|
The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.
> General
> Article 1
> Article 2
> Article 3
> Article 4
> Article 5
> Article 6
> Article 7
> Article 8
> Article 9
> Article 10
> Article 11
> Article 12
> Article 13
> Article 14
> Article 15
> Article 16
> Article 17
> Article 18
> Annex I
> Annex II
> Relationship with other WTO Agreements
> Declaration on Dispute Settlement Pursuant to the Agreement
on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies and Countervailing Measures
> Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
> Decision on Anti-Circumvention
> Analytical Index main page
|
VII. Article 6 back to top
A. Text of Article 6
Article 6: Evidence
6.1 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.
6.1.1 Exporters or
foreign producers receiving questionnaires used in an anti-dumping
investigation shall be given at least 30 days for reply.(15) Due
consideration should be given to any request for an extension of the 30
day period and, upon cause shown, such an extension should be granted
whenever practicable.
(footnote original)
15
As a general rule, the time-limit for exporters shall be counted from
the date of receipt of the questionnaire, which for this purpose shall
be deemed to have been received one week from the date on which it was
sent to the respondent or transmitted to the appropriate diplomatic
representative of the exporting Member or, in the case of a separate
customs territory Member of the WTO, an official representative of the
exporting territory.
6.1.2 Subject to the
requirement to protect confidential information, evidence presented in
writing by one interested party shall be made available promptly to
other interested parties participating in the investigation.
6.1.3 As soon as an
investigation has been initiated, the authorities shall provide the full
text of the written application received under paragraph 1 of Article 5
to the known exporters(16) and to the authorities of the
exporting Member and shall make it available, upon request, to other
interested parties involved. Due regard shall be paid to the requirement
for the protection of confidential information, as provided for in
paragraph 5.
(footnote original)
16
It being understood that, where the number of exporters involved is
particularly high, the full text of the written application should
instead be provided only to the authorities of the exporting Member or
to the relevant trade association.
6.2 Throughout the
anti-dumping investigation all interested parties shall have a full
opportunity for the defence 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.
6.3 Oral information
provided under paragraph 2 shall be taken into account by the
authorities only in so far as it is subsequently reproduced in writing
and made available to other interested parties, as provided for in
subparagraph 1.2.
6.4 The authorities shall
whenever practicable provide timely opportunities for all interested
parties to see all information that is relevant to the presentation of
their cases, that is not confidential as defined in paragraph
5, and
that is used by the authorities in an anti-dumping investigation, and to
prepare presentations on the basis of this information.
6.5 Any information which
is by nature confidential (for example, because its disclosure would be
of significant competitive advantage to a competitor or because its
disclosure would have a significantly adverse effect upon a person
supplying the information or upon a person from whom that person
acquired the information), or which is provided on a confidential basis
by parties to an investigation shall, upon good cause shown, be treated
as such by the authorities. Such information shall not be disclosed
without specific permission of the party submitting it.(17)
(footnote
original) 17 Members are aware that in the territory of
certain Members disclosure pursuant to a narrowly-drawn protective order
may be required.
6.5.1 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.
6.5.2 If the authorities
find that a request for confidentiality is not warranted and if the
supplier of the information is either unwilling to make the information
public or to authorize its disclosure in generalized or summary form,
the authorities may disregard such information unless it can be
demonstrated to their satisfaction from appropriate sources that the
information is correct.(18)
(footnote
original) 18 Members agree that requests for confidentiality should not be
arbitrarily rejected.
6.6 Except in
circumstances provided for in paragraph 8, the authorities shall during
the course of an investigation satisfy themselves as to the accuracy of
the information supplied by interested parties upon which their findings
are based.
6.7 In order to verify
information provided or to obtain further details, the authorities may
carry out investigations in the territory of other Members as required,
provided they obtain the agreement of the firms concerned and notify the
representatives of the government of the Member in question, and unless
that Member objects to the investigation. The procedures described in
Annex I shall apply to investigations carried out in the territory of
other Members. Subject to the requirement to protect confidential
information, the authorities shall make the results of any such
investigations available, or shall provide disclosure thereof pursuant
to paragraph 9, to the firms to which they pertain and may make such
results available to the applicants.
6.8 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. The provisions of Annex II shall be observed in the
application of this paragraph.
6.9 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.
6.10 The authorities
shall, as a rule, determine an individual margin of dumping for each
known exporter or producer concerned of the product under investigation.
In cases where the number of exporters, producers, importers or types of
products involved is so large as to make such a determination
impracticable, the authorities may limit their examination either to a
reasonable number of interested parties or products by using samples
which are statistically valid on the basis of information available to
the authorities at the time of the selection, or to the largest
percentage of the volume of the exports from the country in question
which can reasonably be investigated.
6.10.1 Any selection of
exporters, producers, importers or types of products made under this
paragraph shall preferably be chosen in consultation with and with the
consent of the exporters, producers or importers concerned.
6.10.2 In cases where the
authorities have limited their examination, as provided for in this
paragraph, they shall nevertheless determine an individual margin of
dumping for any exporter or producer not initially selected who submits
the necessary information in time for that information to be considered
during the course of the investigation, except where the number of
exporters or producers is so large that individual examinations would be
unduly burdensome to the authorities and prevent the timely completion
of the investigation. Voluntary responses shall not be discouraged.
6.11 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;
(ii) the government of the
exporting Member; and
(iii) a producer of the
like product in the importing Member or a trade and business association
a majority of the members of which produce the like product in the
territory of the importing Member.
This list shall not preclude Members from allowing
domestic or foreign parties other than those mentioned above to be
included as interested parties.
6.12 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.
6.13 The authorities shall
take due account of any difficulties experienced by interested parties,
in particular small companies, in supplying information requested, and
shall provide any assistance practicable.
6.14 The procedures set
out above are not intended to prevent the authorities of a Member from
proceeding expeditiously with regard to initiating an investigation,
reaching preliminary or final determinations, whether affirmative or
negative, or from applying provisional or final measures, in accordance
with relevant provisions of this Agreement.
B. Interpretation and Application of Article 6
1. Article 6.1
(a) General: due process rights
425. The Appellate
Body in US — Oil Country Tubular Goods Sunset Reviews held as
follows regarding Articles 6.1 and 6.2:
“These provisions set out the fundamental due
process rights to which interested parties are entitled in antidumping
investigations and reviews. Articles 6.1 and 6.2
require that the
opportunities afforded interested parties for presentation of evidence
and defence of their interests be ‘ample’ and ‘full’,
respectively. In the context of these provisions, these two adjectives
suggest there should be liberal opportunities for respondents to defend
their interests. Nevertheless, we agree with the United States that Articles 6.1 and
6.2 do not provide for ‘indefinite’ rights, so as
to enable respondents to submit relevant evidence, attend hearings, or
participate in the inquiry as and when they choose …”(560)
426. The Panel in US
— Oil Country Tubular Goods Sunset Reviews (Article 21.5 —
Argentina) noted that while Articles 6.1 and
6.2 “set out the
fundamental due process rights”, that did not mean that claims raised
under those provisions could prevail without showing “the specific
instances of violation” of those rights.(561)
(b) “notice of the information which the
authorities require”
427. In Argentina
— Ceramic Tiles, the Panel, when examining whether the
investigating authorities were entitled to resort to facts available
pursuant to Article 6.8, concluded that an investigating authority could
not fault an interested party for not providing information it was not
clearly requested to submit:
“Article 6.1 of the AD Agreement thus
requires that interested parties be given notice of the information
which the authorities require. In our view, it follows that,
independently of the purpose for which the information or documentation
is requested, an investigating authority may not fault an interested
party for not providing information it was not clearly requested to
submit.”(562)
(c) “ample opportunity to present
… evidence”
428. In Guatemala
— Cement II, Mexico argued that Guatemala’s investigating
authority had violated Article 6.1 by failing to set a time-limit for
the presentation of arguments and evidence during the final stage of the
investigation while it had fixed a time-limit for the submission of
arguments and evidence for the early part of the investigation. The
Panel rejected this argument:
“In our view, Article 6.1 of the AD Agreement
does not require investigating authorities to set time-limits for the
presentation of arguments and evidence during the final stage of the
investigation. The only time-limit provided for in Article 6.1
is that
contained in Article 6.1.1, whereby exporters shall be given at least 30
days for replying to questionnaires. …
Article 6.1 requires investigating authorities to
provide interested parties ‘ample opportunity’ to present in writing
certain evidence. Article 6.1 does not explicitly require an
investigating authority to set time-limits for the submission of
arguments and evidence during the final stage of an investigation.(563)
Article 6.1 simply requires that interested parties shall have ‘ample’
opportunity to present evidence and ‘full’ opportunity to defend
their interests. Interested parties may have such opportunity without
the investigating authority setting time-limits for the submission of
evidence. In other words, these provisions impose substantive
obligations, without requiring those obligations to be met through any
particular form (except as provided for in sub-paragraphs 1 through
3 of Article 6.1). What counts is whether, in practice, sufficient
opportunity was provided, not whether time limits for the submission of
evidence were set. Thus, even if the Ministry had failed to set
time-limits for the submission of arguments and evidence during the
final stage of the investigation, this would not ipso facto
constitute a violation of Article 6.1 of the AD Agreement.”(564)
429. The Panel further
rejected Mexico’s argument that “the Ministry’s public notice of
initiation granted interested parties 30 days in which to defend their
interests, whereas no such time-limit was included in the public notice
concerning the imposition of a provisional measure”:(565)
“We would note that Article 12.1.1(vi)
explicitly provides that a public notice of the initiation of an
investigation shall include adequate information on the ‘time-limits
allowed to interested parties for making their views known’. No such
obligation is included in Article
12.2.1, concerning the contents of
public notices on the imposition of provisional measures. We consider
that Article 12.2.1 constitutes useful context when examining Mexico’s
claim under Article 6.1. In particular, the fact that there is no
requirement for investigating authorities to include time-limits for the
submission of evidence in the public notice of their preliminary
determinations confirms the conclusion set forth in the preceding
paragraph.”(566)
430. In EC
— Fasteners (China), China brought a claim under Article 6.1.1
concerning the “MET/IT Claim Form” used by the EU to determine
whether a respondent in a non-market economy can obtain “Market
Economy Treatment” and/or “Individual Treatment”. The EU
investigating authorities attached this form to a notification
transmitted to Chinese exporters, with a response deadline of 15 days
from the date of publication of the notice of initiation of the
investigation. The Panel and the Appellate Body both rejected China’s
claim because they determined that the form at issue was not a “questionnaire”
in the sense of Article 6.1.1 (see paragraphs 439–440 below).
However, the Appellate Body opined:
“We recall that Article 6.1 of the Anti-Dumping
Agreement requires investigating authorities to give all interested
parties ‘ample opportunity’ to submit evidence that they consider
relevant to the investigation, and that this obligation applies also to
information requests that cannot be considered ‘questionnaires’. In
our view, the determinations made regarding MET and IT treatment are
important for NME exporters and foreign producers. The MET/IT Claim Form
was the first request for information received by the Chinese exporters
in the fasteners investigation, and their responses were subject to
verification. While much of the information requested would seem to be
readily accessible to the responding party, the form requests certain
production and sales data for ‘the product concerned’ that may need
to be collected and reported in a form that is not regularly kept by the
company, and could therefore involve a certain amount of time and effort
for completion. Given the consequences of MET/IT status for exporters
and foreign producers, and the amount of information solicited in the
MET/IT Claim Form, we consider that, under the requirements of Article
6.1, a deadline of 15 days from the date of publication of the Notice of
Initiation was too short and did not provide parties with ‘ample
opportunity’ to submit all evidence in support of their requests for
MET or IT treatment. However, China has not invoked Article
6.1 in this
case.…”(567)
(d) Scope of Article 6.1
431. In Guatemala
— Cement II, Mexico argued that because Guatemala’s authority
extended the period of investigation during the investigation procedure,
and did not respond to requests for information from a Mexican producer
concerning the extension, the Mexican producer was unable to defend its
interests in respect of the extension of the period of investigation
contrary to Articles 6.1 and 6.2. The Panel rejected this argument,
stating:
“[W]e consider that Mexico’s interpretation of
that provision is too expansive. The plain language of Article
6.1 merely requires that interested parties be given (1) notice of the
information which the authorities require, and (2) ample opportunity to
present in writing all evidence which they consider relevant in respect
of the investigation. First, we note that Cruz Azul [the Mexican
producer] was given two weeks in which to present data concerning the
extended POI. Cruz Azul therefore had two weeks’ notice of the
information required by the Ministry in respect of the extended POI.(568)
Second, Mexico has made no claim to the effect that Cruz Azul was
prevented from adducing written ‘evidence’ concerning the extended
POI. Whereas Mexico claims that Cruz Azul was denied any opportunity to
comment on the extension of the POI per se, Article
6.1 does not
explicitly require the provision of opportunities for interested parties
to comment on decisions taken by the investigating authority in respect
of the information it requires.”(569)
432. In Guatemala
— Cement II, the Panel examined Mexico’s argument that Guatemala’s
authority acted inconsistently with Articles 6.1,
6.2 and 6.4 by failing
to allow a Mexican producer “proper access” to the information
submitted by a Guatemalan domestic producer at the public hearing it
held. Noting that it had found a violation of Articles 6.1.2 and
6.4 on
the same factual foundation, as referenced in paragraphs 449–450 below, the Panel stated:
“Since we consider [Articles 6.1.2 and
6.4] to
be the specific provisions of the AD Agreement governing an
interested party’s right to information submitted by another
interested party, we do not consider it necessary to address Mexico’s
claims under Articles 6.1 and 6.2. These provisions do not specifically
address an interested party’s right of access to information submitted
by another interested party.”(570)
433. In Guatemala
— Cement II, the Panel rejected Mexico’s claim that Guatemala’s
authority had acted inconsistently with Articles 6.1,
6.2 and 6.9 by
changing its injury determination from a preliminary determination of
threat of material injury to a final determination of actual material
injury during the course of the investigation, without informing a
Mexican producer of that change, and without giving the producer a full
and ample opportunity to defend itself. Referring to Article
12.2, the
Panel first made the following general observation:
“We do not consider that an investigating
authority need inform interested parties in advance when, having issued
a preliminary affirmative determination on the basis of threat of
material injury, it subsequently makes a final determination of actual
material injury. No provision of the AD Agreement requires an
investigating authority to inform interested parties, during the course
of the investigation, that it has changed the legal basis for its injury
determination. Investigating authorities are instead required to forward
to interested parties a public notice, or a separate report, setting
forth ‘in sufficient detail the findings and conclusions reached on
all issues of fact and law considered material by the investigating
authorities’, consistent with Article 12.2 of the AD Agreement.
If decisions on issues of law had to be disclosed to interested parties
during the course of the investigation, there would be little need for
interested parties to receive the notice provided for in Article
12.2.
Furthermore, to the extent that there is any difference between the
preliminary determination of injury and the final determination of
injury, that change will be apparent to interested parties comparing the
public notice of the investigating authority’s preliminary
determination with the public notice of its final determination.”(571)
434. The Panel in Guatemala
— Cement II then went on to draw a distinction, in regard to
Article 6.1, between “information”, “evidence” and “essential
facts” on the one hand and “legal determinations” on the other:
“We note that Articles 6.1 and
6.9 impose
certain obligations on investigating authorities in respect of ‘information’,
‘evidence’ and ‘essential facts’. However, Mexico’s claim does
not concern interested parties’ right to have access to certain
factual information during the course of an investigation. Mexico’s
claim concerns interested parties’ alleged right to be informed of an
investigating authority’s legal determinations during the course of an
investigation.”(572)
435. The Panel in US
— Oil Country Tubular Goods Sunset Reviews (Article 21.5 —
Argentina) did not consider that a “failure to issue supplemental
questionnaires or a preliminary determination” would necessarily
constitute a violation of
Article 6.1 or Article 6.2 given that those
Articles did not contain “such specific obligations”:(573)
“We are cognizant that issuing supplemental
questionnaires or deficiency letters and/or a preliminary determination
may be the common practice of some WTO Members, and may be highly
commendable. The fact remains, however, that neither
Article 6.1 nor 6.2
requires that an investigating authority do so. Nor can a mere
allegation regarding the failure to establish a schedule that would
allow interested parties to submit comments violate these provisions.
Argentina has not explained with sufficient clarity how the timetable
applied by the USDOC violated
Article 6.1 or 6.2.”(574)
436. The Appellate
Body in Mexico — Anti-Dumping Measures on Rice examined the
text of Articles 12.1 and
6.1, as well as context provided to
Article 6.1 in Article 6.1.3, which all refer to interested parties “known”
to the investigating authority. Based on this language, the Appellate
Body concluded that the notification requirements therein apply only to
interested parties for which the investigating authority had “actual
knowledge,”(575) and do not cover those for which the authority
merely could have obtained knowledge.(576) The Appellate Body
reversed the Panel’s findings that, with respect to the exporters that
Economía did not investigate, Mexico acted inconsistently with Articles
6.1 and 12.1 because Economía sent questionnaires to all companies of
which it had actual knowledge and thus did not violate Articles 12.1 or
6.1.
(e) Article 6.1.1
(i) “questionnaires”: Scope of Article
6.1.1
437. In Egypt
— Steel Rebar, the Panel addressed the question of whether “questionnaires”
as referred to in Article 6.1.1 are only the original questionnaires in
an investigation, or whether this term would also include all other
requests for information, or certain types of requests, including
follow-up requests or supplemental requests.(577) The Panel noted
that the term “questionnaire” is not defined anywhere in the
Agreement, and considered that Article 6.1.1
refers only to the original
questionnaires sent to interested parties at the outset of an
investigation:
“The term ‘questionnaire’ as used in Article 6.1.1
is not defined in the AD Agreement, and in fact, this term
only appears in Article 6.1.1, and in paragraphs 6 and
7 of Annex I. In
our view, the references in Annex I, paragraphs 6 and
7 provide strong
contextual support for interpreting the term ‘questionnaires’ in
Article 6.1.1 as referring only to the original questionnaires sent to
interested parties at the outset of an investigation. In particular,
both of these provisions refer to ‘the questionnaire’ in the
singular, implying that there is only one document that constitutes a
‘questionnaire’ in a dumping investigation, namely the initial
questionnaire, at least as far as the foreign companies (producers and
exporters) that might be visited are concerned. Paragraph 6 refers to
visits by an investigating authority to the territory of an exporting
Member ‘to explain the questionnaire’. Paragraph 7 provides
that ‘on-the-spot investigation … should be carried out after the
response to the questionnaire has been received…’
If any requests for information other than the
initial questionnaire were to be considered ‘questionnaires’ in the
sense of Article 6.1.1, a number of operational and logistical problems
would arise in respect of other obligations under the AD Agreement.
First, there is no basis in the AD Agreement on which to determine that
some, but not all, information requests other than the initial
questionnaire also would constitute ‘questionnaires’. Thus, even if
an investigating authority was not obligated to provide the minimum
time-period in Article 6.1.1 in respect of every request for
information, it would not be able to determine from the Agreement which
of its requests were and were not subject to that time-period. On the
other hand, if all requests for information in an investigation were ‘questionnaires’
in the sense of Article 6.1.1, this could make it impossible for an
investigation to be completed within the maximum one year (or
exceptionally, 18 months) allowed by the AD Agreement in Article
5.10. Moreover, a 30- or 37-day deadline for requests for information
made in the context of an on-the-spot verification — i.e., the ‘obtain[ing
of] further details’ explicitly referred to in Article 6.7 to as one
of the purposes of such verifications — obviously would be completely
illogical as well as unworkable. Finally, such an interpretation would
render superfluous the requirement in Annex II, paragraph 6 to allow a
‘reasonable period …’ for the provision of any explanations
concerning identified deficiencies in submitted information.”(578)
438. In Mexico —
Anti-Dumping Measures on Rice, the Appellate Body found:
“[T]he due process rights in Article 6 of the
Anti-Dumping Agreement — which include the right to 30 days for reply
to a questionnaire — ’cannot extend indefinitely’ but, instead,
are limited by the investigating authority’s need ‘to “control the
conduct” of its inquiry and to “carry out the multiple steps”
required to reach a timely completion’ of the proceeding. As such, the
time-limits for completing an investigation serve to circumscribe the
obligation in Article 6.1.1 to provide all interested parties 30 days to
reply to a questionnaire.”(579)
439. In EC —
Fasteners (China), China argued that the European Union acted
inconsistently with Article 6.1.1 in relation to the “MET/IT Claim
Form” used to determine whether a respondent in a non-market economy
can obtain “Market Economy Treatment” and/or “Individual Treatment”.
The investigating authorities attached this form to a notification
transmitted to Chinese exporters, with a response deadline of 15 days
from the date of publication of the notice of initiation of the
investigation. The Appellate Body agreed with the Panel that the 30-day
period stipulated in Article 6.1.1 applies only to “questionnaires”,
which the Appellate Body defined as “a particular type of document
containing substantial requests for information, distributed early in an
investigation, and through which the investigating authority solicits a
substantial amount of information relating to the key aspects of the
investigation that is to be conducted by the authority (that is,
dumping, injury, and causation)”:(580)
“The interpretation of Article 6.1.1
requires
that the provision be read in its proper context, in particular
Article 6.1 …
… Domestic producers can control the timing of
the submission of a request for initiation of an anti-dumping
investigation because it is their complaint that triggers the authority’s
investigative process. The complaining producers therefore have an
opportunity to gather much of the evidence necessary to support their
complaint in advance. The responding parties, on the other hand,
typically receive no notice until the initiation of the investigation. Article 6.1.1
protects exporters and foreign producers by requiring
investigating authorities to provide them with at least 30 days to reply
to ‘questionnaires’, and by allowing that extensions should be
granted whenever practicable, upon cause shown. This indicates to us
that the specific due process interest of exporters and foreign
producers to be afforded an ample opportunity to respond has been
expressly provided for.(581)
The proper interpretation of Article 6.1.1
must
also take into consideration the interests of investigating authorities
in controlling their investigative process and bringing investigations
to a close within a stipulated period of time. Article 5.10 of the Anti-Dumping
Agreement requires that investigations be completed within 12 months
or, in special circumstances, no more than 18 months. In this vein,
Article 6.14 of the Anti-Dumping Agreement states that none of
the procedures set out under Article 6 is intended ‘to prevent the
authorities of a Member from proceeding expeditiously’ in reaching
their determinations… .
…while Article 6.1.1
captures a specific due
process concern as indicated above, the ‘questionnaires’ referred to
in that Article do not refer to every request for information made by an
investigating authority to exporters or foreign producers. Rather, the
‘questionnaires’ must be substantial requests, distributed early in
the investigation, when a 30-day timeframe for the response would not
lead to a delay in the completion of the investigation. They afford the
investigating authority an early opportunity to solicit relevant
information from exporters and foreign producers on key aspects of the
investigation that is to be conducted by the authority.
Based on these considerations, we conclude that
the meaning and scope of the term ‘questionnaires’ in Article 6.1.1
of the Anti-Dumping Agreement, and its application to specific
kinds of documents, must reflect a balance between the due process
requirement to provide parties with an ‘ample opportunity’ to submit
all information they consider responsive to a questionnaire request in
an antidumping investigation, and the overall timeframe imposed on the
investigation under Article
5.10, along with the need for authorities to
proceed expeditiously as contemplated in Article
6.14. We therefore find
that the ‘questionnaires’ referred to in Article 6.1.1
are a
particular type of document containing substantial requests for
information, distributed early in an investigation, and through which
the investigating authority solicits a substantial amount of information
relating to the key aspects of the investigation that is to be conducted
by the authority (that is, dumping, injury, and causation). While in
many investigations one ‘questionnaire’ may be employed to solicit
such information on these aspects of the investigation, we consider
that, depending on how different Members organize the conduct of the
investigation process, a party may receive several substantial requests
soliciting such comprehensive information that are ‘questionnaires’
within the meaning of Article 6.1.1.”(582)
440. The Appellate
Body then agreed with the Panel that the MET/IT Claim Form was not a “questionnaire”
within the meaning of Article 6.1.1 because it was not “an information
request soliciting from the Chinese exporters and producers a
substantial amount of information upon which the Commission would base
its determinations regarding the key aspects of an antidumping
investigation.”(583) The Appellate Body then opined that if
China had invoked Article 6.1, it would have found that the 15-day
deadline was inconsistent with Article 6.1; see under
Article 6.1 above.(584)
(ii) Failure to issue a questionnaire
441. The Panel in Argentina
— Poultry Anti-Dumping Duties considered that Article 6.1.1 does
not address whether an injury questionnaire must be sent to exporters.
According to the Panel, the first sentence of Article 6.1.1
means “that
if questionnaires are sent to exporters or foreign producers,
they shall be given at least 30 days for reply … the failure to send
a particular questionnaire to exporters or foreign producers does not
constitute a violation of Article 6.1.1.”(585)
(iii) Deadlines
442. In US —
Hot-Rolled Steel, the United States’ authorities had rejected
certain information provided by two Japanese exporters which was
submitted beyond the deadlines for responses to the questionnaires and
thus applied “facts available” in the calculation of the dumping
margins. The United States interpreted Article 6.8(586) as
permitting investigating authorities to rely upon reasonable,
pre-established deadlines for the submission of data and argued that
such an interpretation is supported by Article 6.1.1. The Appellate Body
agreed with the Panel that “in the interest of orderly administration
investigating authorities do, and indeed must establish such deadlines”.(587)
It further considered that those deadlines are “not necessarily
absolute and immutable”:
“We observe that Article 6.1.1
does not
explicitly use the word ‘deadlines’. However, the first
sentence of Article 6.1.1 clearly contemplates that investigating
authorities may impose appropriate time-limits on interested parties for
responses to questionnaires. That first sentence also prescribes an
absolute minimum of 30 days for the initial response to a questionnaire.
Article 6.1.1, therefore, recognizes that it is fully consistent with
the Anti-Dumping Agreement for investigating authorities to
impose time limits for the submission of questionnaire responses.
Investigating authorities must be able to control the conduct of their
investigation and to carry out the multiple steps in an investigation
required to reach a final determination. Indeed, in the absence of
time-limits, authorities would effectively cede control of
investigations to the interested parties, and could find themselves
unable to complete their investigations within the time-limits mandated
under the Anti-Dumping Agreement. We note, in that respect, that
Article 5.10 of the Anti-Dumping Agreement stipulates that
anti-dumping investigations shall normally be completed within one year,
and in any event in no longer than 18 months, after initiation.
Furthermore, Article 6.14 provides generally that the procedures set out
in Article 6 ‘are not intended to prevent the authorities of a Member
from proceeding expeditiously‘. (emphasis added) We, therefore,
agree with the Panel that ‘in the interest of orderly administration
investigating authorities do, and indeed must establish such deadlines.’(588)
While the United States stresses the significance
of the first sentence of Article 6.1.1, we believe that
importance must also be attached to the second sentence of that
provision. According to the express wording of the second sentence of Article 6.1.1, investigating authorities must extend the time-limit for
responses to questionnaires ‘upon cause shown‘, where
granting such an extension is ‘practicable’. (emphasis added)
This second sentence, therefore, indicates that the time-limits imposed
by investigating authorities for responses to questionnaires are not
necessarily absolute and immutable.”(589)
443. The Panel in US
— Corrosion-Resistant Steel Sunset Review stated that “the right
of interested parties to submit information in a sunset review cannot be
unlimited. One of the important limitations that can legitimately be
imposed on that right is deadlines for the submission of information”(590).
The Panel considered that by virtue of the cross-reference in Article
11.4, the requirements of
Article 6.1 and 6.2 also applied in the case
of sunset reviews.(591) According to the Panel, in a sunset
review as well, “there must be a balance struck between the rights of
the investigating authorities to control and expedite the investigating
process, and the legitimate interests of the parties to submit
information and to have that information taken into account”.(592)
444. The Appellate
Body in US — Oil Country Tubular Goods Sunset Reviews
also considered that Articles 6.1 and 6.2 do not provide for indefinite
rights so as to enable respondents to submit relevant evidence, attend
hearings, or participate in the inquiry as and when they choose:
“Therefore, the ‘ample’ and ‘full’
opportunities guaranteed by Articles 6.1 and 6.2, respectively, cannot
extend indefinitely and must, at some point, legitimately cease to
exist. This point must be determined by reference to the right of
investigating authorities to rely on deadlines in the conduct of their
investigations and reviews. Where the continued granting of
opportunities to present evidence and attend hearings would impinge on
an investigating authority’s ability to ‘control the conduct’ of
its inquiry and to ‘carry out the multiple steps’ required to reach
a timely completion of the sunset review, a respondent will have reached
the limit of the ‘ample’ and ‘full’ opportunities provided for
in Articles 6.1 and 6.2 of the Anti-Dumping Agreement.”(593)
445. The Appellate
Body in US — Oil Country Tubular Goods Sunset Reviews was of
the view that the right to present evidence and request a hearing cannot
be said to have been “denied” to a respondent that is given an
opportunity to submit an initial response to the notice of initiation
simply because it must do so by a deadline that is conceded to be
reasonable:
“We do not see it as an unreasonable burden on
respondents to require them to file a timely submission in order to
preserve their rights for the remainder of the sunset review. Indeed,
even an incomplete submission will serve to preserve those rights.
Accordingly, we are of the view that, if a respondent decides not to
undertake the necessary initial steps to avail itself of the ‘ample’
and ‘full’ opportunities available for the defence of its interests,
the fault lies with the respondent, and not with the deemed waiver
provision.”(594)
446. The Appellate
Body in Mexico — Anti-Dumping Measures on Rice, having examined
Article 6.1.1 of the Anti-Dumping Agreement and Article 12.1.1 of the
SCM Agreement, noted that these provisions explicitly require that an
investigating authority provide at least 30 days for reply to all
exporters and foreign producers receiving a questionnaire, to be
counted, “[a]s a general rule,” from the date of receipt of the
questionnaire. The Appellate Body clarified that Article 6.1 of the
Anti-Dumping Agreement provides for all interested parties in an
anti-dumping investigation to receive a questionnaire from the
investigating authority, which includes “not only those referred to in
the petition for antidumping duties, as Mexico argues, but also those
that made themselves known to the investigating authority — further to
the issuance of a public notice of initiation or otherwise — and those
that the investigating authority might identify as a result of some
inquiry of its own”:
“[T]he period of at least 30 days to reply to
questionnaires, provided for in Article 6.1.1 of the Anti-Dumping
Agreement and Article 12.1.1 of the SCM Agreement, must be
extended to all such exporters and foreign producers, whether known to
the investigating authority at the outset of the investigation or at
some point thereafter.”(595)
(iv) “Due consideration should be
given to any request for an extension of the 30-day period”
447. On 26 April 2001,
the Committee on Anti-Dumping Practices adopted the following “Recommendation
Concerning Indicative List of Elements Relevant to a Decision on a
Request for Extension of Time to Provide Information”:(596)
“The Committee notes the obligation to complete
investigations within the time limits set out in Article 5.10 of the
Agreement on Implementation of Article VI of GATT 1994 and the
obligation to allow parties a full opportunity for the defence of their
interests set out in Article 6.2 of that
Agreement.
The Committee recognizes that investigating
authorities gather information necessary to make determinations in an
anti-dumping investigation through questionnaires and other requests for
information, and establish deadlines for the submission of replies to
such questionnaires and requests, as well as for other aspects of
investigations, in order to ensure the orderly conduct and timely
completion of the investigation. The Committee is mindful that each
Member’s investigating authority has discretion to grant or deny a
particular request for extension of a particular deadline, in light of
the facts and circumstances of the investigation at hand.
The Committee considers that a non-binding,
non-exhaustive indicative list of elements relevant to a decision
whether to grant or deny such a request for extension of time to respond
to a questionnaire or other request for information would be useful. In
light of the foregoing, the Committee considers that the following
elements may be considered by an investigating authority in deciding
whether to grant or deny a request for extension of time to provide
information:
1. the time available for
the conduct of the investigation and making the necessary
determinations, including the time periods established in national
legislation, regulations, and schedules governing the conduct of the
investigation at hand, and whether the information can be considered in
a subsequent phase of the investigation;
2. previous extension(s)
of time granted to the same party in the same investigation;
3. the ability of the
party from whom information is sought to respond to the request, in
light of the nature and extent of the information requested, including
the party’s available resources, personnel, and technological
capability;
4. any unusual burdens
that will be incurred by the party being asked for information in
searching for, identifying and/or compiling the information requested;
5. whether the party
requesting the extension has provided a partial response to the request,
or has previously provided information requested in the same
investigation, although the absence of a partial response alone is not
an appropriate basis for denial of a request;
6. any unforeseen
circumstances affecting the ability of the party to provide the
information requested within the time limit established;
7. whether other parties
have been granted extensions of time for similar reasons during the same
phase of the same investigation.
The decision whether to grant or deny a request
for an extension of time to provide information should be made promptly,
and if denied, the party making such a request should be informed of the
reason for its denial.”
(v) Article 6.1.1, footnote 15
448. The Appellate
Body in Mexico — Anti-Dumping Measures on Rice stated
that footnote 15 does not provide any indication as to whether it is
incumbent on the government of the exporting country to make the
relevant exporters or producers aware of the investigation:
“[W]e cannot deduce from footnote 15 to Article
6.1.1, alone, an obligation for diplomatic authorities of the exporting
Member to make their exporters or producers aware of the investigation.”(597)
(f) Article 6.1.2
(i) “evidence presented … by one
party shall be made available promptly to other interested parties”
449. In Guatemala
— Cement II, Mexico claimed that Guatemala’s authority violated
Articles 6.1.2, 6.2 and 6.4 by (a) refusing a Mexican producer access to
the file at a certain date during the investigation, and (b) failing to
promptly provide the producer with a copy of a submission made by the
applicant. In examining this claim, the Panel juxtaposed the notion of
“access to the file” on the one hand and, on the other hand, the
requirements that evidence presented by one interested party be “made
available promptly” and that parties shall have “timely
opportunities” to see all relevant information:
“Article 6.1.2 of the AD Agreement
provides that evidence presented by one interested party shall be ‘made
available promptly’ to other interested parties. Article 6.4 provides
that an interested party shall have ‘timely opportunities’ to see
all information that is relevant to the presentation of its case. On
their face, neither Article 6.1.2 nor Article 6.4
necessarily require
access to the file. For example, if an investigating authority required
each interested party to serve its submissions on all other interested
parties, or if the investigating authority itself undertook to provide
copies of each interested party’s submission to other interested
parties, there may be no need for interested parties to have access to
the file. If, however, there is no service of evidence by interested
parties, or no provision of copies by the investigating authority,
access to the file may be the only practical means by which evidence
presented by one interested party could be ‘made available promptly’
to other interested parties (consistent with Article 6.1.2), or by which
interested parties could have ‘timely opportunities’ to see
information relevant to the presentation of their cases (consistent with
Article 6.4). Assuming access to the file is the only practical means of
complying with Articles 6.1.2 and 6.4, access to the file need not
necessarily be unlimited. Nor need the file be made available on demand.
Provided access to the file is regular and routine, we consider that the
requirements of Articles 6.1.2 and 6.4 would be satisfied.”(598)
450. The Panel in Guatemala
— Cement II then stated that “[i]n principle, … a 20-day
delay is inconsistent with … Article 6.1.2 obligation [of Guatemala’s
authority] to make [the subject] submission available to [other
interested parties] ‘promptly’.”(599)
(ii) “interested parties participating in
the investigation”
451. The Panel in Argentina
— Poultry Anti-Dumping Duties underlined that Article 6.1.2
does
not refer to “interested parties” but to “interested parties
participating in the investigation”. It thus considered that had the
drafters intended to extend the obligation imposed by Article 6.1.2
to
all interested parties as defined in Article 6.11 of the AD Agreement,
they would not have included the term “participating”. According to
the Panel the term “participating” suggests that, a party must
undertake some action. In the view of the Panel, “the mere knowledge
by an interested party of an ongoing investigation does not make that
party an interested party ‘participating in the investigation’
within the meaning of Article 6.1.2 unless it actively takes part in the
investigation”.(600)
According to the Panel, an investigating
authority is not required to promptly make evidence presented in writing
by other interested parties available to exporters which were not even
aware of the investigation such that they could participate in it.(601)
(iii) “subject to the requirement to
protect confidential information”
452. With respect to
the claim by Mexico that the failure to make a submission available to a
Mexican producer was inconsistent with Article
6.1.2, the Panel in Guatemala
— Cement II rejected Guatemala’s argument that the failure was
justified because the submission contained confidential information:
“In this regard, we note that the obligation in Article
6.1.2 is qualified by the words ‘[s]ubject to the requirement
to protect confidential information’. In principle, therefore,
evidence presented by one interested party need not be made available
‘promptly’ to other interested parties if it is ‘confidential’.
However, insofar as confidentiality is concerned, Article
6.1.2 must be
read in the context of Article 6.5, which governs the treatment of
confidential information. We examine Article 6.5
in detail … below.
We have noted that Article 6.5 reserves special treatment for ‘confidential’
information only ‘upon good cause shown’, and we have determined
that the requisite ‘good cause’ must be shown by the interested
party which submitted the information at issue. Guatemala has not
demonstrated, or even argued, that Cementos Progreso [the applicant]
requested confidential treatment for its … submission, or that ‘good
cause’ for confidential treatment was otherwise shown.(602) The
Article 6.1.2 proviso regarding the ‘requirement to protect
confidential information’, when read in the context of Article
6.5,
cannot be interpreted to allow an investigating authority to delay
making available evidence submitted by one interested party to another
interested party for 20 days simply because of the possibility — which
is unsubstantiated(603) by any request for confidential treatment
from the party submitting the evidence — that the evidence contains
confidential information. We do not believe that the specific
requirement of Article 6.1.2 may be circumvented simply by an
investigating authority determining that there is a possibility that the
evidence at issue contains confidential information. Such an
interpretation could undermine the purpose of Article
6.1.2, since in
principle there is a possibility that any evidence could contain
confidential information (and therefore not be ‘made available
promptly’ to interested parties). Accordingly, we find that the
Ministry violated Article 6.1.2 of the AD Agreement by failing to
make Cementos Progreso’s 19 December 1996 submission available to Cruz
Azul until 8 January 1997.”(604)
(g) Article 6.1.3
453. In Guatemala
— Cement II, the Panel found that Guatemala violated Article 6.1.3
because the investigating authority provided the full text of the
anti-dumping application only 18 days or more after initiation of the
investigation. The Panel focused on the phrase “as soon as an
investigation has been initiated”:
“We note that Article 6.1.3
does not specify the
number of days within which the text of the application shall be
provided. What it does specify is that the text of the application be
provided ‘as soon as’ the investigation has been initiated. In this
regard, the term ‘as soon as’ conveys a sense of substantial
urgency. In fact, the terms ‘immediately’ and ‘as soon as’ are
considered to be interchangeable. We do not consider that providing the
text of the application 24 or even 18 days after the date of initiation
fulfils the requirement of Article 6.1.3 that the text be provided ‘as
soon as an investigation has been initiated.’
We further consider that the timeliness of the
provision of the text of the application should be evaluated in the
context of its purpose and function. Timely access to the application is
important for the exporters to enable preparation of the arguments in
defence of their interests before the investigating authorities.
Moreover, once the investigation has been initiated the timetable of the
investigation commences and the timing for many events in the proceeding
are counted from initiation including the 12 or 18 months total for
completion of the investigation provided for in Article
5.10. Since
deadlines in the timetable of the investigation are counted from the
date of initiation it is critical that the investigating authority
provide the text of the application ‘as soon as an investigation has
been initiated’, for the exporter to be able to devise a strategy to
defend the allegations it is being confronted with. Also, Article 7.3 of
the AD Agreement allows a Member to impose provisional measures
as early as sixty days after the date of initiation of an investigation.
Access to the text of the application is crucial for the exporter to
prepare its defence, and even more so if the authorities are likely to
consider applying a provisional measure which may come as early as 60
days after initiation.(605)”(606)
454. The Panel in Argentina
— Poultry Anti-Dumping Duties addressed the meaning of the term
“to provide” in the first sentence of Article
6.1.3. The Panel
considered that:
“[T]he term ‘provide’ would require a
positive action on the part of the investigating authority akin to that
of furnishing or supplying something (i.e., the full text of the
application) to someone (i.e., known exporters and authorities of the
exporting Member). Therefore, we cannot agree with Argentina that the
term ‘provide’ in the English text of the AD Agreement or ‘facilitar’
in its Spanish text can be interpreted as meaning ‘permitting access’.
In our view, an investigating authority cannot comply with the
obligation to ‘provide the (…) application (…) to the known
exporters and to the authorities of the exporting Member’ simply by
permitting them access to that application.”(607)
455. The Panel
distinguished between the obligation to “provide” the application to
the known exporters and to the authorities of the exporting Member, and
the obligation to “make available” the application to other
interested parties upon request. According to the Panel:
“[W]ith the use of different verbs in the first
sentence of Article 6.1.3, ‘provide’ on the one hand and “make
available” on the other, the drafters intended to impose different
obligations on investigating authorities depending on the party
concerned. The first obligation requires a positive action on the part
of the investigating authority, while the second envisages only a
passive act”.(608)
456. In Guatemala
— Cement II, the Panel also rejected Guatemala’s argument that
the actions of its investigating authority under Articles
5.5, 12.1.1
and 6.1.3, even if the Panel were to find that they constituted
violations of the Anti-Dumping Agreement, had not affected the course of
the investigation, and thus: (a) the alleged violations were not harmful
according to the principle of “harmless error”; (b) Mexico “convalidated”
the alleged violations by not objecting immediately after their
occurrence; and (c) the alleged violations did not cause nullification
or impairment of benefits accruing to Mexico under the Anti-Dumping
Agreement. See paragraphs 390–393
above.
(h) Relationship with other paragraphs of
Article 6
457. In Guatemala
— Cement II, Mexico claimed that Guatemala’s
investigating authority violated Articles 6.1,
6.2, 6.8 and Annex II(5)
and (6) of the Anti-Dumping Agreement by rejecting certain technical
accounting evidence submitted by a Mexican interested party one day
before the public hearing held by Guatemala’s authority. The Panel
considered it unnecessary to address this claim, on the ground that the
claim was dependent on the issue of whether the cancellation by the
authority of its verification visit to the Mexican producer was
inconsistent with Article 6.8, and the Panel had already found the
cancellation in violation of Article 6.8.(609)
458. The Panel in Argentina
— Ceramic Tiles, when examining whether the investigating
authorities were entitled to resort to facts available pursuant to Article
6.8, referred to
Article 6.1 to support its conclusion that the
investigating authorities could not do so when they did not clearly
request the relevant information from the party in question. See
paragraphs 427 above and 543 below. The Appellate Body in US —
Hot-Rolled Steel further analysed the relationship of Article 6.8
and Annex II with Article
6.1.1. See paragraphs 442 above and 563 and
567 below.
459. The Panel in Guatemala
— Cement II further referred to Article 6.5 in interpreting
Article 6.1.2. See paragraph 452 above.
460. In Guatemala
— Cement II, having found that Guatemala’s failure to disclose
the “essential facts” forming the basis of its final determination
was in violation of Article 6.9, as referenced in
paragraphs 615, 616
and 618 below, the Panel considered it unnecessary to examine whether it
was also inconsistent with Articles 6.1 and 6.2.(610)
2. Article 6.2
(a) “shall have a full opportunity for the
defence of their interests”
(i) Article 6.2, first sentence as a
fundamental due process provision
461. In Guatemala
— Cement II, Mexico argued that because Guatemala’s authority
extended the period of investigation during the investigation procedure,
and did not respond to requests for information from a Mexican producer
concerning the extension, the Mexican producer was not given any
opportunity to comment on the applicant’s request for extension of the
period of investigation contrary to Article 6.2. The Panel, which agreed
with this argument, interpreted the first sentence of Article
6.2 “as
a fundamental due process provision”:
“We interpret the first sentence of Article 6.2
of the AD Agreement as a fundamental due process provision. In
our view, when a request for an extension of the POI comes from one
interested party, due process requires that the investigating authority
seeks the views of other interested parties before acting on that
request. Failure to respect the requirements of due process would
conflict with the requirement to provide interested parties with ‘a
full opportunity for the defence of their interests’, consistent with Article
6.2.(611) Clearly, an interested party is not able to
defend its interests if it is prevented from commenting on
requests made by other interested parties in pursuit of their
interests. In the present case, Cementos Progreso’s request for
extension of the POI was made on 1 October 1996. The Ministry’s
decision to extend the POI was made on 4 October 1996, only three days
after Cementos Progreso’s request. There is no evidence to suggest
that the Ministry sought the views of Cruz Azul [the Mexican producer],
or other interested parties, before deciding to extend the POI.
Accordingly, we find that by extending the POI pursuant to a request
from Cementos Progreso without seeking the views of other interested
parties in respect of that request, the Ministry failed to provide Cruz
Azul with ‘a full opportunity for the defence of [its] interests’,
contrary to Guatemala’s obligations under Article 6.2 of the AD
Agreement.”(612)
(ii) Nature and extent of obligations under
Article 6.2
462. In Guatemala
— Cement II, the Panel rejected Mexico’s claim that Guatemala’s
authority was in violation of Articles 6.1, 6.2 and
6.9 by changing its
injury determination from a preliminary determination of threat of
material injury to a final determination of actual material injury
during the course of the investigation, without informing the Mexican
producer of that change, and without giving the producer a full and
ample opportunity to defend itself. Following the observation based upon
Article 12.2, quoted the Panel explained that the first sentence of
Article 6.2 is very general in nature:
“As for Article 6.2, we note that the first
sentence of that provision is very general in nature. We are unable to
interpret such a general sentence in a way that would impose a specific
obligation on investigating authorities to inform interested parties of
the legal basis for its final determination on injury during the course
of an investigation, when the express wording of Article 12.2 only
imposes such a specific obligation on investigating authorities at the
end of the investigation.”(613)
463. In Egypt —
Steel Rebar, the Panel emphasized that “the language of the
provision at issue creates an obligation on the [investigating
authorities] to provide opportunities for interested parties to
defend their interests.” The Panel further considered that the “[f]ailure
by respondents to take the initiative to defend their own interests in
an investigation cannot be equated, through WTO dispute settlement, with
failure by an investigating authority to provide opportunities for
interested parties to defend their interests”.(614)
464. The Panel in Korea
— Certain Paper (Article 21.5 — Indonesia) noted that Article
6.2, interpreted in conjunction with Article
6.1, required authorities
to provide interested parties in anti-dumping proceedings with “liberal
opportunities … to defend their interests.”(615) In this
case it was “undisputed that the KTC’s injury re-determination was
based solely on the information collected in the original investigation.”(616)
Korea argued that because the injury redetermination was based solely on
the information from the original investigation, the KTC did not have to
provide an additional opportunity to make comments on its injury
analysis. Indonesia, on the other hand, argued that because the
implementation proceedings at issue constituted a “new proceeding”
the interested party the Sinar Mas Group was entitled to make comments
on the evaluation of the Article 3.4 injury factors in such proceedings.(617) The Panel held that the Sinar Mas Group was
entitled to defend its interests as provided for in Article
6.2:
“[B]ecause the implementation proceedings at
issue were the continuation of the original investigation, the
procedural obligations imposed on the KTC relate to this combined
process. It follows that a procedural obligation that had been fulfilled
in the original investigation had to be observed again in the
implementation proceedings only if the steps taken in such proceedings
made it necessary. We therefore do not agree with Indonesia’s
contention that the KTC had to give the Sinar Mas Group an additional
opportunity to comment on its injury redetermination simply because the
implementation proceedings constituted a new proceeding. Nor do we agree
with Korea’s assertion that because the injury redetermination was
based on the information collected in the original investigation the
Sinar Mas Group did not have the right to make comments on the KTC’s
injury analysis in the implementation proceedings. We cannot assume that
the same factual basis would in all cases lead to the same analysis
regarding the impact of dumped imports on the domestic industry under
Article 3.4 of the Agreement. It was, in our view, entirely possible, if
not to be expected, that in the implementation proceedings at issue the
KTC would have engaged in an analysis that in some respects would
differ. This new analysis, in turn, could have led to a different
conclusion regarding the impact of dumped imports on the domestic
industry under Article 3.4. The opposite proposition would suggest that
notwithstanding our finding of inconsistency under Article 3.4 in the
original panel proceedings the KTC would necessarily reach the same
conclusion regarding the impact of dumped imports on the domestic
industry, and would imply that our finding was devoid of any potential
impact on the implementation proceedings. This cannot be the case. We
therefore consider that the KTC should have allowed the Sinar Mas Group
to comment on the evaluation of the injury factors under Article 3.4 of
the Agreement.”(618)
465. The Panel in EC
— Fasteners (China) considered claims under Articles 6.4 and
6.2
in regard to the investigating authority’s failure to provide
information on how normal value was established until very late in the
investigation. The Panel found a violation of Article 6.4 (see
paragraph
487 below) and went on to find an additional violation of Article
6.2:
“[W]hile in general we might not consider it
necessary to go on to address China’s claim under Article
6.2, in this
case, we consider that the discussion above is also relevant to a proper
application of the obligation to ensure all interested parties a ‘full
opportunity for the defence of their interests’. In our view, the
Chinese exporters could not defend their interests in this investigation
because the Commission only provided information concerning the product
types used in the determination of the normal value at a very late stage
of the proceedings, when it was no longer feasible for them to request
that adjustments be made in order to ensure a fair comparison, which
until that time they reasonably considered were not necessary. We
therefore conclude that the European Union acted inconsistently with Article
6.2.”(619)
466. The Appellate
Body in EC — Fasteners (China) confirmed the Panel’s finding
under Article 6.2, holding that the finding was “consistent with the
Appellate Body’s interpretation, in EC — Tube or Pipe Fittings,
that the ‘presentations’ referred to in Article 6.4 ‘logically are
the principal mechanisms through which an exporter subject to an
anti-dumping investigation can defend its interests’ within the
meaning of Article 6.2.(620)”(621)
(b) Relationship with other provisions of the
Agreement
467. Addressing a
claim under Article 6.2, the Panel in Guatemala — Cement II
decided to exercise judicial economy because it had already made
findings concerning that issue under other, more specific provisions of
the Agreement:
“Whereas this provision clearly imposes a
general duty on investigating authorities to ensure that interested
parties have a full opportunity throughout an anti-dumping investigation
for the defence of their interests, it provides no specific guidance as
to what steps investigating authorities must take in practice. By
contrast, other more specific provisions apply to the facts at hand, in
respect of which Mexico has also made claims. Although there may be
cases in which a panel will nevertheless need to address claims under Article
6.2, we do not consider it necessary for us to do when we have
already made findings concerning the conduct allegedly violating Article
6.2 under other, more specific provisions of the AD Agreement.(622)”(623)
468. In Guatemala
— Cement II, Mexico made a number of claims under Articles 6.1 and
6.2 in conjunction with claims under more specific provisions of Article
6, and the Panel resolved the claims under the more specific provisions.
For instance, regarding Guatemala’s failure to allow a Mexican
producer “proper access” to the information submitted by the
Guatemalan domestic producer at the public hearing it held, the Panel
noted that it had found a violation of Articles 6.1.2 and
6.4, and
declined to address Mexico’s claims under Articles 6.1 and
6.2; see
paragraph 432 above. Concerning Guatemala’s failure to disclose the
“essential facts” forming the basis of its final determination, the
Panel found a violation of Article 6.9 and declined to rule on claims
under Articles 6.1 and 6.2: see
paragraphs 615–618 below.
469. In Guatemala
— Cement II, Mexico claimed that Guatemala’s investigating
authority violated Articles 6.1, 6.2,
6.8 and Annex II(5) and
(6) of the
Anti-Dumping Agreement by rejecting certain technical accounting
evidence submitted by a Mexican producer one day before the public
hearing held by Guatemala’s authority. The Panel considered it
unnecessary to address this claim, on the grounds that the claim was
dependent on the issue of whether the cancellation by the authority of
its verification visit to the Mexican producer was inconsistent with
Article 6.8, and the Panel had found the cancellation in violation of
Article 6.8.(624)
3. Article 6.4
(a) “information” that must be disclosed
under Article 6.4
(i) “information … relevant to the
presentation of their cases” and “used by the authorities”
470. The Appellate
Body in EC — Tube or Pipe Fittings, examining what information
must be disclosed by the authorities under Article
6.4, stated that this
must be examined from the perspective of the interested parties.
