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World Trade
Organization
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G/SCM/N/1/CHN/1
11 September 2002
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(02-4783)
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Committee on Subsidies
and Countervailing Measures
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NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLE 32.6 OF THE AGREEMENT
PEOPLE'S
REPUBLIC OF CHINA
The following communication, dated 3 September 2002, has
been received from the Permanent Mission of the People's
Republic of China.
_______________
REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA
ON COUNTERVAILING MEASURES
(Adopted at the 46th Executive Meeting of the
State Council on 31 October 2001, promulgated by Decree No. 329
of the State Council of the People’s Republic of China, and
effective as of 1 January 2002)
CHAPTER I - GENERAL
PROVISIONS
Article 1.
These Regulations are formulated in accordance with the
Foreign Trade Law of the People's Republic of China for the
purpose of maintaining the foreign trade order and fair
competition.
Article 2.
Where an imported product to which a subsidy is granted
causes material injury or threat of material injury to an
established domestic industry, or causes material retardation of
the establishment of such an industry, a countervailing
investigation shall be initiated and countervailing measures
applied in accordance with the provisions of these Regulations.
CHAPTER II - SUBSIDY AND
INJURY
Article 3.
The term “subsidy” means a financial contribution or any
form of income or price support which is provided by the
government or any public body of an exporting country (region)
and which will benefit the recipients.
The government or any public body of an exporting country
(region) is hereinafter collectively referred to as “the
government of an exporting country (region)".
The term "financial contribution" in Paragraph 1 of this
Article shall include:
(1)
the government of an exporting country (region) directly
provides funds in form of grants, loans, or equity infusion,
etc., or potentially directly transfers funds or liabilities in
form of loan guarantees or otherwise;
(2)
the government of an exporting country (region) forgoes
or does not collect revenue that is otherwise due;
(3)
the government of an exporting country (region) provides
goods or services other than general infrastructure, or
purchases goods;
(4)
the government of an exporting country (region) carries
out the above-mentioned functions by making payments to a
funding mechanism, or entrusts or directs a private body to
carry out the above-mentioned functions.
Article 4.
A subsidy subject to countervailing investigation and
countervailing measures under these Regulations must be
specific.
A subsidy falling under one of the following
circumstances shall be specific:
(1)
the subsidy received by certain enterprises or industries
explicitly specified by the government of an exporting country
(region);
(2)
the subsidy received by certain enterprises or industries
explicitly provided for in laws and regulations of an
exporting country (region);
(3)
the subsidy received by enterprises or industries located
within a designated specific area;
(4)
the subsidy contingent upon export performance, including
those illustrated in the List of Export Subsidies annexed to
these Regulations;
(5)
the subsidy contingent upon the use of domestic over
imported products.
In determining the specificity of a subsidy, such factors
as the number of subsidized enterprises, the amount, proportion,
length of time, and form of the subsidy received by enterprises
shall also be considered.
Article 5.
The Ministry of Foreign Trade and Economic Cooperation
(hereinafter referred to as “MOFTEC”) shall be responsible for
the investigation and determination of a subsidy.
Article 6.
The amount of a subsidy to an imported product shall be
calculated according to the following methods by distinguishing
among differing cases:
(1)
where the subsidy is
granted in form of a grant, the amount of the subsidy
shall be calculated on the basis of the actual amount received
by an enterprise;
(2)
where the subsidy is granted in form of a loan, the
amount of the subsidy shall be calculated on the basis of the
difference between the amount of interest an enterprise should
pay on a loan in the ordinary commercial loan conditions and the
amount of interest the enterprise pays on this loan;
(3)
where the subsidy is granted in form of a loan guarantee,
the amount of the subsidy shall be calculated on the basis of
the difference between the amount of interest an enterprise
should pay on a commercial loan absent such guarantee and the
amount of interest the enterprise actually pays on a loan
guaranteed;
(4)
where the subsidy is granted in form of an equity
infusion, the amount of the subsidy shall be calculated on the
basis of the actual amount of the capital an enterprise
receives;
(5)
where the subsidy is granted in form of the provision of
goods or services, the amount of the subsidy shall be calculated
on the basis of the difference between the price of the goods or
services at normal market price and the price that an enterprise
actually pays;
(6)
where the subsidy is granted in form of purchase of
goods, the amount of the subsidy shall be calculated on the
basis of the difference between the actual price the government
pays and the normal market price of the goods;
(7)
where the subsidy is granted in form of forgoing or not
collecting due revenue, the amount of the subsidy shall be
calculated on the basis of the difference between the amount
payable under law and the actual amount an enterprise pays;
The amount of subsidies granted in forms other than those
enumerated in the preceding paragraph shall be calculated in a
fair and reasonable way.
