Costa Rica

N. Margin of Dumping

   A fair comparison shall be made between the export price and the normal value.

   When the price comparison [...] requires a conversion of currencies, such conversion should be made using the rate of exchange on the date of sale (endnote is omitted), provided that when a sale of foreign currency on forward markets is directly linked to the export sale involved, the rate of exchange in the forward sale shall be used.

   Fluctuations in exchange rates shall be ignored and, in an investigation the authorities shall allow exporters at least 60 days to have adjusted their export prices to reflect sustained movements during the period of investigation.

   [...] the existence of margins of dumping during the investigation phase 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.

   A normal value established on a weighted average basis may be compared to prices of individual export transactions if the authorities find a pattern of export prices which differ significantly among different purchasers, regions or time periods and if an explanation is provided why such differences cannot be taken into account appropriately by the use of a weighted average-to-weighted average or transaction-to-transaction comparison.

   This provision is coupled with another under Costa Rican Decree 24868-MEIC, which stipulates: The amount of any anti-dumping or countervailing duty applied shall be sufficient to redress the injury or harm and never more than the estimated margin of dumping or the amount of the subsidy.

O. Subsidy Rate

   [...] Any method used by the investigating authority to calculate the benefit to the recipient [...] shall be provided for in the national legislation or implementing regulations of the Member concerned and its application to each particular case shall be transparent and adequately explained.

   Furthermore any such method shall be consistent with the following guidelines:

         (a) Government provision of equity capital shall not be considered as conferring a benefit, unless the investment decision can be regarded as inconsistent with the usual investment practice (including for the provision of risk capital) of private investors in the territory of that Member;

         (b) A loan by a government shall not be considered as conferring a benefit, unless there is a difference between the amount that the firm receiving the loan pays on the government loan and a comparable commercial loan which the firm could actually obtain on the market. In this case the benefit shall be the difference between these two amounts;

         (c) A loan guarantee by a government shall not be considered as conferring a benefit, unless there is a difference between the amount that the firm receiving the guarantee pays on a loan guaranteed by the government and the amount that the firm would pay for a comparable commercial loan absent the government guarantee.

   In this case the benefit shall be the difference between these two amounts adjusted for any difference in fees;

         (d) The provision of goods or services or purchase of goods by a government shall not be considered as conferring a benefit unless the provision is made for less than adequate remuneration, or the purchase is made for more than adequate remuneration.

   The adequacy of remuneration shall be determined in relation to prevailing market conditions for the good or service in question in the country of provision or purchase (including price, quality, availability, marketability, transportation and other conditions of purchase or sale).

   In addition to this provision, Costa Rica also has Decree 24868-MEIC, which stipulates that:

   The amount of any anti-dumping or countervailing duty applied shall be sufficient to redress the injury or harm and never more than the margin of dumping or the amount of the subsidy.

IV. Steps of the Investigation

A. Petition Filing

   Except as provided for [...], an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written application by or on behalf of the domestic industry.

   An application [...] shall include evidence of

         (a) dumping,

         (b) injury [...] and

         (c) a causal link between the dumped imports and the alleged injury.

   Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirement of this paragraph.

   The application shall contain such information as is reasonably available to the applicant on the following:

         (i) identity of the applicant and a description of the volume and value of the domestic production of the like product by the applicant.

   Where a written application is made on behalf of the domestic industry, the application shall identify the industry on behalf of which the application is made by a list of all known domestic producers of the like product (or associations of domestic producers of the like product) and, to the extent possible, a description of the volume and value of domestic production of the like product accounted for by such producers;

         (ii) a complete description of the allegedly dumped product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question;

         (iii) information on prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export (or, where appropriate, information on the prices at which the product is sold from the country or countries of origin or export to a third country or countries or on the constructed value of the product) and information on export prices or, where appropriate, on the prices at which the product is first resold to an independent buyer in the importing country;

         (iv) information on the evolution of the volume of the allegedly dumped imports, the effect of these imports on prices of the like product in the domestic market and the consequent impact of the imports on the domestic industry, as demonstrated by relevant factors and indices having a bearing on the state of the domestic industry [...].