It thus reversed the Panel’s finding in this case that the
investigating authority was not obliged to disclose certain information
that the investigating authority considered not relevant to its
conclusions:
“Article 6.4 refers to ‘provid[ing] timely
opportunities for all interested parties to see all information that is
relevant to the presentation of their cases’. (emphasis added)
The possessive pronoun ‘their’ clearly refers to the earlier
reference in that sentence to ‘interested parties’. The
investigating authorities are not mentioned in Article
6.4 until later
in the sentence, when the provision refers to the additional requirement
that the information be ‘used by the authorities’. Thus, whether or
not the investigating authorities regarded the information in Exhibit
EC-12 to be relevant does not determine whether the information would in
fact have been ‘relevant’ for the purposes of Article
6.4.”(625)
471. The Appellate
Body in EC — Tube or Pipe Fittings also found that information
relating to the Article 3.4 injury factors is necessarily “relevant”
information which is to be disclosed under Article
6.4:
“This conclusion is supported by our reasoning
in US — Hot Rolled Steel, where we explained that ‘Article 3.4 lists certain factors which are deemed to be relevant in every
investigation and which must always be evaluated by the
investigating authorities.’(626) Thus, because Exhibit EC-12
contains information on some of the injury factors listed in Article 3.4, and the injury factors listed in that provision ‘are deemed to be
relevant in every investigation’, Exhibit EC-12 must be considered to
contain information that is relevant to the investigation carried out by
the European Commission. As such, the information in Exhibit EC-12 was
necessarily relevant to the presentation of the interested parties’
cases and is, therefore, ‘relevant’ for purposes of Article
6.4.”(627)
472. The Panel in EC — Salmon (Norway)
explained that if information forms part of the information relevant to
an issue before the investigating authority at the time it makes its
determination, that information is “used” by the investigating
authorities (and must be disclosed under Article
6.4):
“[W]hether particular information is relevant is
not determined from the investigating authorities’ perspective, but
with reference to the issues to be considered by the investigating
authority under the AD Agreement.(628) Thus, information which
relates to issues which the investigating authority is required to
consider under the AD Agreement, or which it does, in fact, consider, in
the exercise of its discretion, during the course of an antidumping
investigation, presumptively falls within the scope of Article
6.4.(629)… Finally, the question of whether information is “used” by the
investigating authority cannot, in our view, be assessed from the
perspective of whether the information is specifically referred to or
relied upon by the investigating authority in its determination. If the
investigating authority evaluates a question of fact or an issue of law
in the course of an anti-dumping investigation, then, in our view, all
information relevant to that question or issue that is before the
investigating authority must necessarily be considered by the
investigating authority, in order to make an objective and unbiased
decision. Consequently, it seems clear to us that whether information is
‘used’ by the investigating authority must be assessed by reference
to whether it forms part of the information relevant to a particular
issue that is before the investigating authority at the time it makes
its determination.(630)”(631)
473. Accordingly, the
Panel in EC — Salmon (Norway) found that all such information
in the investigating authorities’ files would be subject to timely
disclosure:
“In our view, unless information submitted to
the investigating authority is rejected, that information must remain in
the investigating authorities’ files, and if it is relevant, not
confidential, and used by the investigating authority, as discussed
above, interested parties must be given timely opportunities to see it.”(632)
474. The Appellate
Body in EC — Fasteners (China) summed up past decisions on the
scope of information that must be disclosed under Article 6.4:
“The Appellate Body has found that Article 6.4
refers to ‘provid[ing] timely opportunities for all interested parties
to see all information that is relevant to the presentation of their
cases’, and that the possessive pronoun ‘their’ clearly refers to
the earlier reference in that sentence to ‘interested parties’.(633)
Therefore, it is the interested parties, rather than the authority, who
determine whether the information is in fact ‘relevant’ for the
purposes of Article 6.4.(634) Moreover, according to the
Appellate Body, whether the information was ‘used’ by the authority
does not depend on whether the authority specifically relied on that
information. Rather, it depends on whether the information is related to
‘a required step in the anti-dumping investigation’. (635)
Thus, Article 6.4 concerns information relating to ‘issues which the
investigating authority is required to consider under the [Anti-Dumping
Agreement], or which it does, in fact, consider, in the exercise of
its discretion, during the course of an anti-dumping investigation.’(636)
The interested parties’ right under Article
6.4,
therefore, is to see all non confidential information relevant to the
presentation of their cases and used by the investigating authority. Article
6.4 thus applies to a broad range of information that is used by
an investigating authority for purposes of carrying out a required step
in an anti-dumping investigation.…”(637)
In sum, under Article 6.4 of the Anti-Dumping
Agreement, what information is considered ‘relevant to the
presentation of [the interested parties’] cases’ and ‘used by the
authorities’ would depend on the specific ‘step’ of the
anti-dumping investigation and the particular issue before the
investigating authority.”(638)
475. The Appellate Body in EC — Fasteners
(China) pointed out that the information subject to disclosure under
Article 6.4 is not limited to facts and raw data, although it does not
include the investigating authority’s detailed analysis of the
information:
“We note the European Union’s view that the
term ‘information’ in Article 6.4 ‘concerns facts and raw data
rather than factual determinations and conclusions by the investigating
authorities’. In our view, there is no textual basis in Article
6.4 for limiting information ‘relevant to the presentation of [parties’]
cases’ and ‘used by the authorities’ to facts or raw data
unprocessed by the authorities. Indeed, the broad range of information
subject to the obligation under Article 6.4 may take various forms,
including data submitted by the interested parties, and information that
has been processed, organized, or summarized by the authority. We do not
see why only facts and raw data would be relevant to the parties’
presentation of their cases. A proper interpretation of Article
6.4 does
not mean, however, that an investigating authority’s reasoning or
internal deliberation in reaching its final determination is also
subject to the obligation under Article 6.4. Article
6.4 concerns the
information that is used by an authority, rather than an authority’s
detailed analysis of the information, or the determination it reaches
based on such information.”(639)
476. In EC —
Fasteners (China), the Appellate Body drew a connection between the
duty to disclose under Article 6.4 and the investigating authority’s
duty to ensure a fair comparison:
“In our view, as a starting point for the
dialogue between the investigating authority and the interested parties
to ensure a fair comparison, the authority must, at a minimum, inform
the parties of the product groups with regard to which it will conduct
the price comparisons. For example, the authority may choose to make
comparisons of transaction prices for a number of groups of goods within
the like product that share common characteristics, thus minimizing the
need for adjustments, or it may choose to make adjustments for each
difference affecting price comparability to either the normal value or
the export price of each transaction to be compared. Without knowing
which particular method the authority will use to categorize the
products for purposes of price comparison, it would not be possible for
the interested parties to know what information will be necessary for
purposes of ensuring a fair comparison, and to request adjustments
accordingly. Thus, as the Panel correctly found in its analysis of China’s
claim under Article 6.4 of the Anti-Dumping Agreement:
Ensuring that the comparison of normal value and
export price is based on comparable goods is, as provided for in Article
2.4, an obligation on investigating authorities. Foreign producers have
a role in that process, by requesting due allowance for differences
demonstrated to affect price comparability. In order to fulfil their
role, and thus ensure that their interest in a fair comparison is
protected, however, it is necessary that they know the basis on which
the investigating authority undertakes to make the comparison of normal
value and export price, and in sufficient time to allow the exporters to
make and substantiate requests for due allowance.(640)”(641)
477. In EC —
Fasteners (China), the Appellate Body pointed out the particular
importance of disclosure under Article 6.4 to ensure a fair comparison
in antidumping investigations of imports from NMEs, where normal value
is established on the basis of domestic sales in an analogue country:
“[I]n an anti-dumping investigation of imports
from NMEs, where the normal value is not established on the basis of the
foreign producers’ domestic sales, but is established on the basis of
the domestic sales in an analogue country, the investigating authority’s
obligation to inform the interested parties of the basis of the price
comparison is even more pertinent for ensuring a fair comparison. This
is because foreign producers are unlikely to have knowledge of the
specific products and pricing practices of the producer in an analogue
country. Unless the foreign producers under investigation are informed
of the specific products with regard to which the normal value is
determined, they will not be in a position to request adjustments they
deem necessary.”(642)
(ii) Information already available to the
interested parties
478. The Panel in EC
— Tube or Pipe Fittings distinguished between information already
in the possession of an interested party and information that must be
available to interested parties within the meaning of Article 6.4:
“We do not view information that is already in
the possession of an interested party and that has been submitted by an
interested party to an investigating authority in the course of an
anti-dumping proceeding as information that an investigating authority
must provide opportunities for that same interested parties to see
within the meaning of Article 6.4. This provision relates to information
that would not initially be in the possession of an interested party and
would therefore be unknown or unfamiliar to an interested party if it
were not disclosed to that party in the course of an investigation.”(643)
479. The Panel in EC
— Fasteners (China) rejected a claim under Article 6.4
in respect
of information available on a website and in a non-confidential annex in
the investigation, as “the Chinese producers had adequate
opportunities to see that information.”(644)
(b) “timely opportunities for all interested
parties to see all information”
480. In Guatemala
— Cement II, Mexico claimed that Guatemala’s authority violated
Articles 6.1.2, 6.2 and 6.4 by refusing the Mexican producer access to
the file on a certain date during the investigation; and by failing to
promptly provide the producer with a copy of a submission made by the
applicant for the investigation. Mexico also claimed that Guatemala’s
investigating authority violated Article 6.4 by failing to provide the
Mexican producer with copies of the file; and by failing to provide the
producer with a full record of a public hearing held by the authority.
In examining these claims, the Panel explained the scope and precise
meaning of the relevant provisions. See paragraph 449
above.
481. In Guatemala
— Cement II, in response to Mexico’s claim that in violation of Article 6.4, Guatemala’s authority did not provide copies of the file
to the Mexican producer, Guatemala argued that it was justified in doing
so because the producer had not paid the required fee. The Panel found a
violation of Article 6.4 because the Mexican producer had offered to pay
for the copies it requested. In so doing, the Panel noted that “[t]here
are various ways in which an investigating authority could satisfy the Article 6.4
obligation to provide ‘whenever practicable … timely
opportunities for all interested parties to see all information that is
relevant to the presentation of their cases …’.”(645)
482. In Guatemala
— Cement II, Mexico argued that Guatemala’s authority had acted
inconsistently with Article 6.4 by not providing the Mexican producer
with a complete copy of the record of its public hearing. The copy of
the record of the public hearing as transmitted was missing two
identified individual pages, so that the words at the beginning of one
page did not follow on from the phrase at the end of the immediately
preceding page. Guatemala argued that even if the copy was incomplete,
the Mexican producer could have requested a complete copy as soon as it
realized that an omission had occurred. The Panel did not find a
violation of Article 6.4:
“Despite the factual accuracy of Mexico’s
argument, we do not consider that [the Ministry’s action] amounts to a
violation of Article 6.4 of the AD Agreement, as Mexico has
failed to adduce any evidence that the Ministry’s failure to provide a
full copy of its record of the public hearing was anything other than
inadvertent. Although we consider that an interested party is entitled
to see a full version of the investigating authority’s record of any
public hearing, it is not inconceivable that an investigating authority
which chooses to provide interested parties with a copy of the record
could inadvertently fail to provide a complete copy. In our view, such
an inadvertent omission on the part of an investigating authority does
not constitute a violation of Article 6.4. Although a violation could
arise if an investigating authority failed to correct its omission after
having been informed of that omission by an interested party, there is
no evidence that Cruz Azul informed the Ministry of its omission in the
present case.”
483. Referring to its
finding quoted in paragraph 390 above, the Panel emphasized that it was
not finding a “harmless error”, an argument put forward previously
by Guatemala in a different context:
“In order to avoid any uncertainty, we wish to
emphasize that we do not consider that the inadvertent nature of the
Ministry’s omission renders that omission ‘harmless’, in the sense
of being a defence to a violation of Article 6.4 of the AD Agreement
…. Our position is not that there was a violation of Article 6.4,
but that such violation should be disregarded because it was ‘harmless’.
Rather, our position is that the factual circumstances before us do not
amount to a violation. The question of whether or not any violation is
‘harmless’ therefore does not arise.”(646)
484. The Panel in US
— Oil Country Tubular Goods Sunset Reviews (Article 21.5 —
Argentina) outlined its understanding of the obligations in Article 6.4:
“Article 6.4 requires the investigating
authorities to allow the interested parties in investigations and sunset
reviews, whenever practicable, timely opportunities to see the information
that is relevant to the presentation of their case…”
“The text of Article 6.4
makes it clear that it
does not apply to the reasoning of the investigating authorities…”(647)
485. The Panel in US
— Oil Country Tubular Goods Sunset Reviews (Article 21.5 —
Argentina), following an examination of various memoranda Argentina
claimed were not shown to Argentine exporters, found that the United
States had indeed acted inconsistently with Article 6.4. The Panel did
not accept the argument of the United States that limited time available
to make a new sunset determination was a consideration to be taken into
account in assessing consistency with Article 6.4.(648)
486. The Panel in EC
— Fasteners (China), summing up the case law on Article 6.4, noted
that
“Article 6.4 generally stipulates that the
authorities shall give interested parties ‘opportunities’ to see all
information used by the investigating authorities in an anti-dumping
investigation. This right, however, is not unlimited. First, it applies
to information which is used by the authorities. Second, the
information must be relevant to the presentation of the
interested parties’ cases. Third, this right does not apply to confidential
information. Fourth, the investigating authorities have to provide these
opportunities ‘whenever practicable’, and on a ‘timely’
basis.(649) …
In addition, …Article 6.4 does not obligate
the investigating authorities to actively disclose information to
interested parties… . In our view, a violation of Article 6.4
would
normally require a showing that the investigating authorities denied an
interested party’s request to see information used by the authorities,
which was relevant to the presentation of that interested party’s case
and which was not confidential.”(650)
487. The Appellate
Body in EC — Fasteners (China) confirmed the Panel’s finding
that the EU authority violated Article 6.4 “by not providing a timely
opportunity for Chinese producers to see information regarding the
product types on the basis of which normal value was established”.(651)
As the Panel described it, “Chinese producers were informed very late
in the proceedings of the product types that formed the basis of the
comparisons underlying the Commission’s dumping determinations. Two of
them requested information pertaining to those product types, but were
not given a timely opportunity to see the relevant information by the
Commission.(652)”(653) The Appellate Body agreed that
the product types used by the Commission for purposes of comparing the
export price and normal value in the fasteners investigation constituted
“information relevant to the presentation” of the Chinese parties’
case, because, without such information, “it would be difficult if not
impossible, for foreign producers to request adjustments that they
consider necessary in order to ensure a fair comparison.”(654)
(c) No independent disclosure obligation
488. The Panel in Korea
— Certain Paper (Article 21.5 — Indonesia) noted that Article
6.4 did not impose an independent disclosure obligation on the
authorities — that is, there was no requirement on the authorities to
disclose information to the interested parties where there was no
request to that effect.(655)
489. The Panel in EC
— Fasteners (China) also considered a claim under Articles 6.2 and
6.4 regarding deficiencies in disclosure to the Chinese producers, as
reflected in the General and Individual Disclosure Documents. The Panel
rejected the claim because Articles 6.4 and 6.2 do not impose any
affirmative disclosure obligations on the investigating authorities.(656)
As the Panel stated:
“Article 6.4 does not obligate the investigating
authorities to actively disclose information to interested parties…
. In our view, a violation of Article 6.4 would normally require a
showing that the investigating authorities denied an interested party’s
request to see information used by the authorities, which was relevant
to the presentation of that interested party’s case and which was not
confidential.”(657)
490. The Panel in EC
— Fasteners (China) rejected a claim under Articles 6.4 and
6.2
regarding inadequate explanation on the comparisons made in the
investigation, stating that “we see nothing in the text of either Article 6.4
or Article 6.2 that requires an investigating authority to
give any explanation at all with respect to the information it makes
available to the parties.(658)”(659)
(d) Confidentiality: access to own
confidential information
491. The Panel in Korea
— Certain Paper interpreted the reference in Article 6.4
to “information… that is not confidential as defined in paragraph 5”:
“Article 6.4 precludes the IA from disclosing
confidential information to the interested parties. However, that
provision cannot, in our view, possibly be interpreted to deny an
interested party access to its own confidential information. That is,
confidentiality cannot be used as the basis for denying access to
information against the company which submitted the information. The
notion of confidentiality, as elaborated upon in Article 6.5 of the
Agreement, is about preserving confidentiality of information that
concerns one interested party vis-à-vis the other interested parties.”(660)
(e) Relationship with other paragraphs of
Article 6
492. In Guatemala
— Cement II, Mexico made a number of claims under Article 6.4
in
conjunction with claims under more specific provisions of Article
6, and
the Panel resolved the claims under the more specific provisions.
Regarding Guatemala’s failure to require the domestic producer to
provide reasons why certain information could not be made public, the
Panel found a violation of Article 6.5.1 and declined to rule on other
grounds including Article 6.4; see paragraph
509. Regarding Guatemala’s
failure to allow the Mexican producer “proper access” to the
information submitted by the Guatemalan domestic producer at the public
hearing it held, the Panel found a violation of Articles 6.1.2 and
6.4
and declined to rule under Articles 6.1 and 6.2; see
paragraph 432 above. Regarding Guatemala’s delay in making a submission by the
applicant available to the Mexican producer, the Panel found a violation
of Article 6.1.2, and declined to rule on Article 6.4.(661)
493. The Panel in Guatemala
— Cement II also discussed the relationship between the
obligations under Articles 6.4 and 6.9. See
paragraph 616 below.
494. The Appellate
Body in EC — Tube or Pipe Fittings expressed the view that a
finding of violation in that case under Article 6.4 would necessarily
entail a violation of Article 6.2.(662)
495. The Panel in EC
— Fasteners (China), considering claims brought under Articles
6.5, 6.4 and 6.2 in respect of the decision in
paragraph 502 below,
noted that “both Articles 6.4 and 6.2 exempt confidential information
from the scope of the rights that they confer upon interested parties in
an investigation … the rights of interested parties set forth in
these two provisions do not apply to confidential information. It
follows that to find a violation of Articles 6.4 and
6.2, we necessarily
have to find a violation of Article 6.5, which would mean that the
identity of the complainants and the supporters should not have been
treated as confidential information. It is only if that information was
wrongly treated as confidential that we can engage in a substantive
analysis of China’s claims under Articles 6.4 and
6.2.”(663)
The Panel found that there was no violation of Article
6.5, and
consequently no violation of Article 6.4 or 6.2.
4. Article 6.5
(a) “Any information which is by its nature
confidential”
(i) Nature of confidential information
protected
496. In Guatemala
— Cement II, the Panel discussed the scope of Article
6.5:
“The text of Article 6.5
distinguishes between
two types of confidential information: (1) ‘information which is by
nature confidential’, and (2) information ‘which is provided on a
confidential basis’. Article 6.5 then provides that the provision of
confidential treatment is conditional on ‘good cause’ being shown.
Logically, one might expect that ‘good cause’ for confidential
treatment of information which is ‘by nature confidential’ could be
presumed, and that ‘good cause’ need only be shown for information
which is not ‘by nature confidential’ (but for which
confidential treatment is nonetheless sought). It is presumably for this
reason that, in rejecting Mexico’s claim, Guatemala argues that the
relevant information was ‘clearly of a confidential nature’. While
we have some sympathy for Guatemala’s argument, given the logical
appeal of such an interpretation of Article 6.5, we note that
Article 6.5 is not drafted in a way which suggests this approach. Instead, the
requirement to show ‘good cause’ appears to apply for both types of
confidential information, such that even information ‘which is by
nature confidential’ cannot be afforded confidential treatment unless
‘good cause’ has been shown.(664)”(665)
497. The Panel in Korea
— Certain Paper considered a similar claim regarding confidential
treatment accorded to information in the domestic industry’s
application. Noting that the phrase “upon good cause shown” is
preceded by both types of confidentiality in the text of Article
6.5,
the Panel found that “the text of Article 6.5
makes it clear that the
good cause requirement applies to both types of confidential
information. That is, some showing of good cause is necessary for the
confidential treatment of information that is by nature confidential.
The degree of that requirement may, however, depend on the type of
information concerned.”(666)
498. The Panel in EC
— Fasteners (China) noted that “it is now well established that
the good cause requirement for confidential treatment applies both to
information that is by nature confidential and to information submitted
on a confidential basis. Thus, whether the identity of the complainants
and the supporters was by nature confidential or was submitted on a
confidential basis is not relevant to our analysis.”(667)
499. The Panel in EC
— Fasteners (China) also observed that “information that is
publicly available is not confidential within the meaning of Article
6.5”
and found that by treating information that was available from the
Eurostat website as confidential information, without good cause shown,
the investigating authority had violated Article
6.5; the fact that the
information was available in the public domain was not an excuse for
disregarding the requirements of Article 6.5.(668)
500. The Appellate
Body in EC — Fasteners (China) remarked regarding the nature of
confidential information:
“The question of whether information is ‘by
nature’ confidential depends on the content of the information.
Information that is ‘provided on a confidential basis’ is not
necessarily confidential by reason of its content, but rather,
confidentiality arises from the circumstances in which it is provided to
the authorities. These two categories may, in practice, overlap.”(669)
(ii) Scope of information protected under
Article 6.5
501. The Appellate
Body in EC — Fasteners (China), discussing obligations under Article
6.5 generally, considered which parties’ information is
protected under Article 6.5, finding inter alia that such
protection extends to all parties taking part in an investigation,
including analogue country producers in an investigation of non-market
economy producers:
“In examining the scope of Article
6.5, we note
that it extends the need to request confidential treatment to
information submitted by ‘parties to an investigation’ rather than
those in the specifically defined group of ‘interested parties’. As
such, Article 6.5 does not limit the protection afforded to sensitive
information to the ‘interested parties’ expressly listed under
Article 6.11 of the Anti-Dumping Agreement. In our view, the term
‘parties to an investigation’ refers to any person who takes part or
is implicated in the investigation. Moreover,
Article 6.11 does not
contain an exhaustive list of ‘interested parties’, but states that
‘interested parties’ shall include the persons or groups
listed in that Article. In our view, the persons expressly listed in
Article 6.11 are those who are in every case considered to be ‘interested
parties’, but are not the only persons who may be considered ‘interested
parties’ in a particular investigation. We do not believe that an
investigating authority is relieved of its obligations under Article 6.5
merely because a participant in the investigation does not appear on the
list of ‘interested parties’ in
Article 6.11.(670) Rather,
once ‘good cause’ is shown, confidential treatment of sensitive
information must be afforded to any party who takes part or is
implicated in the investigation or in the provision of information to an
authority. Pursuant to Article 6.5 such parties include persons
supplying information, persons from whom confidential information is
acquired, and parties to an investigation.”(671)
(b) “upon good cause shown”
(i) Scope of “good cause”
502. The Appellate
Body in EC — Fasteners (China) commented generally on “good
cause” in Article 6.5:
“The ‘good cause’ alleged must constitute a
reason sufficient to justify the withholding of information from both
the public and from the other parties interested in the investigation,
who would otherwise have a right to view this information under Article
6 of the Anti-Dumping Agreement. Put another way, ‘good cause’
must demonstrate the risk of a potential consequence, the avoidance of
which is important enough to warrant the nondisclosure of the
information. ‘Good cause’ must be assessed and determined
objectively by the investigating authority, and cannot be determined
merely based on the subjective concerns of the submitting party.
We find that the examples provided in Article 6.5
in the context of information that is ‘by nature’ confidential are
helpful in interpreting ‘good cause’ generally, because they
illustrate the type of harm that might result from the disclosure of
sensitive information, and the protectable interests involved. Article 6.5
states that the disclosure of such information ‘would be of
significant competitive advantage to a competitor’ or ‘would have a
significantly adverse effect upon a person supplying the information or
upon a person from whom that person acquired the information’. These
examples suggest that a ‘good cause’ which could justify the
non-disclosure of confidential information might include an advantage
being bestowed on a competitor, or the experience of an adverse effect
on the submitting party or the party from which it was acquired. These
examples are only illustrative, however, and we consider that a wide
range of other reasons could constitute ‘good cause’ justifying the
treatment of information as confidential under Article 6.5.
In practice, a party seeking confidential
treatment for information must make its ‘good cause’ showing to the
investigating authority upon submission of the information. The
authority must objectively assess the ‘good cause’ alleged for
confidential treatment, and scrutinize the party’s showing in order to
determine whether the submitting party has sufficiently substantiated
its request. In making its assessment, the investigating authority must
seek to balance the submitting party’s interest in protecting its
confidential information(672) with the prejudicial effect that
the non-disclosure of the information may have on the transparency and
due process interests of other parties involved in the investigation to
present their cases and defend their interests. The type of evidence and
the extent of substantiation an authority must require will depend on
the nature of the information at issue and the particular ‘good cause’
alleged. The obligation remains with the investigating authority to
examine objectively the justification given for the need for
confidential treatment. If information is treated as confidential by an
authority without such a ‘good cause’ showing having been made, the
authority would be acting inconsistently with its obligations under Article 6.5
to grant such treatment only ‘upon good cause shown’.”(673)
503. In the investigation underlying the
dispute in EC — Fasteners (China), the complainants and
supporters of the complaint requested the investigating authority to
treat their identities as confidential in order “to avoid a potential
retaliation which could be carried out by some of their Customers who
also buy products directly from P.R. China”.(674) The
complainants alleged that, if these customers knew which European
producers had requested or supported the initiation of this
investigation, they might discontinue purchasing fasteners from those
producers. The investigating authority accepted this request and
conveyed its decision to the foreign producers who had questioned the
authority on the complainants’ identity.(675)
The Panel
rejected a claim by China that this decision violated Article 6.5. The
Panel observed:
“Article 6.5 does not … explain what ‘good
cause’ means. In our view, this is something that has to be assessed
by the investigating authorities in light of the circumstances of each
investigation and each request for confidential treatment. We also
consider that what constitutes ‘good cause’ will depend on the
nature of the information at issue for which confidential treatment is
sought.(676) The ‘good cause’ alleged to exist, in turn, will
determine the kind of supporting evidence that may be needed in order to
demonstrate the existence of such ‘good cause’.
… in this dispute the core of the disagreement
between the parties is whether ‘potential commercial retaliation’
constitutes good cause to justify confidential treatment of the identity
of the complainants and the supporters of the complaint. On its face, we
see nothing in Article 6.5 that would exclude potential commercial
retaliation from constituting good cause for the confidential treatment
of any information, including the identity of the complainants… . We
recall that in elucidating what may constitute information that is by
nature confidential, Article 6.5 refers to, inter alia,
situations where the disclosure of the information ‘would have a
significantly adverse effect upon a person supplying the information or
upon a person from whom that person acquired the information’. We can
certainly see that ‘potential commercial retaliation’ from the
complainants’ customers who, in addition to buying the subject product
from the complainants, also purchase imports from the country subject to
the complaint, might have a ‘significantly adverse effect’ upon the
complainants.”(677)
504. The Appellate
Body upheld the Panel’s finding that the potential commercial
retaliation alleged by the complainants satisfied the “good cause”
requirement of Article 6.5:
“[W]e do not understand China to argue that ‘commercial
retaliation’ may not constitute a ‘good cause’ justification for
confidential treatment. In this respect, we agree with the Panel that
‘nothing in Article 6.5 … would exclude potential commercial
retaliation from constituting good cause for the confidential treatment
of any information, including the identity of complainants’, and China
does not challenge this finding.”(678)
(ii) Requirement for “good cause” to be
shown
505. In Guatemala
— Cement II, the Panel agreed that Guatemala’s investigating
authority violated Articles 6.5, 6.5.1 and
6.5.2 by providing
confidential treatment to a submission from the domestic producer on its
own initiative, i.e. without “good cause” having been shown by the
producer:
“In our view, the requisite ‘good cause’
must be shown by the interested party submitting the confidential
information at issue. We do not consider that Article 6.5
envisages ‘good
cause’ being shown by the investigating authority itself, since —
with respect to information that is not ‘by nature confidential’ in
particular — the investigating authority may not even know whether or
why there is cause to provide confidential treatment.”(679)
506. In EC —
Fasteners (China), China argued that when the investigating
authority decided to keep the complainants’ identities confidential as
discussed in paragraph 502 above, it violated Article 6.5
by relying on
the allegations in the complaint and not requiring evidence showing the
existence of the alleged commercial retaliation. In a finding upheld by
the Appellate Body, the Panel did not consider this to be a “fatal
lack of evidence” in part because it was unlikely that evidence of
potential commercial retaliation would be obtainable:
“[U]nless there is some reason to believe that
the fear of retaliation is unreasonable, unfounded, or untrue — and
China has proffered none — we consider that the allegation of the
complainants in this case is a sufficient basis for the Commission’s
conclusion. We note in this regard that, in our view, the purpose of
granting confidential treatment as provided for in Article 6.5
is
precisely to make sure that a feared adverse effect, in this case ‘potential
commercial retaliation’, remains hypothetical, and does not actually
materialize. Second, … by stating that their customers were also
themselves importers of the subject product from China, the complainants
substantiated their assertion to a certain degree by explaining the
circumstances which they thought showed that commercial retaliation
could happen. We therefore disagree with China’s contention that the
‘potential commercial retaliation’ alleged by complainants did not
constitute good cause within the meaning of Article 6.5.”(680)
507. The Panel in EC
— Fasteners (China) also found that “the fact that the names of
the companies that made up the sample for purposes of the injury
analysis were disclosed does not affect the analysis with respect to the
confidential treatment of the names of the complainants and supporters.
The sampled companies can clearly be identified as cooperating,
otherwise they would not have been included in the sample, but this is
not necessarily the same as being identified as complainants themselves,
and thus might not cause the same concerns for those companies.”(681)
(c) “Such information shall not be disclosed
without specific permission”
508. The Panel in EC
— Fasteners (China) found that the European Union violated Article
6.5 by disclosing the information reported in nine Chinese producers’
MET/IT Claim Forms (discussed at paragraph 439 above) to all nine
Chinese producers, to the Chinese authorities and to other interested
parties including the complainants, without asking or receiving the
submitters’ permission for disclosure. The Panel noted that the forms
were submitted on a confidential basis and labelled as confidential. The
Panel further noted:
“[I]n the circumstances of this case, we do not
consider it necessary for us to determine whether or not the information
in the MET/IT Claim Forms, or in the MET Disclosure Document, was
properly treated as confidential under Article 6.5… merely because a
document is labelled as such does not demonstrate that the information
it contains is confidential within the meaning of Article 6.5. It is
clear that an investigating authority may conclude that information
submitted as confidential does not merit such treatment. However, in
such a case, Article 6.5.2 of the AD Agreement establishes certain
requirements, not least of which is to give the supplier of the
information an opportunity to make the information public or to
authorize its disclosure in generalized or summary form. Moreover, even
if the investigating authority concludes that a request for
confidentiality is not warranted, Article 6.5.2 provides that if the
supplier is unwilling to make the information public or to authorize its
disclosure in generalized or summary form, the authorities may disregard
the information.(682)
Article 6.5.2 does not, however, authorize
the authorities to provide the information to other interested parties
in the investigation. In any event, even assuming, as the European Union
asserts, that the MET Disclosure Document does not contain any data on
the volume, value, or unit price of sales, actual costs of the companies
concerned, percentage or value of profits, value of any subsidy
received, or the value of the assets of the companies examined, this
does not, in our view, demonstrate that the document contains only
non-confidential information. Information which may properly be treated
as confidential under Article 6.5 is not necessarily limited to data of
the types referred to by the European Union, but may include any type of
information submitted on a confidential basis.”(683)
(d) Article 6.5.1
509. In Guatemala
— Cement II, the Panel agreed that Guatemala’s authority
violated Article 6.5.1 by failing to require the domestic producer to
provide reasons why certain information could not be made public:
“Although Article 6.5.1
does not explicitly
provide that ‘the authorities shall require’ interested parties to
provide a statement of the reasons why summarization is not possible,
any meaningful interpretation of Article 6.5.1
must impose such an
obligation on the investigating authorities… .in our view Article 6.5.1
imposes an obligation on investigating authorities to require
parties that indicate that information is not susceptible of summary to
provide a statement of the reasons why summarization is not possible.
… In making this finding, we attach no importance whatsoever to
Guatemala’s assertions concerning the alleged treatment of similar
information by other WTO Members. Whether or not other WTO Members act
in conformity with Article 6.5.1 is of no relevance to the present
dispute, which concerns the issue of whether or not the Ministry acted
in conformity with that provision.”(684)
510. The Panel then
considered it unnecessary to address Mexico’s claim under Articles
6.1, 6.2, 6.4, 6.5 and
6.5.2 on the same factual ground, because “the
need for a statement of the reasons why the information is not
susceptible of summary is specifically addressed by Article
6.5.1.”(685)
511. In Argentina
— Ceramic Tiles, the Panel, while examining whether the
authorities were allowed to rely on confidential information in their
determination (see paragraph 598 below), considered that the purpose of
the non-confidential summaries is to inform the interested parties so as
to enable them to defend their interests:
“Consistent with our view that authorities may
rely on confidential information in making their determination, the
purpose of the non-confidential summaries provided for in Article
6.5.1 is to inform the interested parties so as to enable them to defend their
interests. We do not consider that the purpose of the non-confidential
summaries is to enable the authorities to arrive at public conclusions,
as Argentina contends. Thus, an authority would not in our view be
justified in rejecting the exporters’ responses simply because the
information in the non-confidential summaries was not sufficient to
allow the calculation of normal value, export price, and the margin of
dumping.”(686)
512. The Panel in Mexico
— Steel Pipes and Tubes set out its general analysis of Article
6.5.1:
“We consider that the conditions set out in
Article 6.5, chapeau, and 6.5.1 are of critical importance in preserving
the balance between the interests of confidentiality and the ability of
another interested party to defend its rights throughout an anti-dumping
investigation. For precisely this reason, we consider it paramount for
an investigating authority to ensure that the conditions in these
provisions are fulfilled. We consider it equally important for a WTO
Panel called upon to review an investigating authority’s treatment of
confidential information strictly to enforce these conditions, while
remaining cognizant of the applicable standard of review.”(687)
513. In Mexico —
Steel Pipes and Tubes, Guatemala asserted that Mexico had violated
Article 6.5 by failing to require the applicant to provide
non-confidential summaries, to evaluate the sufficiency of the
summaries, and to disclose properly information that was not shown upon
good cause to be confidential, or, alternatively, to disclose
non-confidential summaries of confidential information. The Panel did
not consider that the obligations contained in
Article 6.5 “set forth
exactly how an investigating authority should or must evaluate a request
for confidential treatment”.(688) In this case, the Panel
considered that Mexico had “adhered to the minimum threshold permitted
by Articles 6.5 and 6.5.1 in its treatment of the confidential
information concerned.”(689)
514. The Appellate
Body in EC — Fasteners (China) set out its general analysis of Article
6.5.1 in the context of Article 6.5:
“Whenever information is treated as
confidential, transparency and due process concerns will necessarily
arise because such treatment entails the withholding of information from
other parties to an investigation. Due process requires that interested
parties have a right to see the evidence submitted or gathered in an
investigation, and have an adequate opportunity for the defence of their
interests. As the Appellate Body has stated, ‘that opportunity must be
meaningful in terms of a party’s ability to defend itself’.(690)
Articles 6.5 and 6.5.1 accommodate the concerns of
confidentiality, transparency, and due process by protecting information
that is by nature confidential or is submitted on a confidential basis
and upon ‘good cause’ shown, but establishing an alternative method
for communicating its content so as to satisfy the right of other
parties to the investigation to obtain a reasonable understanding of the
substance of the confidential information, and to defend their
interests. As the Panel found, ‘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’.(691)
In respect of information treated as confidential under Article
6.5,
Article 6.5.1 obliges the investigating authority to require that a
non-confidential summary of the information be furnished, and to ensure
that the summary contains ‘sufficient detail to permit a reasonable
understanding of the substance of the information submitted in
confidence’. The sufficiency of the summary provided will therefore
depend on the confidential information at issue, but it must permit a
reasonable understanding of the substance of the information withheld in
order to allow the other parties to the investigation an opportunity to
respond and defend their interests.
Article 6.5.1 contemplates that in ‘exceptional
circumstances’ confidential information may not be ‘susceptible of
summary’. In such exceptional circumstances, a party may indicate that
it is not able to furnish a non-confidential summary of the information
submitted in confidence, but it is nevertheless required to provide a
‘statement of the reasons why summarization is not possible’.
Article 6.5.1 relieves a party of its duty to provide a non-confidential
summary of information submitted in confidence only if doing so ‘is
not possible’. It is not enough for a party simply to claim that
providing a summary would be burdensome or costly. Summarization of
information will not be possible where no alternative method of
presenting that information can be developed that would not, either
necessarily disclose the sensitive information, or necessarily fail to
provide a sufficient level of detail to permit a reasonable
understanding of the substance of the information submitted in
confidence.
Where information is kept confidential upon ‘good cause’
shown, and it is not possible to provide a non-confidential summary of
the information that permits a reasonable understanding of its
substance, the balance struck under Articles 6.5 and
6.5.1 is altered,
and the due process rights of other parties to the investigation are not
fully respected. Therefore, when it is not possible to furnish a
non-confidential summary,
Article 6.5.1 requires a party to identify the
exceptional circumstances and provide a statement explaining the reasons
why summarization is not possible. For its part, the investigating
authority must scrutinize such statements to determine whether they
establish exceptional circumstances, and whether the reasons given
appropriately explain why, under the circumstances, no summary that
permits a reasonable understanding of the information’s substance is
possible.(692) As the Panel found, ‘in the absence of scrutiny
of non-confidential summaries or stated reasons why summarization is not
possible by the investigating authority, the potential for abuse under
Article 6.5.1 would be unchecked unless and until the matter were
reviewed by a panel.’(693) 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’.(694) In
sum,
Article 6.5.1 imposes an obligation on the investigating
authorities to ensure that sufficiently detailed non-confidential
summaries are submitted to permit a reasonable understanding of the
substance of the confidential information; and, in exceptional
circumstances, to ensure that parties provide a statement appropriately
explaining the reasons why particular pieces of confidential information
are not susceptible of summary.”(695)
515. In EC —
Fasteners (China), examining the non-confidential questionnaire
responses of two domestic producers in the fasteners investigation, the
Appellate Body upheld the Panel’s findings that the investigating
authority had failed to ensure the producers’ compliance with the
requirements of
Article 6.5.1 and had itself acted inconsistently with
Article 6.5.1.(696) The Appellate Body noted that in each
instance, essential data and a non-confidential summary were missing,
there was no appropriate statement of reasons why summarization was not
possible, and the Panel record did not indicate that the investigating
authority examined the producers’ statements to evaluate their
consistency with
Article 6.5.1.(697) The Appellate Body commented
further that the absence of sanctions on interested parties in the
Anti-Dumping Agreement “does not derogate from the obligatory nature
of the requirements. It does not mean, as the European Union argues,
that an investigating authority must merely make best efforts to ensure
that such summaries or statements of reasons are provided.”(698)
(e) Disclosure of confidential information
under protective order
516. In US — Oil
Country Tubular Goods Sunset Reviews (Article 21.5 — Argentina),
Argentina claimed that the USDOC acted inconsistently with Article 6.5
because it failed to require the “petitioners to submit a
non-confidential summary of the confidential information that they
submitted or because the non-confidential summary of the confidential
information submitted by the petitioners did not provide a reasonable
understanding of the substance of the information ….”(699)
The United States argued that because US law allowed counsel for parties
to access all confidential information on the record, there was no
violation of Article 6.5.1. The Panel did not agree with the United
States:
“Article 6.5.1 protects the right of the
interested parties generally to be reasonably informed about the
substance of the confidential information that may be submitted by any
other interested party. What matters for purposes of
Article 6.5.1 is
whether the interested parties themselves receive non-confidential
summaries of the confidential information submitted to the investigating
authorities…”(700)
517. The Panel in Mexico
— Steel Pipes and Tubes examined an argument that failure to
provide non-confidential summaries had not prejudiced the Guatemalan
exporter, as it could have had access to the confidential record under
procedures provided by Mexico. The Panel found:
“while such a system of limited disclosure is
certainly envisaged by Article 6.5, and may certainly act as a
supplement to a Member’s fulfilment of its obligations under Article
6.5, we find no textual basis in Article 6.5
that would indicate to us
that permitting limited access to the entire confidential record to
individuals fulfilling certain conditions, provides a derogation from,
or replaces, the obligations of an investigating authority under Article
6.5 to require justification for treatment of information as
confidential and, if such treatment is justified, to require
non-confidential summaries of the confidential information, or,
alternatively, to require justification for the non-summarization of
certain information.”(701)
(f) Article 6.5.2
518. In Guatemala
— Cement II, the Panel rejected Mexico’s claim that Guatemala’s
authority had violated Article 6.5.2 by agreeing to provide confidential
treatment for certain information submitted during the verification
visit at the domestic producer’s premises. Mexico’s claim of
violation was based on the domestic producer’s alleged failure to
justify its request for confidential treatment. The Panel held:
“Article 6.5.2 does not require any
justification to be provided by the interested party requesting
confidential treatment. If any such obligation exists, it derives from
Article 6.5, not 6.5.2. Mexico has not based this claim on
Article 6.5.
Article 6.5.2 speaks only to events when ‘the authorities find that a
request for confidentiality is not warranted’.”(702)
(g) Relationship with other paragraphs of
Article 6
519. The Panel, in Argentina
— Ceramic Tiles, referred to Articles 6.5 and
6.5.1 of the
Anti-Dumping Agreement as support of its conclusion that an
investigating authority may rely on confidential information in making
determinations while respecting its obligation to protect the
confidentiality of that information. See paragraph 598
below.
5. Article 6.6
(a) “satisfy themselves as to the accuracy
of the information”
520. In support of its
opinion that the text of Article 6.6 does not explicitly require
verification of all information relied upon, the Panel in US —
DRAMS stated:
“Article 6.6 simply requires Members to ‘satisfy
themselves as to the accuracy of the information’. In our view,
Members could ‘satisfy themselves as to the accuracy of the
information’ in a number of ways without proceeding to some type of
formal verification, including for example reliance on the reputation of
the original source of the information. Indeed, we consider that
anti-dumping investigations would become totally unmanageable if
investigating authorities were required to actually verify the accuracy
of all information relied on.(703)”(704)
521. In Guatemala
— Cement II, addressing Mexico’s claim under Article 6.6, the
Panel explained the nature of the obligation under this Article:
“In our view, it is important to distinguish
between the accuracy of information, and the substantive relevance of
such information. Once an investigating authority has determined what
information is of substantive relevance to its investigation, Article
6.6 requires the investigating authority to satisfy itself (except when
‘best information available’ is used) that the substantively
relevant information is accurate. Thus, Article
6.6 applies once an
initial determination has been made that the information is of
substantive relevance to the investigation. Article
6.6 provides no
guidance in respect of the initial determination of whether information
is, or is not, of substantive relevance to the investigation.”(705)
(b) Burden on the investigating authorities
522. In Argentina
— Ceramic Tiles, the Panel confirmed that “the burden of
satisfying oneself of the accuracy of the information” is “on the
investigating authority”:
“Article 6.6 of the AD Agreement thus
places the burden of satisfying oneself of the accuracy of the
information on the investigating authority. As a general rule, the
exporters are therefore entitled to assume that unless otherwise
indicated they are not required to also automatically and in all cases
submit evidence to demonstrate the accuracy of the information they are
supplying… . We believe that if no on-the-spot verification is going
to take place but certain documents are required for verification
purposes, the authorities should in a similar manner inform the
exporters of the nature of the information for which they require such
evidence and of any further documents they require.”(706)
6. Article 6.7 and Annex I
(a) Relationship between Article 6.7 and Annex
I
523. As regards the
relationship between Article 6.7 and Annex
I, in Egypt — Steel
Rebar, the Panel came to the same conclusion as with the
relationship between Article 6.8 and Annex II (see
paragraph 536 below),
i.e. that Annex I is incorporated by reference into
Article 6.7:
“Concerning the relationship of Annex I to
Article 6.7, we come to the same conclusion as in respect of
Annex II
and Article 6.8.(707) In particular, we note
Article 6.7’s
explicit cross-reference to Annex I: ‘[T]he procedures described in
Annex I shall apply to investigations carried out in the territory of
other Members’. This language thus establishes that the specific
parameters that must be respected in carrying out foreign verifications
in compliance with Article 6.7 are found in Annex I.”(708)
(b) On-the-spot verifications as an option
524. The Panel in Argentina
— Ceramic Tiles indicated in a footnote that, although common
practice, there is no requirement to carry out on-the-spot
verifications:
“There does not exist a requirement in the
Agreement to carry out investigations in the territory of other Members
for verification purposes. Article 6.7 of the AD Agreement merely
provides for this possibility. While such on-site verification visits
are common practice, the Agreement does not say that this is the only
way or even the preferred way for an investigating authority to fulfil
its obligation under Article 6.6 to satisfy itself as to the accuracy of
the information supplied by interested parties on which its findings are
based.”(709)
525. The Panel in EC
— Tube or Pipe Fittings rejected the argument that Article 2.4
required the investigating authority to base the adjustment on a
visual/physical inspection of the working activities and practices in
the packaging area at the company’s premises. The Panel stated that it
viewed verification as an essentially “documentary” exercise that
may be supplemented by an actual on-site visit, which is not mandated by
the Agreement. According to the Panel, “[a]n essentially documentary
approach to verification — which focuses upon documented support for
claims for adjustment — seems to us to be entirely consistent with the
nature of an anti-dumping investigation.(710)”(711)
(c) Information verifiable on-the-spot
526. In Guatemala
— Cement II, Mexico argued Guatemala’s authority had acted
inconsistently with Article 6.7 and paragraph 7 of Annex I by seeking to
verify certain information that was not submitted by the Mexican
producer subject to the investigation because it pertained to a period
of investigation newly added during the course of the investigation. The
Panel rejected this argument:
“Although Annex I(7) provides that the ‘main
purpose’ of the verification visit is to verify information already
provided, or to obtain further details in respect of that information,
it also provides that an investigating authority may ‘prior to the
visit … advise the firms concerned … of any further information
which needs to be provided’. Since there would be little point in
advising a firm of ‘further information … to be provided’ in
advance of the verification visit if the investigating authority were
precluded from examining that ‘further information’ during the
visit, we consider that the phrase ‘further information … to be
provided’ refers to information to be provided during the course of
the verification. Mexico’s view that an investigating authority may
only verify information submitted prior to the verification visit is not
consistent with this interpretation of Annex I(7).
In response to a question from the Panel, Mexico
argues that the phrase ‘any further information … to be provided’
refers to accounting information to be provided by the verified company
during verification in order to substantiate the information previously
supplied to the investigating authority. We note, however, that the
phrase does not read ‘any further accounting information … to be
provided’. The term ‘information’ is not qualified in any way by
the express wording of Annex I(7), and there are no elements in the
context which plead for such qualification.
Furthermore, we note that the last phrase of Annex I(7)
refers to on-the-spot requests for further details to be provided
in light of ‘information obtained’. Thus, although it should be ‘standard
practice’ to advise firms of additional information to be provided in
advance of the verification visit, this does not preclude an
investigating authority from requesting ‘further details’ during the
course of the investigation, ‘in light of the information obtained’.
In our view, the reference to ‘information obtained’ cannot mean the
information obtained from the exporter in advance of the verification
visit, since (consistent with ‘standard practice’) requests
regarding that information should be made prior to the visit, and not
during the course of the investigation. Accordingly, the ‘information
obtained’ must refer to information obtained during the course of the
verification visit, since it is only information obtained during the
course of a verification visit which may prompt a request for further
details during the course of the verification visit. The last phrase of Annex I(7)
therefore confirms our understanding that an investigating
authority may seek new information during the course of the verification
visit.”(712)
(d) Disclosure obligations in the on-the-spot
verification
527. The Panel in Korea
— Certain Paper, noting that Article 6.7 requires the
investigating authority to inform the investigated exporters of the
verification results,(713) found that it does not require written
disclosure:
“It requires that the verification results be
disclosed to the investigated exporters without specifying the format in
which such disclosure is to be made … As long as it can be proved
that the substantive requirements of that provision have been fulfilled,
the format of the disclosure would not matter.”(714)
528. The Panel in Korea
— Certain Paper noted that the purpose of the disclosure
requirement under Article 6.7 is to make sure that exporters and other
interested parties are informed of the verification results to be able
to structure their cases for the rest of the investigation in light of
those results. The Panel then went on to indicate that it is important
that such disclosure contain adequate information regarding all aspects
of the verification, including a description of the information which
was not verified as well as of information which was verified
successfully because, in its view, “information which was verified
successfully, just as information which was not verified, could well be
relevant to the presentation of the interested parties’ cases.”(715)
(e) Participation of non-governmental experts
in the on-the-spot verification
529. In Guatemala
— Cement II, Mexico claimed that a verification visit by Guatemala’s
authority to the Mexican producer’s site was inconsistent with Article 6.7
and Annex I(2), (3),
(7) and (8) because the authority included
three non-governmental experts, two of whom the respondent considered to
have a conflict of interest because they also represented the US cement
industry in a US anti-dumping investigation of cement from Mexico. The
Panel stated its view that an impartial and objective investigating
authority would not include non-governmental experts with a conflict of
interest in its verification team, but found that none of the provisions
cited by Mexico explicitly prohibited such conduct.(716) The
Panel also found that under these circumstances, it was entirely
reasonable for the respondent producer to object to inclusion of these
two experts in the verification team, and that the investigating
authority could not argue that the Mexican producer’s refusal to allow
the verification meant that the producer was “significantly impeding”
the investigation within the meaning of Article
6.8. See also paragraph
582 below.
530. In Guatemala
— Cement II, the Panel considered that paragraph 2 of Annex I
requires a national authority to directly inform the government of
exporting Members of its intention to include non-governmental experts
in the verification team for visit to foreign producers/ exporters.(717)
With respect to the burden of proof on this point, referring to a
finding of the Panel in US — Section 301 Trade Act(718), the
Panel stated:
“In principle, Mexico bears the burden to prove
that the Ministry failed to inform it of the inclusion of
nongovernmental experts in the Ministry’s verification team. As a
practical matter, this burden is impossible for Mexico to meet: one
simply cannot prove that one was not informed of something. Although
Mexico cannot establish definitively that it was not informed by the
Ministry of the Ministry’s intention to include non-governmental
experts in its verification team, there is sufficient evidence before us
to suggest strongly that it was not so informed. Although an
investigating authority should normally be able to demonstrate that it
complied with a formal requirement to inform the authorities of another
Member, Guatemala has failed to rebut the strong suggestion that it
failed to do so. In fact, Guatemala has simply referred to the very
letter which suggests strongly that Mexico was not notified by
Guatemala.(719) In these circumstances, we do not consider that
the evidence and arguments of the parties ‘remain in equipoise’.
Accordingly, we find that the Ministry violated paragraph 2 of Annex I
of the AD Agreement by failing to inform the Government of Mexico
of the inclusion of non-governmental experts in the Ministry’s
verification team.(720)”(721)
531. In Guatemala
— Cement II, the Panel did not accept Mexico’s argument that
under Annex I, paragraph 2, Guatemala’s authority also should have
informed the Government of Mexico of the exceptional circumstances
justifying the participation of the non-governmental experts in the
verification team. The Panel found that the “logical conclusion from
the structure” of Annex I, paragraph
2 “is that the exporting Member
need only be informed of the intention to include non-governmental
experts in the investigating team. If the intention of the drafters had
been to impose an obligation on authorities to inform exporting Members
of the ‘exceptional circumstances’ at issue, presumably the first
sentence of Annex I(2) would have been drafted in a manner that clearly
provided for that obligation.”(722)
7. Article 6.8 and Annex II: “facts available”
(a) General
(i) Function of Article 6.8 and Annex II
532. In US —
Hot-Rolled Steel, the Panel indicated that “[o]ne of the principal
elements governing anti-dumping investigations that emerges from the
whole of the AD Agreement is the goal of ensuring objective
decision making based on facts. Article 6.8 and
Annex II advance that
goal by ensuring that even where the investigating authority is unable
to obtain the “first-best” information as the basis of its decision,
it will nonetheless base its decision on facts, albeit perhaps “second-best”
facts.”(723)
533. In Egypt —
Steel Rebar, the Panel stated that Article 6.8
“addresses the
dilemma in which investigating authorities might find themselves —
they must base their calculations of normal value and export price on
some data, but the necessary information may not have been submitted”.
The Panel indicated that “Article 6.8 identifies the circumstances in
which an [investigating authority] may overcome this lack of necessary
information by relying on facts which are otherwise available to the
investigating authority.”(724) The Panel also concluded that it
is clear that the provisions of Annex II that address what information
can be used as facts available “have to do with ensuring the
reliability of the information used by the investigating authority”
and referred to the negotiating history of Annex II
as confirmation of
its conclusions:
“It is clear that the provisions of Annex II
that address what information can be used as facts available (which,
along with the other provisions of Annex II, ‘shall be observed’)
have to do with ensuring the reliability of the information used by the
investigating authority. This view may further be confirmed, as foreseen
in Article 32 of the Vienna Convention on the Law of Treaties(725),
by the negotiating history of Annex II. In particular, this Annex was
originally developed by the Tokyo Round Committee on Anti-Dumping
Practices, which adopted it on 8 May 1984 as a ‘Recommendation
Concerning Best Information Available in Terms of Article 6:8’.(726)
During the Uruguay Round negotiations, the substantive provisions of the
original recommendation were incorporated with almost no changes as
Annex II to the AD Agreement. A preambular paragraph to the
original recommendation, which was not retained when Annex II
was
created, in our view, provides some insight into the intentions of the
drafters concerning its application. This paragraph reads as follows:
‘The authorities of the importing country have a right and an
obligation to make decisions on the basis of the best information
available during the investigation from whatever source, even where
evidence has been supplied by the interested party. The Anti-Dumping
Code recognizes the right of the importing country to base findings on
the facts available when any interested party refuses access to or does
not provide the necessary information within a reasonable period, or
significantly impedes the investigation (Article
6:8). However, all
reasonable steps should be taken by the authorities of the importing
countries to avoid the use of information from unreliable sources.’
To us, this preambular language conveys that the full
package of provisions in the recommendation, applicable in implementing Article
6:8 of the Tokyo Round Anti-Dumping Code, was intended, inter
alia, to ensure that in using facts available (i.e., in applying Article
6:8), information from unreliable sources would be avoided.”(727)
(ii) Relationship between Article 6.8 and Annex II
534. In US — Hot-Rolled Steel, the Appellate Body ruled that
Annex II “is incorporated by reference into Article 6.8”.(728)
535. In US — Steel Plate, the Panel explained the
relationship between Article 6.8 and
Annex II of the Anti-Dumping
Agreement and concluded that the provisions of
Annex II inform the
investigating authority’s evaluation whether necessary information has
been provided and whether resort to facts available with respect to that
element of information is justified:
“In our view, the failure to provide necessary information, that is
information which is requested by the investigating authority and which
is relevant to the determination to be made(729), triggers the
authority granted by Article 6.8 to make determinations on the basis of
facts available. The provisions of
Annex II, which set out conditions on
the use of facts available, inform the question of whether necessary
information has not been provided, by establishing considerations for
when information submitted must be used by the investigating authority.
