A finding by the EC - Fasteners panel (DS397), which may only be of much interest to you trade remedy lawyers (and legal assistants) out there, brings back long ago memories of preparing exhibits in anti-dumping investigations.
AD Agreement Article 6.5.1 states:
The authorities shall require interested parties providing confidential information to furnish non-confidential summaries thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided.
Here's the standard the Panel set out for this provision:
7.515 In our view, Article 6.5.1 serves to balance the goal of ensuring that the availability of confidential treatment does not undermine the transparency of the investigative process, with recognition of the importance of maintaining the confidentiality of information where appropriate. We consider that it is the investigating authorities' obligation to ensure that all the requirements of Article 6.5.1 are respected by interested parties. That is, we consider that the investigating authority must ensure that an appropriate non-confidential summary is provided, or in exceptional circumstances, if that is not possible, that an appropriate statement of reasons why summarization is not possible is given. Clearly, in the absence of scrutiny of the non-confidential summaries or stated reason why summarization is not possible by the investigating authority, the potential for abuse of confidential treatment by interested parties would be unchecked unless and until the matter were reviewed by a panel. This would obviously defeat the goal of maintaining transparency during the course of the investigation itself that is one of the purposes of Article 6.5. Thus, in our view, the investigating authorities must ensure that where an interested party asserts that a particular piece of confidential information is not susceptible of summary, the reasons for that assertion are appropriately explained.
And here's how they apply it in one instance:
7.516 With these considerations in mind, we now turn to the facts underlying China's claim. With respect to the EU producer Agrati, we note that the non-confidential questionnaire response of this company contains non-confidential summarized information on some injury factors, including employment, sales and re-sales of the subject product (both in volume and value terms), inventories, production, capacity and capacity utilization. However, the questionnaire response does not contain any non-confidential summary of the confidential information on other injury factors, including return on investment, investments, profitability (with respect to the product concerned and the overall company), cash flows, cost of production, suppliers of direct (raw) materials during the investigation period, volume of raw materials used to produce the subject product, extraordinary items with respect to costs, list of all sales to unrelated customers in the European Union, and allocation of different cost elements among different types of products. In each instance, the reason given for the lack of a nonconfidential summary is the following: "The information cannot be summarized without disclosing confidential information which can cause a damage to our company. The information has been provided as limited." We recall that Article 6.5.1 requires a party submitting confidential information to also submit a nonconfidential summary in sufficient detail to permit a reasonable understanding of the substance of the confidential information or, if that is not possible, to provide a statement of reasons explaining why such a summary is not possible. Moreover, as discussed above, we consider that the investigating authorities must ensure that the reasons given in this regard are appropriate. There is nothing in the Definitive Regulation, or any other evidence that has been proffered, that would even suggest that the Commission ever considered whether Agrati's stated reason for the lack of a non-confidential summary of such information as profitability, or cash flows was more than pro forma. Agrati's statement simply reflects one of the bases on which information may be considered "by nature confidential" - that its disclosure would have a significantly adverse effect on the person supplying it – and asserts that the confidential information cannot be summarized without disclosure. The statement does not, however, relate to any of the specific information for which no non-confidential summary is provided, or to anything having to do with Agrati itself, the party supplying it. We also note the fact that Fontana Luigi was able to provide non-confidential summaries with respect to some of the information for which Agrati did not provide such a summary, which to us suggests that these categories of information are in fact susceptible of summary. There is certainly nothing in Agrati's stated reason which would demonstrate otherwise. We therefore consider that the Commission failed to ensure Agrati's compliance with the requirements of Article 6.5.1, and thus acted inconsistently with that provision with respect to Agrati.
I have a feeling this could mean a lot more work for those who are responsible for providing non-confidential summaries!