Article 7.
The term “injury” means material injury or threat of
material injury caused by a subsidy to an established domestic
industry, or material retardation of the establishment of a
domestic industry.
The State Economic and Trade Commission (hereinafter
referred to as “SETC”) shall be responsible for the
investigation and determination of injury. The countervailing
investigation of injury to a domestic industry involving
agricultural products shall be conducted by SETC jointly with
the Ministry of Agriculture.
Article 8.
The following factors shall be examined in the determination
of injury caused by a subsidy to a domestic industry:
(1)
the trade effects likely to arise from the subsidy;
(2)
whether the volume of subsidized imports, including the
volume of subsidized imports either in absolute terms or
relative to the production or consumption of a like domestic
product, has been increasing significantly, or the possibility
of a significant increase in subsidized imports;
(3)
the effects of subsidized imports on prices, including
the price undercutting of the subsidized imports, or the
significant suppressing or depressing effects on the price of a
like domestic product, etc.;
(4)
the impact of the subsidized imports on the relevant
economic factors and indices of the domestic industry;
(5)
the production capacity or export capacity of the
exporting country (region) or
the country (region) of origin, and inventories
of the product under investigation;
(6)
other factors that may cause or have caused injury to a
domestic industry.
The determination of threat of material injury shall be
based on facts and not merely on allegation, conjecture or
remote possibility.
When determining the injury caused by a subsidy to a
domestic industry, the determination shall be based on positive
evidence, and the injuries caused by factors other than subsidy
must not be attributed to the subsidy.
Article 9.
Where subsidized products from more than one country
(region) simultaneously satisfy the following requirements, the
effects of such subsidized imports on a domestic industry may be
cumulatively assessed:
(1)
the amount of subsidization established in relation to
the subsidized imports from each country (region) is not de
minimis, and the
volume of imports from each country is not negligible;
(2)
a cumulative assessment of the effects of the subsidized
imports is appropriate in light of the conditions of competition
between the
subsidized imports and the conditions of competition between the
subsidized imports and the like domestic product.
A subsidy is de
minimis if the amount of the subsidy is less than 1 per cent
of the value of a product; however, with respect to the
subsidized products from developing countries (regions), the
subsidy is de minimis
if the amount of the subsidy is less than 2 per cent of the
value of a product.
Article 10.
The effect of the subsidized imports shall be assessed in
relation to the separate identification of the domestic
production of the like product. If such separate identification
of that production is not possible, the effect of the subsidized
imports shall be assessed by the examination of the production
of the narrowest group or range of products, including the like
domestic product.
Article 11.
The term “domestic industry” means the domestic producers as
a whole of the like products within the People’s Republic of
China or those of them whose collective output of the products
constitutes a major proportion of the total production of those
products, except that when domestic producers are related to the
exporters or importers or are themselves importers of the
subsidized products or like products.
In exceptional circumstances, the producers within a
regional domestic market may be regarded as a separate industry
if the producers within such market sell all or almost all of
the like products in that market, and the demand in that market
is not to any substantial degree supplied by domestic producers
of the like products located in other domestic regions.
Article 12. The
term “like product” means the product that is identical to the
subsidized product, or in the absence of such a product, another
product that has characteristics closely resembling the
subsidized product.
CHAPTER III - COUNTERVAILING
INVESTIGATION
Article 13.
Any domestic industry or natural person, legal person or relevant
organization on behalf of the domestic industry (hereinafter
collectively referred to as “the applicant”) may make a
written application to MOFTEC for a countervailing investigation
in accordance with the provisions of these Regulations.
Article 14.