Thus, the provisions of
Annex II inform an investigating authority’s
evaluation whether necessary information, in the sense of Article 6.8,
has been provided, and whether resort to facts available with respect to
that element of information is justified. If, after considering the
provisions of
Annex II, and in particular the criteria of paragraph 3,
the conclusion is that information provided satisfies the conditions
therein, the investigating authority must use that information in its
determinations, and may not resort to facts available with respect to
that element of information. That is, the investigating authority may
not conclude, with respect to that information, that ‘necessary
information’ has not been provided.”(730)
536. In Egypt — Steel Rebar, the Panel considered that the
cross-reference in Article 6.8 to Annex
II, “[t]he provisions of Annex
II shall be observed in the application of this paragraph”, indicates
that Annex II applies to Article 6.8
in its entirety:
“[W]e find significant the specific wording of that
cross-reference: ‘[t]he provisions of Annex
II shall be
observed in the application of this paragraph’ (emphasis
added). In other words, the reference to ‘this paragraph’ indicates
that Annex II applies to Article 6.8
in its entirety, and thus contains
certain substantive parameters for the application of the individual
elements of that article. The phrase ‘shall be observed’ indicates
that these parameters, which address both when facts available can be
used, and what information can be used as facts available, must be
followed.
Our view of the relationship of Annex II to Article 6.8
is consistent
with that of the Appellate Body in United States — Hot-Rolled Steel.
In that case, the Appellate Body stated that Annex II is ‘incorporated
by reference’ into Article 6.8,(731) i.e., that it forms part
of Article 6.8.”(732)
(iii) Mandatory nature of Annex II provisions
537. In US — Steel Plate, the Panel considered that the
wording of the Article 6.8 reference to Annex II provisions establishes
that the provisions of Annex II
are mandatory:
“We note that there is disagreement between the parties as to
whether the provisions of Annex II, which are largely phrased in the
conditional tense (‘should’), are mandatory. We consider that Article 6.8
itself answers this question. Article 6.8. explicitly
provides that ‘The provisions of Annex II
shall be observed in
the application of this paragraph’ (emphasis added). In our view, the
use of the word ‘shall’ in this context establishes that the
provisions of Annex II are mandatory. Indeed, this would seem a
necessary conclusion. The alternative reading would mean that
investigating authorities are required (‘shall’) to apply provisions
which are not themselves required, an interpretation that makes no
sense.(733) Moreover, the provisions of
Annex II, while worded in
the conditional, give specific guidance to investigating authorities
regarding certain aspects of their determinations which, without more,
clearly establish the operational requirements. Thus, we consider that
the provisions of Annex II are mandatory, not because of the wording of
those provisions themselves, but because of the obligation to observe
them set out in Article 6.8.(734)”(735)
(b) Paragraph I of Annex II
538. The Panel in EC — Salmon (Norway) explained the
obligations in Paragraph 1 of Annex
II:
“Paragraph 1 of Annex II establishes two obligations on
investigating authorities wanting to use ‘facts available’ in their
determinations: First, they must inform any interested party of the
information that must be supplied during the course of a proceeding; and
secondly, the party must be made aware of the consequences of not
submitting requested information, in particular, the possibility that
‘facts available’, including those presented in a complainant’s
application, could be applied.”(736)
539. Drawing on the Appellate Body report in Mexico —
Anti-Dumping Measures on Rice, the Panel in EC — Salmon
(Norway) observed that “pursuant to paragraph 1 of Annex
II, an
interested party must not only be informed of the information required
by an investigating authority for the purpose of its investigation, but
it must also be given an opportunity to provide it before the
investigating authority may resort to ‘facts available’ within the
meaning of Article 6.8.”(737) In this case, the Panel found
that to the extent the investigating authority “applied ‘facts
available’ for the purpose of establishing the margin of dumping of
the 33 companies that did not receive a ‘sampling questionnaire’
…we find that it acted inconsistently with paragraph 1 of Annex II and
therefore also Article 6.8 of the AD Agreement.”(738)
(c) Authorities’ duty to “specify in detail the information
required from an interested party”
(i) “as soon as possible”
540. In Guatemala — Cement II, Mexico pointed out that
paragraph 1 of Annex II requires “[a]s soon as possible after the
initiation of the investigation” that the investigating authorities
specify in detail the information required from interested parties.
Mexico argued that, in the light of this requirement, investigating
authorities are effectively precluded from extending the period of
investigation during the course of the investigation. The Panel
disagreed with Mexico’s argument, agreeing with Guatemala that there
may be a number of circumstances in which the investigating authority
will need updated information during the course of its investigation:
“We are not persuaded that
paragraph 1 of Annex II, or any other
provision of the AD Agreement, prevents an investigating
authority from extending the POI during the course of an investigation.
We agree with Guatemala that there may be a number of circumstances in
which the investigating authority will need updated information during
the course of its investigation. In this regard, we would also note that
the extension of a POI may in certain cases lead to negative
findings of dumping and/or injury, to the benefit of exporters. The fact
that the POI may be extended after the imposition of provisional
measures is not necessarily problematic, since even without any
extension of the POI there is no guarantee that the factual basis for
the preliminary determination will be the same as that of the final
determination. The factual basis may change, for example, if a
preliminary affirmative determination of injury is made on the basis of
data provided by the complainant, and if some (or all) of that data are
shown to be erroneous during verification of the domestic industry.
Indeed, in such cases differences in the factual bases of the
preliminary and final determinations would normally be necessary in
order to preserve the integrity of the investigation. Although Annex
II(1) provides that interested parties should be informed of the
information required by the investigating authority ‘as soon as
possible after the initiation of the investigation’, this does not
mean that information concerning a particular period of time may only be
required if the request for that information is made immediately after
initiation. We interpret the first sentence of paragraph 1 of Annex II
to mean that any request for specific information should be communicated
to interested parties ‘as soon as possible’. Since Mexico has not
advanced any argument that it was possible for the Ministry to have
requested information concerning the extended POI before it actually did
so, we reject Mexico’s claim that the Ministry’s extension of the
POI violated Guatemala’s obligations under paragraph 1 of Annex II of
the AD Agreement.”(739)
541. In Egypt — Steel Rebar, the Panel indicated that
paragraph 1 of Annex II sets forth rules to be followed by the
authority, in particular that it must specify the required information
“in detail”, “as soon as possible after the initiation of the
investigation”, and that it also must specify “the manner in which
that information should be structured by the interested party in its
response”. Thus, in the Panel’s view, “there is a clear burden on
the authority to be both prompt and precise in identifying the
information that it needs from a given interested party”.(740)
542. In Egypt — Steel Rebar, the investigating authorities
had requested certain supplemental cost information as well as
explanations concerning certain of the cost information originally
submitted in response to the questionnaires. The Panel found “no basis
on which to conclude that an investigating authority is precluded by paragraph 1 of Annex II
or by any other provision from seeking
additional information during the course of an investigation”.(741)
(ii) Failure to specify in detail the information required
543. In Argentina — Ceramic Tiles, the Panel, when analysing
whether the investigating authorities were entitled to resort to facts
available because of the alleged failure of a party to provide
sufficient supporting documentation, considered that “a basic
obligation concerning the evidence-gathering process is for the
investigating authorities to indicate to the interested parties the
information they require for their determination”, as set forth in
Article 6.1. The Panel concluded that, “independently of the purpose
for which the information or documentation is requested, an
investigating authority may not fault an interested party for not
providing information it was not clearly requested to submit.”(742)
The Panel further stated that:
“In our view, the inclusion, in an Annex relating specifically to
the use of best information available under Article
6.8, of a
requirement to specify in detail the information required, strongly
implies that investigating authorities are not entitled to resort to
best information available in a situation where a party does not provide
certain information if the authorities failed to specify in detail the
information which was required.
…
… we conclude that an investigating authority may not disregard
information and resort to facts available under Article
6.8 on the
grounds that a party has failed to provide sufficient supporting
documentation in respect of information provided unless the
investigating authority has clearly requested that the party provide
such supporting documentation.”(743)
(d) When to resort to facts available
544. In Argentina — Ceramic Tiles, the Panel enunciated the
conditions under which the investigating authorities may resort to facts
available:
“It is clear to us, and both parties agree, that an investigating
authority may disregard the primary source information and resort to the
facts available only under the specific conditions of Article 6.8 and
Annex II of the AD Agreement. Thus, an investigating authority
may resort to the facts available only where a party: (i) refuses access
to necessary information; (ii) otherwise fails to provide necessary
information within a reasonable period; or (iii) significantly impedes
the investigation.”(744)
545. In Egypt — Steel Rebar, the Panel explained that
paragraphs 3 and 5 of Annex II “together … provide key elements of
the substantive basis” for the investigating authority to determine
whether it can resort to facts available.
“These two paragraphs together thus provide key elements of the
substantive basis for an IA to determine whether it can justify
rejecting respondents’ information and resorting to facts available in
respect of some item, or items, of information, or whether instead, it
must rely on the information submitted by respondents ‘when
determinations are made’. Some of the elements referred to in these
paragraphs have to do with the inherent quality of the information
itself, and some have to do with the nature and quality of the
interested party’s participation in the IA’s information-gathering
process. Where all of the mentioned elements are satisfied, resort to
facts available is not justified under Article
6.8.”(745)
546. In Egypt — Steel Rebar, the Panel reiterated that
paragraph 3 of Annex II applies to an investigating authority’s
decision to use “facts available” in respect of certain elements of
information and stressed that “it does not have to do with determining
which particular facts available will be used for those elements of
information once that decision has been made”.(746)
547. The Appellate Body in Mexico — Anti-Dumping Duties on Rice,
while recognizing that the SCM Agreement does not contain the detailed
rules found in the AD Agreement, stated that it would be “anomalous”
if Article 12.7 were to permit the use of facts available in a manner
“markedly different” from the AD Agreement.(747)
548. The Appellate Body in Mexico — Anti-Dumping Duties on Rice,
noted that Article 6.8 of the Anti-Dumping Agreement directed agencies
to engage in the “evaluative, comparative assessment” necessary in
order to determine which facts are “best” to fill in the missing
information.(748)
(e) When not to resort to facts available
549. In US — Hot-Rolled Steel, the Appellate Body concluded
that, according to paragraph 3 of Annex
II, investigating authorities
are directed to use information if three, and, in some circumstances,
four, conditions are satisfied. These conditions are that the
information is (i) verifiable, (ii) appropriately submitted so that it
can be used in the investigation without undue difficulties, (iii)
supplied in a timely fashion, and, where applicable, (iv) supplied in a
medium or computer language requested by the authorities. The Appellate
Body concluded that, in its view, “if these conditions are met,
investigating authorities are not entitled to reject information
submitted, when making a determination”.(749)
550. In US — Steel Plate, the Panel analysed the extent of
the limitation that paragraph 3 of Annex
II puts on investigating
authorities’ right to reject information submitted and instead resort
to facts available. The Panel concluded that the “Members [do not]
have an unlimited right to reject all information submitted in a case
where some necessary information is not provided”:
“Paragraph 3 states that all information provided that satisfies
the criteria set out in that paragraph is to be taken into account when
determinations are made. We consider in this regard that the use of the
final connector ‘and’ in the list of criteria makes it clear to us
that an investigating authority, when making determinations, is only required
to take into account information which satisfies all of the applicable
criteria of Paragraph 3.(750) In order to assess the limitations
this provision puts on the right of an investigating authority to reject
information submitted and instead resort to facts available,(751)
we look to the ordinary meaning of the text, in its context and in light
of its object and purpose. Paragraph 3
starts with the phrase ‘all
information’. ‘All’ means ‘the whole amount, quantity, extent or
compass of’ and ‘the entire number of, the individual constituents
of, without exception…every’.(752) To ‘take into account’
is defined as ‘take into consideration, notice’.(753) Thus, a
straightforward reading of Paragraph 3
leads to the understanding that
it requires that every element of information submitted which satisfies
the criteria set out therein must be considered by the investigating
authority when making its determinations. If information must be
considered under paragraph 3, an investigating authority may not
conclude, with respect to that information, that necessary information
has not been provided, in the sense of Article
6.8. Consequently, we do
not accept the United States’ position that ‘information’ in
Article 6.8 means all information, such that Members have an unlimited
right to reject all information submitted in a case where some necessary
information is not provided.
Of course, we do not mean to suggest that the investigating authority
must, in every case, scrutinize each item of information submitted in
order explicitly to determine whether it satisfies the criteria of
paragraph 3 of Annex II before it uses it in its determination. Clearly,
if the authority is satisfied with the information submitted, and
concludes that an interested party has fully complied with the requests
for information, there is no need to undertake any separate analysis
under
paragraph 3 of Annex II. However, to the extent the authority is not
satisfied with the information submitted, it must examine those elements
of information with which it is not satisfied, in light of the criteria
of paragraph 3.”(754)
551. In US — Steel Plate, the Panel further qualified its
conclusions by stating that the investigating authorities were not
obliged to judge each category of information separately. The Panel
however indicated that the various elements, or categories, of
information necessary to an anti-dumping determination are often
interconnected, and a failure to provide certain information may have
ramifications beyond the category into which it falls:
“[W]e also do not accept India’s view that each category of
information submitted must be judged separately. India recognizes that
there may be cases where a piece of information submitted which
otherwise satisfies paragraph 3 is so minor an element of the
information necessary to make determinations that it cannot be used in
the investigation without undue difficulties, and that it is possible
that so much of the information submitted in a particular ‘category’
fails to satisfy the criteria of paragraph 3, for instance, cannot be
verified, that the entire category of information cannot be used without
undue difficulty.
We consider in addition that the various elements, or categories, of
information necessary to an anti-dumping determination are often
interconnected, and a failure to provide certain information may have
ramifications beyond the category into which it falls. For instance, a
failure to provide cost of production information would leave the
investigating authority unable to determine whether sales were in the
ordinary course of trade, and further unable to calculate a constructed
normal value. Thus, a failure to provide cost of production information
might justify resort to facts available with respect to elements of the
determination beyond just the calculation of cost of production.
Moreover, without considering any particular ‘categories’ of
information, it seems clear to us that if certain information is not
submitted, and facts available are used instead, this may affect the
relative ease or difficulty of using the information that has been
submitted and which might, in isolation, satisfy the requirements of
paragraph 3 of Annex II. However, to accept that view does not
necessarily require the further conclusion, espoused by the United
States, that in a case in which any ‘essential’ element of requested
information is not provided in a timely fashion, the investigating
authority may disregard all the information submitted and base its
determination exclusively on facts available. To conclude otherwise
would fly in the face of one of the fundamental goals of the AD
Agreement as a whole, that of ensuring that objective determinations
are made, based to the extent possible on facts.(755)
… In a case in which some information is rejected and facts
available used instead, the … question may arise whether the fact
that some information submitted was rejected has consequences for the
remainder of the information submitted. In particular, the investigating
authority may need to consider whether the fact that some information is
rejected results in other information failing to satisfy the criteria of
paragraph 3. In this context, we consider to be critical the question of
whether information which itself may satisfy the criteria of paragraph 3
can be used without undue difficulties in light of its relationship to
rejected information.(756)”(757)
552. In US — Steel Plate, the Panel faced the question of
whether a conclusion that some information submitted fails to satisfy
the criteria of paragraph 3 of Annex
II, and thus may be rejected, can
in any case justify a decision to reject other information submitted
which, in isolation, satisfies that criteria:
“The more difficult question, presented in this dispute, is whether
a conclusion that some information submitted fails to satisfy the
criteria of paragraph 3, and thus may be rejected, can in any case
justify a decision to reject other information submitted which, if
considered in isolation, would satisfy the criteria of paragraph 3. We
consider that the answer to this question is yes, in some cases, but
that the result in any given case will depend on the specific facts and
circumstances of the investigation at hand.”(758)
553. The Appellate Body in Mexico — Anti-Dumping Measures on
Rice confirmed that an exporter shall be given the opportunity to
provide the information required by the investigating authority before
the latter resorts to facts available that can be adverse to the
exporter’s interests. Because an exporter that is unknown to the
investigating authority is, therefore, not notified of the information
required to be submitted is denied such an opportunity, the Appellate
Body concluded:
“[A]n investigating authority that uses the facts available in the
application for the initiation of the investigation against an exporter
that was not given notice of the information the investigating authority
requires, acts in a manner inconsistent with paragraph 1 of Annex II to
the Anti-Dumping Agreement and, therefore, with Article 6.8 of
that Agreement.”(759)
554. The Panel in EC — Salmon (Norway) drew support from US
— Hot-Rolled Steel and US — Steel Plate in rejecting the
argument that Article 6.8 “envisages the possibility that an
investigating authority may rely upon information other than that
submitted by an interested party in response to a specific request for
information, even when the conditions for disregarding that information
and using ‘facts available’ under Article 6.8
have not been
established.”(760) In the Panel’s view:
“Such a view of how Article 6.8
and Annex II are intended to
operate is misconceived. In our view, it is clear from the language of Article 6.8, when read in light of
paragraphs 1 and 3 of Annex
II, that
whenever an interested party submits specific information that an
investigating authority has requested for the purpose of making a
determination, and the conditions for resorting to ‘facts available’
have not been established, the investigating authority will not be
entitled to disregard the submitted information and use information from
another source to make the determination.”(761)
555. The Panel further stated:
“Paragraph 3 of Annex II directs investigating authorities to take
all submitted information into account for the purpose of its
determinations when it is: (i) ‘verifiable’; (ii) ‘appropriately
submitted so that it can be used in the investigation without undue
difficulties’; (iii) ‘supplied in a timely fashion’; and, where,
applicable, (iv) ‘supplied in a medium or computer language requested
by the authorities’. Thus, paragraph 3 of Annex II calls upon
investigating authorities to take into account all information that
satisfies three, or sometimes four, cumulative conditions when making
determinations. It follows that where all of the conditions are
satisfied, an investigating authority will not be entitled to reject
information submitted when making determinations.”(762)
(f) Information which is “verifiable”
(i) General
556. In Guatemala — Cement II, the Panel indicated that
recourse to “best information available” should not be had when
information is “verifiable”, and when “it can be used in the
investigation without undue difficulties”:
“Furthermore, Annex II(3) provides that all information which is
‘verifiable’, and ‘appropriately submitted so that it can be used
in the investigation without undue difficulties’, should be taken into
account by the investigating authority when determinations are made. In
other words, ‘best information available’ should not be used when
information is ‘verifiable’, and when ‘it can be used in the
investigation without undue difficulties’. In our view, the
information submitted by Cruz Azul was ‘verifiable’. The fact that
it was not actually verified as a result of the Ministry’s response to
reasonable concerns raised by Cruz Azul does not change this. In
addition, there is nothing in the Ministry’s final determination to
suggest that the information submitted by Cruz Azul could not be used in
the investigation ‘without undue difficulties’. Since the
information was ‘verifiable’, and since the Ministry did not
demonstrate that it could not be used ‘without undue difficulties’, Annex II(3)
provides strong contextual support for the above conclusion
that the Ministry violated Article 6.8 in using the ‘best information
available’ as a result of the cancelled verification visit.”(763)
(ii) When is information verifiable?
557. In US — Steel Plate, the Panel considered that the
information is “verifiable” when “the accuracy and reliability of
the information can be assessed by an objective process of examination”
and that this process does not require an on-the-spot verification. In a
footnote to its report, the Panel stated:
“While the parties have addressed this concept in terms of the ‘on-the-spot’
verification process provided for in Article 6.7 and
Annex I of the Agreement, we note that such verification is not in fact required by the
AD Agreement. Thus, the use of the term in paragraph 3 of Annex
II is somewhat unclear. However, Article 6.6 establishes a general
requirement that, unless they are proceeding under Article 6.8 by
relying on facts available, the authorities shall ‘satisfy themselves
as to the accuracy supplied by interested parties upon which their
findings are based’. ‘Verify’ is defined as ‘ascertain or test
the accuracy or correctness of, esp. by examination or by comparison of
data etc.; check or establish by investigation’. New Shorter Oxford
English Dictionary, Clarendon Press, Oxford, 1993. Thus, even in the
absence of on-the-spot verification, the authorities are, in a more
general sense of assessing the accuracy of information relied upon,
required to base their decisions on information which is ‘verified’.”(764)
The Panel on European Communities — Anti-Dumping Measure on
Farmed Salmon from Norway considered that “the possibility of
undertaking on-the-spot investigations cannot alone be determinative of
the question whether submitted information is ‘verifiable’…. in
our view, this [whether information is verifiable or not] must be a
conclusion reached on the basis of a case-by-case assessment of the
particular facts at issue, including not only the nature of the
information submitted but also the steps, if any, taken by the
investigating authority to assess the accuracy and reliability of the
information.”(765)
558. The Panel in Mexico — Steel Pipes and Tubes considered
arguments raised by Guatemala concerning both substantive and procedural
points in relation to the use of facts available. One of the major
issues in this case was whether, on the basis of the record evidence, an
“unbiased and objective investigating authority could have reached the
conclusion that the nature and number of problems encountered at
verification were so significant that none of Tubac’s data [the only
identified exporter]… could be used.”(766) Ultimately the
Panel was not convinced that Mexico’s investigating authority had
complied with its substantive obligations under Article 6.8 and
Annex II. See paragraphs 577–579 below.
(iii) Relevance of good faith cooperation
559. In Egypt — Steel Rebar, the Panel considered that,
pursuant to paragraphs 3 and
5 of Annex II, if read together(767),
“information that is of a very high quality, although not perfect,
must not be considered unverifiable solely because of its minor flaws,
so long as the submitter has acted to the best of its ability. That is,
so long as the level of good faith cooperation by the interested party
is high, slightly imperfect information should not be dismissed as
unverifiable.”(768)
(g) Information “appropriately submitted so that it can be used in
the investigation without undue difficulties”
560. In US — Steel Plate, the Panel considered that the
question of whether information submitted can be used in the
investigation “without undue difficulties” is a highly fact-specific
issue. It thus concluded that the investigating authority must explain,
as required by paragraph 6 of Annex
II, the basis of a conclusion that
information which is verifiable and timely submitted cannot be used in
the investigation without undue difficulties:
“The second criterion of paragraph 3 requires that the information
be ‘appropriately submitted so that it can be used in the
investigation without undue difficulties’. In our view, ‘appropriately’
in this context has the sense of ‘suitable for, proper, fitting’.(769)
That is, the information is suitable for the use of the investigating
authority in terms of its form, is submitted to the correct authorities,
etc. More difficult is the requirement that the information can be ‘used
without undue difficulties’. ‘Undue’ is defined as ‘going beyond
what is warranted or natural, excessive, disproportionate’.(770)
Thus, ‘undue difficulties’ are difficulties beyond what is otherwise
the norm in an antidumping investigation. This recognizes that
difficulties in using the information submitted in an anti-dumping
investigation are not, in fact, unusual. This conclusion is hardly
surprising, given that enterprises that become interested parties in an
anti-dumping investigation and are asked to provide information are not
likely to maintain their internal books and records in exactly the
format and with precisely the items of information that are eventually
requested in the course of an anti-dumping investigation. Thus, it is
frequently necessary for parties submitting information to collect and
organize raw data in a form that responds to the information request of
the investigating authorities. Similarly, it is frequently necessary for
the investigating authority to make adjustments of its own in order to
be able to take into account information that does not fully comply with
its request. This is part of the obligation on both sides to cooperate,
recognized by the Appellate Body in the US — Hot-Rolled Steel
case.(771)
…
In our view, it is not possible to determine in the abstract what ‘undue
difficulties’ might attach to an effort to use information submitted.
We consider the question of whether information submitted can be used in
the investigation ‘without undue difficulties’ is a highly
fact-specific issue. Thus, we consider that it is imperative that the
investigating authority explain, as required by paragraph 6 of Annex
II,
the basis of a conclusion that information which is verifiable and
timely submitted cannot be used in the investigation without undue
difficulties.”(772)
561. The Panel in Argentina — Poultry Anti-Dumping Duties
considered that “the reference to the terms ‘appropriately submitted’
is designed to cover inter alia information which is submitted in
accordance with relevant procedural provisions of WTO Members’
domestic laws”(773):
“In our view, paragraph 3 of Annex II to the AD Agreement
can be interpreted to mean that information not ‘appropriately
submitted’ in accordance with relevant procedural provisions of WTO
Members’ domestic laws may be disregarded. In the circumstances of
this case, we consider that information submitted by Catarinense was not
‘appropriately submitted’ within the meaning of paragraph 3 of Annex
II to the AD Agreement because Catarinense had not complied with
Argentina’s accreditation requirements. Accordingly, the DCD was
entitled to reject that information.”(774)
562. The Panel in EC — Salmon (Norway) did not see how the
“mere fact” that information was submitted after an on-the-spot
investigation would necessarily mean that the information could not be
used without “undue difficulties”. The Panel acknowledged that while
the extent of the effort needed to assess the accuracy and reliability
of information, especially if submitted at a late stage of the
investigation, may play a role in determining whether it could be used,
in the case before the Panel the facts indicated no efforts had been
made on the part of the investigating authority to “attempt to even
explore the feasibility and/or practicality of any other verification
options.”(775) Therefore, the Panel found there was an
insufficient basis for the investigating authority to conclude that
information submitted was not “appropriately submitted”.(776)
(h) Necessary information submitted in a timely fashion
(i) Timeliness
563. The Appellate Body in US — Hot-Rolled Steel concluded
that paragraph 3 of Annex II directs investigating authorities not to
reject information submitted by the parties if this is submitted “in a
timely fashion” and interpreted this as a “reference to a ‘reasonable
period’ of Article 6.8 or a ‘reasonable time’ of
paragraph 1 of
Annex II” (see paragraphs 568–570
below). The Appellate Body also
refers to Article 6.1.1, second sentence which requires investigating
authorities to extend deadlines “upon cause shown”, if “practicable”:
“[A]ccording to paragraph 3 of Annex
II, investigating authorities
are directed to use information if three, and, in some circumstances,
four, conditions are satisfied. In our view, it follows that if these
conditions are met, investigating authorities are not entitled to
reject information submitted, when making a determination. One of these
conditions is that information must be submitted ‘in a timely
fashion’.
The text of paragraph 3 of Annex II of the Anti-Dumping Agreement
is silent as to the appropriate measure of ‘timeliness’ under that
provision. In our view, ‘timeliness’ under paragraph 3 of Annex II
must be read in light of the collective requirements, in Articles 6.1.1
and 6.8, and in Annex
II, relating to the submission of information by
interested parties. Taken together, these provisions establish a
coherent framework for the treatment, by investigating authorities, of
information submitted by interested parties. Article 6.1.1 establishes
that investigating authorities may fix time-limits for responses to
questionnaires, but indicates that, ‘upon cause shown’, and if ‘practicable’,
these time-limits are to be extended. Article 6.8 and
paragraph 1 of
Annex II provide that investigating authorities may use facts available
only if information is not submitted within a reasonable period of time,
which, in turn, indicates that information which is submitted in
a reasonable period of time should be used by the investigating
authorities.
That being so, we consider that, under paragraph 3 of Annex
II,
investigating authorities should not be entitled to reject information
as untimely if the information is submitted within a reasonable period
of time. In other words, we see, ‘in a timely fashion’, in paragraph 3 of Annex
II as a reference to a ‘reasonable period’ or a ‘reasonable
time’. This reading of ‘timely’ contributes to, and becomes part
of, the coherent framework for fact-finding by investigating
authorities. Investigating authorities may reject information under paragraph 3 of Annex
II only in the same circumstances in which they are
entitled to overcome the lack of this information through recourse to
facts available, under Article 6.8 and paragraph 1 of Annex II of the Anti-Dumping
Agreement. The coherence of this framework is also secured through
the second sentence of Article 6.1.1, which requires investigating
authorities to extend deadlines ‘upon cause shown’, if ‘practicable’.
In short, if the investigating authorities determine that information
was submitted within a reasonable period of time, Article
6.1.1 calls
for the extension of the time-limits for the submission of information.”(777)
(ii) “necessary information”
564. In Egypt — Steel Rebar, the Panel examined the concept
of “necessary information” in the sense of Article 6.8 and stressed
that “Article 6.8 refers to ‘necessary’ information, and not to
‘required’ or ‘requested’ information”. Since Article 6.8
itself does not define the concept of “necessary” information, the
Panel considered whether there is guidance on this point anywhere else
in the Anti-Dumping Agreement, in particular in Annex II, given Article 6.8’s explicit cross-reference to it.(778) The Panel concluded
that, subject to the requirements of Annex II, paragraph
1, it is left
to the discretion of the investigating authority to specify what
information is “necessary” in the sense of Article 6.8:
“On the question of the ‘necessary’ information, reading
Article 6.8 in conjunction with Annex II, paragraph
1, it is apparent
that it is left to the discretion of an investigating authority, in the
first instance, to determine what information it deems necessary for the
conduct of its investigation (for calculations, analysis, etc.), as the
authority is charged by paragraph 1 to ‘specify … the information
required from any interested party’. This paragraph also sets forth
rules to be followed by the authority, in particular that it must
specify the required information ‘in detail’, ‘as soon as possible
after the initiation of the investigation’, and that it also must
specify ‘the manner in which that information should be structured by
the interested party in its response’. Thus, there is a clear burden
on the authority to be both prompt and precise in identifying the
information that it needs from a given interested party …”(779)
565. In Egypt — Steel Rebar, Turkey had claimed that because
the basis for initially questioning and then rejecting Turkish
respondents’ costs was unfounded, resort to facts available by the
investigating authorities was unjustified under Article 6.8 of the
Agreement. Egypt argued that its investigating authority was not in a
position to make this determination because the required information to
enable it to make the determination was not submitted by the respondents
in their responses to the initial questionnaire. The Panel considered
that, “[o]n its face, this justification for seeking the detailed cost
information appears plausible to us, given, as noted, that a below-cost
test is explicitly provided for in Articles 2.2 and
2.2.1 of the AD
Agreement”. The Panel thus concluded that “the requested
information would seem[ed] to be ‘necessary’ in the sense of Article
6.8”.(780)
566. In Korea — Certain Paper, the Panel considered what
constitutes “necessary information” within the meaning of Article
6.8:
“[T]he decision as to whether or not a given piece of information
constitutes ‘necessary information’ within the meaning of Article
6.8 has to be made in light of the specific circumstances of each
investigation, not in the abstract. A particular piece of information
that may play a critical role in an investigation may not be equally
relevant in another one.”(781)
(iii) Information submitted after a deadline
567. In US — Hot-Rolled Steel, the United States authorities
had rejected certain information provided by two Japanese companies
which was submitted beyond the deadlines for responses to the
questionnaires and thus applied “facts available” in the calculation
of the dumping margins. The United States interpreted Article
6.8 as
permitting investigating authorities to rely upon reasonable,
pre-established deadlines for the submission of data and that this is
supported by Article 6.1.1. The Appellate Body, although it upheld the
Panel’s finding that the United States had infringed Article
6.8 by
rejecting that information and applying best facts available, did so
following a different line of reasoning.(782) As regards the
Appellate Body’s interpretation of Article 6.1.1 in this context, see
paragraph 442 above. The Appellate Body considered that deadlines are
indeed relevant in determining whether information had been submitted
within a reasonable period of time but that a balance needs to be made
between the rights of the investigating authorities to control and
expedite the investigation and the legitimate interest of the parties to
submit information and to have it taken into account:
“In determining whether information is submitted within a
reasonable period of time, it is proper for investigating authorities to
attach importance to the time-limit fixed for questionnaire responses,
and to the need to ensure the conduct of the investigation in an orderly
fashion. Article 6.8 and paragraph 1 of Annex II are not a license for
interested parties simply to disregard the time-limits fixed by
investigating authorities.(783) Instead,
Articles 6.1.1 and 6.8,
and Annex II of the Anti-Dumping Agreement, must be read together
as striking and requiring a balance between the rights of the
investigating authorities to control and expedite the investigating
process, and the legitimate interests of the parties to submit
information and to have that information taken into account.”(784)
(iv) “within a reasonable period” and “within reasonable time”
568. In US — Hot-Rolled Steel, the Appellate Body looked
into the issue of when investigating authorities are entitled to reject
information submitted by the parties after a deadline established by the
investigating authorities, and instead resort to facts available, as the
United States did in this case. The Appellate Body considered that when
information is provided “within a reasonable period of time” as
mandated by Article 6.8, the investigating authorities cannot resort to
best facts available:
“Article 6.8 identifies the circumstances in which investigating
authorities may overcome a lack of information, in the responses of the
interested parties, by using ‘facts’ which are otherwise ‘available’
to the investigating authorities. According to Article
6.8, where the
interested parties do not ‘significantly impede’ the investigation,
recourse may be had to facts available only if an interested party fails
to submit necessary information ‘within a reasonable period’. Thus,
if information is, in fact, supplied ‘within a reasonable period’,
the investigating authorities cannot use facts available, but must use
the information submitted by the interested party.”(785)
569. The Appellate Body in US — Hot-Rolled Steel also drew
from paragraph 1 of Annex II to support its conclusion that
investigating authorities may resort to facts available only “if
information is not supplied within a reasonable time”:
“Although […] paragraph [1 of Annex II] is specifically
concerned with ensuring that respondents receive proper notice of the
rights of the investigating authorities to use facts available, it
underscores that resort may be had to facts available only ‘if
information is not supplied within a reasonable time’. Like Article
6.8, paragraph 1 of Annex II indicates that determinations may not
be based on facts available when information is supplied within a ‘reasonable
time’ but should, instead, be based on the information submitted.”(786)
570. As regards the meaning of “reasonable period” under
Article
6.8 and “reasonable time” under paragraph 1 of Annex
II, the
Appellate Body in US — Hot-Rolled Steel considered that both
concepts should be approached on a case-by-case basis “in the light of
the specific circumstances of each investigation”:
“The word ‘reasonable’ implies a degree of flexibility that
involves consideration of all of the circumstances of a particular case.
What is ‘reasonable’ in one set of circumstances may prove to be
less than ‘reasonable’ in different circumstances. This suggests
that what constitutes a reasonable period or a reasonable time, under
Article 6.8 and Annex II of the Anti-Dumping Agreement, should be
defined on a case-by-case basis, in the light of the specific
circumstances of each investigation.
In sum, a ‘reasonable period’ must be interpreted consistently
with the notions of flexibility and balance that are inherent in the
concept of ‘reasonableness’, and in a manner that allows for account
to be taken of the particular circumstances of each case. In considering
whether information is submitted within a reasonable period of time,
investigating authorities should consider, in the context of a
particular case, factors such as: (i) the nature and quantity of the
information submitted; (ii) the difficulties encountered by an
investigated exporter in obtaining the information; (iii) the
verifiability of the information and the ease with which it can be used
by the investigating authorities in making their determination; (iv)
whether other interested parties are likely to be prejudiced if the
information is used; (v) whether acceptance of the information would
compromise the ability of the investigating authorities to conduct the
investigation expeditiously; and (vi) the numbers of days by which the
investigated exporter missed the applicable time-limit.”(787)
571. The Panel in Korea — Certain Paper followed the
approach above in examining the issue of “reasonable period” within
the meaning of Article 6.8 and the relevance of missing a deadline for
the submission of information in an anti-dumping investigation.(788)
(i) Information submitted in the medium or computer language
requested
572. In US — Steel Plate, the Panel referred to this fourth
criterion of paragraph 3 of Annex II but it did not consider it further
because it seemed to it to be straightforward and it was not in dispute
in this case.(789)
(j) Non-cooperation: “refuse access to, or otherwise does not
provide”
(i) Meaning of cooperation
573. In US — Hot-Rolled Steel, the United States authorities
had resorted to “adverse”(790) facts available to calculate
the dumping margins of an exporter who had failed to cooperate by not
providing certain data by failing to provide certain data as requested.
The Appellate Body, which upheld the Panel’s finding to the effect
that the authorities’ conclusion that the exporter failed to “cooperate”
in the investigation “did not rest on a permissible interpretation of
that word”(791), had looked into the meaning of cooperation
under paragraph 7 of Annex II. The Appellate Body considered that
cooperation is a process which is “in itself not determinative of the
end result of the cooperation”:
“Paragraph 7 of Annex II indicates that a lack of ‘cooperation’
by an interested party may, by virtue of the use made of facts
available, lead to a result that is ‘less favourable’ to the
interested party than would have been the case had that interested party
cooperated. We note that the Panel referred to the following dictionary
meaning of ‘cooperate’: to ‘work together for the same purpose or
in the same task.’(792) This meaning suggests that cooperation
is a process, involving joint effort, whereby parties work
together towards a common goal. In that respect, we note that parties
may very well ‘cooperate’ to a high degree, even though the
requested information is, ultimately, not obtained. This is because the
fact of ‘cooperating’ is in itself not determinative of the end
result of the cooperation. Thus, investigating authorities should not
arrive at a ‘less favourable’ outcome simply because an interested
party fails to furnish requested information if, in fact, the interested
party has ‘cooperated’ with the investigating authorities, within
the meaning of paragraph 7 of Annex II of the Anti-Dumping Agreement.”(793)
(ii) Degree of cooperation: “to the best of its ability”
574. The Appellate Body in US — Hot-Rolled Steel, when
analysing the concept of cooperation under paragraph 7 of Annex
II,
noted that this provision does not indicate the degree of cooperation
which is expected from interested parties to avoid the possibility of
the investigating authorities resorting to a “less favourable”
result. The Appellate Body considered that, on the basis of the wording
of paragraph 5 of Annex II, the degree of cooperation required is to
cooperate to the “best” of their abilities”. The Appellate Body
also draws from paragraph 2 of Annex II that maintaining the principle
of good faith requires a balance to be struck by the investigating
authorities between the effort that they can expect interested parties
to make in responding to questionnaires, and the practical ability of
those interested parties to comply fully with all demands made of them
by the investigating authorities:
“Paragraph 7 of Annex II does not indicate what degree of
‘cooperation’ investigating authorities are entitled to expect from
an interested party in order to preclude the possibility of such a ‘less
favourable’ outcome. To resolve this question we scrutinize the
context found in Annex II. In this regard, we consider it relevant that
paragraph 5 of Annex II prohibits investigating authorities from
discarding information that is ‘not ideal in all respects’ if the
interested party that supplied the information has, nevertheless, acted
‘to the best of its ability’. (emphasis added) This provision
suggests to us that the level of cooperation required of interested
parties is a high one — interested parties must act to the ‘best’
of their abilities.
We note, however, that paragraph 2 of Annex II authorizes
investigating authorities to request responses to questionnaires in a
particular medium(for example, computer tape) but, at the same time,
states that such a request should not be ‘maintained’ if complying
with that request would impose an ‘unreasonable extra burden ‘
on the interested party, that is, would ‘entail unreasonable
additional cost and trouble’. (emphasis added) This provision
requires investigating authorities to strike a balance between the
effort that they can expect interested parties to make in responding to
questionnaires, and the practical ability of those interested parties to
comply fully with all demands made of them by the investigating
authorities. We see this provision as another detailed expression of the
principle of good faith, which is, at once, a general principle of law
and a principle of general international law, that informs the
provisions of the Anti-Dumping Agreement, as well as the other
covered agreements.(794) This organic principle of good faith, in
this particular context, restrains investigating authorities from
imposing on exporters burdens which, in the circumstances, are not
reasonable.”(795)
575. In US — Steel Plate, India had argued that even if
information submitted fails to satisfy the criteria of paragraph 3 of
Annex II to some degree, if the party submitting that information acted
to the best of its ability, the investigating authority is required
under paragraph 5 of Annex II to make “more concerted efforts” to
use it. The Panel did not agree with India:
“Paragraph 5 establishes that information provided which is not
ideal is not to be disregarded if the party submitting it has acted to
the best of its ability. As the Appellate Body found in US —
Hot-Rolled Steel, the degree of effort demanded of interested
parties by this provision is significant.(796) We are somewhat
troubled by the implications of India’s view of this provision, which
might be understood to require that information which fails to satisfy
the criteria of paragraph 3, and therefore need not be taken into
account when determinations are made, must nonetheless ‘not be
disregarded’ if the party submitting it has acted to the best of its
ability. We find it difficult to conclude that an investigating
authority must use information which is, for example, not verifiable, or
not submitted in a timely fashion, or regardless of the difficulties
incumbent upon its use, merely because the party supplying it has acted
to the best of its ability. This would seem to undermine the recognition
that the investigating authority must be able to complete its
investigation and must make determinations based to the extent possible
on facts, the accuracy of which has been established to the authority’s
satisfaction.
However, if we understand paragraph 5 to emphasize the obligation on
the investigating authority to cooperate with interested parties, and
particularly to actively make efforts to use information submitted if
the interested party has acted to the best of its ability, we believe
that it does not undo the framework for use of information submitted and
resort to facts available set out in the AD Agreement overall.
Similarly, paragraph 5 can be understood to highlight that information
that satisfies the requirements of paragraph
3, but which is not
perfect, must nonetheless not be disregarded.”(797)
576. In Egypt — Steel Rebar, the Panel considered that the
phrase “acted to the best of its ability” in paragraph 5 of Annex II
does not exist in isolation, either from other paragraphs of Annex II or
from Article 6.8 itself. The Panel indicated that “this is because an
interested party’s level of effort to submit certain information does
not necessarily have anything to do with the substantive quality
of the information submitted”:
“[P]aragraph 5 [of Annex II] does not exist in isolation, either
from other paragraphs of Annex
II, or from Article 6.8 itself. Nor, a fortiori,
does the phrase ‘acted to the best of its ability’. In particular,
even if, with the best possible intentions, an interested party has
acted to the very best of its ability in seeking to comply with an
investigating authority’s requests for information, that fact, by
itself, would not preclude the investigating authority from resorting to
facts available in respect of the requested information. This is because
an interested party’s level of effort to submit certain information
does not necessarily have anything to do with the substantive quality
of the information submitted, and in any case is not the only
determinant thereof. We recall that the Appellate Body, in US —
Hot-Rolled Steel, recognized this principle (although in a slightly
different context), stating that ‘parties may very well ‘cooperate’
to a high degree, even though the requested information is, ultimately,
not obtained. This is because the fact of ‘cooperating’ is in itself
not determinative of the end result of the cooperation.(798)”(799)
577. The Panel in Mexico — Steel Pipes and Tubes took the
same approach as the Panel in Egypt — Steel Rebar in
considering that paragraphs 3 and 5 of Annex II together “set forth
the substantive elements for a justified decision to reject a party’s
information and resort to facts available.”(800) The Panel
elaborated further on the jurisprudence in considering whether it was
appropriate to use facts available:
“We also note that the Appellate Body’s ruling in US —
Hot-Rolled Steel is consistent with that approach [i.e. paragraphs 3
and 5 of Annex II outline the substantive elements necessary to reject a
party’s information and resort to facts available], in that the
Appellate Body ruled that investigating authorities ‘are not entitled
to reject information submitted’ if that information meets the
conditions in paragraph 3 of being ‘verifiable’, ‘appropriately
submitted so that it can be used without undue difficulties’, and ‘supplied
in a timely fashion’. The Panel in US — Steel Plate
considered that information is verifiable when ‘the accuracy and
reliability of the information can be assessed by an objective process
of examination’. That Panel also found that the term ‘undue
difficulties’ are difficulties ‘beyond what is otherwise the norm in
an anti-dumping investigation’, and that an investigating authority is
required by paragraph 6 of Annex II ‘to explain the basis of a
conclusion that information which is verifiable and timely submitted
cannot be used in the investigation without undue difficulties.’
Finally, we note in connection with this claim the Panel’s
characterization as a case-by-case question whether a conclusion that
some information fails to satisfy the criteria of paragraph 3 and thus
may be rejected can justify the rejection of other information that
would, in isolation, have satisfied the criteria of paragraph
3, as we
view this as an important element of Mexico’s argument.”
578. The Panel in Mexico — Steel Pipes and Tubes considered
the investigating authority’s justification in resorting to facts
available in light of the evidence on the record, and was not convinced
by its arguments. The Panel’s comments on product scope shed light on
its overall view of the investigating authority’s conduct of the
investigation:
“Concerning the product scope of the data submitted by Tubac,
given our finding that the record indicates that Economía faulted Tubac
for having provided data only on A-53 and BS-1387 pipe, we consider
whether there is factual evidence that Economía ever specifically
requested any pricing data from Tubac (such as would be necessary to
calculate dumping margins) on products other than these, either in the
questionnaire or at any point thereafter. We find no record evidence of
any such request, nor does Mexico argue that any such request was made.
In this context we emphasize that whatever issues there may have been at
various points during the investigation regarding product scope (and we
note Tubac’s requests for clarification on this point from the very
outset of the investigation), the facts of record show that Tubac was
fully transparent throughout the investigation as to the scope of the
products for which it reported data and its reasons for doing so. There
is no evidence to the contrary, and indeed Mexico confirmed Tubac’s
transparency in this regard in response to questioning by the Panel. Nor
did Economía, before the final phase of the investigation, raise any
issue in this respect. To the contrary, Economía itself on numerous
occasions confirmed the correctness of the scope of the data provided by
Tubac, including during the technical meeting with Hylsa and at
verification (where the verification team at several points identified
Tubac’s product codes that were covered by the investigation). Thus
the evidence is unequivocal that Economía was fully aware of the
product scope of the data provided by Tubac, and never identified to
Tubac that there was any problem in this regard, or sought data on other
products.”(801)
579. The Panel in Mexico — Steel Pipes and Tubes concluded
that the record evidence did not support a conclusion that the data
submitted by Tubac [the only identified exporter] was unverifiable in
the sense of paragraph 3 of Annex
II.
580. In Egypt — Steel Rebar, the Panel looked at the
dictionary meaning of the phrase to the “best” of an interested
party’s ability:
“Considering in more detail the concrete meaning of the phrase to
the ‘best’ of an interested party’s ability, we note that the Concise
Oxford Dictionary defines the expression ‘to the best of one’s
ability’ as ‘to the highest level of one’s capacity
to do something’ (emphasis added). In similar vein, the Shorter
Oxford Dictionary defines this phrase as ‘to the furthest
extent of one’s ability; so far as one can do’. We note that in
a legal context, the concept of ‘best endeavours’, is often
juxtaposed with the concept of ‘reasonable endeavours’ in defining
the degree of effort a party is expected to exert. In that context, ‘best
endeavours’ connotes efforts going beyond those that would be
considered ‘reasonable’ in the circumstances. We are of the opinion
that the phrase the ‘best’ of a party’s ability in paragraph 5
connotes a similarly high level of effort.”(802)
581. The Panel in Mexico — Steel Pipes and Tubes found in
favour of Guatemala’s claim that the exporter in question, Tubac, had
acted to the best of its ability and that the investigating authority in
Mexico, in rejecting the information provided had acted inconsistently
with paragraph 5 of Annex II.
“In short, Mexico’s argument before us on this point seems to be
a post hoc explanation of Economía’s decision to reject Tubac’s
data, which neither appears in Economía’s Final Determination nor
finds factual support in the record evidence underlying that
Determination…
As for the question of whether the record otherwise contains any
evidence that Tubac acted in a deliberately misleading manner in terms
of the data it provided in its questionnaire response, at verification,
or at any other point, we see none, and Mexico points to none. Indeed,
given that according to the verification report Tubac itself brought
certain errors in its data base to the attention of the verification
team, and otherwise is described in that report as providing all data
and documentation requested by the verification team without delays or
other problems, we consider that an unbiased and objective investigating
authority could not conclude on the basis of the verification report
that Tubac had failed to cooperate in the manner asserted by Mexico As a
result, we also find no basis in the record for Mexico’s assertion
that Tubac significantly impeded the investigation.”(803)
(iii) Justification for non-cooperation
582. In Guatemala — Cement II, the Panel examined whether
Guatemala’s authority had made recourse to the “best information
available” in compliance with Article 6.8. In rejecting Guatemala’s
argument that the Mexican producer concerned significantly impeded the
investigation of the authority by failing to cooperate with the
authority’s verification visit to its premises, the Panel found that
the objection of the Mexican producer to the verification visit was
reasonable:
“[W]e do not consider that an objective and impartial investigating
authority could properly have found that Cruz Azul significantly impeded
its investigation by objecting to the inclusion of non-governmental
experts with a conflict of interest in its verification team. We do not
consider that a failure to cooperate necessarily constitutes significant
impediment of an investigation, since in our view the AD Agreement
does not require cooperation by interested parties at any cost. Although
there are certain consequences (under Article 6.8) for interested
parties if they fail to cooperate with an investigating authority, in
our view such consequences only arise if the investigating authority
itself has acted in a reasonable, objective and impartial manner. In
light of the facts of this case, we find that the Ministry did not act
in such a manner.”(804)
(iv) Cooperation as a two-way process
583. The Appellate Body in US — Hot-Rolled Steel also
considered that both paragraphs 2 and
5 of Annex II and Article 6.13 of
the Anti-Dumping Agreement call for a “balance between the interests
of investigating authorities and exporters” and therefore see “cooperation”
as “a two way process involving joint effort”:
“We, therefore, see paragraphs 2 and
5 of Annex II of the Anti-Dumping
Agreement as reflecting a careful balance between the interests of
investigating authorities and exporters. In order to complete their
investigations, investigating authorities are entitled to expect a very
significant degree of effort — to the ‘best of their abilities’
— from investigated exporters. At the same time, however, the
investigating authorities are not entitled to insist upon absolute
standards or impose unreasonable burdens upon those exporters.
Article 6.13 thus underscores that ‘cooperation’ is, indeed, a
two-way process involving joint effort. This provision requires
investigating authorities to make certain allowances for, or take action
to assist, interested parties in supplying information. If the
investigating authorities fail to ‘take due account’ of genuine ‘difficulties’
experienced by interested parties, and made known to the investigating
authorities, they cannot, in our view, fault the interested parties
concerned for a lack of cooperation.”(805)
(k) Information used in case of resorting to facts available
(i) “secondary source … with special circumspection”
584. In Egypt — Steel Rebar, Egypt resorted to facts
available in the calculation of the cost of production and constructed
value of a Turkish company concerned. In particular, Egypt had added 5
per cent for inflation to that company’s reported costs when
constructing its normal value. Turkey claimed that the addition of 5 per
cent was arbitrary and, as information from a “secondary source”,
should have been used with “special circumspection”, and in
particular, should have been “check[ed] … from other independent
sources at [the investigating authority’s] disposal”. The Panel
rejected Turkey’s claim and emphasized:
“[A]pplying ‘special circumspection’ does not mean that only
one outcome is possible on a given point in an investigation. Rather,
even while using special circumspection, an investigating authority may
have a number of equally credible options in respect of a given
question. In our view, when no bias or lack of objectivity is identified
in respect of the option selected by an investigating authority, the
option preferred by the complaining Member cannot be preferred by a
panel.”(806)
585. Regarding the exercise by the investigating authority of special
circumspection in light of paragraph 7 of Annex
II, the Panel in Korea
— Certain Paper recognized that an investigating authority is
under the obligation to corroborate information obtained from secondary
sources:
“The fact remains, however, that KTC was under the obligation to
take the procedural step, under paragraph 7 of Annex
II, to confirm the
reliability of that information for purposes of its determinations in
the investigation.”(807)
586. On the matter of exercise by the investigating authority of
special circumspection in its use of information from secondary sources
under paragraph 7 of Annex II, the Panel in Korea — Certain Paper
explained that the investigation authority is not restricted in its use
of information from a secondary source and that it would not be
inconsistent with the IA’s obligation to apply special circumspection
if it decides to use information relating to another company, which KTC
did in the context of calculating the normal values because it did not
have information regarding financial and SG&A expenses for one of
the investigated companies.(808) It further concluded that:
“Notwithstanding our observation that the activities carried out by
these two types of companies would normally be different from one
another, we do not exclude the possibility that — in a given
investigation — using the information relating to these companies for
one another may be allowed provided that the reasons for that course of
action are adequately explained in the IA’s determinations.”(809)
587. With respect to the facts that an agency may use when faced with
missing information, the Appellate Body in Mexico — Anti-Dumping
Measures on Rice agreed with the Panel, explaining that:
“[T]he agency’s discretion is not unlimited. First, the facts to
be employed are expected to be the ‘best information available’…
. Secondly, when culling necessary information from secondary sources,
the agency should ascertain for itself the reliability and accuracy of
such information by checking it, where practicable, against information
contained in other independent sources at its disposal, including
material submitted by interested parties. Such an active approach is
compelled by the obligation to treat data obtained from secondary
sources ‘with special circumspection’.”(810)
588. In the compliance proceedings on Korea — Certain Paper
(Article 21.5 — Indonesia), Indonesia argued that the
investigating authority (KTC) failed to comply with its obligations
under Article 6.8 and paragraph 7 of Annex II of the Anti-Dumping
Agreement. It was undisputed that verification data of PT Cakrawala Mega
Indah (CMI) (the trading company that sold Indonesia the subject
product) was not allowed in the original investigation and that recourse
to facts available was justified under Article
6.8. But, in this
compliance proceeding the dispute was whether the KTC complied with the
requirements of paragraph 7 of Annex II in its selection of information
from secondary sources to replace the missing information.(811)
The Panel in Korea — Certain Paper (Article 21.5 — Indonesia)
noted that the KTC’s redetermination regarding CMIs financial expenses
differed from the original determination in two main regards which it
needed to assess for compliance with paragraph 7 of Annex
II: (i)
whether using the interest expenses of a manufacturer as proxy for CMI
would be appropriate (the KTC concluded that it was); and (ii) whether
it was proper that the KTC corroborated the interest rate used for CMI
with the interest rates pertaining to certain other companies.(812)
The KTC, after using RAK’s interest rate (RAK was a subsidiary of
April Fine, an Indonesian exporter) as proxy for CMI, compared it
against various sources and concluded that the interest rate used for
CMI was proper.
