competitor, or because its disclosure would have a significantly adverse effect upon a person supplying the information, or upon a person from whom the information was acquired;

(b)      determined by the Commission to be of a confidential nature for any other reason; or

(c)      provided as confidential by parties to an investigation, shall, on good cause shown, be kept confidential by the Commission.

(3)      The following types of information shall be deemed to be by nature confidential, unless the Commission determines that disclosure in a particular case would neither be of significant competitive advantage to a competitor nor have a significantly adverse effect upon a person supplying the information or upon a person from whom such information was acquired, namely:–

(a)      business or trade secrets concerning the nature of a product, production processes, operations, production equipment, or machinery;

(b)      information concerning financial condition of a company which is not publicly available; and

(c)      information concerning costs, identification of customers, sales, inventories, shipments, or amount or source of any income, profit, loss or expenditure related to manufacture and sale of a product.

(4)      Any party seeking any information to be kept confidential shall request for the same at the time the information is submitted, along with the reasons warranting confidentiality. The Commission shall consider such request expeditiously and inform the party submitting the information if it determines that the request for keeping the information confidential is not warranted.

(5)      Any party submitting any information with the request to keep it confidential shall furnish non-confidential summary of all such information. Such summary may take the form of ranges or indexation of figures provided in the confidential version or marked deletions in text or in such other form as the Commission may require:

Provided that such non-confidential summary shall permit a reasonable understanding of the substance of the information submitted in confidence:

Provided further that any deletion in text shall, unless otherwise allowed by the Commission, only relate to names of the buyer or supplier.

(6)      In exceptional circumstances, any party submitting confidential information may indicate that such information is not susceptible of summary, in which case a statement of the reasons why summarisation is not possible shall be provided. If the Commission concludes that the non-confidential summary provided fails to satisfy the requirements of sub-section (5), it may determine that the request for keeping the information confidential is not warranted.

(7)      If the Commission finds that a request for keeping the information confidential is not warranted, and if the supplier of such information is unwilling to make it public or to authorise the disclosure in generalised or summary form, the Commission shall disregard such information and return the same to the party submitting it.

(8)      Subject to sub-section (9), notwithstanding anything contained in this Act or in any other law for the time being in force, any confidential information received or obtained, directly or indirectly, by the Commission pursuant to or in connection with an investigation shall not be subject to disclosure by the Commission to any Ministry, Division, department, agency or instrumentality of the Federal Government or a Provincial Government without the prior permission of the party submitting such confidential information.

(9)      The provisions of sub-section (8) shall not preclude the supply of any information called for by the Appellate Tribunal pursuant to Section 72:

Provided that the obligation to protect confidential information as provided for in this Chapter shall, mutatis mutandis, extend to the Appellate Tribunal.

32.   Reliance on best information available.–(1) Subject to sub-section (2), if, at any time during an investigation, any interested party–

(a)      refuses access to, or otherwise does not provide, necessary information within the period of time as may be prescribed; or

(b)      otherwise significantly impedes the investigation, the Commission may reach preliminary and final determinations, whether affirmative or negative, on the basis of the best information available.

(2)      The provisions of the Schedule to this Act shall be followed in the application of sub-section (1).

(3)      The Commission shall take due account of any difficulties experienced by interested parties, in particular, small companies, in supplying information requested by it and may, where it deems fit, provide such assistance as is practicable including, but not limited to, extension of any time period prescribed for submission of information under this Act.

(4)      The Commission shall satisfy itself of the accuracy of the information supplied by interested parties during the course of an investigation in such manner as may be prescribed.

33.   Information to parties.–The Commission shall provide an opportunity to all interested parties to see information submitted to it, which is not confidential and is relevant to the presentation of their case.

PART IX

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By |2016-07-03T18:01:18+00:00July 3rd, 2016|Laws|0 Comments

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