The application shall contain the following information:
(1)
the name, address and other relevant information of the
applicant;
(2)
a complete description of the imported products in
question, including the names of the products, the exporting
countries (regions) or the countries (regions) of origin
concerned, the identity of known exporters or producers, etc.;
(3)
a description of the volume and value of domestic
production of the
like product;
(4)
the effect of the volume and price of the imported
product in question on the domestic industry;
(5)
other information that the applicant considers as
necessary to submit.
Article 15.
The application shall be supported by the following
evidence:
(1)
existence of a subsidy to the imported product in
question;
(2)
injury caused to a domestic industry;
(3)
existence of a causal link between the subsidy and the
injury;
Article 16.
MOFTEC shall, within 60 days from the date of receipt of the
application and relevant evidence submitted by the applicant,
examine whether
the application is made by or on behalf of the domestic industry
and the contents of the application and the evidence attached
thereto, and shall, after consulting with SETC, decide
whether or not to initiate an investigation. Under special
circumstances, the examination period may be extended.
Prior to the decision to initiate an investigation, the
government of the country (region) the product of which may be
subject to such investigation shall be invited for consultation
regarding the subsidy in question.
Article 17.
An application shall be considered to have been made by or
on behalf of the domestic industry, and a countervailing
investigation may be initiated, if
the application is supported by those domestic producers
whose collective output constitutes more than 50 per cent of the
total production of the like product produced by that portion of
the domestic industry expressing either support for or
opposition to the application. However, no investigation shall
be initiated when the output of those domestic producers
expressly supporting the application accounts for less than 25
per cent of total production of the like domestic product.
Article 18.
If, in special circumstances, MOFTEC does not receive any
written application for a countervailing investigation, but has
sufficient evidence of a subsidy, injury and causal link between
the two, it may, after consulting with SETC, decide to initiate
an investigation.
MOFTEC and SETC are hereinafter collectively referred to
as “the investigating authorities”.
Article 19. MOFTEC
shall publish the decision to initiate an investigation and
notify the applicants, the known exporters and importers, other
interested organizations and parties (hereinafter collectively
referred to as “the interested parties”), and the government of
an exporting country (region).
As soon as the decision to initiate an investigation has
been published, MOFTEC shall provide the full text of the
application to the known exporters and the government of the
exporting country (region).
Article 20.
The investigating authorities may conduct investigation and
collect information from interested parties by, among others,
sending questionnaires, using samples, holding hearings and
making on-the-spot verification.
The investigating authorities shall provide opportunities
for all interested parties and the government of interested
country (region) to present their views and supporting
arguments.
MOFTEC may send its staff members to the countries
(regions) concerned to carry out investigations
if it deems necessary to do so, unless the countries
(regions) concerned object to such an investigation.
Article 21.
An interested
party and the government of an interested country (region) shall
provide authentic information and relevant documentation to the
investigating authorities in the process of the investigation.
In the event that any interested party or the government
of the interested country (region) does not provide authentic
information and relevant documentation, or does not provide
necessary information within a reasonable time-limit, or
significantly impedes the investigation in other way, the
investigating authorities may make determinations on the basis
of the facts available.
Article 22.
An interested party or the government of an interested
country (region) may request the investigating authorities to
treat the information it provided as confidential if they
consider that any disclosure of such information would create
significantly adverse effect.
The investigating authorities shall treat the information
submitted by the interested party or the government of the
interested country (region) as confidential if they consider
that the request for confidentiality is justifiable, and shall
require the interested party and/or the government of the
interested country (region) to provide non-confidential
summaries thereof.
The confidential information shall not be disclosed
without permission of the interested party or the government of
the interested country (region) submitting it.
Article 23.
The investigating authorities shall allow applicants,
interested parties and governments of interested countries
(regions) to have access to the information relevant to the
investigation, provided that the information has not been
treated as confidential.
Article 24.
Throughout the period of investigation, the government of
the country (region) the products of which are the subject of
the investigation shall be afforded a reasonable opportunity to
continue consultations. The consultations shall not prevent the
investigating authorities from conducting investigations and
adopting countervailing measures in accordance with the
provisions of these Regulations.
Article 25.
MOFTEC and SETC shall, on the basis of their findings,
make a preliminary determination on subsidization and injury
respectively, and make a preliminary determination on where
there exists a causal link between subsidization and injury. The
preliminary determinations shall be published by MOFTEC.
Article 26.