589. Regarding the first point, the Panel in Korea — Certain
Paper (Article 21.5 — Indonesia) found that the KTC’s
establishment of the facts regarding the scope of CMI’s business was
not proper. The Panel noted this finding of the KTC was made in the
context of the broader issue of whether it would be appropriate to use a
manufacturing company’s interest expenses for CMI. The Panel therefore
found that the KTC had failed to exercise special circumspection within
the meaning of paragraph 7 of Annex
II.(813)
590. In relation to the second point, the Panel in Korea —
Certain Paper (Article 21.5 — Indonesia) was concerned at the lack
of an adequate explanation regarding the use of interest expenses, and
concluded that the KTC had also acted inconsistently with Article 6.8
and paragraph 7 of Annex II in this regard:
“We do not consider that there are strict rules that the
investigating authorities have to follow in determining the financial
expenses of different kinds of companies on the basis of facts
available. In the circumstances of the implementation proceedings at
issue, however, we find it noteworthy that the KTC used April Fine’s
data to determine all of CMI’s SG&A expenses except interest
expenses for which it used the data pertaining to RAK. We do not
consider that this approach was inconsistent simply because the nature
of CMI’s and RAK’s businesses were different. We note, however, that
the KTC’s Redetermination does not explain the reason for this dual
approach regarding the secondary sources of information used to
determine different elements of CMI’s SG&A expenses. In our view,
even if there was no difference between the nature of the businesses of
CMI and April Fine on the one hand and RAK on the other, the special
circumspection requirement of paragraph 7 of Annex II would call for an
explanation as to why different sources have been used for different
elements of CMI’s SG&A expenses. Given the significant difference
between the interest expenses of April Fine and RAK, the need for an
explanation became, in our view, even more important in the
circumstances of the proceedings at issue. As we mentioned in our
original panel report, we do not exclude the possibility that a
producing company’s data may be used in the place of a trading company’s
data as long as the authorities’ determination adequately explains the
reason for such an approach. In this case, however, there is no such
adequate explanation.
…
In our view, the issue is not whether the interest expenses used by
the KTC for CMI were in line with the expenses of some other companies,
but rather whether the KTC exercised special circumspection in deciding
to use RAK’s interest expenses as proxy for CMI. In this regard, we
generally note that the KTC’s Re-determination focuses on what is ‘appropriate’
or ‘proper’ in terms of representing CMI’s interest expenses …, rather than showing in what ways, if at all, the KTC exercised
special circumspection in the use of the information from the secondary
source, RAK, from which such expenses were derived.
In this connection, we would like to stress that we are not implying
that the KTC should have used April Fine’s interest expenses as proxy
for CMI. Rather, it is the nonexistence on the record of an adequate
explanation as to why the KTC decided not to use April Fine’s data for
interest expenses although it used it for all other elements of CMI’s
SG&A expenses that, in our view, makes the KTC’s determination
fall short of the special circumspection requirement of paragraph 7 of
Annex II.”(814)
(ii) “Adverse” facts available
591. In US — Hot-Rolled Steel, the United States authorities
had resorted to “adverse” facts available to calculate the dumping
margins of an exporter because the exporter had not cooperated in
providing certain requested data. In this case, Japan had not contested
the possibility of resorting to “adverse” facts available in case of
non-cooperation by a party. Its claim was that the Japanese exporter
concerned had cooperated and thus the United States authorities should
have not declared them non-cooperating parties and thus used “adverse”
facts available. The Panel focused its analysis on whether or not the
Japanese exporter had cooperated without entering into an analysis of
the compatibility of resorting to “adverse” effects with the
Anti-Dumping Agreement. The Panel held that the authorities’
conclusion that the exporter failed to “cooperate” in the
investigation “did not rest on a permissible interpretation of that
word”.(815) The Appellate Body, which upheld the Panel’s
finding, indicated in a footnote to its Report, that “the term ‘adverse’
does not appear in the Anti-Dumping Agreement in connection with
the use of facts available. Rather, the term appears in the provision of
the United States Code that applies to the use of facts available”.(816)
It however indicated that it would not consider “whether, or to what
extent, it is permissible, under the Anti-Dumping Agreement, for
investigating authorities consciously to choose facts available that are
adverse to the interests of the party concerned”.(817)
The Appellate Body stressed that its analysis was circumscribed to using
the term “adverse” facts available simply to denote that the
authorities had drawn “an inference that was adverse to the interests
of the non-cooperating party ‘in selecting among the facts otherwise
available’”.(818) For its analysis of the term
non-cooperation, see paragraphs 573–583
above.
(l) Authorities’ duty to inform on reasons for disregarding
information
592. In Argentina — Ceramic Tiles, the Panel considered that
“Article 6.8, read in conjunction with paragraph 6 of Annex
II,
requires an investigating authority to inform the party supplying
information of the reasons why evidence or information is not accepted,
to provide an opportunity to provide further explanations within a
reasonable period, and to give, in any published determinations, the
reasons for the rejection of evidence or information”.(819)
593. In Egypt — Steel Rebar, the Panel considered that “the
fact that an investigating authority may request information in several
tranches during an investigation(820) cannot, however, relieve it
of its Annex II, paragraph 6 obligations in respect of the second and
later tranches, as that requirement applies to ‘information and
evidence’ without temporal qualification.(821)”(822)
594. The Panel in Korea — Certain Paper noted that “paragraph
6 does not […] set out a procedure through which the interested
party has to be notified of […] rejection”.(823)
595. In Mexico — Steel Pipes and Tubes, Guatemala claimed
that the investigating authority never informed Tubac (the only
identified exporter) that it had decided to reject Tubac’s data in its
entirety, and never gave Tubac an opportunity to provide further
explanations and therefore Mexico violated paragraph 6 of Annex
II.(824)
The Panel recalled the well settled obligation under paragraph 6 in
Annex II:
“[W]e recall that paragraph 6 of Annex
II requires that the party
supplying information that ‘is not accepted’ by the investigating
authority must be ‘informed forthwith of the reasons therefor’ and
given ‘an opportunity to provide further explanations within a
reasonable period’. The nature of this obligation is well settled(825),
and the parties to this dispute do not disagree in this regard. Rather,
their disagreement centres on whether — as a factual matter — Economía provided the requisite notification and opportunity to submit
further explanations within the meaning of Annex
II.”(826)
596. In short, the Panel in Mexico
— Steel Pipes and Tubes
found that the verification report did not satisfy the requirement in
paragraph 6 of Annex II to notify the interested party of the decision
to reject its information and of the reasons for doing so, and
therefore, “by definition also could not satisfy the requirement to
provide the interested party an opportunity to submit further
explanations following the decision.”(827)
(m) No right to submit further information
597.
The Panel in Korea — Certain Paper considered that what
paragraph 6 requires is:
“[T]hat the IA has to give the interested party whose information
is rejected the opportunity to explain to the IA why the information has
to be taken into consideration. This, in turn, would give the IA a
second chance to review its decision to reject that information.
Paragraph 6 does not, however, give the interested party a second chance
to submit information. If paragraph 6 is interpreted to mean that each
time there is a defect in the submitted information the interested party
concerned has the right to submit further information, the investigation
might carry on indefinitely.”(828)
(n) Confidential versus non-confidential information
598. In Argentina — Ceramic Tiles, Argentina had argued that
the failure to provide a non-confidential summary which is sufficiently
detailed to permit the calculation of normal value, export price and the
margin of dumping amounts to a refusal to provide access to information
that is necessary for the authority in the determination of a dumping
margin determination. The Panel disagreed with Argentina and supported
its position by reference to Article 6.5 of the Anti-Dumping Agreement
which requires an investigating authority to treat information which is
by nature confidential or which is provided on a confidential basis as
confidential information and prescribes that such information shall not
be disclosed without specific permission of the party submitting it. The
Panel considered that it would be contradictory to suggest that the
Anti-Dumping Agreement creates a mechanism for the protection of
confidential information, but precludes investigating authorities from
relying on such information in making its determinations. It further
concluded that nothing in this Article authorizes a Member to disregard
confidential information solely on the basis that the non-confidential
summary does not permit dumping calculations:
“In our view, the presence in [Article 6.5] the AD Agreement
of a requirement to protect confidential information indicates that
investigating authorities might need to rely on such information in
making the determinations required under the AD Agreement. The AD
Agreement therefore contains a mechanism that allows parties to
provide investigating authorities with such information for the purposes
of making their determinations, while ensuring that the information is
not used for other purposes. In accordance with the accepted principles
of treaty interpretation, we are to give meaning to all the terms of the
Agreement.(829) It would be contradictory to suggest that the AD
Agreement creates a mechanism for the protection of confidential
information, but precludes investigating authorities from relying on
such information in making its determinations. If that were the case,
then there would be no reason for the investigating authority to seek
such information in the first place.
…
We are aware that, for the purpose of transparency,
Article 6.5.1
obliges an authority to require the parties providing confidential
information to furnish non-confidential summaries which shall be in
sufficient detail to permit a reasonable understanding of the substance
of the information submitted in confidence. We consider that this is an
important element of the AD Agreement which reflects the balance
struck by the Agreement between the need to protect the confidentiality
of certain information, on the one hand, and the need to ensure that all
parties have a full opportunity to defend their interests, on the other.
However, we see nothing in Article 6.5.1, nor elsewhere in
Article 6.5,
that authorizes a Member to disregard confidential information solely on
the basis that the non-confidential summary of that information contains
insufficient detail to permit authorities to calculate normal value,
export price and the margin of dumping.(830)”(831)
599. The Panel in Argentina — Ceramic Tiles further referred
to Article 12 of the Anti-Dumping
Agreement, which sets forth
requirements regarding the contents of public notices in confirmation of
its conclusion above that an investigating authority may rely on
confidential information in making determinations while respecting its
obligation to protect the confidentiality of that information:
“Thus, the transparency requirement which obligates the authority
to explain its determination in a public notice is subject to the need
to have regard to the requirement for the protection of confidential
information of Article 6.5 of the AD Agreement. Confidentiality
of the information submitted therefore limits the manner in which the
authority explains its decision and supports its determination in a
public notice. In sum, Article 12 implies, to our mind, that an
investigating authority may rely on confidential information in making
determinations while respecting its obligation to protect the
confidentiality of that information.”(832)
600. The Panel, in Argentina — Ceramic Tiles, also found
support for its view on the Appellate Body decision in Thailand —
H-Beams, which addressed the question of the use of confidential
information by the investigating authorities as a basis for its final
determinations under Article 3 of the Anti-Dumping
Agreement.
(o) Scope of Panel’s review: national authorities’ justification
at the time of its determination
601. With respect to the use of “best information available”, the
Panel in Guatemala — Cement II restricted the scope of its
examination to the reasoning provided by Guatemala’s authority in its
determination, citing the finding of the Panel in Korea — Dairy.(833)
The Panel stated that “[e]ven if the additional factors identified by
Guatemala before the Panel could justify the use of ‘best information
available’, such ex post justification by Guatemala should not
form part of our assessment of the conduct of the Ministry leading up to
the imposition of the January 1997 definitive anti-dumping measure.”(834)
Subject to this limitation, however, the Panel stated that “[a]n
impartial and objective investigating authority could not properly rely
on ‘best information available’ sales data for the original [period
of investigation], simply on the basis of [the] failure [of the subject
Mexican producer] to provide sales data for the extended [period of
investigation].”(835)
(p) Consistency of domestic legislation with Article 6.8 and Annex II
602. In US — Steel Plate, the Panel was asked to consider
the consistency of United States law with Article 6.8 and
Annex II of
the Anti-Dumping Agreement. In reference to the existing jurisprudence
on mandatory versus discretionary legislation(836), the Panel
considered that the question before it was whether the US statutory
provision at issue required the US authorities to resort to facts
available in circumstances other than the circumstances in which Article 6.8
and paragraph 3 of Annex II permit resort to facts available(837)
The Panel found that the “practice” of the US authorities concerning
the application of “total facts available” was not a measure which
can give rise to an independent claim of violation of the Anti-Dumping
Agreement.(838)
(q) Relationship with other paragraphs of Article 6
603. In Guatemala — Cement II, the Panel addressed Mexico’s
claim that Guatemala’s investigating authority violated Articles
6.1, 6.2, 6.8 and
Annex II(5) and (6) of the Anti-Dumping Agreement by
rejecting certain technical accounting evidence submitted by the Mexican
producer one day before the public hearing held by Guatemala’s
authority. See paragraph 457 above.
604. In US — Hot-Rolled Steel, the Appellate Body referred
to Article 6.13 as support for its view that paragraphs 2 and
5 of Annex
II call for a balance between the interests of investigating authorities
and exporters as regards cooperation in anti-dumping investigations. See
paragraph 580 above.
605. In Argentina — Ceramic Tiles, the Panel, when examining
whether the investigating authorities were entitled to resort to facts
available pursuant to Article 6.8, referred to
Article 6.1 to support
its conclusion that the investigating authorities could not do so when
they did not clearly request the relevant information to the party in
question. See paragraphs 427 above and 543
above. The Appellate Body in US
— Hot-Rolled Steel further analysed the relationship of Article
6.8 and Annex II with Article
6.1.1. See paragraphs 433, 563 and
567 above.
606. The Panel, in Argentina — Ceramic Tiles, referred to
Article 6.5 of the Anti-Dumping Agreement as support of its conclusion
above that an investigating authority may rely on confidential
information in making determinations while respecting its obligation to
protect the confidentiality of that information. See paragraph 598
above.
607. In Egypt — Steel Rebar, the Panel addressed the
relationship of Article 6.2 with Annex II and
Article 6.8. See paragraph
998 below.
(r) Relationship with other provisions of Anti-Dumping Agreement
(i) Relationship with Article 5.3.
608. The Panel in Korea — Certain Paper disagreed with Korea’s
contention that in certain cases, the fulfilment of the obligation under
Article 3.3 may also suffice to meet the requirements of paragraph 7 of
Annex II, concluding that:
“[T]he obligations set forth under Article 5.3 and
paragraph 7 of
Annex II are different. Firstly, these two sets of obligations apply at
different stages of an investigation: Article 5.3
concerns the quality
of the evidence that would justify the initiation of an investigation
whereas paragraph 7 of
Annex II has to do with the evidence on which the
IA’s final determination may be based. Secondly, the standards of
these two obligations are different. The standard under Article 5.3
is
that evidence be ‘adequate and accurate’ so as to justify initiation
whereas paragraph 7 of
Annex II requires that information from secondary
sources be compared against that from other independent sources. We
therefore do not agree with the view that the fulfilment of the
obligation under Article 5.3 of the Agreement may in some cases also
satisfy the requirements of paragraph 7 of
Annex II. It may be the case
that the obligation to corroborate under paragraph 7 may entail little
substantive analysis in addition to the analysis carried out under Article 5.3
at the initiation stage. However, that does not make these
two obligations the same from a procedural and substantive point of
view. They are two distinct obligations that have to be observed by the
IA at different stages of an investigation …”(839)
8. Article 6.9
(a) “shall, before a final determination is made, inform all
interested parties of the essential facts under consideration”
(i) Means to inform all interested parties of the essential facts
609. In Argentina — Ceramic Tiles, the Panel, further to
noting that Article 6.9 does not prescribe the manner in which the
investigating authority is to comply with the disclosure obligation,
provided some examples of how investigating authorities may comply with
this requirement:
“We agree with Argentina that the requirement to inform all
interested parties of the essential facts under consideration may be
complied with in a number of ways. Article 6.9 of the AD Agreement
does not prescribe the manner in which the authority is to comply with
this disclosure obligation. The requirement to disclose the ‘essential
facts under consideration’ may well be met, for example, by disclosing
a specially prepared document summarizing the essential facts under
consideration by the investigating authority or through the inclusion in
the record of documents — such as verification reports, a preliminary
determination, or correspondence exchanged between the investigating
authorities and individual exporters — which actually disclose to the
interested parties the essential facts which, being under consideration,
are anticipated by the authorities as being those which will form the
basis for the decision whether to apply definitive measures. This view
is based on our understanding that Article 6.9
anticipates that a final
determination will be made and that the authorities have identified and
are considering the essential facts on which that decision is to be
made. Under Article 6.9, these facts must be disclosed so that parties
can defend their interests, for example by commenting on the
completeness of the essential facts under consideration.”(840)
610. In the dispute on US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), Argentina claimed that the
USDOC had acted inconsistently with Article 6.9
by not disclosing to the
Argentine exporters “the essential facts that formed the basis of its
decision to continue the measure at issue”. The United States
contended that Argentina had not made a prima facie case because it had
not proven this information “constituted essential facts within the
meaning of Article 6.9.”(841) The Panel agreed with the United
States:
“Given that the obligation under Article 6.9
applies to essential facts
and that the two memoranda cited by Argentina contain the USDOC’s
reasoning regarding the data submitted by the Argentine exporters, we
reject Argentina’s claim under Article 6.9.”(842)
(ii) “the essential facts … which form the basis for the
decision whether to apply definitive measures”
611. The Panel in Argentina — Poultry Anti-Dumping Duties
stated that facts which do not form the basis for the decision whether
to apply definitive measures cannot be considered to be “essential
facts” within the meaning of Article 6.9 of the AD Agreement.
The Panel was thus of the view that data which “is not going to be
relied on in making a final determination is not a fact which forms the
basis for the decision whether to apply definitive measures”.(843)
In other words, while the Panel accepted that normal value and export
price data ultimately used in the final determination are essential
facts which form the basis for the decision whether to apply definitive
measures, “the fact that certain normal value and export price data is
not going to be used is not”.(844)
612. The Panel in Argentina — Poultry Anti-Dumping Duties
further considered that the term “essential facts” refers to “factual
information” rather than “reasoning”. In the Panel’s view, the
failure to inform an interested party of the reasons why the authority
failed to use certain data does not equate to a failure to inform an
interested party of an essential fact:
“We do not believe that the ordinary meaning of the word ‘fact’
would support a conclusion that Article 6.9, when using the term ‘fact’,
refers not only to ‘facts’ in the sense of ‘things which are known
to have occurred, to exist or to be true’, but also to ‘motives,
causes or justifications’.”(845)
613. Noting that
Article 6.9 requires the investigating authority to
disclose the essential facts establishing the basis of its final
determination whether to apply definitive measures in an investigation,
the Panel in Korea — Certain Paper explained that:
“[T]he obligation under Article 6.9
is one that requires the IA to
make a one-time disclosure and that is before a final determination is
made as to whether or not a definitive measure will be applied.”(846)
614. In the view of the Panel in Korea — Certain Paper (Article
21.5 — Indonesia), Article 6.9 provided a onetime disclosure
requirement that contained the “essential facts” under consideration
regarding the authorities’ decision on whether to apply definitive
measures. The scope of the obligation excluded the reasoning of the
authorities or their intention as to how certain determinations were
made.(847)
(iii) Relevance of the fact that information is made available in the
authorities’ record
615. In Guatemala — Cement II, the Panel considered that,
although the essential facts under consideration may be available in the
authorities’ file, interested parties with access to that file will
not know whether or which particular information in that file forms the
basis of the authorities’ determination. In the Panel’s view, one
purpose of Article 6.9 is to resolve this problem. Accordingly, the
Panel rejected Guatemala’s argument that interested parties had been
informed that a certain directorate would make a technical study on the
basis of the evidence in the file, and that copies of the file had been
available. The Panel explained:
“We note that an investigating authority’s file is likely to
contain vast amounts of information, some of which may not be relied on
by the investigating authority in making its decision whether to apply
definitive measures. For example, the file may contain information
submitted by an interested party that was subsequently shown to be
inaccurate upon verification. Although that information will remain in
the file, it would not form the basis of the investigating authority’s
decision whether to apply definitive measures. The difficulty for an
interested party with access to the file, however, is that it will not
know whether particular information in the file forms the basis of the
authority’s final determination. One purpose of Article 6.9
is to
resolve this difficulty for interested parties… . An interested
party will not know whether a particular fact is ‘important’ or not
unless the investigating authority has explicitly identified it as one
of the ‘essential facts’ which form the basis of the authority’s
decision whether to impose definitive measures.”(848)
616. In support of its rejection of Guatemala’s argument that it
had disclosed the facts forming the basis of its definitive
determination by merely allowing access to the file, the Panel referred
to Article 6.4 and found that if Guatemala’s interpretation were
accepted, there would be “little, if any, practical difference between
Article 6.9 and Article 6.4”:
“Furthermore, if the disclosure of ‘essential facts’ under
Article 6.9 could be undertaken simply by providing access to all
information in the file, there would be little, if any, practical
difference between Article 6.9 and Article 6.4. Guatemala is effectively
arguing that it complied with Article 6.9 by complying with
Article 6.4,
i.e., by providing ‘timely opportunities for interested parties
to see all information that is relevant to the presentation of their
cases … and that is used by the authorities …’. We do not
accept an interpretation of Article 6.9 that would effectively reduce
its substantive requirements to those of Article 6.4. In our view, an
investigating authority must do more than simply provide ‘timely
opportunities for interested parties to see all information that is
relevant to the presentation of their cases … and that is used by
the authorities …’ in order to ‘inform all interested parties of
the essential facts under consideration which form the basis for the
decision whether to apply definitive measures’.”(849)
(iv) Disclosure of information forming the basis of a preliminary
ruling
617. In Guatemala — Cement II, Mexico claimed that Guatemala’s
authority acted inconsistently with Article 6.9
by failing to inform the
Mexican producer subject to investigation of the “essential facts
under consideration”. In response, Guatemala first argued that the “essential
facts under consideration” had been disclosed to interested parties in
a detailed report setting out its authority’s preliminary rulings. The
Panel rejected Guatemala’s justification, pointing out, among other
things, that while the preliminary measures had been based on a threat
of material injury, the final determination was based on actual material
injury:
“Article 6.9 provides explicitly for disclosure of the ‘essential
facts … which form the basis for the decision whether to apply definitive
measures’ (emphasis supplied). Disclosure of the ‘essential facts’
forming the basis of a preliminary determination is clearly inadequate
in circumstances where the factual basis of the provisional measure is
significantly different from the factual basis of the definitive
measure. In the present case, the preliminary measure was based on a
preliminary determination of threat of material injury, whereas
the final determination was based on actual material injury.
Furthermore, the Ministry’s preliminary determination (16 August 1996)
was based on a [period of investigation (‘POI’)] different from that
used for its final determination, since the POI was extended on 4
October 1996. Indeed, Guatemala has cited the United States’ assertion
that ‘[i]n the course of an anti-dumping investigation, the bulk of
the evidence which forms the basis of the final determination is
generally gathered after the preliminary determination’. If the bulk
of the evidence which forms the basis of the final determination is
generally gathered after the preliminary determination, we fail to see
how disclosure of the ‘essential facts’ forming the basis of the
preliminary determination could amount to disclosure of the ‘essential
facts’ forming the basis of the final determination, since the ‘bulk’
of the ‘essential facts’ underlying the final determination would
not yet have been gathered. In these circumstances, we do not consider
that the Ministry could satisfy the Article 6.9
obligation to ‘inform
all interested parties of the essential facts under consideration which
form the basis for the decision whether to apply definitive measures’
by providing disclosure of the essential facts forming the basis of its
preliminary determination.”(850)
(v) Failure to inform the changes in factual foundation from a
preliminary determination to final determination
618. In Guatemala — Cement II, the Panel rejected Mexico’s
claim that Guatemala’s authority was in violation of Articles
6.1, 6.2
and 6.9 by changing its injury determination from a preliminary
determination of threat of material injury to a final determination of
actual material injury during the course of the investigation, without
informing the Mexican producer of that change, and without giving the
producer a full and ample opportunity to defend itself. After
considering Article 12.2, the Panel explained with regard to
Article 6.9, as follows:
“We note that Articles 6.1 and
6.9 impose certain obligations on
investigating authorities in respect of ‘information’, ‘evidence’
and ‘essential facts’. However, Mexico’s claim does not concern
interested parties’ right to have access to certain factual
information during the course of an investigation. Mexico’s claim
concerns interested parties’ alleged right to be informed of an
investigating authority’s legal determinations during the course of an
investigation.”(851)
619. The Panel in EC — Salmon (Norway) noted that a change
in outcome did not trigger a requirement for any additional disclosure
under Article 6.9:
“How an investigating authority undertakes to disclose the
essential facts does not change the nature of the obligations under Article
6.9. The second sentence of Article 6.9 makes clear that the
disclosure of essential facts must be in sufficient time to allow
parties to defend their interests. In our view, this must entail the
possibility that, whatever decision may have possibly been foreseen or
foreseeable at the time of disclosure, the ultimate decision may be a
different one, based on the defence of parties’ interests following
that disclosure. Clearly, the investigating authority must, in making
its decision whether to apply definitive measures, take into account
whatever information or argument parties submit subsequent to disclosure
to defend their interests. The alternative would render meaningless the
right of parties to receive disclosure of essential facts in sufficient
time to defend their interests. However, we do not consider that this
possible change of outcome triggers a requirement for additional
disclosure under Article 6.9. Thus, the fact that the EC undertakes
disclosure by providing a draft definitive regulation does not mean
that, should the investigating authority ultimately issue a
determination that differs in some respect from the draft, an additional
disclosure is required. Such a change in the ultimate determination is
presumably what is envisioned by the right given to parties to defend
their interests after the disclosure. The manner in which the EC chooses
to provide disclosure does not limit the investigating authority’s
obligation to take into account comments and information submitted by
interested parties after disclosure, and the concomitant possibility
that the investigating authority may issue a definitive regulation that
differs, even in material respects, from that provided in draft form as
part of the Article 6.9 disclosure.
…
In our view, this sequence of events demonstrates precisely the
purpose of Article 6.9. Following the definitive disclosure, the
investigating authority received further information which prompted it
to a re-consideration and adjustment of its views, resulting in a
different determination than that indicated in the draft definitive
regulation at the time of the Article 6.9 disclosure. Norway’s
argument would presumably require the investigating authority to
disclose whatever new information was provided, on the premise that the
different result demonstrates that the new information constituted ‘essential
facts’ within the meaning of Article 6.9. Article
6.9 would then
mandate a further opportunity for interested parties to defend their
interests, and an endless stream of disclosures and comments could
ensue. Norway’s position would result in an impossible situation for
investigating authorities, which must complete the investigation within
the time limits set out in Article 5.10 of the AD
Agreement. Norway
suggests that this could only happen because the investigating authority
decided that different facts were essential to its determination, and
that disclosure of these previously undisclosed essential facts is
required … Norway’s view confuses the essential facts with the
facts supporting the decision.
…
We do not consider that every element of factual evidence considered
by the investigating authority must be disclosed, or that every fact
disclosed must be footnoted to the specific source information before
the investigating authority. We can see nothing in Article 6.9 which
would require any particular form of disclosure, or any particular
degree of precision in tying facts to the information before the
investigating authority. While it would certainly be useful for the
investigating authority to indicate to interested parties the
information before the investigating authority on which a disclosed
essential fact is based, we cannot conclude that this is required.”(852)
(b) Relationship with other paragraphs of Article 6
620. In Guatemala — Cement II, having found that Guatemala’s
failure to disclose the “essential facts” forming the basis of its
final determination was in violation of Article 6.9, as referenced in
paragraphs 615, 616 and 618
above, the Panel considered it unnecessary
to examine whether it was also inconsistent with Articles 6.1 and
6.2.(853)
621. The Panel in Guatemala — Cement II touched on the
relationship between the obligations under Articles 6.4 and
6.9. See
paragraph 616 above.
9. Article 6.10
(a) “shall, as a rule”: nature of obligations under Article 6.10
622. See also under
Article 9.4, at paragraph 698 and following.
623. In Argentina — Ceramic Tiles, the Panel explained the
structure of the obligations set forth in Article 6.10 as follows:
“The first sentence of Article 6.10 of the AD Agreement sets
forth a general rule that the authorities determine an individual margin
of dumping for each known exporter or producer of the product under
investigation. The second sentence of Article 6.10
permits an
investigating authority to deviate from the general rule by permitting
the investigating authorities to ‘limit their examination either to a
reasonable number of interested parties or products by using samples …
or to the largest percentage of the volume of the exports from the
country in question which can reasonably be investigated’, in cases
where the number of exporters, producers, importers or types of products
involved is so large as to make such a determination impracticable…”(854)
624. The Appellate Body in EC — Fasteners (China) stated
that the rule in the first sentence of Article 6.10
is mandatory,
subject only to specifically provided exceptions: “The general rule,
that is, the obligation to determine individual margins of dumping for
each known exporter or producer, applies, unless derogation from it is
provided for in the covered agreements.”(855) In response to an
EU argument that in practice, there are exceptions to the Article 6.10
rule that are not specified in the Agreement, the Appellate Body
analysed the series of exceptions cited, and found that each involved
situations that either do not constitute departures from the individual
margins rule, or are provided for in Article 6.10
itself or in other
provisions of the Agreement.(856) The Appellate Body further
found that this general rule applies also in respect of imports from
non-market economies (NMEs):
“[W]e do not find any provision in the covered agreements that
would allow importing Members to depart from the obligation to determine
individual dumping margins only in respect of imports from NMEs. We have
explained above that Section 15 of China’s Accession Protocol permits
derogation in respect of the domestic price or normal value aspect of
price comparability, but does not address the export price aspect of
price comparability. It, therefore, has no entailment in respect of the
obligation in Article 6.10 of the Anti-Dumping Agreement to
determine individual dumping margins. In our view, therefore, Section 15
of China’s Accession Protocol does not provide a legal basis for
flexibility in respect of export prices and for justifying an exception
to the requirement to determine individual dumping margins in Article
6.10 of the Anti-Dumping Agreement.”(857)
(b) “individual margin of dumping for each known exporter or
producer”
(i) “each … exporter or producer”
625. In Argentina — Ceramic Tiles, the Argentine authorities
had established a dumping margin for three size categories of ceramic
tile irrespective of the exporter. The Panel concluded that “[w]hile
the second sentence of Article 6.10 allows an investigating authority to
limit its examination to certain exporters or producers, it does not
provide for a deviation from the general rule that individual margins be
determined for those exporters or producers that are examined”:(858)
“In our view, the general rule in the first sentence of
Article 6.10, that individual margins of dumping be determined for each known
exporter or producer of the product under investigation, is fully
applicable to exporters who are selected for examination under the
second sentence of Article 6.10. While the second sentence of
Article 6.10 allows an investigating authority to limit its examination to
certain exporters or producers, it does not provide for a deviation from
the general rule that individual margins be determined for those
exporters or producers that are examined. To the contrary,
Article 9.4 provides that, where the authorities limit their examination
under Article 6.10, the anti-dumping duty for exporters or producers
that are not examined shall not exceed a level determined on the
basis of the results of the examination of those exporters or producers
that were examined. That
Article 9.4 does not provide any methodology
for determining the level of duties applicable to exporters or producers
that are examined in our view confirms that the general rule
requiring individual margins remains applicable to those exporters or
producers. We find further confirmation in Article
6.10.2, which
requires that, in general, an individual margin of dumping must be
calculated even for the producers/exporters not initially included in
the sample, if they provide the necessary information and if to do so is
not unduly burdensome. If even producers not included in the original
sample are entitled to an individual margin calculation, then it follows
that producers that were included in the original sample are so entitled
as well.(859)”(860)
626. The Panel in Argentina — Poultry Anti-Dumping Duties
considered that Article 6.10 is purely procedural in nature, in the
sense that it imposes a procedural obligation on the investigating
agency to determine individual margins of dumping for each known
exporter or producer concerned of the product under investigation.
According to the Panel, “Article 6.10 is not concerned with
substantive issues concerning the determination of individual margins,
such as the availability of the relevant data. Such issues are addressed
by provisions such as Articles 2 and
6.8 of the AD Agreement.”(861)
The Panel thus rejected the argument that for the requirement under Article
6.10 to apply, the exporter or producer concerned should supply
the documentation needed to determine an individual margin of dumping.
(ii) Treatment of distinct legal entities as a single exporter or
producer
627. In Korea — Certain Paper, the Panel considered that the
KTC’s decision to treat three companies as a single exporter or
producer and assign a single margin was consistent with Article
6.10,
because the three companies were majority owned by the same company, had
common shareholdings and management and could shift production amongst
themselves, harmonize commercial activity and corporate objectives, and
make domestic sales through a single company.(862) Based on an
analysis of Article 6.10 in light of its context, particularly
Articles 9.5, 2.3 and
2.1, the Panel found that the term “exporter” in
Article 6.10 should not be read in a way to require an individual margin
of dumping for each independent legal entity under all circumstances:(863)
“Article 6.10 does not necessarily preclude treating distinct legal
entities as a single exporter or producer for purposes of dumping
determinations in anti-dumping investigations. Having said that,
however, we do not consider that Article 6.10
provides the IA with
unlimited discretion to do so … In our view, in order to properly
treat multiple companies as a single exporter or producer in the context
of its dumping determinations in an investigation, the IA has to
determine that these companies are in a relationship close enough to
support that treatment.”(864)
628.
The Panel and Appellate Body in EC — Fasteners (China)
examined Article 9(5) of the EU’s Basic Anti-Dumping Regulation, which
presumed “that all producers and exporters in an NME constitute a
single entity together with the State.”(865) Article 9(5) required NME producers to demonstrate their independence from state
control in order to qualify for “individual treatment” (IT). For NME
producers that fail the IT test, the Commission would calculate a single
country-wide dumping margin and duty rate; for NME producers that pass
the test, the Commission would compare the same normal value but use the
producer’s own export price.(866) The European Union argued
that in the case of market economies (as in Korea — Certain Paper)
the close relationship between separate legal entities has to be
established by the investigating authority on a case-by-case basis; by
contrast, in NMEs the presumption of State control is the general rule.
The Appellate Body upheld the Panel’s finding that the presumption in Article 9(5)
violated Articles 6.10 and 9.2, and that Article 9(5) was
not otherwise legally justifiable:
“[U]nder Articles 6.10 and
9.2 of the Anti-Dumping Agreement
it is the investigating authority that is called upon to make an
objective affirmative determination, on the basis of the evidence that
has been submitted or that it has gathered in the investigation, as to
who is the known exporter or producer of the product concerned. It is,
therefore, the investigating authority that will determine whether one
or more exporters have a relationship with the State such that they can
be considered as a single entity and receive a single dumping margin and
a single anti-dumping duty. In other words, where certain exporters or
producers are separate legal entities, that evidence will be taken into
account in treating them as separate exporters or producers for purposes
of Articles 6.10 and 9.2 of the Anti-Dumping Agreement… .
… placing the burden on NME exporters to rebut a presumption that
they are related to the State and to demonstrate that they are entitled
to individual treatment runs counter to Article
6.10, which ‘as a rule’
requires that individual dumping margins be determined for each known
exporter or producer, and is inconsistent with Article 9.2 that
requires that individual duties be specified by supplier. Even
accepting in principle that there may be circumstances where exporters
and producers from NMEs may be considered as a single entity for
purposes of Articles 6.10 and 9.2, such singularity cannot be presumed;
it has to be determined by the investigating authorities on the basis of
facts and evidence submitted or gathered in the investigation.
We are also of the view that no other provision in the Anti-Dumping
Agreement or in other covered agreements provides a legal basis for
the European Union’s presumption in Article 9(5) of its Basic AD
Regulation that results in exporters and producers from NMEs having to
demonstrate that they are unrelated to the State in order to qualify for
individual treatment. In particular, we do not consider that there is a
legal basis in the provisions of China’s Accession Protocol …
It is true that paragraph 15(a) of China’s Accession Protocol
places the burden on Chinese exporters to ‘clearly show’ that market
economy conditions prevail in order for the importing WTO Members to be
obliged to use Chinese domestic prices and costs in determining price
comparability. However, this rule concerns only the normal value aspect
of price comparability, and does not permit derogation from the
disciplines of the Anti-Dumping Agreement regarding export price.
…
…whether the European Union’s presumption under Article 9(5) of
its Basic AD Regulation that in NMEs the State and all exporters
constitute a single entity is consistent with Articles 6.10 and
9.2 of
the Anti-Dumping Agreement is a legal question, not a factual one
that depends on the economic structure of a particular WTO Member.
Rather, the economic structure of a WTO Member may be used as evidence
before an investigating authority to determine whether the State and a
number of exporters or producers subject to an investigation are
sufficiently related to constitute a single entity such that a single
margin should be calculated and a single duty be imposed on them. It
cannot, however, be used to imply a legal presumption that has not been
written into the covered agreements.”(867)
629. The Appellate Body further opined regarding the circumstances in
a number of exporters owned by the State that they may be determined to
constitute a single exporter for the purposes of Articles 6.10 and
9.2,
noting that “the criteria used for determining whether a single entity
exists from a corporate perspective, while certainly relevant, will not
necessarily capture all situations where the State controls or
materially influences several exporters such that they could be
considered as a single entity for purposes of Articles 6.10 and
9.2 … and be assigned a single dumping margin and anti-dumping duty.”(868)
“Articles 6.10 and 9.2 of the Anti-Dumping Agreement do not
preclude an investigating authority from determining a single dumping
margin and a single anti-dumping duty for a number of exporters if it
establishes that they constitute a single exporter for purposes of
Articles 6.10 and 9.2 of the Anti-Dumping Agreement. Whether
determining a single dumping margin and a single anti-dumping duty for a
number of exporters is inconsistent with Articles 6.10 and
9.2 will
depend on the existence of a number of situations, which would signal
that, albeit legally distinct, two or more exporters are in such a
relationship that they should be treated as a single entity. These
situations may include: (i) the existence of corporate and structural
links between the exporters, such as common control, shareholding and
management; (ii) the existence of corporate and structural links between
the State and the exporters, such as common control, shareholding and
management; and (iii) control or material influence by the State in
respect of pricing and output. We note that the Anti-Dumping
Agreement addresses pricing behaviour by exporters; if the State
instructs or materially influences the behaviour of several exporters in
respect of prices and output, they could be effectively regarded as one
exporter for purposes of the Anti-Dumping Agreement and a single
margin and duty could be assigned to that single exporter.”(869)
630. The Appellate Body further explained that:
“Criteria relating to corporate structure may in certain
circumstances be relevant to the determination of whether the State and
certain exporters constitute a single entity. In other circumstances,
however, an investigating authority might have to take into account
factors and positive evidence other than those establishing a corporate
or commercial relationship in assessing whether the State and a number
of exporters are a single entity and that, therefore, the State is the
source of price discrimination. These, for instance, may include
evidence of State control or instruction of, or material influence on,
the behaviour of certain exporters in respect of pricing and output.
These criteria could show that, even in the absence of formal structural
links between the State and specific exporters, the State in fact
determines and materially influences prices and output.”(870)
631. The Appellate Body further found that the country-wide dumping
margins and duties imposed under Article 9(5) of the EC Regulation were
inconsistent with Articles 6.10 and 9.2:
“[E]ven where it could be determined that particular exporters that
are related constitute a single supplier, Articles 6.10 and
9.2 of the Anti-Dumping
Agreement would nonetheless require the determination of an
individual dumping margin for the single entity, which should be based
on the average export prices of each individual exporter, and the
imposition of a corresponding single anti-dumping duty… .
In our view, only a dumping margin that is based on a weighted
average of the export prices of each individual exporter that forms part
of the single entity would be consistent with the obligation in Article
6.10 to determine an individual dumping margin for the single entity
that is composed of several legally distinct exporters. We also do not
consider that a country-wide duty imposed on a group of exporters could
be considered as being ‘collected in the appropriate amounts in each
case’ within the meaning of Article 9.2 of the Anti-Dumping
Agreement, to the extent it is determined for the group of fully
cooperating non-IT exporters on the basis of facts available because
cooperating exporters account for significantly less than 100 per cent
of all exports.”(871)
(iii) “known exporter or producer”
632. The Appellate Body in Mexico — Anti-Dumping Measures on
Rice found that the word “known” in Article 6.10 refers to
exporters/producers known to the investigating authority, and does not
include ones which the authority “should have known.”(872)
(c) “the authorities may limit their examination either to a
reasonable number of interested parties or products”: sampling and Article 6.10
633. The Panel in EC — Salmon (Norway) considered that
identifying the pool of known exporters or producers was central in
selecting interested parties:
“If there has been an error in the identification of the starting
pool of ‘known exporter[s] or producer[s] concerned’ this would, in
our view, invalidate the selection of interested parties … ”(873)
634. The Panel in EC — Salmon (Norway) noted that the
ordinary meaning of the text in Article 6.10
suggested that Members
could choose to focus their investigation on all known exporters, all
known producers, or all known exporters and producers. The Panel
concluded that the European Communities had not acted inconsistently
with Article 6.10 by limiting the number of interested parties
investigated, and excluding “all non-producing exporters”. In EC
— Salmon (Norway), the European Communities had selected ten
interested parties, which Norway claimed was inconsistent with Article 6.10
as it excluded all non-producing exporters from being considered
for selection. The Panel considered the text of Article 6.10, and
particularly the use of the word “or”, along with contextual support
from Article 2.5:
“[W]e find it particularly telling that the drafters of the AD
Agreement chose to use the word ‘or’ and not the word ‘and’ in
agreeing on the text of [Article 6.10]. This choice of language suggests
the drafters intended that Members be left with discretion to choose the
focus of their investigations.”(874)
“Thus, in our view, the ordinary meaning of the first sentence of
Article 6.10 suggests that the ‘known exporter[s] or producer[s]’
that serve as the starting point for the selection of the interested
parties investigated under either of the two limited investigation
techniques described in the second sentence of Article 6.10, do not always
have to be all known exporters and all known producers. We see no
provision in the AD Agreement that would explicitly prohibit such
interpretation of Article 6.10.”(875)
“We also find contextual support for our reading of the text of the
first sentence of Article 6.10 in Article 2.5 of the AD
Agreement. We
consider significant that the drafters of this provision of the AD
Agreement made explicit allowance for the possibility that Members may,
in certain situations, focus their investigation into the existence of
dumping on the pricing behaviour of producers, notwithstanding the
existence of known exporters responsible for making the export sales
under investigation.”(876)
635. In US — Shrimp (Viet Nam), the Panel rejected a claim
by Viet Nam that the limited examinations conducted by the US Department
of Commerce, by failing to provide non-selected respondents with
individual margins of dumping, violated Articles
9.3, 11.1 and 11.3. The
Panel stated that “the use of limited examinations is governed
exclusively by the second sentence of Article 6.10” and that “the
exception provided for in the second sentence of Article 6.10
makes it
clear that, despite the general preference for individual margins,
investigating authorities need not determine individual margins for all
known exporters and producers in all cases.”(877)
(d) “the largest percentage of exports that could reasonably be
investigated”
636. The Panel in EC — Salmon (Norway) had to consider the
question whether an investigating authority acted inconsistently with
the second sentence of Article 6.10 by not investigating two producers
that allegedly exported a larger volume of salmon to the European
Communities than several of the companies actually investigated. The
Panel found that the investigating authority (i.e. the European
Communities) acted inconsistently with Article 6.10
in one instance, but
not in the other:
“In our view, the volume of export sales that may be reasonable for
an investigating authority to investigate is a question that must be
assessed on a case-by-case basis, taking into account all relevant facts
that are before the investigating authority, including the nature and
type of interested parties, the products involved and the investigating
authorities own investigating capacity and resources.”(878)
637. The Panel in EC — Salmon (Norway) continued that the
second sentence of Article 6.10 concerned not the largest percentage of
the volume of exports, but rather the largest percentage of the volume
of exports that it would be reasonable for an investigating authority to
investigate.
“However, to the extent that it refers to the largest percentage of
the volume of exports which can ‘reasonably’ be investigated, the
text of the second sentence of Article 6.10 suggests that such an
outcome was not intended. In particular, the word ‘reasonably’
implies that the objective of this limited examination technique is to
identify the largest percentage of the volume of exports that it would
be reasonable for an investigating authority to investigate.”(879)
“In our view, the volume of export sales that may be reasonable for
an investigating authority to investigate is a question that must be
assessed on a case-by-case basis, taking into account all relevant facts
that are before the investigating authority, including the nature and
type of interested parties, the products involved and the investigating
authority’s own investigating capacity and resource. We see no reason
why this assessment might not also be informed by the matters raised
during consultations pursuant to Article 6.10.1”(880)
(e) Article 6.10.2
638. The Panel in US — Shrimp (Viet Nam), examining claims
by Viet Nam under Article 6.10.2, noted that “the application of the
first sentence of Article 6.10.2 is only triggered if non-selected
exporters or producers make so-called voluntary responses. If no such
voluntary response is submitted, there is no obligation on the
investigating authority to take any action under the first sentence of Article
6.10.2.”(881)
10. Article 6.13
(a) Relationship with paragraphs 2 and 5 of Annex II
639. In US — Hot-Rolled Steel, the Appellate Body referred
to Article 6.13 as support for its view that
paragraphs 2 and 5 of Annex
II call for a balance between the interests of investigating authorities
and exporters as regards cooperation in anti-dumping investigations. See
paragraph 583 above.
11. Relationship with other Articles and other WTO Agreements
(a) Article 1, 9 and 18 and Article VI of the GATT 1994
640. In Guatemala — Cement II, the Panel found that the
subject anti-dumping duty order of Guatemala was inconsistent with
several articles of the Anti-Dumping Agreement, including Article
7. The
Panel then opined that Mexico’s claims under Article
1, 9 and 18
of the Anti-Dumping Agreement, and Article VI of GATT
1994, were “dependent
claims, in the sense that they depend entirely on findings that
Guatemala has violated other provisions of the AD Agreement.”(882)
In light of this dependent nature of Mexico’s claim, the Panel
considered it not necessary to address these claims. See paragraph 9
above.
(b) Article 2
641. In US — Stainless Steel (Korea), the Panel considered
that it was unnecessary to examine Korea’s claim using Articles
6.1,
6.2 and 6.9 with respect to the United States’ methodologies which the
Panel had already found in violation of Article
2.(883)
642. With respect to the relationship between
Article 6.8 and
Articles 2.2 and 2.4, see
paragraph 161 above.
643. In Argentina — Ceramic Tiles, the Argentine authorities
had established a dumping margin for three size categories of ceramic
tiles irrespective of the exporter. The Panel, when analysing the
compatibility of Argentina’s measure with Article
6.10, acknowledged
the “usefulness of grouping (by size, model, type) for the purpose of
making a fair comparison under Article 2.4” but indicated that this
should not be confused with “the requirement under Article
6.10 to
determine an individual margin of dumping for the product as a whole.”(884)
(c) Article 3
644. In Thailand — H-Beams, the Appellate Body referred to
Article 6 in interpreting Article
3.1. See paragraph 186 above.
(d) Article 9
645. With respect to the relationship between
Article 6.8 and Article
9.3 and 9.4, see paragraphs 719–720
below.
(e) Article 12
646. The Panel in Argentina — Ceramic Tiles referred to
Article 12 of the Anti-Dumping Agreement as support of its conclusion
above that an investigating authority may rely on confidential
information in making determinations while respecting its obligation to
protect the confidentiality of that information. See paragraph 599
above.
VIII. Article 7
back to top
A. Text of Article 7
Article 7: Provisional Measures
7.1 Provisional measures may be applied only if:
(i) an investigation has been initiated in accordance with the
provisions of Article 5, a public notice has been given to that effect
and interested parties have been given adequate opportunities to submit
information and make comments;
(ii) a preliminary affirmative determination has been made of dumping
and consequent injury to a domestic industry; and
(iii) the authorities concerned judge such measures necessary to
prevent injury being caused during the investigation.
7.2 Provisional measures may take the form of a provisional duty or,
preferably, a security — by cash deposit or bond — equal to the
amount of the anti-dumping duty provisionally estimated, being not
greater than the provisionally estimated margin of dumping. Withholding
of appraisement is an appropriate provisional measure, provided that the
normal duty and the estimated amount of the anti-dumping duty be
indicated and as long as the withholding of appraisement is subject to
the same conditions as other provisional measures.
7.3 Provisional measures shall not be applied sooner than 60 days
from the date of initiation of the investigation.
7.4 The application of provisional measures shall be limited to as
short a period as possible, not exceeding four months or, on decision of
the authorities concerned, upon request by exporters representing a
significant percentage of the trade involved, to a period not exceeding
six months. When authorities, in the course of an investigation, examine
whether a duty lower than the margin of dumping would be sufficient to
remove injury, these periods may be six and nine months, respectively.
7.5 The relevant provisions of
Article 9 shall be followed in the
application of provisional measures.
B. Interpretation and Application of Article 7
1. General
647. In Guatemala — Cement II, after having found that the
subject definitive measure was inconsistent with the Anti-Dumping
Agreement, the Panel considered it unnecessary to address claims
concerning the provisional measure, stating:
“At most, Mexico’s claims concerning the provisional measure
could only result in a ruling with respect to part of the definitive
measure insofar as it relates to retrospective collection of the
provisional measure (i.e., where it is mandated that the ‘provisional
anti-dumping duties collected would remain in favour of the treasury’).
Since we have already made findings that give rise to a recommendation
concerning the totality of the definitive measure, we do not consider it
necessary to further address claims (i.e. concerning the provisional
measure) that could only result in a ruling concerning only part of the
definitive measure.”(885)
648. The Panel in Mexico — Corn Syrup found that Mexico’s
application of provisional measures for more than six months violated
Article 7.4.(886)
649. In US — Customs Bond Directive, India asserted that the
enhanced bond requirement (EBR) was inconsistent with Article 7.2 “since
provisional measures, whether in the form of a cash deposit or bond, may
not be for an amount in excess of the ‘provisionally estimated margin
of dumping’ or the ‘provisional calculated amount of subsidization’,
as the case may be.” The Panel agreed:
“In accordance with Article 7.2 of the Anti-Dumping
Agreement,
provisional measures may not exceed ‘the amount of the anti-dumping
duty provisionally estimated.’ Since the United States applied initial
provisional measures in ‘the amount of the anti-dumping duty
provisionally estimated’, the application of the EBR (prior to
imposition of the anti-dumping order) in conjunction with the initial
provisional measures necessarily resulted in the imposition of
provisional measures (i.e., the initial provisional measures together
with the EBR) in excess of ‘the amount of the anti-dumping duty
provisionally estimated,’ contrary to Article 7.2 of the Anti-Dumping
Agreement.”(887)
2. Relationship with other Articles and other WTO Agreements
(a) Article 1, 9 and 18 and Article VI of the GATT 1994
650. In Guatemala — Cement II, the Panel found that the
subject anti-dumping duty order of Guatemala was inconsistent with
several articles of the Anti-Dumping Agreement, including Article
7. The
Panel then opined that Mexico’s claims under Article
1, 9 and 18
of the Anti-Dumping Agreement, and Article VI of GATT
1994, were “dependent
claims, in the sense that they depend entirely on findings that
Guatemala has violated other provisions of the AD Agreement.”(888)
In light of this dependent nature of Mexico’s claim, the Panel
considered it not necessary to address these claims. See paragraph 9
above.
(b) Article 6
651. In Guatemala — Cement II, the Panel referred to
Article
7.3 in examining Mexico’s claim under Article
6.1.3. See paragraph 453 above.
(c) Article 17
652. In Mexico — Corn Syrup, the Panel touched on the
relationship between Article 7 (Articles 7.1 and
7.4) and Article 17.4.
See paragraphs 894–895
below.
(d) Article VI of the GATT 1994
653. In US — Shrimp (Thailand)/US — Customs Bond Directive,
the Appellate Body examined the relationship between reasonable security
requirements provided for by the Note Ad Paragraphs 2 and
3 of
Article VI of the GATT 1994, and provisional measures under Article 7 of
the Anti-Dumping Agreement. The complainants argued that the scope of
the Ad Note should be limited to securities taken as a
provisional measure pursuant to Article 7. The Appellate Body observed:
“We agree … that there is some overlap between the Ad
Note and Article 7. The Ad Note allows security in the form of
provisional measures during the original investigation period, the
disciplines of which are implemented through Article
7. At the same
time, in our view, the Ad Note allows the taking of a reasonable
security for payment of the final liability of anti-dumping duties after
an anti-dumping duty order has been imposed where such security may be
needed to ensure that the difference between the duty collected on
import entries and the final duty liability is collected. We therefore
do not agree … that the Ad Note is completely subsumed under Article
7 so that the taking of a reasonable security is not allowed
after a definitive anti-dumping duty is imposed. As the Appellate Body
clarified in Brazil — Desiccated Coconut, the Anti-Dumping
Agreement does not supersede the provisions of the GATT 1994,
including the Notes and Supplementary Provisions of Annex I to the GATT
1994. Rather, Article VI of the GATT 1994 (including the Ad Note)
and the Anti-Dumping Agreement represent an inseparable package
of rights and disciplines.
Our interpretation of the Ad Note is consistent with this
approach as it gives meaning and effect to both.(889)
IX. Article 8
back to top
A. Text of Article 8
Article 8: Price Undertakings
8.1 Proceedings may
(19) be suspended or terminated without the
imposition of provisional measures or antidumping duties upon receipt of
satisfactory voluntary undertakings from any exporter to revise its
prices or to cease exports to the area in question at dumped prices so
that the authorities are satisfied that the injurious effect of the
dumping is eliminated. Price increases under such undertakings shall not
be higher than necessary to eliminate the margin of dumping. It is
desirable that the price increases be less than the margin of dumping if
such increases would be adequate to remove the injury to the domestic
industry.
(footnote original)
19 The word “may” shall not be
interpreted to allow the simultaneous continuation of proceedings with
the implementation of price undertakings except as provided in paragraph
4.
8.2
Price undertakings shall not be sought or accepted from exporters
unless the authorities of the importing Member have made a preliminary
affirmative determination of dumping and injury caused by such dumping.