   The authorities shall examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation.

   In addition to these provisions is another in Decree 24868-MEIC, which stipulates the following: The following are the formal requirements that must be met when filing an application with the investigating authority:

         a) Name of the authority with whom the application is filed;

         b) Identity of the party filing the application.

   In the case of legal representation, the corresponding documentation;

         c) Address for receiving notifications;

         d) An account of the facts and specific mention of the unfair trade practice in question;

         e) Petition, in clear language and consistent with the account of the facts reported;

         f) The other requirements stipulated in the WTO agreements;

         g) Place and date of the application, and

         h) Signature of the applicant or legal representative of the domestic industry or industry association.

   Once the application has been received, the applicant authority shall review it within the next 30 days to determine whether the requirements stipulated in these Regulations have been met.

   Once the application has been received, the investigating authority shall review it within the next 30 days to determine if it meets the requirements stipulated in these Regulations.

   If the finding is that the application is incomplete, the interested party shall be so notified within the next ten days, so that said party may, within the 30 days following notification, comply with the stipulated requirements.

   At the interested party's request, this deadline may be extended for another 30 days. If not done within the stipulated time period, the application shall be presumed abandoned and will be filed, although the case may be filed anew. If the interested party completes the information, the investigating authority shall take the measures called for under Article 11 of these Regulations within the next 15 days.

B. Initiation of Investigation

   [...] an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written application by or on behalf of the domestic industry.

   If, in special circumstances, the authorities concerned decide to initiate an investigation without having received a written application by or on behalf of a domestic industry for the initiation of such investigation, they shall proceed only if they have sufficient evidence of dumping, injury and a causal link [...] to justify the initiation of an investigation.

   Article 11 of Costa Rica's Decree 24868 stipulates the following:

   If the review to which Article 7 (of the Decree) refers is that sufficient evidence exists to justify initiation of an investigation, the investigating authority shall issue a resolution whereby it institutes the respective proceeding.

   That resolution must contain at least the following information:

         a) The name of the investigating authority that institutes the proceeding, as well as the date and place of the issuance of the resolution;

         b) A notation indicating that the application and accompanying documents are accepted;

         c) The corporate name or address and domicile of the domestic producer or producers of the like product;

         d) The country or countries of origin of the products that are allegedly the subject of the unfair trade practices;

         e) The motivation and basis of the resolution;

         f) A full description of the product that has been imported or is being imported under allegedly unfair trade practices;

         g) A description of the domestic like product identical to or significantly resembling the product imported under allegedly unfair trade practices;

         h) The deadline given the respondents and, where appropriate, to the foreign government or governments named to provide whatever evidence they deem appropriate and the place where they can file their allegations;

         i) The persons of whom pertinent information must be requested on the form that the investigating authority shall supply.

   The interested parties shall be notified of this resolution within ten days of its issuance and shall have thirty days as of the date following notification to lodge their objection.

   Article 13 of the Decree adds the following: The investigating authority shall notify the government of the country of origin or of export of the product being investigated that a request to initiate an investigation into unfair trade practices has been filed.

   This notification is to be made before the investigation is instituted.

C. Issuance of Questionnaire

   All interested parties in an anti-dumping investigation shall be given notice of the information which the authorities require and ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question.

D. Response to Questionnaire

   Exporters or foreign producers receiving questionnaires used in an anti-dumping investigation shall be given at least thirty days for reply (endnote is omitted).

   Due consideration should be given to any request for an extension of the thirty day period and, upon cause shown, such an extension should be granted whenever practicable.

E. Preliminary Determination

1. Injury

   The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures.

   Such disclosure should take place in sufficient time for the parties to defend their interests.

   An Executive Decree elaborates as follows:

   The investigating authority will send a preliminary determination, affirmative or negative, of the existence of unfair trade practices and of the existence of injury, threat of injury or retardation of the establishment of a domestic industry.

   This determination will appear in an opinion issued by the investigating authority within sixty days of the start of the investigation.

2. Antidumping

   The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures.