In the case where a preliminary determination on
subsidization, injury and the causal link between the two is
affirmative, MOFTEC and SETC shall conduct further
investigations on the subsidization and its amount, the injury
and its degree and make final determinations respectively on the
basis of their findings. The final determinations shall be
published by MOFTEC.
Before the final determinations are made,
MOFTEC shall inform all known interested parties and the
government of the interested country (region) of the essential
facts on which the final determinations are based.
Article 27.
A countervailing investigation shall be concluded within 12
months from the date of publication of the decision to initiate
the investigation, and such period may be extended in special
circumstances, but in no case the extension shall be more than 6
months.
Article 28.
In any one of the following circumstances, a countervailing
investigation shall be terminated and such termination shall be
published by MOFTEC:
(1)
the application has been withdrawn by the applicant;
(2)
there is no sufficient evidence of the existence of a
subsidy, injury and causal link between them;
(3)
the amount of
the subsidy is de minimis;
(4)
the actual or potential volume of the subsidized imports
or the injury is negligible;
(5)
an agreement has been reached with the government of the
country (region) concerned after consultations, and
therefore the countervailing investigation is no longer
necessary;
(6)
other circumstances that both MOFTEC and SETC consider not appropriate to continue the countervailing
investigation.
If the product under investigation imported from one
country (region) or some countries (regions) falls into one of
the circumstances set forth in Item (2), (3), (4) or (5) of the
preceding paragraph, the countervailing investigation on such
product shall be terminated.
CHAPTER IV - COUNTERVAILING
MEASURES
Section I: Provisional
Measures
Article 29.
Provisional countervailing measures may be applied if the
preliminary determination establishes the existence of a subsidy
and the injury caused by the subsidy to a domestic industry.
Provisional countervailing measures shall take the form
of provisional countervailing duties guaranteed by cash deposits
or bonds.
Article 30.
The proposal applying provisional countervailing measures
shall be put forward by MOFTEC, on the basis of which the State
Council Tariff Commission shall make a decision thereon. The
decision shall be published by MOFTEC.
The Customs shall implement the decision from the
effective date set forth in the public notice.
Article 31.
The period for applying provisional countervailing measures
shall not exceed 4 months from the effective date set forth in
the public notice regarding the decision on provisional
countervailing measures.
No provisional countervailing measures shall be applied
within 60 days from the date of publication of the decision to
initiate the countervailing investigation.
Section II: Undertakings
Article 32.
During the period of a countervailing investigation, if the
government of an exporting country (region) proposes an
undertaking to eliminate or limit a subsidy or takes other
relevant measures, or if an exporter proposes an undertaking to
revise its prices, MOFTEC shall give it full consideration.
MOFTEC may suggest price undertakings to an exporter or
the government of an exporting country (region).
The investigating authorities shall not force an exporter
to enter into any undertaking.
Article 33.
The fact that exporters or governments of exporting
countries (regions) do not offer undertakings, or do not accept
any suggestion regarding price undertakings, shall in no way
prejudice the investigation and determination of a
countervailing case. The investigating authorities have the
right to determine that a threat of injury is more likely to be
realized if the exporters continue subsidizing the imports.
Article 34.
If considering that an undertaking is acceptable, MOFTEC may, after
consulting with SETC, decide to suspend or terminate the
countervailing investigation without applying provisional
countervailing measures or imposing countervailing duties. The
decision to suspend or terminate the countervailing
investigation shall be published by MOFTEC.
If MOFTEC does not accept an undertaking, it shall
provide the reasons therefor to the exporter concerned.
Undertakings shall not be sought or accepted unless the
investigating authorities have made a preliminary affirmative
determination of subsidization and injury caused by such
subsidization. In
the case where an exporter enters into an undertaking without
consent of the government of an exporting country (region), the
investigating authorities shall not seek or accept such an
undertaking.
Article 35.
After the suspension or termination of the investigation
according to the provisions of Paragraph 1, Article 34 of these
Regulations,
upon the request of the government of an exporting country
(region) or the investigating authorities deem necessary, the
investigating authorities may continue the investigation of
subsidization and injury.
On the basis of the findings of the investigation, the
undertaking shall automatically lapse if a negative
determination is made on subsidization or injury, or shall
remain in force if the determination is affirmative.