8.3 Undertakings offered need not be accepted if the authorities
consider their acceptance impractical, for example, if the number of
actual or potential exporters is too great, or for other reasons,
including reasons of general policy. Should the case arise and where
practicable, the authorities shall provide to the exporter the reasons
which have led them to consider acceptance of an undertaking as
inappropriate, and shall, to the extent possible, give the exporter an
opportunity to make comments thereon.
8.4 If an undertaking is accepted, the investigation of dumping and
injury shall nevertheless be completed if the exporter so desires or the
authorities so decide. In such a case, if a negative determination of
dumping or injury is made, the undertaking shall automatically lapse,
except in cases where such a determination is due in large part to the
existence of a price undertaking. In such cases, the authorities may
require that an undertaking be maintained for a reasonable period
consistent with the provisions of this Agreement. In the event that an
affirmative determination of dumping and injury is made, the undertaking
shall continue consistent with its terms and the provisions of this
Agreement.
8.5 Price undertakings may be suggested by the authorities of the
importing Member, but no exporter shall be forced to enter into such
undertakings. The fact that exporters do not offer such undertakings, or
do not accept an invitation to do so, shall in no way prejudice the
consideration of the case. However, the authorities are free to
determine that a threat of injury is more likely to be realized if the
dumped imports continue.
8.6 Authorities of an importing Member may require any exporter from
whom an undertaking has been accepted to provide periodically
information relevant to the fulfilment of such an undertaking and to
permit verification of pertinent data. In case of violation of an
undertaking, the authorities of the importing Member may take, under
this Agreement in conformity with its provisions, expeditious actions
which may constitute immediate application of provisional measures using
the best information available. In such cases, definitive duties may be
levied in accordance with this Agreement on products entered for
consumption not more than 90 days before the application of such
provisional measures, except that any such retroactive assessment shall
not apply to imports entered before the violation of the undertaking.
B. Interpretation and Application of Article 8
654. The Panel in US — Offset Act (Byrd Amendment)
considered the extent of the obligation under Article 8.3 of the
Anti-Dumping Agreement and Article 18.3 of the SCM Agreement concerning
price undertakings. According to the Panel, under Article
8:
“AD Article 8 and SCM 18 provide that when offered, the
investigating authority need not accept the undertaking if it considers
it impractical or if for other reasons it does not want to accept the
undertaking. The decision to accept an undertaking or not under the
Agreements is one the investigating authority is to take, and it may
reject an undertaking for various reasons, including reasons of general
policy. The fact that domestic producers may or may not be influenced by
the CDSOA to suggest to the authority not to accept the undertaking,
does not affect the possibility for interested parties concerned to
offer an undertaking or for that undertaking to be accepted, in light of
the non-decisive role of the domestic industry in this process.
In addition we note that the text of AD Article 8.3 and
SCM Article
18.3 does not require the authority to examine objectively any
undertaking offered. Rather, it stresses that undertakings offered need
not be accepted and that the reasons for rejecting an undertaking may be
manifold and include reasons of general policy. In our view, the CDSOA
cannot be found to impede the objective examination of the
appropriateness of accepting an undertaking, in the absence of any such
obligation under AD Article 8 and SCM
18.”(890)
655. In EC — Fasteners (China), the Panel observed that “[u]nder
Article 8 of the AD Agreement, undertakings to revise prices or cease
exports at dumped prices can be accepted only from individual exporters,
following at least a preliminary determination of dumping”.(891)
The Panel then noted that:
“This is in contrast to the parallel provision of the SCM
Agreement, Article 18, which specifically provides for the acceptance of
undertakings from the government of the exporting Member to eliminate or
limit the subsidy, or take other measures concerning its effects. In our
view, this difference reflects the fact that subsidization is a matter
of government action, while dumping is, in general, a consequence of
pricing decisions by commercial enterprises.”(892)
X. Article 9
back to top
A. Text of Article 9
Article 9: Imposition and Collection of Anti-Dumping Duties
9.1 The decision whether or not to impose an antidumping 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 Member. It is desirable that the
imposition be permissive in the territory of all 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.
9.2 When an anti-dumping duty is imposed in respect of any product,
such anti-dumping duty shall be collected in the appropriate amounts in
each case, on a non discriminatory basis on imports of such product from
all sources found to be dumped and causing injury, except as to imports
from those sources from which price undertakings under the terms of this
Agreement have been accepted. The authorities shall name the supplier or
suppliers of the product concerned. If, however, several suppliers from
the same country are involved, and it is impracticable to name all these
suppliers, the authorities may name the supplying country concerned. If
several suppliers from more than one country are involved, the
authorities may name either all the suppliers involved, or, if this is
impracticable, all the supplying countries involved.
9.3 The amount of the anti-dumping duty shall not exceed the margin
of dumping as established under Article
2.
9.3.1 When the amount of the anti-dumping duty is assessed on a
retrospective basis, the determination of the final liability for
payment of anti-dumping duties shall take place as soon as possible,
normally within 12 months, and in no case more than 18 months, after the
date on which a request for a final assessment of the amount of the
anti-dumping duty has been made.(20) Any refund shall be made promptly and
normally in not more than 90 days following the determination of final
liability made pursuant to this subparagraph. In any case, where a
refund is not made within 90 days, the authorities shall provide an
explanation if so requested.
(footnote original)
20 It is understood that the observance of
the time limits mentioned in this subparagraph and in subparagraph 3.2
may not be possible where the product in question is subject to judicial
review proceedings.
9.3.2 When the amount of the anti-dumping duty is assessed on a
prospective basis, provision shall be made for a prompt refund, upon
request, of any duty paid in excess of the margin of dumping. A refund
of any such duty paid in excess of the actual margin of dumping shall
normally take place within 12 months, and in no case more than 18
months, after the date on which a request for a refund, duly supported
by evidence, has been made by an importer of the product subject to the
anti-dumping duty. The refund authorized should normally be made within
90 days of the above-noted decision.
9.3.3 In determining whether and to what extent a reimbursement
should be made when the export price is constructed in accordance with
paragraph 3 of Article 2, authorities should take account of any change
in normal value, any change in costs incurred between importation and
resale, and any movement in the resale price which is duly reflected in
subsequent selling prices, and should calculate the export price with no
deduction for the amount of anti-dumping duties paid when conclusive
evidence of the above is provided.
9.4
When the authorities have limited their examination in accordance
with the second sentence of paragraph 10 of Article
6, any anti-dumping
duty applied to imports from exporters or producers not included in the
examination shall not exceed:
(i) the weighted average margin of dumping established with respect
to the selected exporters or producers or,
(ii) where the liability for payment of anti-dumping duties is
calculated on the basis of a prospective normal value, the difference
between the weighted average normal value of the selected exporters or
producers and the export prices of exporters or producers not
individually examined,
provided that the authorities shall disregard for the purpose of this
paragraph any zero and de minimis margins and margins established
under the circumstances referred to in paragraph 8 of Article
6. The
authorities shall apply individual duties or normal values to imports
from any exporter or producer not included in the examination who has
provided the necessary information during the course of the
investigation, as provided for in subparagraph 10.2 of Article
6.
9.5 If a product is subject to anti-dumping duties in an importing
Member, the authorities shall promptly carry out a review for the
purpose of determining individual margins of dumping for any exporters
or producers in the exporting country in question who have not exported
the product to the importing Member during the period of investigation,
provided that these exporters or producers can show that they are not
related to any of the exporters or producers in the exporting country
who are subject to the anti-dumping duties on the product. Such a review
shall be initiated and carried out on an accelerated basis, compared to
normal duty assessment and review proceedings in the importing Member.
No anti-dumping duties shall be levied on imports from such exporters or
producers while the review is being carried out. The authorities may,
however, withhold appraisement and/or request guarantees to ensure that,
should such a review result in a determination of dumping in respect of
such producers or exporters, antidumping duties can be levied
retroactively to the date of the initiation of the review.
B. Interpretation and Application of Article 9
1. General
656. In US — Customs Bond Directive, the Panel examined a
claim that an enhanced bond requirement (EBR) for certain shrimp,
imposed pursuant to the Amended Customs Bond Directive (Amended CBD) was
inconsistent with Article 9. The Appellate Body upheld the Panel’s
finding that bonds provided under the Amended CBD are not anti-dumping
duties or countervailing duties, fall outside the scope of Articles 9 of
the Anti-Dumping Agreement and 19 of the SCM
Agreement, and consequently
are not inconsistent as such with Articles 9.1,
9.2, 9.3 and 9.3.1 of
the Agreement nor with Articles
19.2, 19.3 and 19.4 of the SCM
Agreement:(893)
“A bond under the Amended CBD secures the payment of a duty. A
bond, by itself, is not a duty as it does not entail any transfer of
money from the importer to the government. Therefore, the EBR imposed
pursuant to the Amended CBD cannot be characterized as a ‘duty’
within the meaning of Article 9 of the Anti-Dumping Agreement and
Article 19 of the SCM Agreement.”(894)
657. As the text of certain provisions in
Article 19 of the SCM
Agreement parallels the text of provisions in Article 9 of the
Anti-Dumping Agreement, see also the cases and materials on those
provisions under Article 19 in the Chapter on the SCM
Agreement.
2. Article 9.1
658. The Appellate Body in EC — Fasteners (China) observed
that the second sentence of Article 9.1 expresses a “preference…
for duties lesser than the margin of dumping, if lesser duties are
adequate to remove the injury to the domestic industry. To express such
a preference, Article 9.1 uses the expression ‘it is desirable’.”(895)
659. See also
paragraph 696 below.
3. Article 9.2
(a) General; mandatory nature of Article 9.2
660. In EC — Fasteners (China), the Appellate Body
summarized its interpretation of Article 9.2:
“Article 9.2 of the Anti-Dumping Agreement requires
investigating authorities to specify an individual duty for each
supplier, except where this is impracticable, when several suppliers are
involved. We reach this conclusion by reading the first sentence of Article 9.2
in conjunction with the second sentence of Article 9.2. The
first sentence requires investigating authorities to collect
anti-dumping duties in the appropriate amounts in each case and on a
non-discriminatory basis on imports from all sources — that is,
suppliers — while the second sentence requires investigating
authorities to name the supplier or suppliers of the product concerned.
We also consider that the exception in the third sentence of Article 9.2
does not allow the imposition of a single country-wide antidumping duty
in investigations involving NMEs where the imposition of individual
duties is alleged to be ‘ineffective’, but is not ‘impracticable’.”(896)
661. The Appellate Body in EC — Fasteners (China)
interpreted Article 9.2: “It is … clear from the wording of this
provision, which uses the auxiliary verb ‘shall’, that the
collection in appropriate amounts of antidumping duties and the naming
of the supplier are of a mandatory nature.”(897)
662. See also the discussion of EC — Fasteners (China) under
Article 6.10.
(b) “appropriate amounts”
663. The Panel in Argentina — Poultry Anti-Dumping Duties
made the following observations concerning the relationship between
Article 9.2 and Article 9.3:
“We note that Article 9.3
contains a specific obligation regarding
the amount of anti-dumping duty to be imposed, whereas Article 9.2
employs far more general language in referring to the collection of
duties in ‘appropriate’ amounts. In particular, Article 9.2
provides
no guidance on what an ‘appropriate’ amount of duty may be in a
given case. In the absence of any other guidance regarding the
appropriateness of the amount of anti-dumping duties, it would appear
reasonable to conclude that an anti-dumping duty meeting the
requirements of Article 9.3 (i.e., not exceeding the margin of dumping)
would be ‘appropriate’ within the meaning of Article 9.2.”(898)
664. The Panel in EC — Salmon (Norway) concluded that in
order to comply with the Article 9.2 requirement that anti-dumping
duties must be collected in the “appropriate amounts”, “Members
imposing minimum import prices (MIPs) on investigated parties must
ensure that they do not exceed their respective normal values.”(899)
The Panel found important contextual support for this in Article
9.4:
“[T]he last sentence of Article
9.4 explicitly recognizes that the
benchmark for a MIP applied to any individual exporter or producer that
has provided information of the kind that could result in the
calculation of an individual margin of dumping in accordance with
Article 6.10.2, may be equivalent to its ‘individual … normal
values’.”(900)
665. The Panel in EC — Salmon (Norway) found that the
investigating authority did not act consistently with the obligation in
Article 9.2 to ensure duties were collected in the “appropriate
amounts”:
“We recall that the MIPs established by the investigating authority
were based on the ‘non-injurious’ MIPs, because these were found to
be lower than the ‘non-dumped’ MIPs. To the extent that we have
found that the ‘non-dumped’ MIPs calculated by the investigating
authority were greater than the relevant normal values, greater than
what they should have been or derived through the application of a
flawed methodology, the investigating authority’s finding that the ‘non-injurious’
MIPs were less than the ‘non-dumped’ MIPs rested on a flawed factual
basis. Thus, in imposing the MIPs on the investigated parties at the
level of the ‘non-injurious’ MIPs, the investigating authority did
not act consistently with the obligation to ensure that anti-dumping
duties must be collected in the ‘appropriate amounts’, within the
meaning of Article 9.2 of the AD Agreement.”(901)
666. The Appellate Body in EC — Fasteners (China) found that
the “appropriate amount” of an antidumping duty that can be imposed
must be an individual one, not a country-wide rate:
“Article 6.10 of the Anti-Dumping Agreement contains an
obligation to determine individual dumping margins for each exporter or
producer, except when sampling is used or if a derogation is otherwise
provided for in the covered agreements. We observe that, where an
individual margin of dumping has been determined, it flows from the
obligation contained in the first sentence of Article 9.2
that the appropriate
amount of anti-dumping duty that can be imposed also has to be an
individual one. We do not see how an importing Member could comply with
the obligation in the first sentence of Article 9.2
to collect duties in
the appropriate amounts in each case if, having determined
individual dumping margins, it lists suppliers by name, but imposes
country-wide duties. In other words, unless sampling is used, the appropriate
amount of an anti-dumping duty in each case is one that is specified by
supplier, as further clarified and confirmed by the obligation to name
suppliers in the second sentence of Article 9.2.(902)”(903)
(c) “all sources”
667. The Appellate Body in EC — Fasteners (China) upheld a
Panel finding interpreting the term “sources” in Article 9.2
as
referring to individual exporters or producers, and not to the country
as a whole:
“Article 9.2 of the Anti-Dumping Agreement requires that
anti-dumping duties be collected on a non-discriminatory basis from ‘all
sources’ found to be dumped and causing injury, except from ‘those
sources’ from which price undertakings have been accepted. We agree
with the Panel that the term ‘sources’, which appears twice in the
first sentence of Article 9.2, has the same meaning and refers to
individual exporters or producers and not to the country as a whole.
This is indicated by the fact that price undertakings mentioned in the
first sentence of Article 9.2 are accepted, according to
Article 8 of
the Anti-Dumping Agreement, from individual exporters and not
from countries. Therefore, the requirement under Article 9.2
that
anti-dumping duties be collected in appropriate amounts in each case and
from all sources relates to the individual exporters or producers
subject to the investigation.”(904)
668. The Panel in EC — Fasteners (China) drew a contrast
between Article 9.2 and “the parallel provision of the
SCM Agreement,
Article 18, which specifically provides for the acceptance of
undertakings from the government of the exporting Member to eliminate or
limit the subsidy, or take other measures concerning its effects. In our
view, this difference reflects the fact that subsidization is a matter
of government action, while dumping is, in general, a consequence of
pricing decisions by commercial enterprises.”(905)
(d) “The authorities shall name the supplier or suppliers of the
product concerned”
669. The Appellate Body in EC — Fasteners (China) also found
that “the obligation to name individual suppliers in the second
sentence of paragraph 2 is closely related to the imposition of
individual anti-dumping duties and … the requirement to name
suppliers that are subject to imposition and collection of antidumping
duties should be interpreted as a requirement to specify duties for each
supplier.”(906)
(e) Third sentence of Article 9.2
670. In EC — Fasteners (China), the Appellate Body discussed
whether the exception in the third sentence of Article 9.2 would justify
imposition of country-wide rates on suppliers that are all related to
the State in order to avoid circumvention. The Appellate Body observed
that “Article 9.2, third sentence, allows Members to name the
supplying country concerned only when it is impracticable to name
individual suppliers; it does not permit naming the supplying country
when the imposition of individual duties is ineffective because it may
result in circumvention of the anti-dumping duties.”(907)
4. Article 9.3
(a) “de minimis” test
671. The Panel in US — DRAMS concluded that “Article
5.8,
second sentence, does not apply in the context of Article 9.3 duty
assessment procedures. As Article
5.8, second sentence, does not require
Members to apply a de minimis test in Article 9.3
duty assessment
procedures, it certainly cannot require Members to apply a particular de
minimis standard in such procedures.”(908)
672. The Panel in US — DRAMS further stated:
“A de minimis test in the context of an Article 9.3
duty
assessment will not remove an exporter from the scope of the order.
Thus, the implication of the de minimis test required by Article
5.8, and any de minimis test that Members choose to apply in Article 9.3
duty assessment procedures, differ significantly.”(909)
673. The Panel in US — DRAMS discussed the different
functions of the de minimis test in Article 5.8 and
Article 9.3,
respectively. See paragraph 402
above.
(b) Variable duties
674. The Panel in Argentina — Poultry Anti-Dumping Duties
addressed the argument that variable antidumping duties are inconsistent
with Article 9.3 because they are collected by reference to a margin of
dumping established at the time of collection (i.e., the
difference between a “minimum export price”, or reference normal
value, and actual export price), rather than by reference to the margin
of dumping established during the investigation. Brazil argued that from
the moment the anti-dumping duty is imposed until a review of the
imposition of that duty is made, the only margin of dumping available,
calculated pursuant to Article
2, is the margin assessed in the
investigation, and found in the final determination. The Panel rejected
this argument and concluded that Article 9.3 does not prohibit the use
of variable anti-dumping duties:
“In addressing this claim, we note that nothing in the AD
Agreement explicitly identifies the form that antidumping duties
must take. In particular, nothing in the AD Agreement explicitly
prohibits the use of variable antidumping duties. Brazil’s Claim 29 is
based on Article 9.3 of the AD Agreement. As the title of
Article
9 of the AD Agreement suggests, Article 9.3
is a provision
concerning the imposition and collection of anti-dumping duties. Article 9.3
provides that a duty may not be collected in excess of the margin of
dumping as established under Article
2. The modalities for ensuring
compliance with this obligation are set forth in sub-paragraphs
1, 2 and
3 of Article 9.3, each of which addresses duty assessment and the
reimbursement of excess duties. The primary focus of Article 9.3, read
together with sub-paragraphs 1–3, is to ensure that final anti-dumping
duties shall not be assessed in excess of the relevant margin of
dumping, and to provide for duty refund in cases where excessive
anti-dumping duties would otherwise be collected. Our understanding that
Article 9.3 is concerned primarily with duty assessment is confirmed by
the fact that the broadly equivalent provision in the SCM Agreement
(i.e., Article 19.4) refers to the ‘lev[ying]’ of duties, and
footnote 51 to that provision states that ‘ “levy” shall mean the
definitive or final legal assessment or collection of a duty or
tax’ (emphasis added).(910) When viewed in this light, it is
not obvious that — as Brazil effectively argues — Article 9.3
prohibits variable anti-dumping duties by ensuring that anti-dumping
duties do not exceed the margin of dumping established during ‘the
investigation phase’ pursuant to Article
2.4.2. Neither the ordinary
meaning of Article 9.3, nor its context (i.e.,
sub-paragraphs 1–3),
supports that view. If Article 9.3 were designed to prohibit the use of
variable customs duties, presumably that prohibition would have been
clearly spelled out.”(911)
675. The Panel also pointed to
Article 9.3.1 dealing with
retrospective duty assessment as support for its view that duties may be
collected on the basis of a margin of dumping established after the end
of the investigation.(912) Similarly, the Panel considered that
the Article 9.3.2 refund mechanism in the case of a prospective duty
assessment would include refunds of anti-dumping duties paid in excess
of the margin of dumping prevailing at the time the duty is collected
and drew the following conclusions:
“This therefore further undermines Brazil’s argument that the
only margin of dumping relevant until such time that there is an Article
11.2 review is the margin established during the investigation. If the
basis for duty refund is the margin of dumping prevailing at the
time of duty collection, we see no reason why a Member should not use
the same basis for duty collection. Brazil has noted that refunds
do not imply modification of the duty, and are only available if
requested by the importer.(913) While these points may be
correct, they do not change the fact that the refund mechanism operates
by reference to the margin of dumping prevailing at the time of duty
collection. It is this aspect of the refund mechanism that renders it
contextually relevant to the issue before us. Accordingly, we see no
reason why it is not permissible(914) for a Member to levy
anti-dumping duties on the basis of the actual margin of dumping
prevailing at the time of duty collection.”(915)
(c) Conditions to carry out duty assessment and changed circumstances
reviews
(i) Exhaustiveness of the conditions listed
676. In Mexico — Anti-Dumping Measures on Rice, the
Appellate Body held that the conditions to carry out duty assessment
reviews and changed circumstances reviews listed in Articles 9.3.2 and
11.2 of the Anti-Dumping Agreement and Article 21.2 of the SCM Agreement
are exhaustive, and do not include a requirement to condition a review
on a showing of representative volume of exports:
“[T]he above provisions … require an investigating authority to
undertake duty assessment reviews and changed circumstances reviews once
the conditions set out in those provisions have been satisfied. In our
view, these conditions are exhaustive; thus, if an agency seeks to
impose additional conditions on a respondent’s right to a review, this
would be inconsistent with those provisions”.(916)
677. The Appellate Body confirmed that the completion of judicial
proceedings as a condition for carrying out duty assessment and changed
circumstances reviews is not provided for in Articles 9.3.2 of the
Anti-Dumping Agreement and 11.2 and Article 21.2 of the SCM
Agreement.(917)
(ii) When a duty becomes final
678. The Appellate Body in Mexico — Anti-Dumping Duties on Rice
agreed with the Panel that “a duty becomes ‘definitive’ — and
therefore satisfies one of the conditions for a review set out in
Articles 9.3 and 11.2 of the Anti-Dumping Agreement and
Article 21.2 of
the SCM Agreement — at the time of the investigating authority’s
final affirmative determination” and that “a product is subject to a
duty as soon as an investigation has been concluded and a final
determination has been made deciding to impose anti-dumping or
countervailing duties.”(918) The Appellate Body concluded that
these provisions:
“[P]ermit agencies to require that duties be imposed on a
product — in the sense that a final determination be made, following
an original investigation, with respect to the
anti-dumping/countervailing duty liability for entries of such product
— as a condition of the right to a refund or review of duties …
Where duties have been imposed, and the remaining conditions of
these treaty provisions satisfied, an investigating authority is not
permitted to decline a request for a duty assessment or changed
circumstances review.”(919)
(d) Concept of “product as a whole” in reviews under Article 9 of
the Anti-Dumping Agreement
679.
Article 9 covers the “Imposition and Collection of
Anti-Dumping Duties”. The Panel in US — Zeroing (Japan)
summarized the operation of the Article:
“Article 9.3 requires that the amount of the anti-dumping duty not
exceed the margin of dumping as established under Article
2. Articles
9.3.1 and 9.3.2 specify certain rules to implement this requirement when
the amount of the anti-dumping duty is assessed on a retrospective basis
(Article 9.3.1) or on a prospective basis (Article
9.3.2). In the
context of Article 9.3, a margin of dumping is calculated for the
purpose of determining the final liability for payment of anti-dumping
duties under Article 9.3.1 or for the purpose of determining the amount
of anti-dumping duty that must be refunded under Article 9.3.2 ….”(920)
680. The Appellate Body in US — Zeroing (Japan) set out its
interpretation of Article 9 in relation to the practice of zeroing:
“As the Appellate Body has stated previously, under
Article 9.3 of
the Anti-Dumping Agreement and Article VI:2 of the GATT
1994,
investigating authorities ‘are required to ensure that the total
amount of anti-dumping duties collected on the entries of a product from
a given exporter shall not exceed the margin of dumping established for
that exporter’(921), in accordance with
Article 2.(922)
Put differently, ‘the margin of dumping established for an exporter or
foreign producer operates as a ceiling for the total amount of
anti-dumping duties that can be levied on the entries of the subject
product (from that exporter) covered by the duty assessment proceeding.’(923)
The Appellate Body has further emphasized that ‘[a]lthough Article 9.3
sets out a requirement regarding the amount of the assessed antidumping
duties, it does not prescribe a specific methodology according to which
the duties should be assessed.’(924) In particular, the
Appellate Body has underscored that ‘a reading of Article 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the GATT 1994 does not suggest that
final anti-dumping duty liability cannot be assessed on a transaction-
or importer-specific basis, or that the investigating authorities may
not use specific methodologies that reflect the distinct nature and
purpose of proceedings governed by these provisions, for purposes of
assessing final antidumping duty liability, provided that the total
amount of anti-dumping duties that are levied does not exceed the
exporters’ or foreign producers’ margins of dumping.’(925)
… the Panel expresses its concern that, if a Member applies a
retrospective duty assessment system, it ‘may be precluded from
collecting anti-dumping duties in respect of particular export
transactions at prices less than normal value to a particular importer
at a particular point of time because of prices of export transactions
to other importers at a different point in time that exceed normal
value.’ This concern is not well founded. The concept of dumping
relates to the pricing behaviour of exporters or foreign producers; it
is the exporter, not the importer, that engages in practices that result
in situations of dumping.(926) At the time of importation, an
administering authority may collect duties, in the form of a cash
deposit, on all export sales, including those occurring at above the
normal value. However, in a review proceeding under Article
9.3.1, the
authority is required to ensure that the total amount of anti-dumping
duties collected from all the importers of that product does not exceed
the total amount of dumping found in all sales made by the
exporter or foreign producer, calculated according to the margin of
dumping established for that exporter or foreign producer without
zeroing. The same ‘ceiling’ applies in review proceedings under Article
9.3.2, because the introductory clause of Article 9.3 applies
equally to prospective and retroactive duty assessment systems.”(927)
681. The Appellate Body in US — Stainless Steel (Mexico)
also ruled that zeroing is unacceptable under Article 9.3:
“A proper determination as to whether an exporter is dumping or not
can only be made on the basis of an examination of the exporter’s
pricing behaviour as reflected in all of its transactions over a period
of time… . the determination of dumping with respect to an exporter
is properly made not at the level of individual export transactions, but
on the basis of the totality of an exporter’s transactions of the
subject merchandise over the period of investigation.”(928)
682. The Appellate Body in US — Stainless Steel (Mexico)
noted, as it had in previous cases, that under Article 9.3
the margin of
dumping established for an exporter operated as a ceiling for the total
amount of anti-dumping duties that could be levied. The Appellate Body
saw no basis for disregarding results of comparisons where the export
price exceeded the normal value when calculating the margin of dumping
for the exporter. In the view of the Appellate Body, when negotiators
sought to permit investigating authorities to disregard certain matters,
they did so explicitly.(929) Nor did the Appellate Body believe
that the text of the Anti-Dumping Agreement supported treating those
transactions that occurred above normal value as “dumped” for the
purposes of determining the existence and magnitude of dumping in
original investigations, but “not dumped” for purposes of periodic
reviews:
“First, as noted above, the transactions that are disregarded may
well pertain to a model, type, or class that fell within the definition
of the product under investigation and were treated as ‘dumped’ in
the original investigation. By excluding these transactions at the duty
assessment stage, a mismatch is created between the product considered
‘dumped’ and the product as defined by the investigating authority.”(930)
683. The Appellate Body in US — Stainless Steel (Mexico)
noted further that treating the same transaction differently in periodic
reviews from original investigations would create a problem with the
injury analysis:
“[T]his treatment is inconsistent with the manner in which injury
was determined in the original investigation, where transactions that
occurred at above the normal value were taken into account in order to
calculate the volume of dumped imports for purposes of injury
determination. Obviously, we do not suggest that there need be a fresh
injury determination at the duty assessment stage; rather, we wish to
point to the contradiction that arises when the same type of
transactions are treated as ‘dumped’ for purposes of injury
determination in the original investigation and as ‘non-dumped’ in
periodic reviews for duty assessment.”(931)
684. The Appellate Body in US — Stainless Steel (Mexico) was
also concerned that providing for different treatment in the case of
reviews would provide an opportunity to circumvent the prohibition on
zeroing in original investigations under the first sentence of Article
2.4.2:
“In addition, as we see it, a reading of Article 9.3 of the Anti-Dumping
Agreement that permits simple zeroing in periodic reviews would
allow WTO Members to circumvent the prohibition of zeroing in original
investigations that applies under the first sentence of Article 2.4.2 of
the Anti-Dumping Agreement. This is because, in the first
periodic review after an original investigation, the duty assessment
rate for each importer will take effect from the date of the original
imposition of anti-dumping duties. Consequently, zeroing would be
introduced although it is not permissible in original investigations. We
further note that, if no periodic review is requested, the final
anti-dumping duty liability for all importers will be assessed at the
cash deposit rate applicable to the relevant exporter. When the initial
cash deposit rate is calculated in the original investigation without
using zeroing, this means that the mere act of conducting a periodic
review would introduce zeroing following imposition of the anti-dumping
duty order.”(932)
685. The Panel in US — Shrimp (Viet Nam) examined Viet Nam’s
claims regarding the use of zeroing in a periodic review. The Panel “recall[ed]
that the findings of the Appellate Body in US — Zeroing (Japan)
and US — Stainless Steel (Mexico) … addressed the very same
question which is now before us, i.e. the consistency with Article 9.3
of the Anti-Dumping Agreement and Article VI:2 of the GATT 1994 of the
zeroing methodology, as such, in the context of administrative reviews.
Following an objective assessment of the matter, and a thorough review
of the abovementioned reasoning expressed by the Appellate Body, we
agree with that reasoning and adopt it as our own.”(933) The
Panel found that the US zeroing methodology, as such, as it relates to
the use of simple zeroing in periodic reviews, is inconsistent with
Article 9.3 and Article VI:2.
(e) Retrospective system: reviews and zeroing
686. The Appellate Body in US — Zeroing (EC) held that the
United States’ application of “zeroing” in certain administrative
reviews was inconsistent with Article 9.3 and
GATT Article VI:2; the
Appellate Body noted that Article 9.3 “refers to the margin of dumping
as established under Article 2.”(934) Referring to its prior
Appellate Body decisions on EC — Bed Linen and US —
Softwood Lumber V, indicating that, under the Anti-Dumping Agreement
and GATT Article VI, “dumping” and “margins of dumping” “must
be established for the product under investigation as a whole”,(935)
the Appellate Body found that under Article 9.3
and Article VI:2, the
amount of the assessed anti-dumping duties shall not exceed the margin
of dumping as established “for the product as a whole.”(936)
It then noted that under Article 9.3 of the Anti-Dumping Agreement and
Article VI:2 of the GATT 1994, “the margin of dumping established for
an exporter or foreign producer operates as a ceiling for the
total amount of anti-dumping duties that can be levied on the entries of
the subject product (from that exporter) covered by the duty assessment
proceeding.”(937)
687. However, the Appellate Body in US — Zeroing (EC) upheld
the Panel’s finding that zeroing, as applied by the DOC in the
administrative reviews at issue, is not inconsistent with Articles 11.1
and 11.2.(938) In addressing this issue, the Appellate Body
stated that the European Communities had not established that Articles 11.1
and 11.2 apply to the reassessment of the cash-deposit rate in the
context of administrative reviews:
“[W]e fail to see how the reassessment of a cash-deposit rate to be
applied to future entries could constitute a review of whether the
continued imposition of the antidumping duty is necessary to counteract
dumping that is causing injury.”(939)
(f) Prospective normal value system: reviews and zeroing
688. The Panel in US — Softwood Lumber V (Article 21.5 —
Canada) said that if the Appellate Body’s interpretation (as
determined in previous cases) of “margins of dumping” was to apply
throughout the Anti-Dumping Agreement (i.e. to be determined for the “product
as a whole”), it would lead to absurd results under the prospective
normal value system. It would mean that “one importer could request a
refund on the basis of a margin of dumping calculated by reference to
non-dumped transactions made by other importers.”(940) On
appeal, the Appellate Body disagreed with the Panel. In the view of the
Appellate Body:
“[the Panel] confuse[d] duty collection at the time of importation
with the determination of the final margin of dumping and assessment of
final duties in administrative reviews… Under a prospective
normal-value system, the anti-dumping duty collected at the time of
importation is subject to review and importers have the right to request
a refund when the duties paid exceed the actual margin of dumping,
pursuant to Article 9.3.2 of the Anti-Dumping
Agreement. Accordingly,
the operation of prospective normal-value systems has no bearing on the
permissibility of zeroing under the transaction-to-transaction
comparison methodology in Article
2.4.2.”(941)
689. The Appellate Body in US — Zeroing (Japan) disagreed
with the Panel’s general approach to zeroing, including in the context
of the prospective normal value system. In disagreeing with the Panel
the Appellate Body quoted extensively from the Panel Report:
“Before the Panel, Japan argued that the collection of a variable
duty on an entry-by-entry basis under a prospective normal value system
does not involve the establishment of margins of dumping with respect to
individual export transactions, because the actual margin of dumping in
such a system is only determined in a review under Article 9.3.2.
Moreover, according to Japan, in a prospective normal value system, ‘the
final liability for duties must be assessed in a review under Article 9.3.2’.
The Panel disagreed, noting that Japan’s argument was ‘inconsistent
with the prospective nature of such a system’.(942)
The Panel
added that ‘[i]t is clear from the text of Article
9.4(ii) of the [Anti-Dumping]
Agreement that in a prospective normal value system “liability
for payment of anti-dumping duties is calculated on the basis of a
prospective normal value”.’(943) Moreover, ‘[a]lthough
Article 9.3.2 provides for a refund procedure when the amount of
anti-dumping duties is assessed on a prospective basis, a requirement
that arguably also applies to prospective normal value systems referred
to in Article 9.4(ii), a refund procedure in a prospective duty
assessment system is not a determination of final liability for
payment of antidumping duties.’(944) The Panel further
noted that ‘[t]he phrase “determination of the final liability for
payment of anti-dumping duties” is used in Article 9.3.1 in connection
with retrospective duty assessment procedures but does not figure in
Article 9.3.2.’(945)
The Panel stated that, ‘notwithstanding the possibility of a
refund, liability for payment of anti-dumping duties is final in a
prospective normal value system at the time of importation of a product.’(946)
This may be so, but it does not mean that the anti-dumping duty
collected at the time of importation represents a ‘margin of dumping’.
Nor does it mean that the total amount of antidumping duties that are
levied can exceed the exporter’s or foreign producer’s ‘margin of
dumping’. Under a prospective normal value system, exporters may
choose to raise their export prices to the level of the prospective
normal value in order to avoid liability for payment of anti-dumping
duties on each export transaction. However, under Article
9.3.2, the
amount of duties collected is subject to review so as to ensure that,
pursuant to Article 9.3 of the Anti-Dumping Agreement, the amount
of the anti-dumping duty collected does not exceed the margin of dumping
as established under Article 2.(947) It is open to an importer to
request a refund if the duties collected exceed the exporter’s margin
of dumping. Whether a refund is due or not will depend on the margin of
dumping established for that exporter.
The Panel stated that, in a prospective normal value system, ‘liability
for payment of anti-dumping duties is incurred only to the extent that
prices of individual export transactions are below normal value.’(948)
Therefore, Article 9.4(ii) ‘confirms that the concept of dumping can
apply on a transaction-specific basis to prices of individual export
transactions below the normal value.’(949) The Panel also
stated that ‘[i]f in a prospective normal value system individual
export transactions at prices less than normal value can attract
liability for payment of anti-dumping duties, without regard to whether
or not prices of other export transactions exceed normal value’, there
is no reason why duties may not be similarly assessed under the United
States’ retrospective duty assessment system.(950)
Under any system of duty collection, the margin of dumping
established in accordance with Article 2 operates as a ceiling for the
amount of anti-dumping duties that could be collected in respect of the
sales made by an exporter. To the extent that duties are paid by an
importer, it is open to that importer to claim a refund if such a
ceiling is exceeded. Similarly, under its retrospective system of duty
collection, the United States is free to assess duty liability on a
transaction-specific basis, but the total amount of anti-dumping duties
that are levied must not exceed the exporters’ or foreign producers’
margins of dumping.
The Anti-Dumping Agreement is neutral as between different
systems for levy and collection of anti-dumping duties. The Agreement
lays down the ‘margin of dumping’ as the ceiling for collection of
duties regardless of the duty assessment system adopted by a WTO Member,
and provides for a refund if the ceiling is exceeded. It is therefore
incorrect to say that the Anti-Dumping Agreement favours one
system, or places another system at a disadvantage.”(951)
(g) Are “dumping” and “margins of dumping” exporter- or
importer-related concepts?
690. The Appellate Body in US — Zeroing (Japan) disagreed
with the Panel’s approach to importer-specific duty assessment. It was
an issue that would come up again and be dealt with extensively in US
— Stainless Steel (Mexico):
“[T]he Panel expresses its concern that, if a Member applies a
retrospective duty assessment system, it ‘may be precluded from
collecting anti-dumping duties in respect of particular export
transactions at prices less than normal value to a particular importer
at a particular point of time because of prices of export transactions
to other importers at a different point in time that exceed normal
value.’(952) This concern is not well founded. The concept of
dumping relates to the pricing behaviour of exporters or foreign
producers; it is the exporter, not the importer, that engages in
practices that result in situations of dumping.(953) At the time
of importation, an administering authority may collect duties, in the
form of a cash deposit, on all export sales, including those occurring
at above the normal value. However, in a review proceeding under Article
9.3.1, the authority is required to ensure that the total amount of
antidumping duties collected from all the importers of that product does
not exceed the total amount of dumping found in all sales made by the
exporter or foreign producer, calculated according to the margin of
dumping established for that exporter or foreign producer without
zeroing. The same ‘ceiling’ applies in review proceedings under Article
9.3.2, because the introductory clause of Article 9.3 applies
equally to prospective and retroactive duty assessment systems.”(954)
691. The Appellate Body in US — Stainless Steel (Mexico) was
of the view that “dumping” and “margin of dumping” were
exporter-specific concepts, and did not relate to importers. Drawing on
other provisions in the Anti-Dumping Agreement to support its view, the
Appellate Body noted:
“There is nothing in Articles
5.8, 6.10, and 9.5 of the Anti-Dumping
Agreement to suggest that it is permissible to interpret the term
‘margin of dumping’ under those provisions as referring to multiple
‘dumping margins’ occurring at the level of individual importers.
Instead, these provisions reinforce the notion that a single margin of
dumping is to be established for each individual exporter investigated.
…
… we disagree with the proposition that importers ‘dump’ and
can have ‘margins of dumping’. Dumping arises from the pricing
practices of exporters as both normal values and export prices reflect
their pricing strategies in home and foreign markets. The fact that ‘dumping’
and ‘margin of dumping’ are exporter-specific concepts under the Anti-Dumping
Agreement is not altered by the fact that the export price may be
the result of negotiation between the importer and the exporter. Nor is
it altered by the fact that it is the importer that incurs the liability
to pay anti-dumping duties.”(955)
We also disagree with the proposition that the term ‘margin of
dumping’ has a different or special meaning in the context of Article
9.3 of the Anti-Dumping Agreement … Although
transaction-based multiple comparisons may be necessary in periodic
reviews to calculate an importer’s liability for payment of
anti-dumping duties, this cannot impart a different or special meaning
to the term ‘margin of dumping’ in Article
9.3.”(956)
692. In US — Stainless Steel (Mexico) the Appellate Body
stated that: “A proper determination as to whether an exporter is
dumping or not can only be made on the basis of an examination of the
exporter’s pricing behaviour as reflected in all of its transactions
over a period of time.”(957) The Appellate Body continued, that
in order to address “injurious dumping”, dumping and margin of
dumping could not exist at the level of an individual transaction
(emphasizing in a footnote that this situation did not address the
hypothetical situation of one large import transaction). In addition, it
was not possible to have several margins of dumping for a single
exporter for the product under consideration. The Appellate Body found
no textual support to indicate that the concepts of transaction- and
importer-specific dumping and margin of dumping could be confined to
duty assessment under Article
9.3.(958)
693. The Appellate Body in US — Stainless Steel (Mexico)
noted that in a prospective normal value system the antidumping duty
collected from each importer at the time of importation did not
represent a “margin of dumping”. A margin of dumping was for an
exporter and applied to all of its sales. A review could be triggered if
the ceiling prescribed by Article
9.3 was breached (i.e. the margin of
dumping could not exceed the margin established under Article
2). The
Appellate Body also repeated its view from earlier decisions that the
Anti-Dumping Agreement was neutral as to the different systems for the
levy and collection of anti-dumping duties.(959)
694. The Appellate Body in US — Stainless Steel (Mexico)
considered the Panel had misunderstood the Appellate Body’s
interpretation of Article
9.3 in previous disputes. The Appellate Body
noted that it had consistently held that the total amount of
anti-dumping duties assessed and collected from all importers could not
exceed the total amount of dumping found in all sales made by the
exporter concerned. Its interpretation had not favoured importers with
high margins of dumping at the expense of importers who did not dump or
dumped at a lower margin. In order to calculate a proper margin of
dumping all transactions had to be taken into account. The Appellate
Body summarized by saying that it had ruled on the amount of
anti-dumping duty that could be levied in accordance with Article
9.3,
and not on how that amount was to be collected from the importers.(960)
(h) Relationship with Article 9.2
695. See
paragraph 663 above.
(i) Relationship with Article 2
696. The Panel in EC — Salmon (Norway) found that the
obligation in Article
9.3 to ensure that anti-dumping duties were not
collected in excess of the “margin of dumping as established under
Article 2” did not require that any anti-dumping duties collected not
exceed the margin of dumping calculated in the original investigations:
“[W]e find that the obligation in Article
9.3 to ensure that
anti-dumping duties are not collected in excess of the ‘margin of
dumping as established under Article 2’ does not require that any
anti-dumping duties collected not exceed the margin of dumping
calculated in the original investigation. Thus, in the specific
context of prospective normal value systems of duty assessment, such as
the one applied by the EC in the present investigation, we do not
believe that Article
9.3 prevents investigating authorities from
collecting anti-dumping duties from investigated parties in excess of
the ad valorem equivalent of the margin of dumping calculated in
the original investigation, when such an amount of duty represents the
difference between an investigated party’s normal value and the export
price of the transaction subject to duty assessment. On this basis, we
find that Norway has failed to establish that the EC acted
inconsistently with Article 9.3 of the AD Agreement and
Article VI:2 of
the GATT 1994 because of its failure to adopt a mechanism, in the
operation of the MIPs it imposed, which ensured that an anti-dumping
duty greater than the ad valorem equivalent of the margin of
dumping from the original investigation could not be collected.
…
what is important in terms of compliance with Article 9.3 (and
Article 9.1) of the AD Agreement is that any duties imposed and
collected on investigated parties do not exceed the actual margin
of dumping determined on the sales that are subject to duty assessment.
In essence, this follows from the fact that pursuant to Article
9.3.2,
investigating authorities must refund any duty collected in excess of
the ‘actual margin of dumping’ for sales that are subject to duty
assessment.”(961)
(j) Relationship to the Note Ad Article VI, Paragraphs 2 and 3
697. In US — Shrimp (Thailand)/US — Customs Bond Directive,
the Appellate Body found that the term “final determination” in the
Note Ad Paragraphs 2 and
3 of Article VI of the GATT 1994 “includes
the determination that is made to assess the final liability for payment
of anti-dumping duties under Article 9.3.1 in a retrospective duty
assessment system.”(962) See the discussion of this issue under
Article VI in the Chapter on the GATT 1994.
5. Article 9.4
(a) Purpose of Article 9.4
698. In US — Hot-Rolled Steel, the Appellate Body indicated
that “Article 9.4 seeks to prevent the exporters, who were not
asked to cooperate in the investigation, from being prejudiced by gaps
or shortcomings in the information supplied by the investigated
exporters.”(963)
699. The Panel in EC — Salmon (Norway), drawing on the
Appellate Body Report in US — Hot Rolled Steel, explained Article 9.4
in the following way:
“Article 9.4 applies when investigating authorities have conducted
a limited examination in accordance with Article 6.10 of the AD
Agreement. In particular, Article 9.4 applies when an investigating
authority has not determined an individual margin of dumping for each
known exporter or producer, within the meaning of the first sentence of Article 6.10, and instead determined individual margins of dumping for a
limited number of interested parties selected from the known exporters
or producers, in accordance with the second sentence of Article 6.10.”(964)
(b) Ceiling for “all others” rate
700. In US — Hot-Rolled Steel, the Appellate Body explained
that Article 9.4 does not provide for a method to calculate the “all
others” rate but simply provides for a “ceiling “for such a rate
and establishes two “prohibitions” on the use of certain margins in
the calculation of the “all others” rate, i.e. not to use (i) zero
or de minimis margins and (ii) margins established on the basis
of best facts available:
“Article 9.4 does not prescribe any method that WTO Members must
use to establish the ‘all others’ rate that is actually applied to
exporters or producers that are not investigated. Rather, Article 9.4
simply identifies a maximum limit, or ceiling, which investigating
authorities ‘shall not exceed‘ in establishing an ‘all
others’ rate. Sub-paragraph (i) of Article 9.4 states the general rule
that the relevant ceiling is to be established by calculating a ‘weighted
average margin of dumping established’ with respect to those exporters
or producers who were investigated. However, the clause beginning
with ‘provided that’, which follows this sub-paragraph, qualifies
this general rule. This qualifying language mandates that, ‘for the
purpose of this paragraph’, investigating authorities ‘shall
disregard‘, first, zero and de minimis margins and, second,
‘margins established under the circumstances referred to in paragraph
8 of Article 6.’”(965)
(c) Article 9.4(i): “weighted average margin of dumping with
respect to selected exporters or producers”
(i) “margins”
701. In US — Hot-Rolled Steel, the Appellate Body looked
into the meaning of the word “margins” under Article
9.4. The
Appellate Body recalled the interpretation made by the Panel of the word
“margins” under Article 2.4.2 in EC — Bed Linen and
considered that the same meaning should apply to the word “margins”
under Article 9.4:
“[W]e recall that the word ‘margins’, which appears in
Article 2.4.2 of that Agreement, has been interpreted in European Communities
— Bed Linen. The Panel found, in that dispute, and we agreed, that
“margins” means the individual margin of dumping determined for each
of the investigated exporters and producers of the product under
investigation, for that particular product.(966) This margin
reflects a comparison that is based upon examination of all of the
relevant home market and export market transactions. We see no reason,
in Article 9.4, to interpret the word ‘margins’ differently from the
meaning it has in Article 2.4.2, and the parties have not suggested one.”(967)
702. In EC — Salmon (Norway) the anti-dumping duties applied
by the investigating authority to non-investigated cooperating companies
took the form of both minimum import prices (MIPs) and a fixed
anti-dumping duty. Norway argued that the investigating authority relied
on the weighted average margin of dumping for the individually
investigated parties when setting the fixed duty. The European
Communities disputed this, and argued that the fixed duty was derived
instead from the weighted average injury margin, not the weighted
average dumping margin for the investigated producers.(968)
Following an analysis of the facts of the case the Panel in EC —
Salmon (Norway) found that the investigating authority had acted
inconsistently with Article 9.4(i) of the Anti-Dumping
Agreement:
“[T]o the extent that it [the investigating authority] determined
the fixed duty on the basis of an assessment that relied upon a weighted
average margin of dumping for investigated parties that (i) was
overstated because it did not take into account downward revisions to
the margins of dumping of three individually examined producers; and
(ii) was calculated with reliance on a margin of dumping that was based
on ‘facts available’ [previously found to be inconsistent with Annex
II and Article 6.8], we find that the investigating authority acted
inconsistently with Article 9.4(i) of the AD
Agreement.”(969)
(ii) “exporters or producers”
703. Referring to provisions which use the plural form, but which are
also applicable in the singular case, the Panel in EC — Bed Linen
stated that:
“Article 9.4(i) provides that the dumping duty applied to imports
from producers/exporters not examined as part of a sample shall not
exceed ‘the weighted average margin of dumping established with
respect to the selected exporters or producers’. We consider that this
provision does not become inoperative if there is only one selected
exporter or producer — rather, the dumping margin for that exporter or
producer may be applied.”(970)
704. However, see
paragraph 68 above for a reversal by the Appellate
Body of a panel finding under Article 2.2.2(ii) that the plural form “other
exporters and producers” could also be interpreted as referring to one
single exporter or producer.
(iii) “non-cooperating companies”
705. In EC — Salmon (Norway), Norway made a claim that was
premised on the view that Article 9.4(i) governs the determination of
margins of dumping for non-cooperating companies. The Panel rejected
this view, clarifying the scope of Article 9.4(i).
“In our view, this does not include exporters and producers that
did not identify themselves to the investigating authority for the
purpose of being selected in the limited investigation because such
exporters or producers could not have been potentially included in the
selection of the parties to investigate. Thus, the disciplines in Article 9.4(i)
apply only in respect of non-investigated parties that
cooperated with the investigating authority for the purpose of selection
of the parties that would be subject to a limited investigation. It does
not apply in respect of parties that did not cooperate for this purpose.”(971)
(d) Prohibitions in the calculation of “all others” rate: zero
and de minimis margins, margins based on facts available
(i) Exclusion of margins based on facts available
706. In US — Hot-Rolled Steel, Japan had claimed that the
United States statutory method for calculating the “all others” rate
in section 735(c)(5)(A) of the United States Tariff Act of 1930, as
amended,(972) as well as the authorities’ application of the
statutory method were inconsistent with Article 9.4 because they require
the consideration of margins based in part on facts available in the
calculation of the “all others” rate. The United States contended
that only those margins which are calculated entirely on the
basis of facts available could not be taken into account for the “all
others” rate.(973) The Panel found that
Article 9.4 excludes
from the calculation of the ceiling for the “all others” rate any
margins which are calculated, even in part, using facts
available.(974) The Appellate Body, which upheld the Panel’s
finding, found that “the application of Article
6.8, authorizing the
use of facts available, is not confined to cases where the entire
margin is established using only facts available … Article
6.8 may apply in situations where recourse to facts available is needed
to cure the lack of even a very small amount of information.”(975)
707. The Appellate Body then considered that “the ‘circumstances
referred to’ in Article 6.8 are the circumstances in which the
investigating authorities properly have recourse to ‘facts available’
to overcome a lack of necessary information in the record, …these
‘circumstances’ may, in fact, involve only a small amount of
information to be used in the calculation of the individual margin of
dumping for an exporter or producer.”(976)
(ii) Calculating an “all others” rate in a “lacuna situation”
708. In US — Hot-Rolled Steel, the Appellate Body considered
how to interpret “margins established under the circumstances referred
to in Article 6.8” in Article 9.4. The Appellate Body found that even
margins calculated partially on the basis of the facts available were
“established under the circumstances referred to” in Article
6.8,
and further reasoned that the purpose of Article 9.4
is to prevent
exporters who were not asked to cooperate in the investigation from
being prejudiced by gaps or shortcomings in the information supplied by
the investigated exporters:
“To read Article 9.4 in the way the United States does is to
overlook the many situations where Article 6.8
allows a margin to be
calculated, in part, using facts available. Yet, the text of Article 9.4
simply refers, in an open-ended fashion, to ‘margins
established under the circumstances’ in Article
6.8. Accordingly, we
see no basis for limiting the scope of this prohibition in Article 9.4,
by reading into it the word ‘entirely’ as suggested by the United
States. In our view, a margin does not cease to be ‘established under
the circumstances referred to’ in Article 6.8
simply because not every
aspect of the calculation involved the use of ‘facts available’.
Our reading of Article 9.4
is consistent with the purpose of the
provision. Article 6.8 authorizes investigating authorities to make
determinations by remedying gaps in the record which are created, in
essence, as a result of deficiencies in, or a lack of, information
supplied by the investigated exporters…. Article 9.4 seeks to
prevent the exporters who were not asked to cooperate in the
investigation, from being prejudiced by gaps or shortcomings in the
information supplied by the investigated exporters. This objective would
be compromised if the ceiling for the rate applied to ‘all others’
were, as the United States suggests, calculated — due to the failure
of investigated parties to supply certain information — using margins
‘established’ even in part on the basis of the facts available.”(977)
709. In response to the US objection that this interpretation of
Article 9.4 would make it impossible to calculate an “all others”
rate in any investigation where all of the individual margins have been
calculated using some element of facts available, the Appellate Body
noted that there could be investigations where all of the margins are
entirely based on facts available. It characterized this situation as
“a lacuna in Article 9.4”, because
Article 9.4 does not
address how the ceiling for the “all others” rate should be
calculated if all margins of investigated respondents must be excluded
from the calculation.(978)
710. The Appellate Body in US — Zeroing (Article 21.5 — EC)
commented on the disciplines that apply in such a lacuna
situation, although it made no findings concerning the EC claim under Article 9.4:
“[T]he fact that all margins of dumping for the investigated
exporters fall within one of the categories that Article 9.4
directs
investigating authorities to disregard, for purposes of that paragraph,
does not imply that the investigating authorities’ discretion to apply
duties on non-investigated exporters is unbounded. The lacuna that the
Appellate Body recognized to exist in Article 9.4
is one of a specific method.
Thus, the absence of guidance in Article 9.4 on what particular
methodology to follow does not imply an absence of any obligation with
respect to the ‘all others’ rate applicable to non-investigated
exporters where all margins of dumping for the investigated exporters
are either zero, de minimis, or based on facts available.”(979)
(iii) Requirement to use WTO-consistent margins to establish the
maximum “all others” rate
711. The Panel in US — Shrimp (Viet Nam) examined claims
regarding the “all others” rate in a lacuna situation: two
administrative reviews in which all respondents selected for individual
examination received a zero or de minimis margin of dumping.