   Such disclosure should take place in sufficient time for the parties to defend their interests.

   An Executive Decree elaborates as follows: The investigating authority will send a preliminary determination, affirmative or negative, of the existence of unfair trade practices and of the existence of injury, threat of injury or retardation of the establishment of a domestic industry.

   This determination will appear in an opinion issued by the investigating authority within sixty days of the start of the investigation.

3. Countervailing

   The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures.

   Such disclosure should take place in sufficient time for the parties to defend their interests.

   An Executive Decree elaborates as follows: The investigating authority will send a preliminary determination, affirmative or negative, of the existence of unfair trade practices and of the existence of injury, threat of injury or retardation of the establishment of a domestic industry.

   This determination will appear in an opinion issued by the investigating authority within sixty days of the start of the investigation.

F. Conduct Verification

1. Antidumping

   In order to verify information provided or to obtain further details, the authorities may carry out investigations in other countries as required, provided they obtain the agreement of the firm concerned and provided they notify the representatives of the government of the country in question and unless the latter object to the investigation.

   The procedures [...] shall apply to verifications carried out in exporting countries.

   The authorities shall, subject to the requirement to protect confidential information, make the results of any verifications available or provide disclosure thereof [...] to the firms to which they pertain and may make such results available to the applicants.

2. Countervailing

   The investigating authorities may carry out investigations in the territory of other Members as required, provided that they have notified in good time the Member in question and unless the latter objects to the investigation.

   Further, the investigating authorities may carry out investigations on the premises of a firm and may examine the records of the firm if

         (a) the firm so agrees and

         (b) the Member in question is notified and does not object.

   The procedures [...] shall apply to investigations on the premises of a firm.

   The authorities shall, subject to the requirement to protect confidential information, make the results of any verifications available or provide disclosure thereof [...] to the firms to which they pertain and may make such results available to the applicants.

G. Hearings

1. Antidumping

   Throughout the anti-dumping investigation all interested parties shall have a full opportunity for the defense of their interests.

   To this end, the authorities shall, on request, provide opportunities for all interested parties to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered.

   Provision of such opportunities must take account of the need to preserve confidentiality and of the convenience to the parties.

   There shall be no obligation on any party to attend a meeting, and failure to do so shall not be prejudicial to that party's case.

   Interested parties shall also have the right, on justification, to present other information orally.

2. Countervailing

   The authorities shall whenever practicable provide timely opportunities for all interested Members and interested parties to see all information that is relevant to the presentation of their cases, that is not confidential [...] and that is used by the authorities in a countervailing duty investigation, and to prepare presentations on the basis of this information.

H. Briefs

   There is no provision on this matter.

I. Final Determinations

   Public notice shall be given of any preliminary or final determination, whether affirmative or negative, of any decision to accept an undertaking [...], of the termination of such an undertaking, and of the revocation of a determination.

   Each such notice shall set forth or otherwise make available through a separate report in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities.

   All such notices and reports shall be forwarded to the Member or Members the products of which are subject to such determination or undertaking and to other interested parties known to have an interest therein. Within three days of conclusion of the investigation, the investigating authority shall present the technical study and the pertinent recommendations to the Minister so that the latter, within three working days of receiving the report, may issue a resolution declaring the investigation completed, stating whether or not an anti-dumping or countervailing duty is called for and, if appropriate, revoking any provisional measure adopted.

J. Maximum Length of Investigation

   Investigations shall, except in special circumstances, be concluded within one year after their initiation, an in no case more than 18 months.

   [...] Any such review shall be carried out expeditiously and shall normally be concluded within twelve months of the date of initiation of the review.

   A decree elaborates upon this provision as follows: The investigation must be concluded within twelve months from the time of its initiation, but under exceptional circumstances may be extended for another six months, either at the initiative of the investigating authority or at the request of the interested party.

K. Maximum Duration of Antidumping and Countervailing Duty Orders

   Any definitive anti-dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review [...] if that review has covered both dumping and injury or under this paragraph) unless the authorities determine, in a review initiated before that date on their own initiative or on a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury (endnote is omitted).