Article 36.
MOFTEC may require the exporter or the government of an
exporting country (region) from whom an undertaking has been
accepted to provide periodically information and documentation
relevant to the fulfilment of such an undertaking, and make
verification on such information and documentation.
Article 37.
In case of violation of an undertaking, MOFTEC may, after
consulting with SETC, decide to resume the countervailing
investigation immediately in accordance with the provisions of
these Regulations, or on the basis of the best information
available, decide to apply
provisional countervailing measures and levy a countervailing
duty retroactively on the product imported within 90 days prior
to the application of such provisional countervailing measures,
except the product imported before the violation of the
undertaking.
Section III: Countervailing
Duties
Article 38.
If the efforts made to complete consultations produce no
positive results, and a final determination establishes the
existence of subsidy and the injury caused by the subsidy to a
domestic industry, a countervailing duty may be imposed.
Article 39.
The proposal imposing a countervailing duty shall be put
forward by MOFTEC, on the basis of which the State Council
Tariff Commission shall make a decision which shall be published
by MOFTEC. The Customs shall implement the decision from the
effective date set forth in the public notice.
Article 40.
Countervailing duties shall be imposed on products imported
after the date of the publication of the final determination,
with the exception of circumstances set forth in Articles 37, 44
and 45 of these Regulations.
Article 41.
Countervailing duties shall be paid by importers of
subsidized imports.
Article 42.
Countervailing duties shall be determined separately on the
basis of the amount of subsidy each exporter has received. Where
it is necessary to impose a countervailing duty on the
subsidized imports of an exporter who was not actually
investigated, an expedited review shall be conducted and a
countervailing duty applicable to the exporter shall be
determined in a reasonable way.
Article 43.
No countervailing duties shall be levied in excess of the
amount of a subsidy as established in a final determination.
Article 44.
In the case where a final determination establishes the
existence of a material injury, and provisional countervailing
measures have been applied prior to the final determination,
countervailing duties may be levied retroactively for the period
for which provisional countervailing measures have been applied.
In the case where a final determination establishes the
existence of a threat of material injury, and provisional
countervailing measures have been applied in the situation that
the absence of such provisional countervailing measures would
have led to a determination of injury, countervailing duties may
be levied retroactively for the period for which provisional
countervailing measures have been applied.
If the countervailing duty determined in a final
determination is higher than the amount guaranteed by the cash
deposit or bond, the difference shall not be collected; if the
duty is less than the amount guaranteed by the cash deposit or
bond, the excess amount shall be reimbursed.
Article 45.
When the following three circumstances exist simultaneously, a
countervailing duty may, when necessary, be retroactively levied
on products imported not more than 90 days prior to the date of
application of provisional countervailing measures:
(1)
the subsidized imports increased massively
during a short period of time;
(2)
such increase has caused injury which is difficult repair
to a domestic industry; and
(3)
such products have
benefited from the subsidy.
Article 46.
Where a final determination decides not to levy a
countervailing duty, or does not decide a retroactive levy of a
countervailing duty, any cash deposit made during the period of
the application of provisional countervailing measures shall be
refunded and any bonds released.
CHAPTER V - DURATION AND REVIEW OF COUNTERVAILING
DUTIES AND UNDERTAKINGS
Article 47.
The period for the levy of a countervailing duty and
fulfilment of an undertaking shall not exceed 5 years. However,
the period for the levy of the countervailing duty may be
extended as appropriate if, as a result of review, it is
determined that the termination of the countervailing duty would
be likely to lead to continuation or recurrence of subsidization
and injury.
Article 48.
After a countervailing duty has taken effect, MOFTEC
may, after consulting
with SETC, decide on justifiable grounds to review the need for
the continued imposition of the countervailing duty; such a
review may also be conducted, provided that a reasonable period
of time has elapsed, upon request by any interested party and on
the basis of examination of the relevant evidence submitted by
the interested party.
After an undertaking has taken effect, MOFTEC may, on
justifiable grounds, decide to review the need for the continued
fulfilment of an undertaking; such a review may also be
conducted, provided that a reasonable period of time has
elapsed, upon request by any interested party and on the basis
of examination of the relevant evidence submitted by the
interested party
Article 49.