Reasoning that “any margin of dumping calculated or relied upon by an
investigating authority in the context of the application of the
Agreement must be calculated consistently with Article 2 and its various
paragraphs”, the Panel found that “any individual margin of dumping
which the investigating authority relies upon in determining the maximum
allowable ‘all others’ rate must of necessity have been calculated
in conformity with the provisions of Article 2. This is true
irrespective of whether or not all individual margins are zero, de
minimis or based on facts available.”(980)
712. Concerning the lacuna situation identified above, the
Panel in US — Shrimp (Viet Nam) reasoned that “if an
investigating authority limits its investigation and applies an ‘all
others’ rate to non-selected exporters, its discretion in doing so is
not unlimited. In our view, one limitation under Article 9.4 is that the
margins of dumping which are used to establish the maximum allowable ‘all
others’ rate must be ones which, at the time the ‘all others’ rate
is applied, conform to the disciplines of the Agreement.”(981)
The Panel went on to find that “an investigating authority that
determines the maximum allowable ‘all others’ rate on the basis of
dumping margins calculated with the use of zeroing acts inconsistently
with Article 9.4.”(982)
713. In US — Shrimp (Viet Nam), the Panel found that in the
underlying anti-dumping proceeding on shrimp, the US Department of
Commerce treated Viet Nam as a non-market economy, and therefore applied
a rebuttable presumption that all shrimp exporters were State-controlled
such that they could be treated as units of a single, State-controlled,
Viet Nam-wide entity. Exporting companies that could establish their
independence from government control were eligible for a separate rate,
and were either selected for individual examination or assigned the “all
others” rate. The other (“non-separate rate”) companies were
assigned the rate for the Viet Nam-wide entity, which was based on facts
available.(983)
714. The Panel began by addressing Viet Nam’s
Article 9.4 claim,
finding that by denying the “all others” rate to companies that had
not positively proved their eligibility for separate rates, the United
States had violated Article 9.4:
“On its face, the text of Article 9.4
seems clear in requiring
that, in the context of limited examinations envisaged by the second
sentence of Article 6.10, any rate assigned to non-selected respondents
should not exceed the maximum allowable amount provided for in that
provision. This suggests that any exporter not selected for individual
examination should be assigned an ‘all others’ rate that does not
exceed that maximum allowable amount. There is nothing in the text of Article 9.4
suggesting that authorities are entitled to render
application of an ‘all others’ rate conditional on the fulfilment of
some additional requirement.”(984)
715. In response to a US argument that
paragraph 254 of Vietnam’s
Accession Working Party Report recognized Vietnam’s non-market economy
nature, the Panel noted that the Working Party Report referred to “special
difficulties in price and cost comparability” affecting calculation of
normal value, but did not modify any other provisions in the Agreement,
such as Article 9.4. The Panel found:
“[T]here is nothing in the Working Party Report indicating that an
investigating authority is entitled to render application of an ‘all
others’ rate subject to some additional requirement not provided for
in Article 9.4. Furthermore, whereas sub-paragraphs (i) and
(ii) of
paragraph 255 allow an investigating authority to modify its
investigation depending on whether ‘producers under investigation’
can or cannot ‘clearly show that market economy conditions prevail’
in the relevant industry, the investigating authority may only do so in
respect of price comparability. Sub-paragraphs (i) and
(ii) of paragraph
255 do not allow an investigating authority to assign ‘all others’
rates to non selected respondents on the basis of whether or not market
conditions prevail.”(985)
716. The Panel then found that “in those factual circumstances in
which a maximum allowable ‘all others’ rate may be determined
pursuant to Article 9.4(i), there is no question that an ‘all others’
rate should have been applied to both selected and non-selected
respondents”. Thus, the US DOC’s decision not to apply an “all
others” rate to the Viet Nam-wide entity was inconsistent with Article
9.4.(986)
6. Relationship with other Articles
717. In Guatemala — Cement II, the Panel found that the
subject anti-dumping duty order of Guatemala was inconsistent with
Articles 3, 5, 6,
7, 12, and
paragraph 2 of Annex I of the Anti-Dumping
Agreement. The Panel then opined that Mexico’s claims under other
articles of the Anti-Dumping Agreement, among them Article
9, were “dependent
claims, in the sense that they depend entirely on findings that
Guatemala has violated other provisions of the Anti-Dumping Agreement.
There would be no basis to Mexico’s claims under Articles
1, 9 and 18
of the AD Agreement, and Article VI of GATT
1994, if Guatemala
were not found to have violated other provisions of the AD Agreement.”(987)
In light of this dependent nature of Mexico’s claim, the Panel
considered it not necessary to address these claims.
(a) Article 9.3 with Article 5.8
718. The Panel in US — DRAMS discussed the relationship
between Articles 5.8 and
9.3. See paragraphs 401–402
above.
(b) Article 9.3 with Article 6.8
719. With respect to the relationship between
Article 6.8 and Article
9.3, the Panel in US — Steel Plate, having found a violation of
Article 6.8, considered it unnecessary to determine, in addition,
whether the circumstances of that violation also constituted a violation
of Article 9.3 (and Article 2.4 and
Articles VI:1 and 2 of GATT
1994).
In the Panel’s view, findings on these claims would serve no useful
purpose, as they would neither assist the Member found to be in
violation of its obligations to implement the ruling of the Panel, nor
would they add to the overall understanding of the obligations found to
have been violated.(988)
(c) Article 9.4 with Article 6.8
720. In US — Hot-Rolled Steel, both the Panel and the
Appellate Body analysed the relationship between Article 9.4 and
Article
6.8 as regards the prohibition to calculate the “all others” rate in
sample cases on the basis of margins calculated on facts available
pursuant to Article
6.8. See paragraphs (i)-708
above.
(d) Article 9.4(ii)
721. In EC — Salmon (Norway), Norway argued that the
exclusion of margins of dumping established on the basis of facts
available had to be disregarded in setting the appropriate level of the
applicable MIP (minimum import price) because normal values were an
integral part of the calculation of margins. Norway asserted that the
MIPs imposed on the non-investigated parties did not meet this standard.
The Panel agreed:
“Whenever ‘facts available’ are used to determine an
investigated party’s normal value, the margin of dumping that is
determined for that party will be established on the basis of ‘facts
available’, within the meaning of Article 6.8. Thus, the requirement
that ‘facts available’ margins be disregarded for the purpose of
setting the ‘prospective normal value’ referred to in Article
9.4(ii) means that any normal values of investigated parties calculated
on the basis of ‘facts available’ must be excluded from the
calculation of the ‘weighted average normal value of the selected
exporters or producers’. To this extent, we find that Article
9.4(ii) sets the maximum level of the ‘prospective normal value’ that may be
imposed on non-investigated parties at the weighted average of the
normal values of the investigated parties, excluding any normal values
calculated for investigated parties on the basis of ‘facts available’
within the meaning of Article 6.8.”(989)
722. The Panel in EC — Salmon (Norway) concluded that the
MIPs imposed on the non-investigated parties were inconsistent with
Article 9.4(ii):
“We have found that there is no objective factual basis to support
the conclusion that the MIPs imposed on non-investigated parties were
lower than the weighted average of the normal values of the investigated
parties, excluding normal values calculated on the basis of ‘facts
available’, for the following reasons:
(i) the weighted average of the ‘non-dumped’ MIPs of the
investigated parties did not amount to the weighted average of the
normal values of the investigated parties, because the ‘non-dumped’
MIPs used for this purpose were greater than the relevant normal values,
greater than what those normal values should have otherwise been and
derived through the application of a flawed methodology;
(ii) the weighted average of the ‘non-dumped’ MIPs of the
investigated parties did not amount to the weighted average of the
normal values of the investigated parties, because it includes the ‘non-dumped’
MIPs allegedly calculated for Seafarm Invest which cannot be
substantiated on the basis of the evidence that is before us; and
(iii) the weighted average of the ‘non-dumped’ MIPs of the
investigated parties did not amount to the weighted average of the
normal values of the investigated parties, because it includes the ‘non-dumped’
MIPs calculated for Grieg Seafood on the basis of ‘facts available’”.(990)
7. Relationship with other WTO Agreements
(a) Article VI: 2 of the GATT 1994
723. The Appellate Body in US — 1916 Act addressed the
argument that the phrase “may levy on any dumped product an
anti-dumping duty not greater in amount than the margin of dumping in
respect of such product” in Article VI:2 of the GATT 1994 implies that
a Member is permitted to impose a measure other than an antidumping
measure:
“We believe that the meaning of the word ‘may’ in
Article VI:2
is clarified by Article 9 of the Anti-Dumping Agreement ….
Article VI of the GATT 1994 and the Anti-Dumping Agreement are
part of the same treaty, the WTO Agreement. As its full title
indicates, the Anti-Dumping Agreement is an ‘Agreement on
Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994’. Accordingly, Article VI must be read in conjunction with
the provisions of the Anti-Dumping Agreement, including Article
9.”(991)
8. Article 9.5
724. In Mexico — Anti-Dumping Measures on Rice, the Panel
and the Appellate Body examined Article 89D of Mexico’s Foreign Trade
Act under Article 9.5 and with Article 19.3 of the SCM
Agreement. The
Panel found that Article 89D permitted the investigating authority to
conduct an expedited review provided that, inter alia, the
respondent made a showing that its volume of exports during the review
period was representative. The Appellate Body summarized the core
provisions of Article 9.5 as follows: “Article 9.5 requires
that an investigating authority carry out an expedited review of a new
shipper for an exporter that (i) did not export the subject merchandise
to the importing Member during the period of investigation, and (ii)
demonstrated that it was not related to a foreign producer or exporter
already subject to anti-dumping duties.”(992) The Appellate
Body upheld the Panel’s findings that this measure was inconsistent as
such with Article 9.5 of the Agreement, because by requiring a showing
of a representative volume of exports, it imposes a condition not
provided for in Article 9.5 and prevents the authority from granting a
review in instances where the conditions set out in Article 9.5
have
been met.(993)
XI. Article 10 back to top
A. Text of Article 10
Article 10: Retroactivity
10.1 Provisional measures and anti-dumping duties shall only be
applied to products which enter for consumption after the time when the
decision taken under paragraph 1 of Article 7 and
paragraph 1 of Article 9, respectively, enters into force, subject to the exceptions set out in
this Article.
10.2 Where a final determination of injury (but not of a threat
thereof or of a material retardation of the establishment of an
industry) is made or, in the case of a final determination of a threat
of injury, where the effect of the dumped imports would, in the absence
of the provisional measures, have led to a determination of injury,
anti-dumping duties may be levied retroactively for the period for which
provisional measures, if any, have been applied.
10.3 If the definitive anti-dumping duty is higher than the
provisional duty paid or payable, or the amount estimated for the
purpose of the security, the difference shall not be collected. If the
definitive duty is lower than the provisional duty paid or payable, or
the amount estimated for the purpose of the security, the difference
shall be reimbursed or the duty recalculated, as the case may be.
10.4 Except as provided in
paragraph 2, where a determination of
threat of injury or material retardation is made (but no injury has yet
occurred) a definitive anti-dumping duty may be imposed only from the
date of the determination of threat of injury or material retardation,
and any cash deposit made during the period of the application of
provisional measures shall be refunded and any bonds released in an
expeditious manner.
10.5 Where a final determination is negative, any cash deposit made
during the period of the application of provisional measures shall be
refunded and any bonds released in an expeditious manner.
10.6 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 practises
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.
10.7 The authorities may, after initiating an investigation, take
such measures as the withholding of appraisement or assessment as may be
necessary to collect antidumping duties retroactively, as provided for
in paragraph 6, once they have sufficient evidence that the conditions
set forth in that paragraph are satisfied.
10.8 No duties shall be levied retroactively pursuant to
paragraph 6 on products entered for consumption prior to the date of initiation of
the investigation.
B. Interpretation and Application of Article 10
1. Article 10.1
725. In US — Hot-Rolled Steel, Japan challenged the
consistency with Articles 10.6 and 10.7 of the United States statutory
provisions on preliminary critical circumstances determination(994)
and their application by the authorities in this case. Japan claimed
that by violating these two provisions, the United States’ authorities
also acted inconsistently with Article 10.1. The Panel concluded that
neither the statutory provision nor its application in that case were
inconsistent with Article 10.6 and Article
10.7. The Panel further found
that the statutory provision was not, on its face, inconsistent with, inter
alia, Article 10.1(995) and that the authorities’
preliminary critical circumstances determination “was not inconsistent
with Article 10.1 of the AD Agreement either since it complied
with the conditions of Article 10.7 of the AD Agreement”.(996)
2. Article 10. 6
726. In US — Hot-Rolled Steel, the Panel analysed the
conditions imposed by Article 10.6 in the context of the retroactive
imposition of anti-dumping duties permitted by Article
10.7. This
provision requires, inter alia, that national authorities provide
sufficient evidence that all the conditions of Article 10.6
are
satisfied. See paragraphs 727–733
below.
3. Article 10.7
(a) “such measures”
727. In US — Hot-Rolled Steel, the Panel interpreted
Article 10.7 “as allowing the authority to take certain necessary measures of
a purely conservatory or precautionary kind which serve the purpose of
preserving the possibility of later deciding to collect duties
retroactively under Article 10.6”:
“Article 10.7 provides that once the authorities have sufficient
evidence that the conditions of Article 10.6
are satisfied, they may
take such measures as, for example, the withholding of appraisement or
assessment, as may be necessary to collect anti-dumping duties
retroactively. We read this provision as allowing the authority to take
certain necessary measures of a purely conservatory or precautionary
kind which serve the purpose of preserving the possibility of later
deciding to collect duties retroactively under Article 10.6. Unlike
provisional measures, Article 10.7 measures are not primarily intended
to prevent injury being caused during the investigation. They are taken
in order to make subsequent retroactive duty collection possible as a
practical matter. Measures taken under Article
10.7 are not based on
evaluation of the same criteria as final measures that may be imposed at
the end of the investigation. They are of a different kind — they
preserve the possibility of imposing anti-dumping duties retroactively,
on the basis of a determination additional to the ultimate final
determination.
Our understanding in this regard is confirmed by the fact that,
unlike provisional measures, which can only be imposed after a
preliminary affirmative determination of dumping and injury, Article
10.7 measures may be taken at any time ‘after initiating an
investigation’ ….”(997)
(b) “sufficient evidence” that the conditions of Article 10.6 are
satisfied
(i) Concept of “sufficient evidence”
728. In US — Hot-Rolled Steel, the Panel interpreted the
term “sufficient evidence” in Article 10.7. The Panel explained that
Article 10.7 does not define “sufficient evidence”. The Panel then
referred to Article 5.3, which also reflects this standard by requiring
“sufficient evidence to initiate an investigation”. In this regard,
the Panel considered the approach of past GATT and WTO Panels to this
standard and concluded that “what constitutes ‘sufficient evidence’
must be addressed in light of the timing and effect of the measure
imposed or the determination made.” Furthermore, in the Panel’s
view, “the possible effect of the measures an authority is entitled to
take under Article 10.7 of the AD Agreement informs what
constitutes sufficient evidence” and it therefore “is not a standard
that can be determined in the abstract”:
“Article 10.7 of the AD Agreement does not define ‘sufficient
evidence’. However, Article
5.3 also reflects this standard, in
requiring that the authorities 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’.
The Article 5.3 requirement of ‘sufficient evidence to initiate an
investigation’ has been addressed by previous GATT and WTO panels.
Their approach to understanding this standard has been to examine
whether the evidence before the authority at the time it made its
determination was such that an unbiased and objective investigating
authority evaluating that evidence could properly have made the
determination.(998) These Panels have noted that what will be
sufficient evidence varies depending on the determination in question.
The Panel on Mexico — HFCS quoted with approval from the Panel’s
report in the Guatemala — Cement I case that ‘the type of
evidence needed to justify initiation is the same as that needed to make
a preliminary or final determination of threat of injury, although the
quality and quantity is less’.(999)
… We are of the view that what constitutes ‘sufficient evidence’
must be addressed in light of the timing and effect of the measure
imposed or the determination made. Evidence that is sufficient to
warrant initiation of an investigation may not be sufficient to conclude
that provisional measures may be imposed. In a similar vein, the
possible effect of the measures an authority is entitled to take under
Article 10.7 of the AD Agreement informs what constitutes
sufficient evidence. Whether evidence is sufficient or not is determined
by what the evidence is used for. In sum, whether evidence is sufficient
to justify initiation or to justify taking certain necessary
precautionary measures under Article 10.7 is not a standard that can be
determined in the abstract …”(1000)
(ii) Extent of the authorities’ determination
729. In US — Hot-Rolled Steel, the Panel considered that the
requirement of “sufficient evidence that the conditions of Article
10.6 are satisfied” did not require the authorities to make a
preliminary affirmative determination of dumping and consequent injury
to the domestic industry:
“In light of the timing and effect of the measures that are taken
on the basis of
Article 10.7, we consider that the
Article 10.7 requirement of ‘sufficient evidence that the conditions of
Article
10.6 are satisfied’ does not require an authority to first make a
preliminary affirmative determination within the meaning of Article 7 of
the AD Agreement of dumping and consequent injury to a domestic
industry. If it were necessary to wait until after such a preliminary
determination, there would, in our view, be no purpose served by the
Article 10.7 determination. The opportunity to preserve the possibility
of applying duties to a period prior to the preliminary determination
would be lost, and the provisional measure that could be applied on the
basis of the preliminary affirmative determination under Article 7 would
prevent further injury during the course of the investigation. Moreover,
the requirement in Article 7 that provisional measures may not be
applied until 60 days after initiation cannot be reconciled with the
right, under Article
10.6, to apply duties retroactively to 90 days
prior to the date on which a provisional measure is imposed, if a
preliminary affirmative determination is a prerequisite to the
Article 10.7 measures which preserve the possibility of retroactive application
of duties under Article
10.6.”(1001)
(iii) Conditions of Article 10.6
730. The Panel, in US — Hot-Rolled Steel, noted that Japan
had not challenged the initiation of the investigation which, pursuant
to Article 5.3, was based on a determination that there was sufficient
evidence of dumping, injury and causal link. The Panel indicated that,
“given the precautionary nature of the measures that may be taken
under Article 10.7”, it “can perceive of no reason … why that
same information might not justify a determination of sufficient
evidence of dumping and consequent injury in the context of Article 10.6
as required by Article 10.7.”(1002)
Importers’ knowledge of exporters’ dumping
731. The Panel, in US — Hot-Rolled Steel, commenced its
analysis of whether the United States authorities had sufficient
evidence that all conditions of Article 10.6 were satisfied by looking
at the first condition: whether the importers knew or should have known
that exporters were dumping and that such dumping would cause injury.
The Panel considered that the evidence of dumping in the petition was
“sufficient for an unbiased and objective investigating authority to
reach this conclusion”. The Panel also noted that Japan, the
complainant, had “not alleged that an imputed knowledge of dumping is,
per se, inconsistent with Article 10.7, but rather argues that
[the United States’ authorities] did not have sufficient evidence of
dumping at all, for the purposes of Article 10.7.”(1003)
“injury caused”
732. In US — Hot-Rolled Steel, the United States authorities
had adopted certain measures to collect anti-dumping duties
retroactively. These authorities had made a preliminary determination
of, inter alia, threat of serious injury. The Panel considered
whether threat of serious injury fell within the concept of injury for
the purpose of satisfying the conditions of Article 10.6
as required by Article 10.7. The Panel concluded that sufficient evidence of threat of
injury is enough to justify a determination to apply protective measures
under Article 10.7:
“[W]e note that Article 10.6
itself refers to a determination that
an importer knew or should have known that there was dumping that would
cause injury. The term ‘injury’ is defined in footnote 9 to Article
3 of the Agreement to include threat of material injury or material
retardation of the establishment of an industry, unless otherwise
specified. Article 10.6 does not ‘otherwise specify’. Consequently,
in our view, sufficient evidence of threat of injury would be enough to
justify a determination to apply protective measures under Article
10.7.
The role of Article 10.7
in the overall context of the AD
Agreement confirms this interpretation. This provision is clearly
aimed at preserving the possibility to impose and collect anti-dumping
duties retroactively to 90 days prior to the date of application of
provisional measures. Thus, Article 10.7 preserves the option provided
in Article 10.6 to impose definitive duties even beyond the date of
provisional measures. Assume arguendo Article
10.7 were
understood to require sufficient evidence of actual material injury. In
a situation in which, at the time Article 10.7
measures are being
considered, there is evidence only of threat of material injury, no
measures under Article 10.7 could be taken. Assume further that in this
same investigation, there was a final determination of actual material
injury caused by dumped imports. At that point, it would be impossible
to apply definitive anti-dumping duties retroactively, even assuming the
conditions set out in Article 10.6 were satisfied, as the necessary
underlying Article 10.7 measures had not been taken.(1004) Thus,
in a sense, Article 10.7 measures serve the same purpose as an order at
the beginning of a lawsuit to preserve the status quo — they
ensure that at the end of the process, effective measures can be put in
place should the circumstances warrant.”(1005)
“massive imports in a relatively short period of time”
733. The Panel in US — Hot-Rolled Steel analysed the third
condition of Article 10.6 of which sufficient evidence is required by
Article 10.7, namely that the injury be caused by massive dumped imports
in a relatively short period of time. The Panel noted that the
Anti-Dumping Agreement does not indicate what period should be used in
order to assess whether there were massive imports over a short period
of time. Nevertheless, the Panel concluded that “massive imports that
were not made in tempore non suspectu but at a moment in time
where it had become public knowledge that an investigation was imminent
may be taken into consideration in assessing whether Article
10.7 measures may be imposed”:
“The Agreement does not determine what period should be used in
order to assess whether there were massive imports over a short period
of time. Japan asserts that the latter part of Article 10.6(ii) of the AD
Agreement, referring to whether the injury caused by massive imports
is likely to seriously undermine the remedial effect of the duty,
implies that the period for comparison is the months before and after
the initiation of the investigation. Japan argues that since the duty
cannot be imposed retroactively to the period before the initiation, the
remedial effect of the duty cannot be undermined by massive imports
before initiation.
We disagree with this conclusion. Article
10.7 allows for certain
necessary measures to be taken at any time after initiation of the
investigation. In order to be able to make any determination
concerning whether there are massive dumped imports, a comparison of
data is obviously necessary. However, if a Member were required to wait
until information concerning the volume of imports for some period after
initiation were available, this right to act at any time after
initiation would be vitiated. By the time the necessary information on
import volumes for even a brief period after initiation were available,
as a practical matter, the possibility to impose final duties
retroactively to initiation would be lost, as there would be no Article
10.7 measures in place. Moreover, as with the situation if a Member were
required to wait the minimum 60 days and make a preliminary
determination under Article 7 before applying measures under
Article 10.7, the possibility of retroactively collecting duties under
Article 10.6 at the final stage would have been lost.
Moreover, in our view, it is not unreasonable to conclude that the
remedial effect of the definitive duty could be undermined by massive
imports that entered the country before the initiation of the
investigation but at a time at which it had become clear that an
investigation was imminent. We consider that massive imports that were
not made in tempore non suspectu but at a moment in time where it
had become public knowledge that an investigation was imminent may be
taken into consideration in assessing whether Article
10.7 measures may
be imposed. Again, we emphasize that we are not addressing the question
whether this would be adequate for purposes of the final determination
to apply duties retroactively under Article 10.6.”(1006)
4. Relationship with other Articles
734. In US — Hot-Rolled Steel, the Panel interpreted the
term “sufficient evidence” in Article 10.7
by reference to Article 5.3. See
paragraph 728 above.
XII. Article 11
back to top
A. Text of Article 11
Article 11: Duration and Review of Anti-Dumping Duties and Price
Undertakings
11.1 An anti-dumping duty shall remain in force only as long as and
to the extent necessary to counteract dumping which is causing injury.
11.2 The authorities shall review the need for the continued
imposition of the duty, where warranted, on their own initiative or,
provided that a reasonable period of time has elapsed since the
imposition of the definitive anti-dumping duty, upon request by any
interested party which submits positive information substantiating the
need for a review.(21) Interested parties shall have the right to request
the authorities to examine whether the continued imposition of the duty
is necessary to offset dumping, whether the injury would be likely to
continue or recur if the duty were removed or varied, or both. If, as a
result of the review under this paragraph, the authorities determine
that the anti-dumping duty is no longer warranted, it shall be
terminated immediately.
(footnote original)
21 A determination of final liability for
payment of anti-dumping duties, as provided for in paragraph 3 of
Article 9, does not by itself constitute a review within the meaning of
this Article.
11.3 Notwithstanding the provisions of
paragraphs 1 and 2, 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 under paragraph 2 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 upon 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.(22) The duty may remain in force pending the outcome
of such a review.
(footnote original)
22 When the amount of the anti-dumping
duty is assessed on a retrospective basis, a finding in the most recent
assessment proceeding under subparagraph 3.1 of Article 9 that no duty
is to be levied shall not by itself require the authorities to terminate
the definitive duty.
11.4 The provisions of
Article 6 regarding evidence and procedure
shall apply to any review carried out under this Article. Any such
review shall be carried out expeditiously and shall normally be
concluded within 12 months of the date of initiation of the review.
11.5 The provisions of this Article shall apply mutatis mutandis
to price undertakings accepted under Article 8.
B. Interpretation and Application of Article 11
1. Article 11.1
(a) Necessity
735. The Panel in US — DRAMS described the requirement in
Article 11.1 whereby anti-dumping duties “shall remain in force only
as long as and to the extent necessary” to counteract injurious
dumping, as “a general necessity requirement.”(1007)
736. In assessing the essential character of the necessity involved
in
Article 11.1, the Panel in US — DRAMS stated the following:
“We note that the necessity of the measure is a function of certain
objective conditions being in place, i.e. whether circumstances
require continued imposition of the antidumping duty. That being so,
such continued imposition must, in our view, be essentially dependent
on, and therefore assignable to, a foundation of positive evidence that
circumstances demand it. In other words, the need for the continued
imposition of the duty must be demonstrable on the basis of the evidence
adduced.”(1008)
737. The Panel in US — DRAMS held that “the necessity of
the continued imposition of the anti-dumping duty can only arise in a
defined situation pursuant to Article 11.2: viz to offset dumping”.(1009)
See paragraph 745 below.
738. With respect to the relationship between
Article 11.1 and 11.2,
see paragraph 739 below.
(b) Relationship with other paragraphs of Article 11
739. The Panel in US — DRAMS examined the relationship
between Articles 11.1 and 11.2 by considering whether the terms of
Article 11.2 preclude the continued imposition of anti-dumping duties on
the basis that an authority fails to satisfy itself that recurrence of
dumping is “not likely”. Referring to the general necessity
requirement in
Article 11.1, the Panel further noted that “the
application of the general rule in
Article 11.1 is specified in Article 11.2”.(1010)
740. The Panel in EC — Tube or Pipe Fittings considered that
“Article 11.1 does not set out an independent or additional obligation
for Members”(1011) but rather “furnishes the basis for the
review procedures contained in Article 11.2 (and
11.3) by stating a
general and overarching principle, the modalities of which are set forth
in paragraph 2 (and 3) of that Article”.(1012)
2. Article 11.2
(a) “whether the continued imposition of the duty is necessary to
offset dumping”
741. Considering whether
Article 11.2 precludes an anti-dumping duty
being deemed “necessary to offset dumping” where there is no present
dumping to offset, the Panel in US — DRAMS addressed the issue
as follows:
“First, we note that the second sentence of Article
11.2 refers to
an examination of ‘whether the continued imposition of the duty is
necessary to offset dumping.’ We note further that this sentence is
expressed in the present tense. In addition, the second sentence of Article
11.2 does not explicitly include any reference to dumping being
‘likely’ to ‘recur’, as is the case with the injury review
envisaged by that sentence.
However, the second sentence of Article
11.2 requires an
investigating authority to examine whether the ‘continued imposition’
of the duty is necessary to offset dumping. The word ‘continued’
covers a temporal relationship between past and future. In our view, the
word ‘continued’ would be redundant if the investigating authority
were restricted to considering only whether the duty was necessary to
offset present dumping. Thus, the inclusion of the word ‘continued’
signifies that the investigating authority is entitled to examine
whether imposition of the duty may be applied henceforth to offset
dumping.
Furthermore, with regard to injury, Article
11.2 provides for a
review of ‘whether the injury would be likely to continue or recur
if the duty were removed or varied’ (emphasis supplied). In conducting
an Article 11.2 injury review, an investigating authority may examine
the causal link between injury and dumped imports. If, in the context of
a review of such a causal link, the only injury under examination is
injury that may recur following revocation (i.e., future rather than
present injury), an investigating authority must necessarily be
examining whether that future injury would be caused by dumping with a
commensurately prospective timeframe. To do so, the investigating
authority would first need to have established a status regarding the
prospects of dumping. For these reasons, we do not agree that Article
11.2 precludes a priori the justification of continued imposition
of antidumping duties when there is no present dumping.
In addition, we note that there is nothing in the text of
Article 11.2 of the AD Agreement that explicitly limits a Member to a ‘present’
analysis, and forecloses a prospective analysis, when conducting an Article
11.2 review.”(1013)
742. The Panel in US — DRAMS considered
Article 11.3 to be
particularly relevant in giving support for, and reinforcing, its
interpretation of Article 11.2 regarding the issue of whether
Article 11.2 precludes an anti-dumping duty being deemed “necessary to offset
dumping” where there is no present dumping to offset.(1014) The
Panel stated the following regarding Article
11.3:
“We note that with regard to dumping, the ‘sunset provision’ in
Article 11.3 of the AD Agreement envisages inter alia an
examination of whether the expiry of an anti-dumping duty would be
likely to lead to ‘continuation or recurrence’ of dumping.
If, as argued …, an anti-dumping duty must be revoked as soon as
present dumping is found to have ceased, the possibility (explicitly
envisaged by
Article 11.3) of the expiry of that duty causing dumping to
recur could never arise. This is because the reference to ‘expiry’
in
Article 11.3 assumes that the duty is still in force, and the
reference to ‘recurrence’ of dumping assumes that dumping has
ceased, but may ‘recur’ as a result of revocation. [This] textual
interpretation of Article 11.2 would effectively exclude the possibility
of an
Article 11.3 review in circumstances where dumping has ceased but
the duty remains in force. [This] interpretation therefore renders part
of
Article 11.3 ineffective. As stated by the Appellate Body in Gasoline,
‘[a]n interpreter is not free to adopt a reading that would result in
reducing whole clauses or paragraphs of a treaty to redundancy or
inutility’. An interpretation of Article 11.2
which renders part of
Article 11.3 meaningless is contrary to the customary or general rules
of treaty interpretation, and thus should be rejected.”(1015)
743. The Panel in US — DRAMS also rejected the argument that
Article 11.2 requires the immediate revocation of an anti-dumping duty
in case of a finding of “no dumping”. The Panel opined that such
interpretation would render footnote 22 under
Article 11.3 meaningless:
“Furthermore, [the] argument that Article
11.2 requires the
immediate revocation of an anti-dumping duty in case of a finding of ‘no
dumping’ (e.g., when a retrospective assessment finds that no
duty is to be levied) is also inconsistent with note 22 of the AD
Agreement. Note 22 states that, in cases where anti-dumping duties are
levied on a retrospective basis, ‘a finding in the most recent
assessment proceeding … that no duty is to be levied shall not by
itself require the authorities to terminate the definitive duty’. If
[this] interpretation of Article 11.2 were accurate, then an
investigating authority would be obligated under Article
11.2 to
terminate an anti-dumping duty upon making such a finding, and note 22
would be meaningless. In our view, this confirms a finding that the
absence of present dumping does not in and of itself require the
immediate termination of an antidumping duty pursuant to Article
11.2.”(1016)
744. As a result of its findings quoted in
paragraphs 741–743 above, the Panel in US — DRAMS rejected the argument that “Article
11.2 of the AD Agreement requires revocation as soon as an exporter is
found to have ceased dumping, and that the continuation of an
anti-dumping duty is precluded a priori in any circumstances
other than where there is present dumping.”(1017)
745. Referring to the general necessity requirement in
Article 11,
the Panel in US — DRAMS held that such necessity can only arise
“in a defined situation pursuant to Article
11.2”. While “the
necessity involved in Article 11.2 is not to be construed in some
absolute and abstract sense”, it should nevertheless “be
demonstrable on the basis of the evidence adduced”:
“The necessity of the continued imposition of the antidumping duty
can only arise in a defined situation pursuant to Article
11.2: viz
to offset dumping. Absent the prescribed situation, there is no basis
for continued imposition of the duty: the duty cannot be ‘necessary’
in the sense of being demonstrable on the basis of the evidence adduced
because it has been deprived of its essential foundation. In this
context, we recall our finding that Article 11.2
does not preclude a
priori continued imposition of anti-dumping duties in the absence of
present dumping. However, it is also clear from the plain meaning of the
text of Article 11.2 that the continued imposition must still satisfy
the ‘necessity’ standard, even where the need for the continued
imposition of an anti-dumping duty is tied to the ‘recurrence’ of
dumping. We recognize that the certainty inherent to such a prospective
analysis could be conceivably somewhat less than that attached to purely
retrospective analysis, reflecting the simple fact that analysis
involving prediction can scarcely aspire to a standard of inevitability.
This is, in our view, a discernible distinction in the degree of
certainty, but not one which would be sufficient to preclude that the
standard of necessity could be met. In our view, this reflects the fact
that the necessity involved in Article 11.2 is not to be construed in
some absolute and abstract sense, but as that appropriate to
circumstances of practical reasoning intrinsic to a review process.
Mathematical certainty is not required, but the conclusions should be
demonstrable on the basis of the evidence adduced. This is as much
applicable to a case relating to the prospect of recurrence of dumping
as to one of present dumping.”(1018)
746. With respect to other findings of the Panel in US — DRAMS
concerning “necessity” under Article 11, see
paragraphs 735–736 above.
(b) “injury”
747. In US — DRAMS, the Panel stated that “by virtue of
note 9 of the AD Agreement, the term ‘injury’ in Article
11.2 ‘shall
be interpreted in accordance with the provisions of’ Article
3.”(1019)
See further the excerpt quoted in paragraph 751 below.
(c) “likely to lead to continuation or recurrence”
748. The Panel in US — DRAMS considered Korea’s claim that
the test applied by the United States’ authorities was inconsistent
with the “likely to lead to continuation or recurrence” language of Article
11.2. The Panel noted that under United States’ law, the
competent authority will not revoke anti-dumping duties unless it is “satisfied
that future dumping is not likely.”(1020) (emphasis
added) Korea argued that this “not likely” test was inconsistent
with Article 11.2, because Article
11.2 mentions a likelihood test only
with respect to injury. Furthermore, Korea argued that, even if
the “likely” standard, established under Article
11.2 only in the
context of injury, applied also in the context of dumping,
the United States’ “not likely” test was in any case incompatible
with the “likely” standard set forth in Article
11.2. The Panel
found that the “‘not likely’ standard is not in fact equivalent
to, and falls decisively short of, establishing that dumping is ‘likely
to recur if the order is revoked’.”(1021) In reaching this
finding, the Panel considered both the “clear conceptual difference
between establishing something as a positive finding and failing to
establish something as a negative finding”(1022), and the
common usage of the relevant terms.(1023) The Panel noted that
situations could exist where the “not likely” standard would be
satisfied, while the “likely” standard would not be and concluded by
stating that the United States’ “not likely” test did not provide
a “demonstrable basis for consistently and reliably determining that
the likelihood criterion is satisfied”.(1024)
749. After finding that the United States’ test of “not likely”
was inconsistent with the “likely” test mandated by the Anti-Dumping
Agreement, the Panel in US — DRAMS decided not to address the
issue whether the “likely” standard in the dumping context
(as opposed to the injury context, where it is explicitly established)
is consistent with the terms of Article 11.2 of the
Agreement. The Panel
then made the following observations, stating that a “likelihood”
standard, applied in the context of injury under Article
11.2, could be
applicable also in the anti-dumping context. More specifically, the
Panel held, inter alia, that “there could be reason to support
a view that authorities are entitled to apply the same test concerning
the likelihood of recurrence or continuation of dumping for both Article
11.2 and 11.3 reviews”:
“We note that Article 11.3 provides for termination of a definitive
anti-dumping duty five years from its imposition. However, such
termination is conditional. First, the terms of Article 11.3
itself lay
down that this should occur unless the authorities determine that the
expiry would be ‘likely to lead to continuation or recurrence of
dumping and injury.’ Where there is a determination that both are
likely, the duty may remain in force, and the five year clock is reset
to start again from that point. Second, Article 11.3
provides also for
another situation whereby this five year period can be otherwise
effectively extended, viz. in a situation where a review under paragraph
2 covering both dumping and injury has taken place. If, for instance,
such a review took place at the four year point, it could effectively
extend the sunset review until 9 years from the original determination.
In the first case, we note that the provisions of Article 11.3
explicitly condition the prolongation of the five year period on a
finding that there is likelihood of dumping and injury continuing
or recurring. In the second case, where there is reference to review
under Article 11.2, there is no such explicit reference.
However, we note that both instances of review have the same
practical effect of prolonging the application of anti-dumping duties
beyond the five year point of an initial sunset review. This at the very
least suggests, in our view, that there could be reason to support a
view that authorities are entitled to apply the same test concerning the
likelihood of recurrence or continuation of dumping for both Article
11.2 and 11.3 reviews. There certainly appears to be nothing that
explicitly provides to the contrary. Nor do we see any reason why this
conclusion would be materially affected by whether or not the dumping
review occurred in conjunction with an injury review. There is nothing
in the text of Article 11 which suggests there should be some
fundamental bifurcation of the applicable standard for dumping review
contingent on whether there is also an Article
11.2 injury review being
undertaken.
We also note that ‘likelihood’ or ‘likely’ carries with it
the ordinary meaning of ‘probable’. That being so, it seems to us
that a ‘likely standard’ amounts to the view that where recurrence
of dumping is found to be probable as a consequence of revocation of an
anti-dumping duty, this probability would constitute a proper basis for
entitlement to maintain that anti-dumping duty in force. Without
prejudice to the legal status of such a view in terms of its consistency
with the terms of Article 11.2 — a matter on which we are not required
to rule as noted in the text above — we feel obliged to at least take
note that, at least as a practical matter, rejection of such a view
would effectively amount to a systematic requirement that reviewing
authorities are obliged to revoke antidumping duties precisely where
doing so would render recurrence of dumping probable.”(1025)
(d) “warranted”
750. The Panel considered whether “Article
11.2 necessarily
requires an investigating authority, following three years and six
months’ findings of no dumping, to find an ex officio Article
11.2 review of ‘whether the injury would be likely to continue or recur if
the duty were removed or varied’ is ‘warranted’”(1026)
it stated whether such “injury” review would be “warranted”
would be entirely dependent upon a determination of whether dumping will
recur:
“A review of ‘whether the injury would be likely to continue or
recur if the duty were removed or varied’ could include a review of
whether (1) injury that is (2) caused by dumped imports would be likely
to continue or recur if the duty were removed or varied. With regard to
injury, we believe that an absence of dumping during the preceding three
years and six months is not in and of itself indicative of the likely
state of the relevant domestic industry if the duty were removed or
varied. With regard to causality, an absence of dumping during the
preceding three years and six months is not in and of itself indicative
of causal factors other than the absence of dumping. If the only causal
factor under consideration is three years and six months’ no dumping,
the issue of causality becomes whether injury caused by dumped
imports will recur. This necessarily requires a determination of whether
dumping will recur. Thus, the ‘injury’ review that [is believed to
be] ‘warranted’ on the basis of three years and six months’ no
dumping would be entirely dependent upon a determination of whether
dumping will recur… . The mere fact of three years and six months’
findings of no dumping does not require the investigating authority to,
in addition, self-initiate a review of ‘whether the injury would be
likely to continue or recur if the duty were removed or varied’.”(1027)
751. In a footnote to the statement quoted in
paragraph 752 below,
the Panel in US — DRAMS noted:
“[B]y virtue of note 9 of the AD
Agreement, the term ‘injury’
in Article 11.2 ‘shall be interpreted in accordance with the
provisions of’ Article 3.
Article 3.5 of the AD Agreement requires the
establishment of a causal link between the dumped imports and the injury
found to exist. Thus, we consider that the Article
11.2 examination of
‘whether the injury would be likely to continue or recur if the duty
were removed or varied’ may also involve an examination of whether any
injury that is found to be likely to continue or recur is caused by
dumped imports. We can envisage circumstances, however, when an Article
11.2 injury review need not necessarily include an examination of causal
link.”(1028)
752. The Panel in EC — Tube or Pipe Fittings understood the
“phrase ‘where warranted’ in Article 11.2
to denote circumstances
furnishing good and sufficient grounds for, or justifying, the
self-initiation of a review. Where an investigating authority determines
such circumstances to exist, an investigating authority must
self-initiate a review. Such a review, once initiated, will examine
whether continued imposition of the duty is necessary to offset dumping,
whether the dumping would be likely to continue or recur, or both. Article
11.2 therefore provides a review mechanism to ensure that
Members comply with the rule contained in
Article 11.1.”(1029)
As the Panel pointed out, “the determination of whether or not good
and sufficient grounds exist for the self-initiation of a review
necessarily depends upon the factual situation in a given case and will
necessarily vary from case to case”.(1030)
(e) Relationship with other paragraphs of Article 11
753. The US — DRAMS Panel touched on the relationship
between
Article 11.1 and Article 11.2. See paragraph 739
above.
754. The relationship between
Article 11.2 and Article 11.3 was also
discussed in US — DRAMS. See the excerpts quoted in paragraphs
742 and 749 above. The relationship between Article
11.2 and footnote 22
to Article 11.3 was addressed by the Panel in US — DRAMS. See
paragraph 743 above.
3. Article 11.3
(a) General
(i) Mandating rule / exception
755. The Appellate Body in US — Corrosion-Resistant Steel Sunset
Review considered that Article 11.3 lays down a mandatory rule with
an exception and thus imposes a temporal limitation on the imposition of
anti-dumping duties:
“Specifically, Members are required to terminate an antidumping
duty within five years of its imposition ‘unless‘ the
following conditions are satisfied: first, that a review be initiated
before the expiry of five years from the date of the imposition of the
duty; second, that in the review the authorities determine that the
expiry of the duty would be likely to lead to continuation or recurrence
of dumping; and third, that in the review the authorities
determine that the expiry of the duty would be likely to lead to
continuation or recurrence of injury. If any one of these
conditions is not satisfied, the duty must be terminated.(1031)”(1032)
756. The Appellate Body in US — Oil Country Tubular Goods Sunset
Reviews also viewed the continuation of an anti-dumping duty as “an
exception to the otherwise mandated expiry of the duty after five years”.(1033)
(ii) Difference between original investigation and sunset reviews
757. With respect to the determination of a likelihood of recurrence
or continuation of dumping and injury, the Appellate Body in US —
Corrosion-Resistant Steel Sunset Review noted that, as this
likelihood determination is a prospective determination: “the
authorities must undertake a forward-looking analysis and seek to
resolve the issue of what would be likely to occur if the duty were
terminated”.(1034) In this respect, the Appellate Body pointed
to the important difference between original investigations and sunset
reviews:
“In an original anti-dumping investigation, investigating
authorities must determine whether dumping exists during the
period of investigation. In contrast, in a sunset review of an
anti-dumping duty, investigating authorities must determine whether the
expiry of the duty that was imposed at the conclusion of an original
investigation would be likely to lead to continuation or recurrence
of dumping.”(1035)
(iii) Active role of investigating authorities
758. Based on an analysis of the various terms used in
Article 11.3,
the Appellate Body in US — Corrosion-Resistant Steel Sunset Review
then reached the following general conclusions:
“This language in Article 11.3
makes clear that it envisages a
process combining both investigatory and adjudicatory aspects. In
other words, Article 11.3 assigns an active rather than a passive
decision-making role to the authorities. The words ‘review’ and ‘determine’
in Article 11.3 suggest that authorities conducting a sunset review must
act with an appropriate degree of diligence and arrive at a reasoned
conclusion on the basis of information gathered as part of a process of
reconsideration and examination. In view of the use of the word ‘likely’
in Article 11.3, an affirmative likelihood determination may be made
only if the evidence demonstrates that dumping would be probable if the
duty were terminated — and not simply if the evidence suggests that
such a result might be possible or plausible.”(1036)
759. The Panel in US — Corrosion-Resistant Steel Sunset Review
also underlined the importance of the need for sufficient positive
evidence on which to base the likelihood determination:
“The requirement to make a ‘determination’ concerning
likelihood therefore precludes an investigating authority from simply
assuming that likelihood exists. In order to continue the imposition of
the measure after the expiry of the five-year application period, it is
clear that the investigating authority has to determine, on the basis of
positive evidence, that termination of the duty is likely to lead to
continuation or recurrence of dumping and injury. An investigating
authority must have a sufficient factual basis to allow it to draw
reasoned and adequate conclusions concerning the likelihood of such
continuation or recurrence.”(1037)
(iv) Positive evidence
760. The Panel in US — Corrosion-Resistant Steel Sunset Review
expressed its view on the use of historical data as a basis for the
inherently prospective likelihood determination of Article 11.3:
“Future ‘facts’ do not exist. The only type of facts that exist
and that may be established with certainty and precision relate to the
past and, to the extent they may be accurately recorded and evaluated,
to the present. We recall that one of the fundamental goals of the
Anti-Dumping Agreement as a whole is to ensure that objective
determinations are made, based, to the extent possible, on facts.(1038)
Thus, to the extent that it will rest upon a factual foundation, the
prospective likelihood determination will inevitably rest on a factual
foundation relating to the past and present. The investigating authority
must evaluate this factual foundation and come to a reasoned conclusion
about likely future developments.”(1039)
761. The Appellate Body in US — Oil Country Tubular Goods Sunset
Reviews adopted a similar approach to the need to base a prospective
likelihood determination on “positive evidence”:
“The requirements of ‘positive evidence’ must, however, be seen
in the context that the determinations to be made under Article 11.3
are
prospective in nature and that they involve a ‘forward-looking
analysis’.(1040) Such an analysis may inevitably entail
assumptions about or projections into the future. Unavoidably,
therefore, the inferences drawn from the evidence in the record will be,
to a certain extent, speculative. In our view, that some of the
inferences drawn from the evidence on record are projections into the
future does not necessarily suggest that such inferences are not based
on ‘positive evidence’.”(1041)
(b) No specific methodology
762. The Panel in US — Corrosion-Resistant Steel Sunset Review
considered that Article 11.3 does not expressly prescribe any specific
methodology for investigating authorities to use in making a likelihood
determination in a sunset review:
“Similarly, we observe that Article 11.3
is silent as to how an
authority should or must establish that dumping is likely to continue or
recur in a sunset review. That provision itself prescribes no parameters
as to any methodological requirements that must be fulfilled by a Member’s
investigating authority in making such a ‘likelihood’ determination.”(1042)
763. This view was confirmed by the Appellate Body in US —
Corrosion-Resistant Steel Sunset Review. It thus considered that “no
obligation is imposed on investigating authorities to calculate or rely
on dumping margins in a sunset review.”(1043) According to the
Appellate Body, “in a sunset review, dumping margins may well be
relevant to, but they will not necessarily be conclusive of, whether the
expiry of the duty would be likely to lead to continuation or recurrence
of dumping”.(1044)
764. However, the Appellate Body in US — Corrosion-Resistant
Steel Sunset Review added, should investigating authorities choose
to rely upon dumping margins in making their likelihood determination,
the calculation of these margins must conform to the disciplines of
Article 2 in general and Article 2.4 in particular: “If these margins
were legally flawed because they were calculated in a manner
inconsistent with Article 2.4, this could give rise to an inconsistency
not only with Article 2.4, but also with
Article 11.3 of the
Anti-Dumping Agreement.”(1045) In such circumstances, “the
likelihood[-of-dumping] determination could not constitute a proper
foundation for the continuation of antidumping duties under Article 11.3.”(1046)
765. The Panel in US — Oil Country Tubular Goods Sunset Reviews
came to a similar conclusion with respect to the likelihood of injury
determination. According to the Panel, obligations contained in the
various paragraphs of Article 3 do not “normally” apply to sunset
reviews:
“Just as the Appellate Body stated that an investigating authority
is not required to make a dumping determination in a sunset review, we
consider that an investigating authority is not required to make an
injury determination in a sunset review. It follows, then, that the
obligations set out in Article 3
do not normally apply to sunset reviews”(1047)
766. However, the Panel was of the view that, to the extent that an
investigating authority relies on a determination of injury when
conducting a sunset review, the obligations of Article 3
would apply to
that determination:
“If, however, an investigating authority decides to conduct an
injury determination in a sunset review, or if it uses a past injury
determination as part of its sunset determination, it is under the
obligation to make sure that its injury determination or the past injury
determination it is using conforms to the relevant provisions of Article 3.(1048) For instance,
Article 11.3 does not mention whether an
investigating authority is required to calculate the price effect of
future dumped imports on the prices of the domestic industry. In our
view, this means that an investigating authority is not necessarily
required to carry out that calculation in a sunset review. However, if
the investigating authority decides to do such a calculation, then it
would be bound by the relevant provisions of Article 3
of the Agreement.
