FACTUAL ASPECTS

II. FACTUAL ASPECTS

  2.1 On 30 September 2002, the Korea Trade Commission ("the KTC") received an application from the Korean producers for the initiation of an anti-dumping investigation on the imports of "business information paper and wood-free printing paper" originating in China and Indonesia. The KTC sent questionnaires to four Indonesian companies: PT Indah Kiat Pulp and Paper Tbk ("Indah Kiat"), PT Pindo Deli Pulp and Paper Mills ("Pindo Deli"), PT Pabrik Kertas Tjiwi Kimia Tbk ("Tjiwi Kimia"), and PT Riau Andalan Kertas ("April Fine"). The KTC initiated the investigation on 14 November 2002 and issued the public notice of initiation on 26 November 2002. The original deadline for responses to the questionnaires sent to Indonesian companies was extended

  2.2 The KTC carried out, between 24-27 March 2003, a verification visit to verify information submitted by Indah Kiat and Pindo Deli. The KTC issued its preliminary determinations on

  23 April 2003 in which it found a dumping margin of 11.56 per cent for Pindo Deli, 51.61 per cent for Tjiwi Kimia and a negative dumping margin of 0.52 per cent for Indah Kiat. The KTC also made a preliminary determination of threat of material injury. The KTC did not impose any provisional anti- dumping duties.

  2.3 The KTC issued its final determination on 24 September 2003. In the context of its final determination, the KTC treated the three Indonesian companies which were part of the Sinar Mas Group, i.e. Indah Kiat, Pindo Deli and Tjiwi Kimia, as a single exporter and calculated one single dumping margin for the three of them, which was 8.22 per cent. In its final determination, the KTC made a determination of material injury. Consequently, Korea imposed an anti-dumping duty of

  8.22 per cent for the Sinar Mas Group companies, 2.80 per cent for April Fine and 2.80 per cent for other Indonesian exporters.

  III.

  PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

A. INDONESIA

  3.1 Indonesia requests the Panel to find that in imposing the anti-dumping duty at issue, Korea acted inconsistently with its obligations under:

  (a)

  Article 6.8 of the Agreement by rejecting domestic sales information submitted by the Indonesian exporters Indah Kiat and Pindo Deli, and the CMI financial statements, and instead resorting to facts available to determine normal value for these exporters;

  (b)

  Article 6.8 and paragraph 3 of Annex II of the Agreement by failing to follow the requirements of paragraph 3 in rejecting the domestic sales information submitted by Indah Kiat and Pindo Deli, and the CMI financial statements and resorting to facts available to determine normal value for these exporters;

  (c)

  Article 6.8 and paragraph 6 of Annex II of the Agreement by failing to inform the exporters forthwith of the reasons why the domestic sales information of Indah Kiat and Pindo Deli, and the CMI financial statements, were being rejected and by failing to provide the exporters with an opportunity to provide further explanations within

  a reasonable period of time;

  (d)

  Article 6.8 and paragraph 7 of Annex II of the Agreement by failing to use special circumspection in using information from secondary sources in the determination of normal value for Indah Kiat and Pindo Deli.

  (e)

  Article 6.8 and paragraph 7 of Annex II of the Agreement by failing to use special circumspection in using information from secondary sources to determine the dumping margins for Tjiwi Kimia.

  (f)

  Article 6.8 and paragraph 6 of Annex II of the Agreement by failing

  (g)

  Article 2.2 of the Agreement by failing to comply with the requirements of Article 2.2 in determining the normal values for Indah Kiat and Pindo Deli.

  (h)

  Articles 2.2, 2.2.1.1, 2.2.2. and 2.4 of the Agreement by improperly calculating constructed values for Indah Kiat and Pindo Deli, resulting in an unfair comparison with export price for these exporters.

  (i)

  Article 2.4 of the Agreement by failing to make due allowance for differences affecting price comparability between export prices and normal values for Indah Kiat and Pindo Deli.

  (j)

  Articles 6.10 and 9.3 of the Agreement by failing to determine an individual margin of dumping for Indah Kiat, Pindo Deli, and Tjiwi Kimia, resulting in the imposition of dumping duties in excess of the margin of dumping established under Article 2.

  (k)

  Article 5.8 of the Agreement by failing to terminate the investigation of Indah Kiat when it failed to find dumping by that exporter.

  (l)

  Article 6.7 of the Agreement by failing to provide Indah Kiat and Pindo Deli with the results of the on-site verification of those exporters.

  (m)

  Articles 6.4, 6.9 and 12.2 of the Agreement by failing to disclose to the exporters how it determined normal value, including the amounts used to arrive at the constructed value.

  (n)

  Articles 2.6, 3.1, 3.2, 3.4, 3.5, and 3.7 of the Agreement by defining PPC and WF paper as a single like product and reaching its injury determinations based on that definition.

  (o)

  Articles 3.1, 3.2 and 3.4 of the Agreement by failing to base its analysis of the price and volume effects of the imports under investigation on positive evidence or involve an objective determination and by improperly finding significant price undercutting within the meaning of Article 3.2.

  (p)

  Articles 3.1 and 3.4 of the Agreement by failing to properly consider all relevant injury factors.

  (q)

  Articles 3.1 and 3.5 of the Agreement by failing to properly establish

  a causal link between any injury suffered by the Korean industry and by failing to properly examine other known factors to ensure that injury caused by those factors was not attributed to the imports under investigation.

  (r)

  Articles 3.1, 3.4 and 3.5 of the Agreement by failing to consider the effect of the Korean industry's own imports in the injury and

  (t)

  Articles 6.1 and 6.9 of the Agreement by failing to establish a proper period of investigation of injury.

  (u)

  Articles 6.2, 6.4 and 12.2 of the Agreement by failing to provide the exporters with information regarding its like product determination.

  (v)

  Articles 6.4 and 6.9 of the Agreement by failing to disclose the basis of its material injury determination.

  (w)

  Article 6.5 of the Agreement by granting confidential treatment to information contained in the domestic industry's application without

  a showing of good cause or requiring non-confidential summaries. (i)

  Article 1 of the Agreement by not ensuring that an anti-dumping measure is applied only under the circumstances provided for in Article VI of the GATT and pursuant to investigations initiated and conducted in accordance with the provisions of the Agreement.

  3.2 Indonesia requests the Panel to recommend, in accordance with Article 19.1 of the DSU, that the DSB request Korea to bring its measure at issue into conformity with the GATT and with the Anti-dumping Agreement by repealing Regulation No. 330 of the Ministry of Finance and Economy dated 7 November 2003 imposing definitive anti-dumping duties on imports of certain paper products from Indonesia.

B. KOREA

  3.3 Korea requests the Panel to reject Indonesia's claims in their entirety.