On the basis of the findings of a review, MOFTEC shall, in accordance with the
provisions of these Regulations, make a proposal on the
retention, revision, or termination of a countervailing duty.
The State Council Tariff Commission shall, in light of the
proposal made by MOFTEC, make a decision which shall be
published by MOFTEC. Meanwhile, MOFTEC may, after consulting
with SETC, make a decision on the retention, revision or
termination of an undertaking and publish such decision in
accordance with the provisions of these Regulations.
Article 50.
The review proceedings shall be conducted with reference to
the relevant provisions of these Regulations on countervailing
investigation.
Any review shall be concluded within 12 months of the
date of decision of initiation of such a review.
Article 51.
During the period of review, the review proceedings shall
not impede the application of countervailing measures.
CHAPTER VI - SUPPLEMENTARY
PROVISIONS
Article 52.
Where any party is not satisfied with a final determination
made under Article 26 of these Regulations, or not satisfied
with a decision on whether or not to impose a countervailing
duty and a decision on retroactive imposition of a duty, made
under Chapter IV of these Regulations, or not satisfied with the
review findings made under Chapter V of these Regulations, it
may, in accordance with the law, apply for administrative
reconsideration, or file a lawsuit in the people's court.
Article 53.
A public notice issued under these Regulations shall
contain, inter alia, important information, facts, reasons,
basis, findings and conclusions, etc.
Article 54.
MOFTEC and SETC may take appropriate measures to prevent the
circumvention of countervailing measures.
Article 55.
Where any country (region) discriminatorily imposes
countervailing measures on exports from the People's Republic of
China, the People’s Republic of China may, on the basis of
actual situations, response by taking corresponding measures
against that country (region).
Article 56.
MOFTEC shall be responsible for foreign-related
consultations, notification and dispute settlement concerning
countervailing activities.
Article 57.
MOFTEC and SETC may, in accordance with these Regulations,
formulate specific implementing measures of these Regulations.
Article 58.
These Regulations shall be effective as of 1 January 2002.
The provisions on countervailing measures contained in
the Regulations of the People’s Republic of China on
Anti-Dumping and Anti-Subsidy promulgated by the State Council
on 25 March 1997 shall be repealed simultaneously.
ANNEX
List of Export Subsidies
1.
The provision of direct subsidies by the government of an
exporting country (region) to an enterprise or industry
contingent upon export performance.
2.
Foreign currency retention schemes or any similar
practices which involve bonus on exports.
3.
Internal transport or freight charges on exports,
provided for or approved by the government of an exporting
country (region), on terms more favorable than for domestic
goods.
4.
The provision of goods or services by the government of
an exporting country (region) either directly or indirectly to
the production of exports, on term more favorable than for
provision of like goods or services to the production of
domestic goods, except for special circumstances.
5.
The full or partial remission, exemption or deferral of
direct taxes or social welfare charges specifically related to
exports which have been paid or are payable by enterprises.
6.
The deductions directly related to exports or export
performance, over and above those granted in respect to domestic
production, in the calculation of the base on which direct taxes
are charged.
7.
The remission, exemption or reimbursement, in respect of
the production and distribution of exports, of indirect taxes in
excess of those levied in respect of the production and
distribution of like domestic products.
8.
The remission, exemption, reimbursement or deferral of
prior-stage cumulative indirect taxes on goods or services used
in the production of exports in excess of the remission,
exemption, reimbursement or deferral of like prior-stage
cumulative indirect taxes on goods or services used in the
production of like domestic product, except for special
circumstances.
9.
The remission, exemption or reimbursement of import
charges on imported inputs for the production of exports in
excess of those levied on such inputs when they are imported,
except for special circumstances.
10.
The provision by the government of an exporting country
(region) of export credit guarantee or insurance programmes, of
insurance or guarantee programmes against increases in the cost
of exported products or of exchange risk programmes at premium
rates which are inadequate to cover the long-term operating
costs and losses of the programmes.
11.
The grant by the government of an exporting country
(region) of export credits at rates below those which are
actually paid for the employment of such funds, or the payment
by it of all or part of the costs incurred by exporters or
financial institutions in obtaining credits, in order that that
could attain advantages in the field of export credits terms,
except for special circumstances.
12.
Any other charges on the public account constituting an
export subsidy.
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