Similarly, if, in its sunset injury determinations, an investigating
authority uses a price effect calculation made in the original
investigation or in the intervening reviews, it has to assure the
consistency of that calculation with the existing provisions of Article 3.”(1049)
767. The Appellate Body in US — Oil Country Tubular Goods Sunset
Reviews agreed with this approach by the Panel. The Appellate Body
considered that “when Article 11.3 requires a determination as to the
likelihood of continuation or recurrence of ‘injury’, the
investigating authority must consider the continuation or recurrence of
‘injury’ as defined in footnote
9.”(1050) According to the
Appellate Body, “it does not follow, however, from this single
definition of ‘injury’, that all of the provisions of Article 3
are
applicable in their entirety to sunset review determinations under Article 11.3”(1051):
“In our view, however, the Anti-Dumping Agreement distinguishes
between ‘determination[s] of injury’, addressed in Article 3, and
determinations of likelihood of ‘continuation or recurrence … of
injury’, addressed in Article 11.3. In addition,
Article 11.3 does not
contain any cross-reference to Article 3
to the effect that, in making
the likelihood-of-injury determination, all the provisions of Article 3
— or any particular provisions of Article 3
— must be
followed by investigating authorities. Nor does any provision of Article 3
indicate that, wherever the term ‘injury’ appears in the
Anti-Dumping Agreement, a determination of injury must be made following
the provisions of Article 3.”(1052)
768. The Appellate Body in US — Oil Country Tubular Goods Sunset
Reviews concluded that “investigating authorities are not mandated
to follow the provisions of Article 3
when making a likelihood-of-injury
determination”.(1053) However, the Appellate Body added, this
does not imply that in a sunset review determination, an investigating
authority is never required to examine any of the factors listed in the
paragraphs of Article 3:
“Certain of the analyses mandated by Article 3
and necessarily
relevant in an original investigation may prove to be probative, or
possibly even required, in order for an investigating authority in a
sunset review to arrive at a ‘reasoned conclusion’. In this respect,
we are of the view that the fundamental requirement of Article 3.1 that
an injury determination be based on ‘positive evidence’ and an ‘objective
examination’ would be equally relevant to likelihood determinations
under Article 11.3. It seems to us that factors such as the volume,
price effects, and the impact on the domestic industry of dumped
imports, taking into account the conditions of competition, may be
relevant to varying degrees in a given likelihood-of-injury
determination. An investigating authority may also, in its own judgement,
consider other factors contained in Article 3
when making a
likelihood-of-injury determination. But the necessity of conducting such
an analysis in a given case results from the requirement imposed by Article
11.3 — not Article 3
— that a likelihood-of-injury determination
rest on a ‘sufficient factual basis’ that allows the agency to draw
‘reasoned and adequate conclusions’.”(1054)
769. The Panel in US — Oil Country Tubular Goods Sunset Reviews
(Article 21.5 — Argentina) articulated further the freedom of an
investigating authority to choose its own methodology to determine the
likelihood of continuation or recurrence of dumping, cautioning that the
investigating authority would nevertheless need to act with an
appropriate degree of diligence:
“Article 11.3 requires investigating authorities to terminate an
anti-dumping duty not later than five years from its imposition unless
they determine in a review initiated before then that dumping and injury
are likely to continue or recur should the duty be revoked Article 11.3
does not, however, set out a specific methodology for making such
determinations. In principle, therefore, investigating authorities are
not restricted in the choice of methodology they will follow in making
their sunset determinations. In their choice of methodology, however,
the investigating authorities should have regard to both ‘investigatory
and adjudicatory aspects’ of sunset reviews and make forward-looking
determinations on the basis of evidence relating to the past. They must
arrive at reasoned conclusions on the basis of positive evidence. In so
doing, the investigating authorities may not remain passive. Rather, the
authorities have to act with an ‘appropriate degree of diligence’.”(1055)
770. In US — Zeroing (Japan), the Panel determined that in
making two sunset review determinations at issue, the US Department of
Commerce relied on margins of dumping established in prior proceedings
when making its likelihood-of-dumping calculations; The Appellate Body
held that because zeroing in periodic reviews is inconsistent as such
with Articles 2.4 and 9.3, the likelihood-of-dumping determinations were
inconsistent with Article 11.3 because they relied on margins calculated
inconsistently with the Agreement.(1056)
771. The Panel in US — Continued Zeroing found that to the
extent that a sunset review determination is based on previous margins
obtained through a methodology that is inconsistent with the covered
agreements, the resulting sunset review determinations would also be
inconsistent with the covered agreements; it found that eight sunset
review determinations were inconsistent with Article 11.3
because they
relied on margins obtained through model zeroing in prior
investigations.(1057) The Appellate Body upheld this finding,
and concluded that
“the application and continued application of antidumping duties is
inconsistent with Article 11.3 of the Anti-Dumping Agreement to the
extent that reliance is placed upon a margin of dumping calculated
through the use of the zeroing methodology in making sunset review
determinations.”(1058)
(c) Use of presumptions in a likelihood determination
772. The Appellate Body in US — Corrosion-Resistant Steel Sunset
Review clearly stated that the use of presumptions may be
inconsistent with an obligation to make a particular determination in
each case using positive evidence. It considered “that a firm
evidentiary foundation is required in each case for a proper
determination under Article 11.3 of the likelihood of continuation or
recurrence of dumping. Such a determination cannot be based solely on
the mechanistic application of presumptions.”(1059)
773. The Appellate Body in US — Corrosion-Resistant Steel Sunset
Review saw no problem in investigating authorities being instructed
to examine, in every sunset review, dumping margin and import volumes.(1060)
However, it noted that the significance and probative value of the two
factors for a likelihood determination in a sunset review will
necessarily vary from case to case. It stated that it “would have
difficulty accepting that dumping margins and import volumes are always
‘highly probative’ in a sunset review by the United States
Department of Commerce if this means that either or both of these
factors are presumed, by themselves, to constitute sufficient evidence
that the expiry of the duty would be likely to lead to continuation or
recurrence of dumping”(1061) The Appellate Body thus concluded
that the consistency of the provisions of a measure with Article 11.3
hinges upon whether those provisions instruct the investigating
authority to treat “dumping margins and/or import volumes as
determinative or conclusive, on the one hand, or merely indicative or
probative, on the other hand, of the likelihood of future dumping.”(1062)
774. The Panel in US — Oil Country Tubular Goods Sunset Reviews
considered that a scheme that attributes a “determinative” / “conclusive”
value to certain factors in sunset determinations — as opposed to only
an indicative value — is likely to violate Article 11.3 of the
Anti-Dumping Agreement.(1063) On appeal, the Appellate Body
considered that the Panel had correctly articulated the standard for
determining whether a measure was inconsistent, as such, with Article
11.3 of the Anti-Dumping Agreement.(1064)
775. The Panel in US — Oil Country Tubular Goods Sunset Reviews
considered that both the so called deemed waiver and affirmative waiver
provisions of United States law were inconsistent with Article 11.3
because they required an authority to make an affirmative determination
of likelihood of continuation or recurrence of dumping, without taking
into consideration the facts submitted by the exporter filing an
incomplete submission, or without any further inquiry in the event where
the exporter filed no submission or declared its intention not to
participate in the review.(1065) On appeal, the Appellate Body
agreed with the Panel’s analysis:
“Because the waiver provisions require the USDOC to arrive at
affirmative company-specific determinations without regard to any
evidence on record, these determinations are merely assumptions
made by the agency, rather than findings supported by evidence. The
United States contends that respondents waiving the right to participate
in a sunset review do so ‘intentionally’, with full knowledge that,
as a result of their failure to submit evidence, the evidence placed on
the record by the domestic industry is likely to result in an
unfavourable determination on an order-wide basis. In these
circumstances, we see no fault in making an unfavourable order-wide
determination by taking into account evidence provided by the domestic
industry in support thereof. However, the USDOC also takes into account,
in such circumstances, statutorily-mandated assumptions. Thus,
even assuming that the USDOC takes into account the totality of record
evidence in making its order-wide determination, it is clear that, as a
result of the operation of the waiver provisions, certain order-wide
likelihood determinations made by the USDOC will be based, at least in
part, on statutorily-mandated assumptions about a company’s
likelihood of dumping. In our view, this result is inconsistent with the
obligation of an investigating authority under Article 11.3
to ‘arrive
at a reasoned conclusion’ on the basis of ‘positive evidence’.”(1066)
(d) Determination regarding likelihood or continuation or recurrence
of dumping
776. In US — Oil Country Tubular Goods Sunset Reviews (Article
21.5 — Argentina), the section 129 determination (i.e. the sunset
review determination by the USDOC) was based on two findings: (1) likely
past dumping, and (2) the United States Department of Commerce’s
volume analysis from the original sunset review.(1067) In
relation to the first claim, Argentina argued that reliance on past
dumping was inconsistent with Article 11.3. In relation to the volume
analysis, Argentina claimed that: (a) it was part of the US Department
of Commerce’s measure taken to comply; and (b) that Argentine
exporters had tried to explain that the decline in volume was due to
other factors, which were not addressed by the USDOC.
(i) Likely past dumping
777. The Panel in US — Oil Country Tubular Goods Sunset Reviews
(Article 21.5 — Argentina) quickly dismissed Argentina’s first
claim, citing an insufficient factual basis by the USDOC in its analysis
of likely past dumping. This was based on the United States Department
of Commerce’s failure to seek information about home market prices:
“The parties’ arguments raise two important issues. The first
issue is whether the USDOC’s finding of likely past dumping was a determination
of dumping. The second issue is whether the USDOC’s reliance upon
a finding of likely past dumping as one of the bases of its
determination of the likelihood of continuation or recurrence of dumping
was consistent with Article 11.3 of the
Agreement. In our view, however,
a definitive resolution of these questions regarding the USDOC’s
Section 129 Determination is not necessary to our assessment of
Argentina’s claim. This flows from our view that even if this was not
a determination of dumping as the United States asserts, and even
if relying on likely past dumping was appropriate — issues
which we do not here address — the USDOC’s analysis of likely
past dumping lacked a sufficient factual basis.(1068)
…the concept of dumping is, in the first instance, a comparison
of home market and export prices. Only in the circumstances set forth in
Article 2.2 may an investigating authority look to alternative bases to
home market prices, such as costs, when determining normal value.(1069)
In the sunset review at issue, the USDOC did not even ask
Acindar to provide information regarding its normal value and export
price. Rather, it restricted itself to asking for certain cost
information and, when that cost information was not provided, compared
Acindar’s export prices to the United States, obtained from the US
customs authorities, with the prevailing prices in the US market. The
failure to seek information about Acindar’s home market prices means
that the USDOC made a finding of likely dumping without making any
effort to obtain information that is essential to the core principle of
dumping as a price-to-price comparison. We do not see how a finding of likely
past dumping could have a sufficient factual basis if it did not take
into account at a bare minimum these elementary aspects of the concept
of dumping as that term is used in the Anti-Dumping Agreement.”(1070)
(ii) Volume analysis
778. The Panel in US — Oil Country Tubular Goods Sunset Reviews
(Article 21.5 — Argentina) found that the volume analysis from the
original sunset review was part of the “measure taken to comply”, as
claimed by Argentina:
“According to the United States, since the volume analysis was
incorporated by reference, without any change, and the original panel
made no findings with respect to this analysis, it is not part of the
measure taken to comply. We recall that the function of a compliance
panel under Article 21.5 of the DSU is to assess the existence or WTO-consistency
of measures taken by a Member to comply with the DSB recommendations and
rulings. Thus, as a compliance panel, we base our assessment on the
measure taken to comply with the DSB recommendations and rulings. The
United States describes the measure taken to comply with the
recommendations and rulings of the DSB in a certain manner. We do not
consider, however, that we are bound by such description. In compliance
proceedings under Article 21.5 of the DSU, it is for the Panel, and not
the parties to the dispute, to determine what constitutes the measure
taken to comply. As the United States itself acknowledges, the text of
the Section 129 Determination at issue makes it clear that one of the
two main underpinnings of the USDOC’s order-wide likelihood
determination was the volume analysis carried over from the original
sunset review. The USDOC based its order-wide determination on its
finding regarding likely past dumping as well as the volume analysis
from the original sunset review. As such, we consider the volume
analysis from the original sunset review to have become an integral part
of the Section 129 Determination. In our view, therefore, the volume
analysis from the original sunset review is part of the measure taken to
comply by the United States and hence is properly before us in these
proceedings.”(1071)
779. In support of its defence that the volume analysis was not part
of the “measure taken to comply”, the United States argued before
the Panel in US — Oil Country Tubular Goods Sunset Reviews (Article
21.5 — Argentina), that the Appellate Body decision in EC — Bed Linen (Article 21.5) supported its position. The Panel found the
facts of EC — Bed Linen (Article 21.5) to be sufficiently “distinguishable
from the case before us” and confirmed, given its previous findings,
that the volume analysis did form part of the measure taken to comply.(1072)
780. The Panel in US — Oil Country Tubular Goods Sunset Reviews
(Article 21.5 — Argentina) next considered whether the USDOC’s
analysis was consistent with Article 11.3 of the Anti-Dumping Agreement
given Argentina’s claim that other factors having an impact on the
volume of imports had not been taken into account. In the Panel’s
view, the USDOC’s finding regarding the decline in the volume of
imports “was not based on a thorough evaluation of the possible causes
of such decline”:(1073)
“In our view, the USDOC’s finding regarding the decline in the
volume of imports was not based on a thorough evaluation of the possible
causes of such decline. The decline could have resulted from a variety
of other factors, which could theoretically indicate no likelihood of
continuation or recurrence of dumping. In other words, it is possible
that despite a decline in the volume of imports, there may not be
likelihood of continuation or recurrence of dumping. In fact, Siderca,
in its response to the USDOC’s questionnaire, attempted to explain why
the decline in the volume of Siderca’s exports to the United States
following the imposition of the measure at issue did not necessarily
mean that Siderca could not export with the measure in place. The United
States contends that Siderca’s comments were weakly supported and did
not explain why Siderca stopped shipping to the United States. The
United States may or may not be correct in its proposition. We are by no
means suggesting that Siderca’s arguments should have been accepted by
the USDOC. The fact remains, however, that the Section 129 Determination
fails to examine potential reasons, other than a likelihood of
continuation or recurrence of dumping, that could have triggered the
decline in the volume of imports. This is not, in our view, the kind of
determination that would be made by an unbiased and objective
investigating authority. The USDOC’s determination regarding the
decline in the volume of imports lacks a sufficient factual basis.”(1074)
781. The Panel in US — Oil Country Tubular Goods Sunset Reviews
(Article 21.5 — Argentina) concluded that the USDOC’s order-wide
determination was inconsistent with Article 11.3 of the Anti-Dumping
Agreement. This finding was appealed by the United States.
782. The Appellate Body in US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina) upheld the Panel’s finding
that the USDOC’s finding on import volumes was part of the “measure
taken to comply”. Accordingly, the Panel’s findings regarding the
decline in the volume of imports were also upheld:
“The USDOC’s reasoning in the Section 129 Determination indicates
that the two factual premises operated together to support the
determination of likelihood of dumping. The affirmative determination of
likelihood of dumping follows consideration of both the finding of
likely dumping during the time the anti-dumping duty order was in place
and the finding that the volume of imports declined after the imposition
of the order. Because the likelihood-of-dumping determination in the
Section 129 Determination is premised on both bases, which together
support the affirmative likelihood determination, we consider that the
USDOC’s finding that the volume of imports declined after imposition
of the anti-dumping duty order is an integral part of the ‘measure
taken to comply’ in this case.…
We further note that the Appellate Body considered in US —
Softwood Lumber IV (Article 21.5 — Canada) that ‘[s]ome measures
with a particularly close relationship to the declared “measure taken
to comply”, and to the recommendations and rulings of the DSB, may
also be susceptible to review by a panel acting under Article
21.5.’
The Appellate Body noted that this ‘requires an Article
21.5 panel to
examine the factual and legal background against which a declared “measure
taken to comply” is adopted’ because ‘[o]nly then is a panel in a
position to take a view as to whether there are sufficiently close links
for it to characterize such an other measure as one “taken to comply”
and, consequently, to assess its consistency with the covered agreements
in an Article 21.5 proceeding.’ If a measure that is formally separate
from, but closely linked to, a declared ‘measure taken to comply’
can fall within the scope of an Article
21.5 proceeding, this would
suggest a fortiori that, when both factual bases are relied upon
for a likelihood-of-dumping determination, they can be considered by an Article
21.5 panel when assessing the consistency of that determination
with Article 11.3.
…
Furthermore, we recall that the aim of Article 21.5 of the DSU is to
promote the prompt compliance with DSB recommendations and rulings and
the consistency of ‘measures taken to comply’ with the covered
agreements by making it unnecessary for a complainant to begin new
proceedings and by making efficient use of the original panellists and
their relevant experience. These considerations support the Panel’s
finding that the volume analysis was properly before it. Requiring
Argentina to initiate new WTO proceedings against the United States in
order to challenge the USDOC’s finding on import volumes would entail
a significant delay. Moreover, it would be difficult to reconcile this
with the objective that Article 21.5
panels ‘examine fully the “consistency
with a covered agreement of the measures taken to comply”, as required
by [that provision]’. Finally, it seems difficult to conceive how the
two factual bases could each be examined by separate panels (one of
which is operating pursuant to Article
21.5), considering that both
factual premises together support the USDOC’s likelihood-of-dumping
determination.”(1075)
(e) Order-wide basis of a likelihood determination
783. In its report on US — Corrosion-Resistant Steel Sunset
Review, the Appellate Body addressed the question whether
authorities must make a separate determination, for each individual
exporter or producer, on whether the expiry of the duty would be likely
to lead to continuation or recurrence of dumping by that exporter or
producer or whether it would be possible to make a single order-wide
determination on whether revocation of a particular anti-dumping duty
order would be likely to lead to continuation or recurrence of dumping.
The Appellate Body considered that, on its face, Article 11.3 does not
oblige investigating authorities in a sunset review to make “company-specific”
likelihood determinations:
“We reiterate that Article 11.3
does not prescribe any particular
methodology to be used by investigating authorities in making a
likelihood determination in a sunset review. In particular, Article 11.3
does not expressly state that investigating authorities must determine
that the expiry of the duty would be likely to lead to dumping by
each known exporter or producer concerned. In fact, Article 11.3
contains no express reference to individual exporters, producers, or
interested parties. This contrasts with Article
11.2, which does refer
to ‘any interested party’ and ‘[i]nterested parties’. We also
note that Article 11.3 does not contain the word ‘margins’, which
might implicitly refer to individual exporters or producers. On its
face, Article 11.3 therefore does not oblige investigating authorities
in a sunset review to make ‘company-specific’ likelihood
determinations in the manner suggested by Japan.”(1076)
784. In the compliance proceeding, the Panel in US — Oil Country
Tubular Goods Sunset Reviews (Article 21.5 — Argentina) noted that
following the regulatory amendments in the United States, the waiver
provisions only required the USDOC to find likelihood of continuation or
recurrence of dumping with respect to exporters who affirmatively
waived their right to participate. However, the US law also required the
USDOC to make its sunset determinations on an order-wide basis.
Therefore, the question for the Panel was what impact, if any, a
company-specific determination of likelihood might have on the USDOC’s
order-wide determination:(1077)
“We find it difficult to understand how the USDOC would find no
likelihood of continuation or recurrence of dumping on an order-wide
basis in a sunset review where it may have made an affirmative
likelihood determination for some exporters pursuant to Section
751(c)(4)(B) of the Tariff Act. Given that Section 751(c)(4)(B) requires
the USDOC to make an affirmative likelihood determination for individual
exporters who waive their right to participate, it seems to us that such
company-specific determinations would necessarily have a significant
impact on, or even determine, the outcome of the USDOC’s order-wide
determination. Hence, we can reasonably conclude that in every sunset
review involving multiple exporters the USDOC will have to find
likelihood on an order-wide basis if one exporter waives its right to
participate, because otherwise the USDOC would have found no likelihood
with respect to the exporters who waive their right to participate.
Making an affirmative finding of likelihood of continuation or
recurrence of dumping from a country without considering the information
that may have been submitted by exporters who do not waive their right
to participate in the sunset review would not, in our view, be a
reasoned determination premised on an adequate factual basis. As we
noted above, the investigating authorities are expected to be
sufficiently active in sunset reviews in developing the necessary
factual premise for their determinations. The provisions of Section
751(c)(4)(B) of the Tariff Act, however, would preclude the USDOC from
taking into consideration evidence submitted by cooperating exporters or
evidence otherwise collected by the USDOC in sunset reviews where there
is at least one other exporter who waives its right to participate. In
such cases, the USDOC’s order-wide determination would be based on the
assumption that because one exporter waived its right to participate and
acknowledged to be likely to continue or resume dumping, other exporters
are also likely to continue or resume dumping. The USDOC would thus be
ignoring the information which is relevant to its sunset determination
and which is readily available to it and would fail to observe the
obligation of the investigating authorities to make reasoned
determinations of likelihood of continuation or recurrence of dumping
based on a sufficient factual premise in accordance with Article 11.3 of
the Agreement.”(1078)
785. The Panel in US — Oil Country Tubular Goods Sunset Reviews
(Article 21.5 — Argentina) found that Section 751(c)4(B) of the
Tariff Act, operating in conjunction with Section 751(c)(4)(A) of the
Tariff Act and Section 351.218(d)(2) of the Regulations, was
inconsistent with Article 11.3 of the
Anti-Dumping Agreement. The
Appellate Body in US — Oil Country Tubular Goods Sunset Reviews
(Article 21.5 — Argentina) however disagreed with the Panel’s
analysis “for several reasons”, and reversed the Panel’s finding:
“First, the Panel did not fully appreciate the consequences that
flow from the fact that, under the amended waiver provisions, the
company-specific findings are now based on positive evidence taking the
form of an admission. Secondly … Argentina did not set out to
demonstrate that the company-specific findings determine the outcome of
the order-wide determination. Rather, Argentina sought to prove that ‘the
order-wide determination will be based, at least in part, on
statutorily-mandated findings’, which Argentina claims is sufficient
to establish a violation of Article 11.3 of the Anti-Dumping
Agreement.
In addition, we note that the Panel concluded that the amended waiver
provisions ‘would preclude the USDOC from taking into consideration
evidence submitted by cooperating exporters or evidence otherwise
collected by the USDOC in sunset reviews where there is at least one
other exporter who waives its right to participate’. The Panel also
concluded that ‘company-specific determinations would necessarily have
a significant impact on, or even determine, the outcome of the USDOC’s
order-wide determination.’ However, the United States emphasized
before the Panel that, ‘[i]n making its order-wide determination, [the
USDOC] must consider all information and argument on the record
of the sunset proceeding.’ Furthermore, the United States pointed out
that ‘the relevance of … a company-specific finding to the
ultimate likelihood determination always would depend on the facts on
the administrative record in that sunset review.’
We observe that a respondent’s explanation of the basis on which
its investigating authority will make a determination will have more
weight if it is confirmed by the text of the applicable laws or
regulations. But the United States’ statements that the USDOC must
consider all information and arguments on the record, and that the
relevance of a company-specific finding to the order-wide likelihood
determination would always depend on the facts of each case, cannot be
rejected merely because there is no legal instrument that expressly
requires the USDOC to act in this way. This is insufficient to support
properly a finding of inconsistency as such. Thus, the Panel’s
reasoning seems speculative, and this is reflected in the language used
in the Panel Report.
In sum, on the basis of the evidence on the Panel record, we are not
persuaded that the amended waiver provisions preclude the USDOC from
making a reasoned determination with a sufficient factual basis, as
required by Article 11.3 of the Anti-Dumping
Agreement. Under the
amended waiver provisions, a company-specific finding is not based on an
assumption but, rather, on a statement by the waiving exporter
indicating that it is likely to dump if the order were revoked or the
investigation terminated. Moreover, the amended waiver provisions do not
preclude the USDOC from considering other evidence on the record of the
sunset review. Indeed, under Article 11.3 of the Anti-Dumping
Agreement,
the USDOC would have to consider any other evidence on the record, and
assess the statement of waiver in the light of that other evidence,
before making the order-wide determination. If it failed to do so, it
would not exercise the degree of diligence required of investigating
authorities, nor could it make a reasoned determination with a
sufficient factual basis, as required by Article 11.3 of the
Anti-Dumping Agreement.”(1079)
(f) No prescribed time-frame for likelihood of continuation or
recurrence of injury
786. The Panel in US — Oil Country Tubular Goods Sunset Reviews
noted that Article 11.3 of the Anti-Dumping Agreement does not prescribe
any timeframe for likelihood of continuation or recurrence of injury;
nor does it require investigating authorities to specify the time-frame
on which their likelihood determination is based:
“As we already stated, Article 11.3
does not impose a particular
time-frame on which the investigating authority has to base its
likelihood determination. Further, in our view, the investigating
authority does not have to base its likelihood determination on a
uniform time-frame with respect to each injury factor that it takes into
consideration. The time-frame regarding different injury factors may be
different from one another depending on the circumstances of each sunset
review. For instance, in a case where the exporters have excessive
inventories, the investigating authority’s evaluation of likely volume
of dumped imports can be based on a relatively short timeframe. On the
other hand, an analysis regarding the cash flows or productivity of the
domestic industry may necessarily have to be based on a longer
time-frame.”(1080)
787. The Appellate Body in US — Oil Country Tubular Goods Sunset
Reviews agreed with the Panel that “an assessment regarding
whether injury is likely to recur that focuses ‘too far in the future
would be highly speculative’(1081), and that it might be very
difficult to justify such an assessment. However, like the Panel, we
have no reason to believe that the standard of a ‘reasonably
foreseeable time’ set out in the United States statute is inconsistent
with the requirements of Article 11.3.”(1082) The Appellate
Body rejected the argument that the requirement set out in Article 3.7
that the threat of material injury be “imminent” is to be imported
into Article 11.3 in the form of a temporal limitation on the time-frame
within which “injury” must be determined to continue or recur. The
Appellate Body considered that “sunset reviews are not subject to the
detailed disciplines of Article
3, which include the specific
requirement of Article 3.7”.(1083)
788. In addition, the Appellate Body in US — Oil Country Tubular
Goods Sunset Reviews rejected the argument that an authority would
be required to specify the relevant time-frame for injury to continue or
recur for the authority’s determination to be a “properly reasoned
and supported determination”:
“As we have noted above, the text of Article 11.3 does not
establish any requirement for the investigating authority to specify the
time-frame on which it bases its determination regarding injury. Thus,
the mere fact that the time-frame of the injury analysis is not
presented in a sunset review determination is not sufficient to
undermine that determination. Article 11.3 requires that a determination
of likelihood of continuation or recurrence of injury rest on a
sufficient factual basis to allow the investigating authority to draw
reasoned and adequate conclusions. A determination of injury can be
properly reasoned and rest on a sufficient factual basis even though the
time-frame for the injury determination is not explicitly mentioned.”(1084)
(g) Applicability of procedural obligations
(i) Evidentiary standards for initiation
789. The Panel in US — Corrosion-Resistant Steel Sunset Review
rejected the argument that the same evidentiary standards that apply to
the self-initiation of original investigations under Article 5.6 also
apply to the self-initiation of sunset reviews under Article 11.3. The
Panel based itself on the text of Article 11.3:
“As Japan concedes, Article 11.3, on its face, does not mention,
either explicitly or by way of reference, any evidentiary standard that
should or must apply to the self-initiation of sunset reviews. Article 11.3
contemplates initiation of a sunset review in two alternative ways,
as is evident through the use of the word ‘or’. Either the
authorities make their determination in a review initiated ‘on their
own initiative’, or they make their determination in a review
initiated ‘upon a duly substantiated request made by or on behalf of
the domestic industry’. Although Article 11.3
provides for a certain
qualification regarding initiations based on complaints lodged by the
domestic industry — that such requests be ‘duly substantiated’ —
the text clearly indicates that this qualification is germane only to
that specific situation and does not apply to self-initiations.
Consequently, since the drafters did not set forth any evidentiary
requirements for the self-initiation of sunset reviews in the text of Article 11.3
itself, at first blush, it seems to us that they intended
not to impose any evidentiary standards in respect of the
self-initiation of a sunset review.”(1085)
790. The Panel in US — Corrosion-Resistant Steel Sunset Review
found further support for its conclusion in the absence of any
cross-referencing in Article 11 to the evidentiary standards concerning
original investigations in Article
5.6:
“Although paragraphs 4 and
5 of Article 11 contain several
cross-references to other articles in the Anti-Dumping Agreement,
no such cross-reference has been made in the text of Article 11
to
Article 5.6. These cross-references (as well as other cross-references
in the Anti-Dumping Agreement, such as, for example, in Article
12.3) indicate that, when the drafters intended to make a particular
provision also applicable in a different context, they did so
explicitly. Therefore, their failure to include a cross-reference in the
text of Article 11.3, or, for that matter, in any other paragraph of
Article 11, to Article 5.6 (or vice versa) demonstrates that they
did not intend to make the evidentiary standards of Article 5.6
applicable to sunset reviews.”(1086)
(ii) New factual basis
791. The Panel in US — Oil Country Tubular Goods Sunset Reviews
(Article 21.5 — Argentina) rejected Argentina’s claim that the
US Department of Commerce acted inconsistently with Articles 11.3
and
11.4 by developing a new factual basis pertaining to the original review
period for the purposes of a sunset review. The Panel drew on Mexico
— Corn Syrup, Australia — Salmon, and Japan — Apples for
support in concluding that “WTO Members may need to collect new
information supplementary to that on the record of their original
determinations in making subsequent determinations in the context of
implementing the DSB recommendations and rulings.”(1087)
Argentina appealed this finding, but was unsuccessful.
792. In the appeal on US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina) Argentina made an argument that
rested on a distinction between clarifying or explaining the original
sunset determination, which would, in Argentina’s view, be possible;
and developing a new evidentiary basis for a redetermination because an
investigating authority had not “developed an adequate evidentiary
foundation for its original sunset determination”, which Argentina
submitted would not be possible under Articles 11.3
and
11.4.(1088)
Argentina also argued that allowing an investigating authority to
develop a new evidentiary basis would “reduce to inutility the
temporal limitations set out in Articles 11.3 and
11.4”. The Appellate
Body was not convinced by Argentina’s arguments:
“Articles 11.3 and
11.4 [do not] provide a basis for drawing a
distinction between allowing an investigating authority to clarify
information, or provide further explanations, on the one hand, and to
develop a new factual basis, on the other hand. At the oral hearing,
Argentina itself recognized that an investigating authority clarifying
information, or providing further explanations, would be allowed to
gather additional information and develop some new facts relating to the
original sunset review period. This illustrates the difficulty of
drawing the distinction relied upon by Argentina, where collection of
some facts is allowed to clarify information or provide further
explanations, but not to develop a new factual basis.
Article 11.3 of the Anti-Dumping Agreement does not refer to the
steps that an investigating authority may take to implement DSB
recommendations and rulings or to the collection of evidence at that
stage. Article 11.4 states that the provisions of
Article 6 of the
Anti-Dumping Agreement regarding evidence and procedure are applicable
to sunset reviews. Article 6 contains several provisions relating to the
collection of evidence, including several time periods. However, like
Articles 11.3 and 11.4, Article 6 does not specifically refer to the
collection of evidence for purposes of implementing DSB recommendations
and rulings. Therefore, we do not consider that
Articles 11.3 and 11.4 address the specific question of whether an investigating authority can
develop a new evidentiary basis when implementing DSB recommendations
and rulings.
…
Argentina argues, furthermore, that allowing an investigating
authority to develop a new evidentiary basis would reduce to inutility
the temporal limitations set out in Articles 11.3 and
11.4 of the
Anti-Dumping Agreement. We do not share this view. As explained above,
Argentina’s claim that the USDOC was precluded from developing a new
evidentiary basis is premised on the qualitative shortcomings of the
fact-finding in the original review. It does not implicate the temporal
requirements of Article 11.3, which remain valid even if an
investigating authority is allowed to collect additional facts relating
to the original review period when making a re-determination of the
likelihood of dumping for the purpose of implementing recommendations
and rulings of the DSB. Moreover, an investigating authority seeking to
comply with an adverse WTO ruling by conducting a sunset
re-determination would have to comply with all of the substantive
obligations set out in Articles 11.3 and 11.4. This means that any
additional factual information relating to the initial review period
that is collected for purposes of the redetermination would have to be
‘sufficient’, and the conclusion reached on the basis of those facts
would have to be ‘reasoned’. It also means that the anti-dumping
duties could not remain in place unless the investigating authority
concluded in the re-determination that dumping and injury were likely to
continue or recur. Furthermore, the due process and evidentiary
obligations established in Article 11.4, by virtue of its reference to
Article 6, would apply also to the process leading to the
re-determination.”(1089)
(iii) De minimis standard in sunset reviews
793. The Panel in US — Corrosion-Resistant Steel Sunset Review
rejected the argument that the Anti-Dumping Agreement requires that the
same de minimis standard that applies to investigating
authorities under Article 5.8 also applies to sunset reviews under
Article 11.3:
“On its face,
Article 11.3 does not provide, either explicitly or
by way of reference, for any de minimis standard in making the
likelihood of continuation or recurrence of dumping determinations in
sunset reviews. Therefore,
Article 11.3 itself is silent as to whether
the de minimis standard of Article 5.8 (or any other de
minimis standard) is applicable to sunset reviews. However, ‘[s]uch
silence does not exclude the possibility that the requirement was
intended to be included by implication.’
We therefore look to the context of
Article 11.3. The immediate
context of
Article 11.3 does not, however, yield a different result.
Article 11.1 sets out the general rule that an anti-dumping duty can
remain in force only as long as and to the extent necessary to
counteract injurious dumping. Articles 11.2 and
11.3 reflect the
application of that general rule under different circumstances. Article
11.4 contains a cross-reference to Article 6, which sets forth rules
relating to evidence and procedure applicable to investigations. Given
that, similar to Article 6, Article 5 also contains rules applicable to
original investigations, we consider the absence in Article 11.4 of a
similar cross-reference to Article 5 to indicate that the drafters did
not intend to have the obligations in Article 5
apply also to sunset
reviews.”(1090)
794. In the view of the Panel in US — Corrosion-Resistant Steel
Sunset Review, it was clear that Article 5.8 did not suggest that
the de minimis standard set out for investigations also applied
to sunset reviews:
“In particular, the text of paragraph 8 of Article 5 refers
expressly to the termination of an investigation in the event of de
minimis dumping margins. There is, therefore, no textual indication
in Article 5.8 that would suggest or require that the obligation in
Article 5.8 also applies to sunset reviews. Nor is there any such
suggestion or requirement in the other provisions of Article
5.”(1091)
795. On the basis of this textual analysis of the relevant provisions
of the Anti-Dumping Agreement, the Panel in US — Corrosion-Resistant Steel Sunset Review concluded that the 2 per
cent de minimis standard of Article 5.8
does not apply in the
context of sunset reviews.(1092)
(iv) Cumulation
Whether cumulation is permissible in sunset reviews
796. The Appellate Body in US — Oil Country Tubular Goods Sunset
Reviews examined the question whether cumulation is permissible in
sunset reviews. It found that, while Articles 3.3 and
11.3 are silent on
this issue, this silence “cannot be understood to imply that
cumulation is prohibited in sunset reviews”.(1093) The
Appellate Body, recalling the apparent rationale behind the practice of
cumulation in injury investigations as discussed by the Appellate Body
in EC — Tube or Pipe Fittings(1094) considered that this
rationale is equally applicable to likelihood-of-injury determinations
in sunset reviews. The Appellate Body thus concluded that cumulation in
sunset reviews is permissible:
“Therefore, notwithstanding the differences between original
investigations and sunset reviews, cumulation remains a useful tool for
investigating authorities in both inquiries to ensure that all sources
of injury and their cumulative impact on the domestic industry are taken
into account in an investigating authority’s determination as to
whether to impose — or continue to impose — anti-dumping duties on
products from those sources. Given the rationale for cumulation — a
rationale that we consider applies to original investigations as well as
to sunset reviews — we are of the view that it would be anomalous for
Members to have limited authorization for cumulation in the Anti-Dumping
Agreement to original investigations”.(1095)
Non-application of negligibility standards
797. The Panel in US — Corrosion-Resistant Steel Sunset Review
considered that the negligibility standards under Article 5.8 for the
purposes of a cumulative injury assessment under Article 3.3 in original
investigations, do not apply to sunset reviews under
Article 11.3:
“Article 11.3 speaks of a review to determine, inter alia, the
likelihood of continuation or recurrence of injury. On its face, Article 11.3
does not mention, either explicitly or by way of reference, any
negligibility standard that applies to the likelihood of continuation or
recurrence of injury determinations in sunset reviews. Nor does the
immediate context of Article 11.3 yield a different result.
Article 11.1
sets out the general rule that an antidumping duty can remain in force
only as long as and to the extent necessary to counteract injurious
dumping. Article 11.2 and 11.3 reflect the application of that general
rule under different circumstances. Although paragraphs 4 and
5 of
Article 11 contain several cross-references to other articles of the
Anti-Dumping Agreement, no such cross-reference has been made to
Articles 3.3 or 5.8.”(1096)
798. The Panel in US — Corrosion-Resistant Steel Sunset Review
considered that “Article
3.3, by its own terms, is limited in
application to investigations and does not apply to sunset reviews. It
follows that the cross-reference in Article
3.3 to the negligibility
standard in Article 5.8 does not apply to sunset reviews”(1097)
799. The Panel in US — Oil Country Tubular Goods Sunset Reviews
similarly found that cumulation, when used in sunset reviews, does not
need to satisfy the conditions of Article
3.3 because “by its own
terms Article 3.3 limits its scope of application to investigations”.(1098)
The Appellate Body agreed with the Panel “that the conditions of Article
3.3 do not apply to likelihood-of-injury determinations in
sunset reviews”.(1099)
(h) “likely”
800. The US — DRAMS Panel interpreted the term “likely”
in Article 11.2 with reference to Article 11.3. See
paragraph 749 above.
801. The Appellate Body in US — Oil Country Tubular Goods Sunset
Reviews considered “that the ‘likely’ standard of Article 11.3
applies to the overall determinations regarding dumping and injury; it
need not necessarily apply to each factor considered in rendering the
overall determinations on dumping and injury”.(1100)
(i) Relationship with other paragraphs of Article 11
802. The relationship between
Article 11.3 and Article 11.2 was
addressed in US — DRAMS. See paragraphs 742 and 749 above.
803. The Panel in US — DRAMS also referred to
footnote 22 to
Article 11.3 in interpreting Article 11.2. See
paragraph 743 above.
(j) Relationship with the standard of review in Article 11 of the DSU
804. The Appellate Body in US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina) rejected Argentina’s claim
that the Panel had not made an objective assessment of the matter before
it, as required by Article 11 of the DSU.
“We note that Argentina considers that the Panel failed to fulfil
properly its duties under Article 11 of the DSU by ‘subordinat[ing]
the actual treaty text of Articles 11.3 and 11.4, and the disposition of
Argentina’s claims under these provisions, to broader, “systemic”
considerations of the WTO dispute settlement system’. We have found
that Articles 11.3 and 11.4 do not address specifically whether an
investigating authority may collect additional facts relating to the
initial review period when making a re-determination of likelihood of
dumping. Therefore, the Panel did not subordinate the text of these
provisions to broader systemic considerations of the WTO dispute
settlement system when it found that the USDOC could develop a new
evidentiary basis.”(1101)
(k) Existence of a causation requirement in sunset reviews
805. In US — Anti-Dumping Measures on Oil Country Tubular Goods,
Mexico challenged the Panel’s interpretation of Article 11.3 and “its
failure to address the ‘inherent’ causation requirements under that
Article.”(1102) In particular, Mexico contested the Panel’s
finding that the obligations set out in Article 3 are not directly
applicable in sunset reviews. The Appellate Body in US — Anti-Dumping Measures on Oil Country Tubular Goods considered that:
“On its face, Article 11.3
does not require investigating
authorities to establish the existence of a ‘causal link’ between
likely dumping and likely injury. Instead, by its terms, Article 11.3
requires investigating authorities to determine whether the expiry of
the duty would be likely to lead to continuation or recurrence of
dumping and injury. Thus, in order to continue the duty, there must
be a nexus between the ‘expiry of the duty’, on the one hand, and
‘continuation or recurrence of dumping and injury’, on the other
hand, such that the former ‘would be likely to lead to’ the latter.
This nexus must be clearly demonstrated.(1103) In this respect,
we further note that, under Article 11.3 of the Anti-Dumping
Agreement, the termination of the anti-dumping duty at the end of
five years is the rule and its continuation beyond that period is the
‘exception’.”(1104)
806. The Appellate Body in US — Anti-Dumping Measures on Oil
Country Tubular Goods observed that while Article 11.3
is “silent”
on the issue of a “causal link”, there could be a requirement to
establish a causal link between likely dumping and likely injury in a
sunset review under Article 11.3 flowing from other provisions of the
Anti-Dumping Agreement and Article VI of GATT
1994.(1105) The
Appellate Body then opined:
“It is clear from Article VI of the GATT 1994 and the
above-mentioned provisions of the Anti-Dumping Agreement, and
indeed from the design and structure of that Agreement as a whole, that
the Anti-Dumping Agreement deals with counteracting injurious
dumping and that an anti-dumping duty can be imposed and maintained only
if the dumping (as properly established) causes injury to the domestic
industry. Absent injury to the domestic industry, the rationale for
either imposing the duty in the first place, or maintaining it at any
time after its imposition, does not exist.(1106) A causal link
between dumping and injury to the domestic industry is thus fundamental
to the imposition and maintenance of an anti-dumping duty under the Anti-Dumping
Agreement.
… However, this does not mean that a causal link between dumping
and injury is required to be established anew in a ‘review’
conducted under Article 11.3 of the Anti-Dumping Agreement. This
is because the ‘review’ contemplated in Article 11.3 is a ‘distinct’
process with a ‘different’ purpose from the original investigation.(1107)”(1108)
807. The Appellate Body in US — Anti-Dumping Measures on Oil
Country Tubular Goods observed that for an affirmative determination
under Article 11.3 what is essential is “proof of likelihood of
continuation or recurrence of dumping and injury, if the duty expires”(1109):
“[W]hen a ‘review’ takes place under Article
11.3, and it is
determined that the ‘expiry of the duty’ would ‘likely … lead
to continuation or recurrence of dumping and injury’, it is reasonable
to assume that, where dumping and injury continues or recurs, the causal
link between dumping and injury, established in the original
investigation, would exist and need not be established anew.” (1110)
“The nexus to be demonstrated is between ‘the expiry of the duty’
on the one hand, and the likelihood of ‘continuation or recurrence of
dumping and injury’ on the other hand …”(1111)
808. The Appellate Body in US — Anti-Dumping Measures on Oil
Country Tubular Goods said that its conclusion that the
establishment of a causal link between likely dumping and likely injury
is not required in a sunset review determination does not imply that the
causal link between dumping and injury envisaged by Article VI of the
GATT 1994 and the Anti-Dumping Agreement is severed in a sunset review
and that “it only means that re-establishing such a link is not
required, as a matter of legal obligation, in a sunset review.”(1112)
809. The Appellate Body in US — Anti-Dumping Measures on Oil
Country Tubular Goods stated that where the likelihood-of-dumping
determination is flawed, “it does not follow that the
likelihood-of-injury determination is ipso facto flawed as well.”
However, it added that “if a likelihood-of-injury determination rests
upon a likelihood-of-dumping determination that is later found to be
flawed, the former determination may also be found to be WTO-inconsistent,
after a proper examination of the facts of that determination.”(1113)
810. The Appellate Body in US — Anti-Dumping Measures on Oil
Country Tubular Goods rejected Mexico’s argument that the text of
Article 11.3 does not establish a requirement for an investigating
authority to specify the time-frame within which the “simultaneous
presence” of subject imports and the corresponding likely injury would
occur. The Appellate Body noted that “as long as a likelihood-of
injury determination rests on a sufficient factual basis, the mere fact
that an investigating authority does not specify the time-frame within
which the ‘simultaneous presence’ of subject imports and the
corresponding injury would be likely to occur, does not, in our view,
undermine that determination.”(1114)
(l) Cumulation in sunset reviews
811. In US — Anti-Dumping Duties on Oil Country Tubular Goods,
Mexico argued that the ITC was under a separate obligation to “ensure
that cumulation was appropriate in light of the conditions of
competition,” and to do so it was “required” to make “a
threshold finding that the subject imports would be simultaneously
present in the U.S. market.” The Appellate Body in US — Anti-Dumping Duties on Oil Country Tubular Goods said there was no
textual basis in
Article 11.3 for requiring such a finding, noting that:
“[I]n order to arrive at a reasoned and adequate conclusion, an
examination of whether imports are in the market together and competing
against each other may, in certain cases, be needed in a
likelihood-of-injury determination where an investigating authority
chooses to cumulate the imports from several countries. But the need for
such an examination flows from the particular facts and circumstances of
a given case and not from a legal requirement under
Article 11.3.”(1115)
812. The Appellate Body in US — Anti-Dumping Measures on Oil
Country Tubular Goods, rejecting Mexico’s argument, noted that an
investigating authority is not required, under Article
11.3 of the
Anti-Dumping Agreement, to make a separate threshold finding regarding
simultaneous presence of imports. Furthermore, it disagreed with Mexico
that the ITC’s approach did not reflect a prospective analysis, based
on positive evidence, of whether imports from the five cumulated
countries were likely to be simultaneously present in the market in the
event of termination of the anti-dumping duty order, noting in
particular that the information collected by the ITC related to current
market conditions “is relevant as a basis to draw reasoned conclusions
regarding likely future market conditions”.(1116)
813. The Appellate Body in US — Anti-Dumping Measures on Oil
Country Tubular Goods recalled its holding in US — Oil Country
Tubular Goods Sunset Reviews that:
“‘the “likely” standard of Article 11.3 applies to the
overall determinations regarding dumping and injury’ … ‘it need
not necessarily apply to each factor considered in rendering the overall
determinations on dumping and injury.’(1117) Even assuming, arguendo,
that it might apply to the USITC’s ‘assessment of likelihood of
simultaneity,’ we do not agree with Mexico that the USITC used a
standard that is inconsistent with Article 11.3 ‘[b]y requiring a
demonstration that the imports “would not” be simultaneously in the
market.’(1118) Although the USITC made reference to the fact
that nothing in the Panel record indicates that the products would not
be simultaneously present, it cited other reasons as well.”(1119)
814. In US — Anti-Dumping Measures on Oil Country Tubular Goods,
Mexico argued that, having decided to cumulate Mexican imports with
imports from the other four countries that were cumulated in the
original investigation, the ITC was required to do so consistently with
the requirements of Article
3.3, regardless of whether that provision
applies directly to sunset reviews. The Appellate Body again recalled
its findings in US — Anti-Dumping Measures on Oil Country Tubular
Goods that:
“[T]he ‘text of Article
3.3 plainly limits its applicability to
original investigations’(1120) and … ‘the conditions of
Article 3.3 do not apply to likelihood-of-injury determinations in
sunset reviews.’ (1121)
The fact that an investigating
authority has not undertaken all the analyses detailed in Article
3.3 is
not, by itself, sufficient to undermine a determination under Article
11.3.”(1122)
815. The Appellate Body in US — Anti-Dumping Measures on Oil
Country Tubular Goods emphasized:
“We do not, however, suggest, that when an authority chooses to
cumulate imports in a likelihood-of-injury determination under Article
11.3, it is never necessary for it to determine whether such a
cumulative assessment is appropriate in the light of the conditions of
competition in the marketplace. In particular cases, a cumulative
assessment of the effects of the imports may be found to be
inappropriate and, therefore, inconsistent with the fundamental
requirement that a determination rest on a sufficient factual basis and
reasoned and adequate conclusions.(1123)”(1124)
(m) Qualitative assessment of determinations under Article 11.3
816. The Appellate Body in US — Anti-Dumping Measures on Oil
Country Tubular Goods reversed the Panel’s finding that Section
II.A.3 of the Sunset Policy Bulletin (SPB), as such, was inconsistent
with Article 11.3. because it found that in assessing the consistency of
the SPB, as such, with Article 11.3, the Panel failed to make an
objective assessment of the matter, including an objective assessment of
the facts of the case, as required by Article 11 of the DSU.(1125)
Criticizing the Panel’s “qualitative assessment” of the DOC
determinations, the Appellate Body concluded that:
“[T]he Panel’s analysis does not reveal that the affirmative
determinations, in the 21 specific cases reviewed by it(1126),
were based exclusively on the scenarios to the disregard of other
factors. Nor does the Panel’s review of these cases reveal that
the USDOC’s affirmative determinations were based solely on the SPB
scenarios, when the probative value of other factors might have
outweighed that of the identified scenarios. Accordingly we conclude
that the Panel did not conduct a ‘qualitative assessment’ of the
USDOC’s determination such that the Panel could properly conclude that
the SPB requires the USDOC to treat the factual scenarios of Section
II.A.3 of the SPB as determinative or conclusive.”(1127)
817. In relation to the “qualitative assessment” of individual
determinations to be carried out by a panel, the Appellate Body in US
— Anti-Dumping Measures on Oil Country Tubular Goods noted that
the relevance and probative value of other factors is crucial.(1128)
818. The Appellate Body in US — Anti-Dumping Measures on Oil
Country Tubular Goods noted that the responding parties have a
responsibility to submit information and evidence in their favour,
particularly about their pricing behaviour, import volumes, and dumping
margins, while the investigating authority “has a duty to seek out
information on relevant factors and evaluate their probative value in
order to ensure that its determination is based not on presumptions, but
on a sufficient factual basis.”(1129)
4. Article 11.4
819. The Panel and Appellate Body in US — Oil Country Tubular
Goods Sunset Reviews — Article 21.5 (Argentina) rejected Argentina’s
claim that the US Department of Commerce acted inconsistently with
Articles 11.3 and 11.4 by developing a new factual basis pertaining to
the original review period for the purposes of a sunset review. See
paragraphs 791–792 above.
5. Relationship with other Articles
(a) Article 3
820. The Panel in US — DRAMS discussed the relationship
between footnote 9 to Article 3 and
Article 11.2. See paragraph 751
above.
821. The Panel in US — DRAMS also discussed the relationship
between Articles 3.5 and
11.2. See paragraph 751 above.
Footnotes:
560. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, paras. 241–242. back to text
561. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.120. back to text
562. Panel Report, Argentina — Ceramic Tiles, para.
6.54. back to text
563. (footnote original) This does not, of course,
preclude an authority from establishing such limits, so long as the
basic requirements (such as “ample opportunity”, or 30 days in
respect of questionnaire replies) are respected. back to text
564. Panel Report, Guatemala — Cement II, paras. 8.118–8.119. back to text
565. Panel Report, Guatemala — Cement II,
para. 8.120. back to text
566. Panel Report, Guatemala — Cement II,
para. 8.120. back to text
567. Appellate Body Report, EC — Fasteners (China), para.
615. back to text
568. (footnote original) We note that Mexico has not
alleged that a failure to provide Cruz Azul with at least 30 days to
respond to the Ministry’s supplementary questionnaire (which required
the provision of data for an additional six-month POI) constitutes a
violation of Article 6.1.1 of the AD Agreement. That being the
case, we shall refrain from making any findings on this matter. back to text
569. Panel Report, Guatemala — Cement II,
para. 8.178. back to text
570. Panel Report, Guatemala — Cement II,
para. 8.216. back to text
571. Panel Report, Guatemala — Cement II,
para. 8.237. back to text
572. Panel Report, Guatemala — Cement II,
para. 8.238.
In regard to the Panel’s finding regarding the claims under Articles
6.2 and 6.9, see the excerpts referenced in
paras. 433, 462 and 618 of
this Chapter. back to text
573. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.116. back to text
574. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.116. back to text
575. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 247. back to text
576. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 251. back to text
577. Panel Report, Egypt — Steel Rebar, para. 7.275. back to text
578. Panel Report, Egypt — Steel Rebar,
paras. 7.276–7.277. back to text
579. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 282. See also Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, paras. 241 and 242, and
Appellate Body Report, US — Hot-Rolled Steel, para. 73. back to text
580. Appellate Body Report, EC — Fasteners (China),
para.
613 (see also Panel Report, para. 7.574). back to text
581. (Footnote original) Footnote 15 of Article 6.1.1
ensures that foreign exporters receive a full 30 days for completion and
submission of the questionnaires, by specifying that this period “shall
be counted from the date of receipt of the questionnaire, which for this
purpose shall be deemed to have been received one week from the date on
which it was sent”. back to text
582. Appellate Body Report, EC — Fasteners (China),
paras. 609–613. back to text
583. Appellate Body Report, EC — Fasteners (China),
para.
623. back to text
584. Appellate Body Report, EC — Fasteners (China),
para.
615. back to text
585. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.145. back to text
586. See paras. 531–607 of this
Chapter. back to text
587. Panel Report, US — Hot-Rolled Steel, para. 7.54.
Appellate Body Report, para. 73. back to text
588. (footnote original) Panel Report, para. 7.54. back to text
589.
Appellate Body Report, US — Hot-Rolled Steel,
paras.
73–74. back to text
590. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.258. back to text
591. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, paras. 7.254–7.255. back to text
592. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.258. On appeal, the Appellate Body agreed that
claims under Article 6 may be made in relation to sunset review
determinations on the basis of the cross-reference to Article 6 found in
Article 11.4. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 152. back to text
593. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 237. The Appellate Body
on US — Oil Country Tubular Goods
Sunset Reviews thus considered that
disregarding evidence presented by a respondent in a sunset review
because it is “incomplete” is incompatible with the respondent’s
right under Article 6.1 to present evidence that it considers relevant
in respect of the sunset review. As the respondent will also be denied
any opportunity to confront parties with adverse interests in a hearing,
this respondent is denied its rights, pursuant to Article
6.2, to the
“full opportunity for the defence of its interest”. See Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews,
para. 246. back to text
594. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 252. back to text
595. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 280. back to text
596. G/ADP/7, adopted on 26 April 2001, G/ADP/M/18, section G. back to text
597. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 263. back to text
598. Panel Report, Guatemala — Cement II,
para. 8.133. back to text
599. Panel Report, Guatemala — Cement II,
para. 8.142. back to text
600. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.153. back to text
601. In a footnote, the Panel on Argentina — Poultry
Anti-Dumping Duties expressed the view that “a violation of
Article 12.1 does not automatically entail a violation of Article
6.1.2.
The fact that interested parties were not participating in the
investigation because they were not notified of the initiation of the
investigation does not change the fact that the beneficiaries of the
obligations in Articles 12.1 and
6.1.2 are different. We consider that
the Brazilian exporters were not aware of the investigation because they
had not been notified in accordance with Article 12.1 of the AD
Agreement.” Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.153, fn. 128. back to text
602. (footnote original) Even if Cementos Progreso had
requested confidential treatment, the Ministry should (consistent with 6.5.1) have required it to furnish a non-confidential version thereof
which could have been made available to Cruz Azul “promptly”, or to
provide “a statement of the reasons why [non-confidential]
summarization is not possible”. back to text
603. (footnote original) The Cementos Progreso submission
at issue was made at a public hearing on 19 December 1996. Guatemala
argues that, although the Ministry authorized parties to make
submissions in writing, the Ministry had not specified whether such
written submissions could contain confidential information or not.
According to Guatemala, this justified the Ministry in assuming that the
Cementos Progreso submission may contain confidential information. We
are not at all convinced by this argument. The instructions issued by
the Ministry concerning the public hearing state that “[t]he hearing
is being organized for the purpose of receiving the final arguments of
the parties, which may submit a written version thereof”
(emphasis supplied). Thus, any written submission was simply to be a
written version of arguments presented orally. Arguments made by a party
at a public hearing will presumably not contain confidential
information. Similarly, therefore, written versions of arguments
presented orally will also not contain information. Thus, to the extent
that Cementos Progreso would not have included confidential information
in its oral presentation, similarly its written version of that oral
presentation also would not have included confidential information. In
these circumstances, we fail to see how Cementos Progreso’s written
submission — which, consistent with the Ministry’s instructions, was
to be a written version of its oral presentation — could have
contained confidential information. back to text
604. Panel Report, Guatemala — Cement II,
para. 8.143. back to text
605. (footnote original) On a similar issue the Korea
— Dairy Safeguards panel found that a 14 day delay on notification
to the WTO Safeguards Committee as required by Article 12.1 of the
Safeguards Agreement did not satisfy the requirement that the
notification be provided “immediately” after initiation. See Panel
Report, Korea — Dairy, para. 7.134. back to text
606. Panel Report, Guatemala — Cement II,
paras. 8.101–8.102. back to text
607. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.169. back to text
608. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.170. back to text
609. Panel Report, Guatemala — Cement II,
para. 8.125. back to text
610. Panel Report, Guatemala — Cement II,
para. 8.232. back to text
611. (footnote original) We do not consider that the
obligation in the first sentence of Article 6.2 is qualified by the
second sentence of that provision. Thus, we do not consider that the
obligation in the first sentence of Article 6.2
is concerned exclusively
with “providing opportunities for all interested parties to meet those
parties with adverse interests…”. Although the words “[t]o this
end” at the beginning of the second sentence suggest that such
meetings are one way in which the obligation of the first sentence can
be fulfilled, it does not follow that such meetings provide the only
means by which the obligation of the first sentence may be fulfilled. If
that were the case, there would be no need for the first sentence of Article 6.2. back to text
612. Panel Report, Guatemala — Cement II,
para. 8.179.
See also para. 431 of this Chapter with respect to the same issue in the
context of Article 6.1. back to text
613. Panel Report, Guatemala — Cement II,
para. 8.238.
In regard to the Panel’s finding regarding the claims under Articles
6.1 and 6.9, see the excerpts referenced in
paras. 433 and 618 of this Chapter. See also Panel Report, Egypt — Steel Rebar,
paras.