   The duty may remain in force pending the outcome of such a review.

   A decree adds the following to this provision: Any definitive anti-dumping or countervailing duty must be eliminated within five years of the date of imposition of the provisional measure and, absent that, the final resolution.

L. Retroactivity

   a. Anti-dumping A definitive anti-dumping duty may be levied on products which were entered for consumption not more than 90 days prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:

         (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury, and

         (ii) the injury is caused by massive dumped imports of a product in a relatively short time which in light of the timing and the volume of the dumped imports and other circumstances (such as a rapid build-up of inventories of the imported product) is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied, provided that the importers concerned have been given an opportunity to comment.

   The authorities may, after initiating an investigation, take such measures as the withholding of appraisement or assessment as may be necessary to collect anti-dumping duties retroactively [...], once they have sufficient evidence that the conditions set forth in the paragraph are satisfied.

   b. Countervailing duty In critical circumstances where for the subsidized product in question the authorities find that injury which is difficult to repair is caused by massive imports in a relatively short period of a product benefiting from subsidies paid or bestowed inconsistently with the provisions of the GATT 1994 [...] and where it is deemed necessary, in order to preclude the recurrence of such injury, to assess countervailing duties retroactively on those imports, the definitive countervailing duties may be assessed on imports which were entered for consumption not more than ninety days prior to the date of application of provisional measures.

M. Best Information Available (or "Facts Available")

   In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available.

N. Consumers as Interested Parties

   a. Anti-dumping For purposes of this Agreement, "interested parties" shall include:

         (i) an exporter or foreign producer or the importer of a product subject to investigation, or a trade or business association a majority of the members of which are producers, exporters or importers of such product;

         (ii) the government of the exporting country, and

         (iii) a producer of the like product in the importing country or a trade and business association a majority of which produce the like product in the importing country.

   This list shall not preclude Members from allowing domestic or foreign parties other than those mentioned above to be included as interested parties.

   The authorities shall provide opportunities for industrial users of the product under investigation, and for representative consumer organizations in cases where the product is commonly sold at the retail level, to provide information which is relevant to the investigation regarding dumping, injury and causality.

   b. Countervailing duties For the purposes of this Agreement, "interested parties" shall include:

         (i) an exporter or foreign producer or the importer of a product subject to investigation, or a trade or business association a majority of the members of which are producers, exporters or importers of such product, and

         (ii) a producer of the like product in the importing country or a trade and business association a majority of which produce the like product in the importing country.

   This list shall not preclude Members from allowing domestic or foreign parties other than those mentioned above to be included as interested parties.

   The authorities shall provide opportunities for industrial users of the product under investigation, and for representative consumer organizations in cases where the product is commonly sold at the retail level, to provide information which is relevant to the investigation regarding subsidization, injury and causality.

O. Public Interest

1. Antidumping

   The decision whether or not to impose an anti-dumping duty in cases where all requirements for the imposition have been fulfilled and the decision whether the amount of the anti-dumping duty to be imposed shall be the full margin of dumping or less, are decisions to be made by the authorities of the importing country or customs territory.

   It is desirable that the imposition be permissive in all countries or customs territories Members, and that the duty be less than the margin, if such lesser duty would be adequate to remove the injury to the domestic industry.

2. Countervailing

   The decision whether or not to impose a countervailing duty in cases where all requirements for the imposition have been fulfilled and the decision whether the amount of the countervailing duty to be imposed shall be the full amount of the subsidy or less, are decisions to be made by the authorities of the importing Member.

   It is desirable that the imposition should be permissive in the territory of all Members, that the duty should be less than the total amount of the subsidy if such lesser duty would be adequate to remove the injury to the domestic industry, and that procedures should be established which would allow the authorities concerned to take due account of representations made by domestic interested parties (the endnote is omitted) whose interests might be adversely affected by the imposition of a countervailing duty. Apart from these provisions, a decree adds another to the effect that the measure shall be by way of an exception and provisional in nature: Measures imposed under these Regulations shall be provisional and exceptional in nature, since they will remain in effect for as long as necessary to offset the situation that prompted them.

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