Statement by the Delegation of Indonesia at the Meeting of the WTO Dispute Settlement Body, Korea – Anti Dumping Duties on Imports of Certain Paper from Indonesia
Indonesia was very disappointed with Korea’s statement regarding this matter at the DSB meeting on 18 May 2010 and regrets Korea’s continued lack of cooperation in this dispute.
Korea claims that it has taken steps to correct the violations identified by the Korea – Paper Article 21.5 panel. Korea attempts to classify these violations as “procedural” rather than “substantive” violations and suggests that Korea has corrected these faults. Indonesia is not aware of any formal distinction between “substantive” and “procedural” obligations under the Anti-Dumping Agreement. In fact, the main issue in this dispute involved Korea’s failure to comply with the requirements of the Anti-Dumping Agreement in selecting the information to be used to calculate the dumping margin for the Indonesian exporters. This was a very substantive issue – had Korea complied with its obligations, it would have calculated de minimis margins for the Indonesian exporter.
Moreover, nothing in the DSU grants a Member that has been found by an Article 21.5 panel not to have properly implemented recommendations and rulings of the DSB unlimited opportunities to attempt compliance solely because the Member characterises its violations as “procedural”. In this case, Korea’s position appears to be that it can repeatedly make cosmetic changes to the wording of its determination, without ever addressing the substance of the problem.
This is very different to the standard to which Korea holds other WTO Members, even with respect to so-called “procedural” violations. For example, in its third party submission in US – Oil Country Tubular Goods Sunset Reviews (Article 21.5 – Argentina), Korea described Article 6 of the Anti-Dumping Agreement – the same provision it was found to have violated in the Korea – Paper Article 21.5 proceeding – as involving “fundamental due process rights that must be ensured at all times” and that if a defending Member fails to implement the recommendations and rulings of the DSB with respect to Article 6 rights, “the only way to bring the measure into conformity with the relevant provisions of the covered agreements is to revoke it”. Indonesia sees no reason why Korea should itself be subject to a different standard than the standard Korea would apply to other WTO Members.
Korea’s failure to implement the DSB’s recommendations and rulings is relevant today because Korea has recently initiated a sunset review that may lead to the continuation of this WTO-inconsistent measure for several more years.
Indonesia regrets that despite the findings of the two panels in this dispute, and despite repeated requests from Indonesia to resolve this dispute in a cooperative manner, Korea seems intent on maintaining this WTO-inconsistent measure no matter what.
Indonesia once again requests Korea to make a serious effort to resolve this dispute. Meanwhile, Indonesia retains its rights under the DSU arising out of to the Article 21.5 panel report.
Geneva, 22 June 2010