Malaysia legislation
Section 12
Section 12
(2)
Before accepting the undertakings, the Government shall determine that—
(a)
the undertakings—
(i)
will eliminate the subsidy or the injurious effects caused by the subject merchandise; and
(ii)
can be monitored effectively; or
26 Laws of Malaysia ACT 504
(b)
the undertakings are in the public interest.
(3)
Undertakings shall not be sought or accepted unless the
Government has made a preliminary affirmative determination of subsidization and injury caused by such subsidization and, in the case of undertakings from exporters, has obtained the consent of the exporting Member.
(4)
If the undertakings are accepted by the Government after the preliminary determination, the Government shall—
(a)
suspend the investigation;
(b)
suspend any provisional measures applied under section 9
and release all or part of the security required by such measures as the Government deems appropriate; and
(c)
publish a notice stating the reasons for the suspension of the investigation and actions under paragraph (b).
(5)
Notwithstanding the acceptance of the undertakings, the investigation shall be completed upon the written request of the interested foreign government or if the Government so decides.
(6)
Where the Government completes the investigation pursuant to subsection (5) and makes an affirmative determination, the undertakings shall remain in effect consistent with the provisions of this Act.
(7)
Where the Government completes the investigation pursuant to subsection (5) and makes a negative determination, the undertakings shall lapse, except where the negative determination is due in large part to the existence of the undertakings.
(8)
Where the negative determination referred to in subsection (7) is due in large part to the existence of the undertakings, the undertakings may be maintained for a reasonable period consistent with the provisions of this Act.
Countervailing and Anti-Dumping Duties 27
(8A)
The Government may suggest for price undertakings to be provided by exporting Members or exporters, but no exporter shall be obliged to enter into such undertakings.
(8B)
The fact that the exporting Members or exporters do not offer price undertakings, or do not accept an invitation to do so, shall in no way affect the consideration of the case.
(8C)
Notwithstanding subsections (8A) and (8B), the Government shall be free to determine that a threat of injury is more likely to be realized if the importation of the subject merchandise continues.
(8D)
The Government may require any exporting Member or exporter from whom an undertaking has been accepted to provide, periodically, information relevant to the fulfilment of such undertaking and to permit verification of pertinent information.
(8E)
Non-compliance with subsection (8D) shall be construed as a breach of the undertaking.
(9)
The Government may resume a suspended investigation at any time if it determines that the undertakings accepted under subsection (1)
no longer meet the requirements of subsection (2) or there is a material violation of the undertakings.
(10)
If the Government resumes an investigation pursuant to subsection (9), it shall take expeditious action to—
(a)
(Deleted by Act A1046);
(b)
apply provisional measures in conformity with section 9, if appropriate; and
(c)
make a final determination pursuant to section 10.
(11)
The Government may use the facts available with respect to any determination under subsection (10) where a material violation of the undertakings occur.
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(12)
In the cases mentioned in subsection (9), the Government may impose countervailing duties in conformity with section 10 on the subject merchandise imported into Malaysia within a period of ninety days prior to the provisional measures applied under subsection (10):
Provided that such retroactive assessment shall not be applied to subject merchandise imported prior to the violation.
Duration of duty