7.77–7.96. back to text
614. Panel Report, Egypt — Steel Rebar,
para. 7.88. back to text
615. Panel Report, Korea — Certain Paper (Article 21.5
— Indonesia), paragraph 6.76, quoting the Appellate Body Report, United
States — Oil Country Tubular Goods Sunset Reviews, para. 241. back to text
616. Panel Report, Korea — Certain Paper (Article 21.5
— Indonesia), para. 6.79. back to text
617. Panel Report, Korea — Certain Paper (Article 21.5
— Indonesia), para. 6.79. back to text
618. Panel Report, Korea — Certain Paper (Article 21.5
— Indonesia), para. 6.79. back to text
619. Panel Report, EC — Fasteners (China), para. 7.495. back to text
620. (footnote original) Appellate Body Report, EC
— Tube or Pipe Fittings, para. 149. back to text
621. Appellate Body Report, EC — Fasteners (China),
para.
507. back to text
622. (footnote original) In this regard, we recall that
the Appellate Body stated in EC — Bananas III that “[a]lthough
Article X:3(a) of the GATT 1994 and Article 1.3 of the Licensing
Agreement both apply, the Panel, in our view, should have applied
the Licensing Agreement first, since this agreement deals
specifically, and in detail, with the administration of import licensing
procedures” (Appellate Body Report, EC — Bananas III, para.
204). Furthermore, the panel in US — 1916 Act (EC) stated that
“[i]t is a general principle of international law that, when applying
a body of norms to a given factual situation, one should consider that
factual situation under the norm which most specifically addresses it”
(Panel Report, US — 1916 Act (EC)) (footnote deleted). back to text
623. Panel Report, Guatemala — Cement II,
para. 8.162. back to text
624. Panel Report, Guatemala — Cement II,
para. 8.125. back to text
625. Appellate Body Report, EC
— Tube or Pipe Fittings, para. 145. back to text
626. (footnote original) Appellate Body Report, US
— Hot-Rolled Steel, para. 194. (emphasis added) back to text
627. Appellate Body Report, EC
— Tube or Pipe Fittings, para. 146. back to text
628. (footnote original) We find support for this
conclusion in the views of the Appellate Body in EC — Tube and Pipe
Fittings, paras. 145–146. back to text
629. (footnote original) We thus reject the view of the EC
that, in the context of whether information is relevant to the
presentation of an interested party’s case, “the investigating
authority may decide on which information access should be granted”.
EC, FWS, para. 531. back to text
630. (footnote original) We find support for this
conclusion in the views of the Appellate Body in EC — Tube and Pipe
Fittings, para. 147. back to text
631. Panel Report, EC — Salmon (Norway), para. 7.769. back to text
632. Panel Report, EC — Salmon (Norway),
para. 7.771. back to text
633. (footnote original) Appellate Body Report, EC
— Tube or Pipe Fittings, para. 145. (original emphasis) back to text
634. (footnote original) See Appellate Body Report, EC
— Tube or Pipe Fittings, para. 145. back to text
635. (footnote original) Appellate Body Report, EC
— Tube or Pipe Fittings, para. 147. back to text
636. (footnote original) Panel Report, EC — Salmon (Norway),
para. 7.769. (footnotes omitted) back to text
637. Appellate Body Report, EC — Fasteners (China),
paras. 479–480. back to text
638. Appellate Body Report, EC — Fasteners (China),
para.
485. back to text
639. Appellate Body Report, EC — Fasteners (China),
para.
480. back to text
640. (footnote original) Panel Report, EC — Fasteners (China),
para. 7.491. back to text
641. Appellate Body Report, EC — Fasteners (China),
para.
480. back to text
642. Appellate Body Report, EC — Fasteners (China),
para.
491. back to text
643. Panel Report, EC — Tube or Pipe Fittings, para.
7.208. back to text
644. Panel Report, EC — Fasteners (China),
para. 7.535. back to text
645. Panel Report, Guatemala — Cement II,
para. 8.151. back to text
646. Panel Report, Guatemala — Cement II,
para. 8.158. back to text
647. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), paras. 7.123 and 7.124. back to text
648. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), paras. 7.129–7.130. back to text
649. (footnote original) Appellate Body Report, EC
— Tube or Pipe Fittings, para. 142; Panel Report, [Korea — Certain Paper (Article 21.5 — Indonesia)], para. 6.82. back to text
650. Panel Report, EC — Fasteners (China),
paras. 7.479–7.480. back to text
651. Panel Report, EC — Fasteners (China),
para. 7.494;
cited in Appellate Body Report, para. 505. back to text
652. (footnote original) We note, in this context, that an
opportunity to “see” information may obviously be satisfied by an
active provision of that information, in a letter or other
communication. This is different, however, from an affirmative
obligation to actively disclose information. back to text
653. Panel Report, EC — Fasteners (China),
para. 7.492.
The Commission provided the information only one working day before the
last opportunity for interested parties to present arguments to the
Commission with respect to the investigation. back to text
654. Panel Report, EC — Fasteners (China),
para. 7.491,
cited in Appellate Body Report, para. 505. back to text
655. Panel Report, Korea — Certain Paper (Article 21.5
— Indonesia), para. 6.87. back to text
656. Panel Report, EC — Fasteners (China),
para. 7.497. back to text
657. Panel Report, EC — Fasteners (China),
paras. 7.479–7.480. back to text
658. (footnote original) Other provisions do require the
investigating authority to explain its analysis and conclusions with
respect to that information, including Article 12.2 of the AD
Agreement,
which requires that an investigating authority set forth, “in
sufficient detail the findings and conclusion reached on all issues of
fact and law considered material”. back to text
659. Panel Report, EC — Fasteners (China),
para. 7.501. back to text
660. Panel Report, Korea — Certain Paper, para. 7.201. back to text
661. Panel Report, Guatemala — Cement II,
para. 8.145. back to text
662. Appellate Body Report, EC
— Tube or Pipe Fittings, para. 149. back to text
663. Panel Report, EC — Fasteners (China),
para. 7.447.
After the Panel rejected the claim under Article
6.5, it consequently
rejected the claims under Articles 6.4 and 6.3 (para. 7.458); the
Appellate Body declared the finding in paragraph 7.458 moot as it had
found that the claims under Articles 6.2 and 6.4 were outside the Panel’s
terms of reference. back to text
664. (footnote original) Although we will now consider who
must show “good cause”, we make no findings as to how “good cause”
may be shown in respect of information which is “by nature”
confidential. back to text
665. Panel Report, Guatemala — Cement II,
para. 8.219. back to text
666. Panel Report, Korea — Certain Paper,
para. 7.335. back to text
667. Panel Report, EC — Fasteners (China),
para. 7.452
(citing the passages above from the Panel Reports on Guatemala — Cement II and Korea — Certain Paper). back to text
668. Panel Report, EC — Fasteners (China),
para. 7.534. back to text
669. Appellate Body Report, EC — Fasteners (China),
para.
536. back to text
670. (footnote original) We note, in this respect, the
European Union’s argument that the “good cause” requirement for
confidential treatment of information in Article 6.5 does not apply to
analogue country producers like Pooja Forge, because they do not fall
within the definition of “interested parties” under Article 6.11
[…] In the fasteners investigation, the Commission did not determine
normal value on the basis of the information from Chinese producers and
exporters, and decided to seek information from analogue country
producers. […] the decision by the Commission to determine normal
value based on information from an analogue country producer, and the
participation of Pooja Forge in the investigation, require that Pooja
Forge be afforded the protection of sensitive information upon “good
cause” shown and the obligations of both Articles 6.5 and
6.5.1 apply. back to text
671. Appellate Body Report, EC — Fasteners (China),
para.
540. back to text
672. (footnote original) Where necessary, the authority
must also consider the submitting party’s relationship with the source
of the confidential information. back to text
673. Appellate Body Report, EC — Fasteners (China),
paras. 537–539. back to text
674. Panel Report, EC — Fasteners (China),
para. 7.448. back to text
675. Panel Report, EC — Fasteners (China),
para. 7.449. back to text
676. (footnote original) Panel Report, Korea — Certain Paper,
para. 7.335; Panel Report, Mexico — Steel Pipes
and Tubes, para. 7.378. back to text
677. Panel Report, EC — Fasteners (China),
paras. 7.451–7.452.
Footnote 941 to the Panel’s conclusion provides in part: “That said,
however, we would like to underline that our finding only reflects our
view on this issue in light of the particular circumstances of the
fasteners investigation. Our reasoning should not be interpreted as
giving investigating authorities carte blanche to treat the
identities of all complainants in all anti-dumping investigations as
confidential. Nor should our conclusion here be interpreted to mean that
an asserted fear of potential commercial retaliation would always be
sufficient, of itself, to justify confidential treatment, or could not
be challenged as unfounded, unreasonable, or untrue.” back to text
678. Appellate Body Report, EC — Fasteners (China),
para.
584. back to text
679. Panel Report, Guatemala — Cement II,
para. 8.220. back to text
680. Panel Report, EC — Fasteners (China),
para. 7.453. back to text
681. Panel Report, EC — Fasteners (China),
para. 7.454. back to text
682. (footnote original) There is no indication, and the
European Union does not contend, that the Chinese producers who supplied
the information agreed to make it public or authorized its disclosure in
generalized or summary form. We note that the European Union does not
contend that the information in the MET Disclosure Document is in “generalized
or summary form”. We recall in this regard that the information is
reported for each submitting Chinese producer individually, identified
by name. back to text
683. Panel Report, EC — Fasteners (China),
para. 7.560. back to text
684. Panel Report, Guatemala — Cement II,
para. 8.213. back to text
685. Panel Report, Guatemala — Cement II,
para. 6.215. back to text
686. Panel Report, Argentina — Ceramic Tiles,
para.
6.39. back to text
687. Panel Report, Mexico — Steel Pipes
and Tubes, para.
7.380. back to text
688. Panel Report, Mexico — Steel Pipes
and Tubes, para.
7.393. back to text
689. Panel Report, Mexico — Steel Pipes
and Tubes, para.
7.394. back to text
690. (footnote original) Appellate Body Report, US
— Gambling, para. 270. back to text
691. Panel Report, EC — Fasteners (China),
para. 7.515. back to text
692. (footnote original) We note that various methods of
summarization are used by parties and investigating authorities in
anti-dumping investigations, such as indexing data, providing trends
analysis, and aggregating data from multiple producers. Where a certain
method might be expected to be used for the specific type of information
in question, it would be incumbent on the submitting party to explain, inter
alia, why present circumstances prevent it from employing that
method. back to text
693. Panel Report, EC — Fasteners (China),
para. 7.515. back to text
694. Panel Report, EC — Fasteners (China),
para. 7.515. back to text
695. Appellate Body Report, EC — Fasteners (China),
paras. 541–544. back to text
696. Panel Report, EC — Fasteners (China),
paras. 7.516–7.517. back to text
697. Appellate Body Report, EC — Fasteners (China),
paras. 553–556. back to text
698. Appellate Body Report, EC — Fasteners (China),
para.
549. back to text
699. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.131. back to text
700. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.137. back to text
701. Panel Report, Mexico — Steel Pipes
and Tubes, para.
7.398. back to text
702. Panel Report, Guatemala — Cement II,
para. 8.209. back to text
703. (footnote original) For example, we query whether
investigating authorities should be required to verify import statistics
from a different government office. We also query whether investigating
authorities should be required to verify “official” exchange rates
obtained from a central bank. back to text
704. Panel Report, US — DRAMS, para. 6.78. back to text
705. Panel Report, Guatemala — Cement II,
para. 8.172. back to text
706. Panel Report, Argentina — Ceramic Tiles,
para.
6.57. back to text
707. (footnote original) See paras. 7.152–7.154. back to text
708. Panel Report, Egypt — Steel Rebar,
para. 7.325. back to text
709. Panel Report, Argentina — Ceramic Tiles, footnote
65. See also Panel Report, Egypt — Steel Rebar,
paras. 7.326–7.327. back to text
710. (footnote original) Article 6.7 of the Anti-Dumping
Agreement, which deals with verification visits, states that “authorities
shall make the results of any such investigations available, or shall
provide disclosure thereof … to the firms to which they pertain and
may make such results available to the applicants.” This supports our
view that the nature of verification exercise is primarily documentary. back to text
711. Panel Report, EC — Tube or Pipe Fittings,
para.
7.192. back to text
712. Panel Report, Guatemala — Cement II,
paras. 8.203–8.205. back to text
713. Panel Report, Korea — Certain Paper,
para. 7.184. back to text
714. Panel Report, Korea — Certain Paper,
para. 7.188. back to text
715. Panel Report, Korea — Certain Paper,
para. 7.192. back to text
716. Panel Report, Guatemala — Cement II,
para. 8.189. back to text
717. Panel Report, Guatemala — Cement II,
para. 8.193. back to text
718. Panel Report, US — Section 301, para. 7.14. back to text
719. (footnote original) The fact that the Mexican
authorities knew of the inclusion of non-governmental experts in the
Ministry’s verification team(by virtue of Cruz Azul sending SECOFI a
copy of the 26 November 1996 letter Cruz Azul had received from the
Ministry) is not relevant to Mexico’s claim. This is because Annex
I(2) requires that the authorities of the exporting Member be “informed”
of the inclusion of non-governmental experts. In our view, the
obligation to “inform” is clearly on the authorities of the
investigating Member. Those authorities cannot rely on exporters
informing their own authorities of the inclusion of non-governmental
experts in order to establish compliance with Annex
I(2). back to text
720. (footnote original) Paragraph 2 of Annex I provides
that exporting Members “should” be informed of the inclusion of
non-governmental experts in a verification team. It does not provide
that exporting Members “shall” be so informed. Although the word “should”
is often used colloquially to imply an exhortation, it can also be used
“to express a duty [or] obligation” (see The Concise Oxford English
Dictionary, Clarendon Press, 1995, page 1283). Since Article 6.7
provides in relevant part that the provisions of Annex I “shall”
apply, we see no reason why Annex I (2) should not be interpreted in the
mandatory sense. In our view, a hortatory interpretation of the
provisions of Annex I would be inconsistent with
Article 6.7.
Furthermore, Guatemala has not argued that paragraph 2 of Annex I is
merely hortatory. Accordingly, we proceed on the basis that paragraph 2
of Annex I should be interpreted in a mandatory sense. back to text
721. Panel Report, Guatemala — Cement II,
para. 8.196. back to text
722. Panel Report, Guatemala — Cement II,
para. 8.198. back to text
723. Panel Report, US — Hot-Rolled Steel,
paras. 7.72
and 7.55. back to text
724. Panel Report, Egypt — Steel Rebar,
para. 7.146. back to text
725. (footnote original) Art. 32 of the Vienna Convention
of the Law of Treaties provides:
“Recourse may be had to supplementary means of interpretation,
including the preparatory work of the treaty and the circumstances of
its conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the
interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable”. back to text
726. (footnote original) ADP/21. back to text
727. Panel Report, Egypt — Steel Rebar,
para. 7.154. back to text
728.
Appellate Body Report, US — Hot-Rolled Steel,
para.
75. The Panel
on Egypt — Steel Rebar indicated that its “view
of the relationship of Annex II to
Article 6.8 is consistent with that
of the Appellate Body in United States — Hot-Rolled Steel. In
that case, the Appellate Body stated that Annex II is ‘incorporated by
reference’ into Article 6.8, i.e., that it forms part of
Article 6.8.” Panel Report, Egypt — Steel Rebar,
para. 7.153. back to text
729. (footnote original)We are not dealing here with the
possibility that the investigating authority might request irrelevant
information. Obviously, such information would not be “necessary” in
the sense of Article 6.8. However, there is no suggestion in this case
that the investigating authority requested information beyond that which
was necessary to the determinations it had to make. back to text
730. Panel Report, US — Steel Plate, para. 7.55. back to text
731. (footnote original) Appellate Body Report, US
— Hot-Rolled Steel, para. 75. back to text
732. Panel Report, Egypt — Steel Rebar,
paras. 7.152–7.153. back to text
733. (footnote original) We note that the Panel on [Argentina
— Ceramic Tiles] treated the provisions of Annex II as obligations
in its analysis and findings. back to text
734. (footnote original) We note in this regard the
Appellate Body’s statement that “Article 6.8 requires that the
provisions of Annex II of the Anti-Dumping Agreement be observed
in the use of facts available.” Appellate Body Report, US
— Hot-Rolled Steel, at para 78. The Appellate Body appears to have
treated the provisions of Annex II which are phrased in the conditional
as mandatory, but did not specifically address the question, which was
not raised before it, or indeed before the Hot-Rolled Steel
Panel. back to text
735. Panel Report, US — Steel Plate, para. 7.56. back to text
736. Panel Report, EC — Salmon (Norway),
para. 7.453. back to text
737. Panel Report, EC — Salmon (Norway),
para. 7.455. back to text
738. Panel Report, EC — Salmon (Norway),
para. 7.462. back to text
739. Panel Report, Guatemala — Cement II,
para. 8.177. back to text
740. Panel Report, Egypt — Steel Rebar,
para. 7.155. back to text
741. Panel Report, Egypt — Steel Rebar,
para. 7.320. back to text
742. Panel Report, Argentina — Ceramic Tiles,
paras.
6.53–6.54. back to text
743. Panel Report, Argentina — Ceramic Tiles,
paras.
6.55 and 6.58. back to text
744. Panel Report, Argentina — Ceramic Tiles,
para.
6.20. See also Panel Report, US — Steel Plate, para. 7.55, in
para. 535 of this Chapter; Panel Report, Egypt — Steel Rebar,
para. 7.147. back to text
745. Panel Report, Egypt — Steel Rebar,
para. 7.159. back to text
746. Panel Report, Egypt — Steel Rebar,
para. 7.309. back to text
747. Appellate Body Report, Mexico — Anti-Dumping Duties on
Rice, para. 295. back to text
748. Appellate Body Report, Mexico — Anti-Dumping Duties on
Rice, para. 297. back to text
749.
Appellate Body Report, US — Hot-Rolled Steel,
para.
81. See also Panel Report, US — Steel Plate, para. 7.55, in
para. 535 of this Chapter. back to text
750. (footnote original) The Appellate Body has stated
explicitly that:
“according to paragraph 3 of Annex
II, investigating authorities
are directed to use information if three, and, in some circumstances,
four, conditions are satisfied. In our view, it follows that if these
conditions are met, investigating authorities are not entitled to reject
information submitted, when making a determination.”
Appellate Body Report, US — Hot-Rolled Steel, at para 81. back to text
751. (footnote original) We note in this context the
statement of the Appellate Body that paragraph 3 of Annex II bears on
the issue of “when the investigating authorities are entitled to reject
information submitted by interested parties.”
Appellate Body Report, US — Hot-Rolled Steel, at para 80. back to text
752. (footnote original) New Shorter Oxford English
Dictionary, Clarendon Press, Oxford, 1993. back to text
753. (footnote original) New Shorter Oxford English
Dictionary, Clarendon Press, Oxford, 1993. back to text
754. Panel Report, US — Steel Plate, paras. 7.57–7.58. back to text
755. Panel Report, US — Hot-Rolled Steel,
para. 7.55;
see para. 532. back to text
756. (footnote original) In addition, as discussed below,
the explanation of such findings is vital. back to text
757. Panel Report, US — Steel Plate, paras. 7.59–7.61. back to text
758. Panel Report, US — Steel Plate, para. 7.62. back to text
759. Appellate Body Report, Mexico — Anti-Dumping Duties on
Rice, para. 259. back to text
760. Panel on EC — Salmon (Norway), para. 7.347. back to text
761. Panel on EC — Salmon (Norway), para. 7.347 back to text
762. Panel Report, EC — Salmon (Norway),
para. 7.355
(referring to
Appellate Body Report, US — Hot-Rolled Steel
and Panel Report, US — Steel Plate, para. 7.57). back to text
763. Panel Report, Guatemala — Cement II,
para. 8.252. back to text
764. Panel Report, US — Steel Plate, footnote 67. See
also paras. 524–531 above concerning on-the-spot verifications. back to text
765. Panel Report, EC — Salmon (Norway),
para. 7.360. back to text
766. Panel Report, Mexico — Steel Pipes and, para.
7.111. back to text
767. See para. 545 of this
Chapter. back to text
768. (footnote original) We note that there is an
interplay between the concepts of acting to the best of one’s ability
in Annex II, paragraph 5, and “refusing access to” necessary
information or “significantly impeding” an investigation in Article
6.8. That is, the behaviour of the interested party is relevant to the
right to use facts available in a given situation. back to text
769. (footnote original) New Shorter Oxford English
Dictionary, Clarendon Press, Oxford, 1993. back to text
770. (footnote original) New Shorter Oxford English
Dictionary, Clarendon Press, Oxford, 1993. back to text
771. See para. 583 of this
Chapter. back to text
772. Panel Report, US — Steel Plate, paras. 7.72 and
7.74. back to text
773. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.191. back to text
774. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.191. back to text
775. Panel Report, EC — Salmon (Norway),
para. 7.367. back to text
776. Panel Report, EC — Salmon (Norway),
para. 7.367. back to text
777.
Appellate Body Report, US — Hot-Rolled Steel,
paras.
81–83. See also Panel Report, US — Steel Plate, para. 7.76; Panel Report, Egypt — Steel Rebar,
para. 7.153. back to text
778. Panel Report, Egypt — Steel Rebar,
paras. 7.150–7.151. back to text
779. Panel Report, Egypt — Steel Rebar,
para. 7.155. back to text
780. Panel Report, Egypt — Steel Rebar,
para. 7.217. back to text
781. Panel Report, Korea — Certain Paper,
para. 7.43. back to text
782.
Appellate Body Report, US — Hot-Rolled Steel,
para.
90. The Appellate Body found that the United States authorities had “acted
inconsistently with Article 6.8 of the Anti-Dumping Agreement through its failure to consider whether, in the light of all the facts
and circumstances, the weight conversion factors submitted by [the
Japanese exporters] were submitted within a reasonable period of time.”
It however pointed out that “[i]n reaching this conclusion, we are not
finding that[United States authorities] could not, consistently
with the Anti-Dumping Agreement, have rejected the weight
conversion factors submitted by [the Japanese exporters]. Rather, we
conclude simply that, under Article 6.8, [United States authorities
were] not entitled to reject this information for the sole reason
that it was submitted beyond the deadlines for responses to the
questionnaires.” Para. 89. back to text
783. (footnote original) Indeed, as we have already noted,
supra, para. 73, Article 6.14 of the Anti-Dumping Agreement provides that:
The procedures set out above are not intended to prevent the
authorities of a Member from proceeding expeditiously with regard to
initiating an investigation, reaching preliminary or final
determinations, whether affirmative or negative, or from applying
provisional or final measures, in accordance with relevant provisions of
this Agreement. back to text
784.
Appellate Body Report, US — Hot-Rolled Steel,
para.
86. back to text
785.
Appellate Body Report, US — Hot-Rolled Steel,
para.
77. back to text
786.
Appellate Body Report, US — Hot-Rolled Steel,
para.
79. back to text
787.
Appellate Body Report, US — Hot-Rolled Steel,
paras.
84–85. back to text
788. Panel Report, Korea — Certain Paper,
para. 7.49. back to text
789. Panel Report, US — Steel Plate, para. 7.77. back to text
790. See para. 591 of this
Chapter. back to text
791. Panel Report, US — Hot-Rolled Steel,
para. 8.1(b). back to text
792. (footnote original) The New Shorter Oxford English
Dictionary, Lesley Brown (ed.) (Clarendon Press, 1993), Vol. I, p.
506; Panel Report, para. 7.73. back to text
793.
Appellate Body Report, US — Hot-Rolled Steel,
para.
99. back to text
794. (footnote original) Appellate Body Report, United
States — Import Prohibition of Certain Shrimp Products,
WT/DS58/AB/R, adopted 6 November 1998, para. 158; Appellate Body Report,
United States — Tax Treatment for “Foreign Sales Corporations”,
WT/DS108/AB/R, adopted 20 March 2000, para. 166. back to text
795.
Appellate Body Report, US — Hot-Rolled Steel,
paras.
100–101. back to text
796. (footnote original) Appellate Body Report, US
— Hot-Rolled Steel, at para. 102. back to text
797. Panel Report, US — Steel Plate, paras. 7.64–7.65. back to text
798. (footnote original) Appellate Body Report, US
— Hot-Rolled Steel, para. 99. back to text
799. Panel Report, Egypt — Steel Rebar,
para. 7.242. See
also
Appellate Body Report, US — Hot-Rolled Steel,
para. 573. back to text
800. Panel Report, Mexico — Steel Pipes
and Tubes, para.
7.164. back to text
801. Panel Report, Mexico — Steel Pipes
and Tubes, para.
7.169. back to text
802. Panel Report, Egypt — Steel Rebar,
para. 7.244. back to text
803. Panel Report, Mexico — Steel Pipes
and Tubes, paras.
7.182–7.183. back to text
804. Panel Report, Guatemala — Cement II,
para. 8.251. back to text
805.
Appellate Body Report, US — Hot-Rolled Steel,
paras.
102 and 104. back to text
806. Panel Report, Egypt — Steel Rebar,
para. 7.305. back to text
807. Panel Report, Korea — Certain Paper,
para. 7.125. back to text
808. Panel Report, Korea — Certain Paper,
para. 7.111. back to text
809. Panel Report, Korea — Certain Paper,
para. 7.110. back to text
810. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 289. back to text
811. Panel Report, Korea — Certain Paper (Article 21.5
— Indonesia), para. 6.27. back to text
812. Panel Report, Korea — Certain Paper (Article 21.5
— Indonesia), para. 6.29. back to text
813. Panel Report, Korea — Certain Paper (Article 21.5
— Indonesia), para. 6.44. back to text
814. Panel Report, Korea — Certain Paper (Article 21.5
— Indonesia), paras. 6.47 and 6.50–6.51. back to text
815. Panel Report, US — Hot-Rolled Steel,
para. 8.1(b). back to text
816.
Appellate Body Report, US — Hot-Rolled Steel,
footnote 45. This footnote further indicates that “[p]ursuant to 19
U.S.C. § 1677e(b), if the investigating authorities find that ‘an
interested party has failed to cooperate by not acting to the best of
its ability to comply with a request for information’, then they may,
in reaching their determination, ‘use an inference that is adverse
to the interests of that party in selecting from among the facts
otherwise available’. (emphasis added) The United States explained to
us at the oral hearing that, in practice, an ‘adverse inference’ is
used because it is assumed that the information that a non-cooperative
party did not provide would have been adverse to its interests…” back to text
817.
Appellate Body Report, US — Hot-Rolled Steel,
footnote 45. back to text
818.
Appellate Body Report, US — Hot-Rolled Steel,
footnote 60. back to text
819. Panel Report, Argentina — Ceramic Tiles,
para.
6.21. back to text
820. See paras. 993–994
of this Chapter concerning paragraph 6
of Annex II. back to text
821. (footnote original) We do not mean to imply here that
an interested party can impose on an investigating authority an Annex
II, paragraph 6 requirement simply by submitting new information sua
sponte during an investigation. Rather, the role of paragraph 6 of
Annex II, namely that it forms part of the basis for an eventual
decision pursuant to Article 6.8 whether or not to use facts available,
makes it clear that its requirements to inform interested parties that
information is being rejected and to give them an opportunity to provide
explanations, pertain to “necessary” information in the sense of
Article 6.8. As discussed above, “necessary” information is left to
the discretion of the investigating authority to specify, subject to
certain requirements, notably those in Annex II, paragraph
1. back to text
822. Panel Report, Egypt — Steel Rebar,
para. 7.262. back to text
823. Panel Report, Korea — Certain Paper,
para. 7.75. back to text
824. Panel Report, Mexico — Steel Pipes
and Tubes, para.
7.185. back to text
825. See Panel Reports, Argentina — Ceramic Tiles, e.g.
at para. 6.21, and Egypt — Steel Rebar, e.g. at para. 7.262. back to text
826. Panel Report, Mexico — Steel Pipes
and Tubes, para.
7.186. back to text
827. Panel Report, Mexico — Steel Pipes
and Tubes, para.
7.189. back to text
828. Panel Report, Korea — Certain Paper,
para. 7.85. back to text
829. (footnote original) As the Appellate Body noted in
the case of United States — Standards for Reformulated and
Conventional Gasoline, “one of the corollaries of the ‘general
rule of interpretation’ in the Vienna Convention is that
interpretation must give meaning and effect to all terms of the treaty.
An interpreter is not free to adopt a reading that would result in
reducing whole clauses or paragraphs of a treaty to redundancy or
inutility.” Appellate Body Report, United States — Standards for
Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted on 20
May 1996, p. 21. back to text
830. (original footnote) We note that
Article 6.5.2 of the
AD Agreement specifically provides for a situation in which the
authorities may disregard confidentially submitted information: in case
the authorities consider that a request for confidentiality is not
warranted and the supplier of the information is either unwilling to
make the information public or to authorize its disclosure in
generalized or summary form. We note, however, that the DCD considered
the request for confidential treatment was warranted and treated
the information as such. Argentina has not invoked Article 6.5.2 as a
justification for the DCD’s rejection of the exporters’ information
either. back to text
831. Panel Report, Argentina — Ceramic Tiles,
paras.
6.34 and 6.38. back to text
832. Panel Report, Argentina — Ceramic Tiles,
para.
6.36. back to text
833. Panel
Report, Korea — Dairy, para. 7.67. back to text
834. Panel Report, Guatemala — Cement II,
para. 8.245. back to text
835. Panel Report, Guatemala — Cement II,
para. 8.254. back to text
836. The Panel also indicated that it kept “in mind that it is
a well-accepted principle of international law that for the purposes of
international adjudication national law is to be considered as a fact.
Our analysis of the consistency of the US statute with the AD
Agreement takes into account, therefore, the principles of statutory
interpretation applied by the administering agency and judicial
authorities of the United States”. Panel Report, US — Steel Plate,
paras. 7.88–7.90. back to text
837. Panel Report, US — Steel Plate, para. 7.92. back to text
838. Panel Report, US — Steel Plate, para. 8.3. back to text
839. Panel Report, Korea — Certain Paper,
para. 7.124. back to text
840. Panel Report, Argentina — Ceramic Tiles,
para.
6.125. back to text
841. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.149. back to text
842. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.150. back to text
843. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.224. back to text
844. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.224. back to text
845. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.225. back to text
846. Panel Report, Korea — Certain Paper,
para. 7.204. back to text
847. Panel Report, Korea — Certain Paper (Article 21.5
— Indonesia), paras. 6.91–6.92. back to text
848. Panel Report, Guatemala — Cement II,
para. 8.229.
In Argentina — Ceramic Tiles, the Argentine authorities had
relied primarily upon evidence submitted by petitioners and derived from
secondary sources, rather than upon information provided by the
exporters, as the factual basis for a determination of the existence of
dumping. The Panel found that, in light of the state of the record, “the
exporters could not be aware in this case, simply by reviewing the
complete record of the investigation, that evidence submitted by
petitioners and derived from secondary sources, rather than facts
submitted by the exporters, would, despite the responses of the
exporters to the DCD’s information requests as summarized above, form
the primary basis for the determination of the existence and extent of
dumping… . Under these circumstances, we find that the DCD did not,
by referring the exporters to the complete file of the investigation,
fulfil its obligation under Article 6.9 to inform the exporters of the
‘essential facts under consideration which form the basis for the
decision whether to apply definitive measures’.” Panel Report, Argentina — Ceramic Tiles,
para. 6.129. back to text
849. Panel Report, Guatemala — Cement II,
para. 8.230. back to text
850. Panel Report, Guatemala — Cement II,
para. 8.228. back to text
851. Panel Report, Guatemala — Cement II,
para. 8.238.
In regard to the Panel’s finding regarding the claims under Articles
6.1 and 6.2, see the excerpts quoted in paras. 433 and
462 of this Chapter. back to text
852. Panel on EC — Salmon (Norway), paras. 7.799, 7.808. back to text
853. Panel
on Guatemala — Cement II, para. 8.232. back to text
854. Panel
on Argentina — Ceramic Tiles, para. 6.89. The Panel on Argentina — Poultry
Anti-Dumping Duties agreed with
the view that Article 6.10, first sentence, imposes a general obligation
on investigating authorities to calculate individual margins of dumping
for each known exporter or producer concerned of the product under
investigation. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.214. back to text
855. Appellate Body Report, EC — Fasteners (China),
para.
320. back to text
856. The examples cited were: (a) sampling (provided for under
the second sentence of Article 6.10); (b) calculation of margins based
on facts available (provided for by Article 6.8); (c) assignment to a
mere trader of the dumping margin of the actual producer (provided for
by the reference to “exporter or producer” in Article
6.10); (d)
unknown producers (not covered by Article 6.10 which applies only to “known”
exporters or producers); (e) construction of normal value and export
prices for all exporters because the necessary information cannot be
verified (provided for in Article 2, and not the same as a country-wide
margin); (f) a known producer or exporter that does not export in the
period of investigation and will not receive a margin because it is
related to existing exporters or producers (dealt with by Article
9.5). Appellate Body Report, EC — Fasteners (China),
paras. 320–327. back to text
857. Appellate Body Report, EC — Fasteners (China),
para.
328. back to text
858. The Panel acknowledged the “usefulness of grouping (by
size, model, type) for the purpose of making a fair comparison under
Article 2.4” but indicated that this should not be confused with “the
requirement under Article 6.10 to determine an individual margin of
dumping for the product as a whole.” Panel Report, Argentina — Ceramic Tiles, para. 6.99. back to text
859. (footnote original) As the Panel on EC — Bed
Linen (at para. 6.118) stated: “[T]he fact that Article 2.4.2
refers to the existence of margins of dumping in the plural is a general
statement, taking account of the fact that, as is made clear in Article
6.10 and 9 of the AD Agreement, individual dumping margins are
determined for each producer or exporter under investigation, and
for each product under investigation.” (emphasis added). back to text
860. Panel Report, Argentina — Ceramic Tiles,
para.
6.90. back to text
861. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.215. back to text
862. Panel Report, Korea — Certain Paper,
para. 7.168. back to text
863. Panel Report, Korea — Certain Paper,
para. 7.159. back to text
864. Panel Report, Korea — Certain Paper,
para. 7.161. back to text
865. Appellate Body Report, EC — Fasteners (China),
para.
360. back to text
866. Panel Report, EC — Fasteners (China),
para. 7.81. back to text
867. Appellate Body Report, EC — Fasteners (China),
paras. 363–367. back to text
868. Appellate Body Report, EC — Fasteners (China),
para.
380. back to text
869. Appellate Body Report, EC — Fasteners (China),
para.
376. back to text
870. Appellate Body Report, EC — Fasteners (China),
para.
381. back to text
871. Appellate Body Report, EC — Fasteners (China),
paras. 383–384. back to text
872. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 255. back to text
873. Panel Report, EC — Salmon (Norway),
para. 7.163. back to text
874. Panel Report, EC — Salmon (Norway),
para. 7.166. back to text
875. Panel Report, EC — Salmon (Norway),
para. 7.168. back to text
876. Panel Report, EC — Salmon (Norway),
para. 7.175. back to text
877. Panel Report, US — Shrimp (Viet Nam), paras. 7.166–7.167. back to text
878. Panel Report, EC — Salmon (Norway),
para. 7.188. back to text
879. Panel Report, EC — Salmon (Norway),
para. 1.187. back to text
880. Panel Report, EC — Salmon (Norway), paras 1.187–1.188.
back to text
881. Panel Report, US — Shrimp (Viet Nam), para. 7.181. back to text
882. Panel Report, Guatemala — Cement II,
para. 8.296. back to text
883. Panel Report, US — Stainless Steel (Korea), para.
6.137. back to text
884. Panel Report, Argentina — Ceramic Tiles,
para.
6.99. back to text
885. Panel Report, Guatemala — Cement II,
para. 8.298. back to text
886. Panel Report, Mexico — Corn Syrup, paras. 7.179–7.183. back to text
887. Panel Report, US — Customs Bond Directive, para.
7.146. back to text
888. Panel Report, Guatemala — Cement II,
para. 8.296. back to text
889. Appellate Body Report, US — Shrimp (Thailand)/US
— Customs Bond Directive, para. 233. back to text
890. Panel Report, US — Offset Act (Byrd Amendment),
paras. 7.80–7.81. back to text
891. Panel Report, EC — Fasteners (China),
para. 7.103. back to text
892. Panel Report, EC — Fasteners (China), footnote 279. back to text
893. Appellate Body Report, US — Shrimp (Thailand)/US
— Customs Bond Directive, para. 281. back to text
894. Appellate Body Report, US — Shrimp (Thailand)/US
— Customs Bond Directive, para. 280. back to text
895. Appellate Body Report, EC — Fasteners (China),
para.
336. back to text
896. Appellate Body Report, EC — Fasteners (China),
para.
354. back to text
897. Appellate Body Report, EC — Fasteners (China),
para.
336. back to text
898. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.365. back to text
899. Panel Report, EC — Salmon (Norway),
para. 7.709. back to text
900. Panel Report, EC — Salmon (Norway),
para. 7.707. back to text
901. Panel Report, EC — Salmon (Norway),
para. 7.727. back to text
902. (footnote original) The requirement in
Article 9.2 to
specify duties by individual suppliers is also consistent with the
obligation in that provision not to discriminate in the collection of
duties on imports from all sources found to be dumped and causing
injury. In this case, if an individual dumping margin has been
determined for each exporter or producer consistently with Article
6.10,
the principle of non-discrimination requires that each exporter or
producer obtains an anti-dumping duty that corresponds to its individual
dumping margin. back to text
903. Appellate Body Report, EC — Fasteners (China),
para.
339. back to text
904. Appellate Body Report, EC — Fasteners (China),
para.
338. back to text
905. Panel Report, EC — Fasteners (China), footnote 279
to para. 7.103. back to text
906. Appellate Body Report, EC — Fasteners (China),
para.
341. back to text
907. Appellate Body Report, EC — Fasteners (China),
para.
348. back to text
908. Panel Report, US — DRAMS,
para. 6.89. back to text
909. Panel Report, US — DRAMS,
para. 6.90. back to text
910. (footnote original) The Tokyo Round AD Agreement
is also instructive, since Article 8.3 of that Agreement stated “[t]he
amount of the anti-dumping duty must not exceed the margin of dumping as
established under Article 2. Therefore, if subsequent to the
application of the anti-dumping duty it is found that the duty so
collected exceeds the actual dumping margin, the amount in excess of the
margin shall be reimbursed as quickly as possible” (emphasis added).
This provision clearly demonstrates that the general requirement that
anti-dumping duties shall not exceed the margin of dumping is concerned
with duty assessment. back to text
911. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.355. back to text
912. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.361. back to text
913. (footnote original) Brazil’s second written
submission, para. 141. back to text
914. (footnote original) We use this term with particular
regard to the Article 17.6(ii) standard of review. back to text
915. Panel Report, Argentina — Poultry Anti-Dumping Duties,
para. 7.361. back to text
916. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 315. back to text
917. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 350. back to text
918. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, paras. 341–347. back to text
919. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 348. back to text
920. Panel Report, US — Zeroing (Japan), para. 7.198. back to text
921. (footnote original) Appellate Body Report, US
— Zeroing (EC), para. 130. back to text
922. (footnote original) The chapeau of
Article 9.3
provides that “[t]he amount of anti-dumping duty shall not exceed the
margin of dumping as established in Article
2.” back to text
923. (footnote original) Appellate Body Report, US
— Zeroing (EC), para. 130. back to text
924. (footnote original) Appellate Body Report, US
— Zeroing (EC), para. 131. The Appellate Body has stated that, “under
the methodology currently applied by the USDOC to assess antidumping
duties, the aggregation of the results of the multiple comparisons
performed at an intermediate stage might result in a negative value, for
a given importer, if zeroing is not allowed. Of course, this would not
mean that the authorities would be required under the Anti-Dumping
Agreement or Article VI of the GATT 1994 to compensate an importer
for the amount of that negative value (that is, when export prices
exceed normal value).” (Ibid., footnote 234 to para. 131) back to text
925. (footnote original) Ibid. back to text
926. (footnote original) Appellate Body Report, US
— Zeroing (EC), para. 129. back to text
927. Appellate Body Report, United States — Measures
Relating to Zeroing and Sunset Reviews, para. 156. back to text
928. Appellate Body Report, US — Stainless Steel (Mexico),
para. 98. back to text
929. Appellate Body Report, US — Stainless Steel (Mexico),
para. 103. back to text
930. Appellate Body Report, US — Stainless Steel (Mexico),
para. 107. back to text
931. Appellate Body Report, US — Stainless Steel (Mexico),
para. 108. back to text
932. Appellate Body Report, US — Stainless Steel (Mexico),
para. 109. back to text
933. Panel Report, US — Shrimp (Viet Nam), para. 7.141. back to text
934. Appellate Body Report, US
— Zeroing (EC), para.
124. back to text
935. See at paragraph 113
above. back to text
936. Appellate Body Report, US
— Zeroing (EC), para.
127. back to text
937. Appellate Body Report, US
— Zeroing (EC), para.
130. back to text
938. Appellate Body Report, US
— Zeroing (EC), para.
169. back to text
939. Appellate Body Report, US
— Zeroing (EC), para.
168. back to text
940. Panel Report, US — Softwood Lumber V (Article 21.5
— Canada), para. 5.57. back to text
941. Appellate Body Report, US — Softwood Lumber V (Article
21.5 — Canada), para. 112. back to text
942. (footnote original) Ibid., para. 7.204. back to text
943. (footnote original) Ibid. (emphasis added by
the Panel) back to text
944. (footnote original) Ibid. back to text
945. (footnote original) Ibid. back to text
946. (footnote original) Ibid., para. 7.205. back to text
947. (footnote original) Panel Report, para. 7.198. back to text
948. (footnote original) Ibid., para. 7.205. back to text
949. (footnote original) Ibid. back to text
950. (footnote original) Ibid., para. 7.206. back to text
951. Appellate Body Report, US — Zeroing (Japan), paras.
158–163. back to text
952. (footnote original) Panel Report, para. 7.199. back to text
953. (footnote original) Appellate Body Report, US
— Zeroing (EC), para. 129. back to text
954. Appellate Body Report, US — Zeroing (Japan), para.
156. back to text
955. Appellate Body Report, US — Stainless Steel (Mexico),
para. 95. back to text
956. Appellate Body Report, US — Stainless Steel (Mexico),
paras. 89, 95–96. back to text
957. Appellate Body Report, US — Stainless Steel (Mexico),
para. 98. back to text
958. Appellate Body Report, US — Stainless Steel (Mexico),
para. 99 back to text
959. Appellate Body Report, US — Stainless Steel (Mexico),
paras. 120–121. back to text
960. Appellate Body Report, US — Stainless Steel (Mexico),
paras. 112–114. back to text
961. Panel Report, EC — Salmon (Norway),
paras. 7.749
and 7.760. back to text
962. Appellate Body Report, US — Shrimp (Thailand)/US
— Customs Bond Directive, para. 221. back to text
963.
Appellate Body Report, US — Hot-Rolled Steel,
para.
123. back to text
964. Panel Report, EC — Salmon (Norway),
para. 7.420. back to text
965.
Appellate Body Report, US — Hot-Rolled Steel,
para.
116. back to text
966. (footnote original) Panel Report, European
Communities — Bed Linen, WT/DS141/R, adopted 12 March 2001, as
modified by the Appellate Body Report, WT/DS141/AB/R, para. 6.118;
Appellate Body Report, European Communities — Bed Linen, supra,
footnote 36, para. 53. back to text
967.
Appellate Body Report, US — Hot-Rolled Steel,
para.
118. back to text
968. Panel Report, EC — Salmon (Norway),
para. 7.421. back to text
969. Panel Report, EC — Salmon (Norway),
para. 7.428. back to text
970. Panel Report, EC — Bed Linen, para. 6.72. back to text
971. Panel Report, EC — Salmon (Norway),
para. 7.431. back to text
972. See also para. 877 of this
Chapter. back to text
973. The United States interpreted this sentence of
Article 9.4
as meaning to cover only those margins which are calculated entirely
on the basis of the facts available, that is, where both
components of the calculation of a dumping margin — normal value and
export price — are determined exclusively using facts
available.
Appellate Body Report, US — Hot-Rolled Steel,
para.
117. back to text
974. As regards the use of facts available under
Article 6.8, see paras. 532–607 of this
Chapter. back to text
975.
Appellate Body Report, US — Hot-Rolled Steel,
para.
119. back to text
976.
Appellate Body Report, US — Hot-Rolled Steel,
para.
120. back to text
977.
Appellate Body Report, US — Hot-Rolled Steel,
paras.
122–123. back to text
978.
Appellate Body Report, US — Hot-Rolled Steel,
para.
125. back to text
979. Appellate Body Report, US — Zeroing (EC) (Article 21.5
— EC), para. 453. back to text
980. Panel Report, US — Shrimp (Viet Nam),
para. 7.213. back to text
981. Panel Report, US — Shrimp (Viet Nam),
para. 7.215. back to text
982. Panel Report, US — Shrimp (Viet Nam),
paras. 7.237–7.238. back to text
983. Panel Report, US — Shrimp (Viet Nam),
para. 7.217. back to text
984. Panel Report, US — Shrimp (Viet Nam),
para. 7.245. back to text
985. Panel Report, US — Shrimp (Viet Nam),
para. 7.251. back to text
986. Panel Report, US — Shrimp (Viet Nam),
para. 7.254. back to text
987. Panel Report, Guatemala — Cement II,
para. 8.296. back to text
988. Panel Report, US — Steel Plate, para. 7.103. back to text
989. Panel Report, EC — Salmon (Norway),
para. 7.731. back to text
990. Panel Report, EC — Salmon (Norway),
para. 7.738. back to text
991. Appellate Body Report, US — 1916 Act, para. 114. back to text
992. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, para. 321. back to text
993. Appellate Body Report, Mexico — Anti-Dumping Measures
on Rice, paras. 323–324. back to text
994. Section 733(e)(1) of the Tariff Act of
1930, as amended,
requires the United States’ authorities to make certain preliminary
determinations in a case in which a petitioner requests the imposition
of anti-dumping duties retroactively for 90 days prior to a preliminary
determination of dumping. Panel Report, US — Hot-Rolled Steel,
para. 7.139. back to text
995. Panel Report, US — Hot-Rolled Steel,
para. 7.150. back to text
996. Panel Report, US — Hot-Rolled Steel,
para. 7.168. back to text
997. Panel Report, US — Hot-Rolled Steel,
paras. 7.155–7.156. back to text
998. (footnote original) Panel Report, Mexico — [Corn
Syrup], para. 7.95 (referring to Guatemala — Cement I,
para.
7.57 and United States — Softwood Lumber, SCM/162, BISD
40S/358, para. 335 (adopted 27–28 October 1993)). The Panel on
Guatemala
— Cement I also stated that “the quantum and quality of evidence
required at the time of initiation is less than that required for a
preliminary, or final, determination of dumping, injury and causation,
made after investigation”, Panel Report, Guatemala — Cement I,
para. 7.57, referring to United States — Softwood Lumber, para.
332. back to text
999. (footnote original) Panel Report, Mexico — [Corn
Syrup], para. 7.97; Panel Report, Guatemala — Cement I,
para. 7.77. back to text
1000. Panel Report, US — Hot-Rolled Steel,
paras. 7.153–7.154.
The Panel considered that ‘sufficient evidence’ refers to the
quantum of evidence necessary to make a determination.” The Panel made
this statement in its analysis of the comparability of the terms “sufficient
evidence” and the term used by the statutory provision at issue,
namely “a reasonable basis to believe or suspect”: “The Panel
found that ‘sufficient evidence’ refers to the quantum of evidence
necessary to make a determination. ‘A reasonable basis to believe or
suspect’ on the other hand, seems to refer to the conclusion reached
on the basis of evidence presented, that is, a legal mindset that
certain facts exist, based on the evidence presented. It appears that in
past cases the US authorities have applied the standard as set out in
the statute interchangeably with a standard expressed as ‘sufficient
evidence’ and have made affirmative determinations when sufficient
evidence was adduced that the conditions of application were satisfied.
We therefore consider that the US statute, as it has been applied, is
not inconsistent with the requirement of the AD Agreement that
the investigating authority must have sufficient evidence of the
conditions of Article 10.6 before taking measures necessary to collect
the duties retroactively.” Panel Report, US — Hot-Rolled Steel,
para. 7.144. back to text
1001. Panel Report, US — Hot-Rolled Steel,
para. 7.155. back to text
1002. Panel Report, US — Hot-Rolled Steel,
para. 7.158. back to text
1003. Panel Report, US — Hot-Rolled Steel,
para. 7.160. back to text
1004. (footnote original) We note that our findings
concern the obligations regarding determinations of whether to apply “such
measures … as may be necessary” under Article
10.7. We are not
ruling on the obligations regarding retroactive application of final
anti-dumping duties under Article 10.6. back to text
1005. Panel Report, US — Hot-Rolled Steel,
paras. 7.162–7.163. back to text
1006. Panel Report, US — Hot-Rolled Steel,
paras. 7.165–7.168. back to text
1007. Panel Report, US — DRAMS,
para. 6.41. back to text
1008. Panel Report, US — DRAMS,
para. 6.42. back to text
1009. Panel Report, US — DRAMS,
para. 6.43. back to text
1010. Panel Report, US — DRAMS,
para. 6.41. back to text
1011. Panel Report, EC — Tube or Pipe Fittings,
para.
7.113. back to text
1012. Panel Report, EC — Tube or Pipe Fittings,
para.
7.113. back to text
1013. Panel Report, US — DRAMS,
paras. 6.26–6.29. back to text
1014. Panel Report, US — DRAMS,
para. 6.30. back to text
1015. Panel Report, US — DRAMS,
para. 6.31. back to text
1016. Panel Report, US — DRAMS,
para. 6.32. back to text
1017. Panel Report, US — DRAMS,
para. 6.34. back to text
1018. Panel Report, US — DRAMS,
para. 6.43. back to text
1019. Panel Report, US — DRAMS, fn 501. back to text
1020. Panel Report, US — DRAMS,
para. 6.38. (emphasis
added) back to text
1021. Panel Report, US — DRAMS,
para. 6.48. back to text
1022. Panel Report, US — DRAMS,
para. 6.45. back to text
1023. Panel Report, US — DRAMS,
para. 6.46. back to text
1024. Panel Report, US — DRAMS,
para. 6.47. back to text
1025. Panel Report, US — DRAMS,
para. 6.48, fn 494. back to text
1026. Panel Report, US — DRAMS,
para. 6.58. back to text
1027. Panel Report, US — DRAMS,
para. 6.59. back to text
1028. Panel Report, US — DRAMS, fn 501. back to text
1029. Panel Report, EC — Tube or Pipe Fittings,
para.
7.112. back to text
1030. Panel Report, EC — Tube or Pipe Fittings,
para.
7.115. back to text
1031. (footnote original) We note that
Article 11.3 is
textually identical to Article 21.3 of the SCM
Agreement, except that,
in Article 21.3, the word “countervailing” is used in place of the
word “antidumping” and the word “subsidization” is used in place
of the word “dumping”. Given the parallel wording of these two
articles, we believe that the explanation, in our Report in US — Carbon Steel, of the nature of the sunset review provision in the
SCM Agreement also serves, mutatis mutandis, as an apt
description of Article 11.3 of the Anti-Dumping
Agreement. (Appellate
Body Report, US — Carbon Steel, paras. 63 and 88). back to text
1032. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 104. back to text
1033. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 178. back to text
1034. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 105. back to text
1035. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 107. The Panel on US — Corrosion-Resistant
Steel Sunset Review also pointed to the fact that original
investigations and sunset reviews are distinct processes with different
purposes and it stated that “[I]n light of the fundamental qualitative
differences in the nature of these two distinct processes, […] it
would not be surprising to us that the textual obligations pertaining to
each of the two processes may differ”. Panel Report, US — Corrosion-Resistant Steel Sunset Review, para. 7.8. back to text
1036. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 111. Also see Appellate Body Report, US
— Oil Country Tubular Goods Sunset Reviews, para. 179. back to text
1037. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.271. The Appellate Body agreed with this view. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 114. back to text
1038. (footnote original) See Panel Report, United
States — Countervailing Duties on Certain Corrosion-Resistant Carbon
Steel Flat Products from Germany (“US — Carbon Steel”),
WT/DS213/R and Corr.1, adopted 19 December 2002 as modified by Appellate
Body Report, supra, note 22, para. 8.94 and Panel Report, US — Hot-Rolled Steel, supra, note 204, para. 7.55. back to text
1039. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.279. back to text
1040. (footnote original) Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 105. back to text
1041. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 341. back to text
1042. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.166. back to text
1043. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 123. back to text
1044. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 124. back to text
1045. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 127. back to text
1046. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 130. back to text
1047. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews, para. 7.273, citing Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 123. back to text
1048. (footnote original) We find support for this
proposition in the Appellate Body’s findings in US — Corrosion-Resistant Steel Sunset Review. See, Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, paras. 126–130. back to text
1049. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews, para. 7.274. back to text
1050. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 276. back to text
1051. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 277. back to text
1052. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 278. back to text
1053. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 281. back to text
1054. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 284. back to text
1055. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.34. back to text
1056. Appellate Body Report, US — Zeroing (Japan),
para.
185. back to text
1057. Panel Report, US — Continued Zeroing, paras. 7.195–7.196. back to text
1058. Appellate Body Report, US — Continued Zeroing,
paras. 394 and 395(v). back to text
1059. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 178. back to text
1060. The Appellate Body on US — Oil Country Tubular Goods
Sunset Reviews was of the view that “‘volume of dumped imports’
and ‘dumping margins’, before and after the issuance of antidumping
duty orders, are highly important factors for any determination of
likelihood of continuation or recurrence of dumping in sunset reviews,
although other factors may also be as important, depending on the
circumstances of the case”. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 208. back to text
1061. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 177. back to text
1062. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 178. back to text
1063. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews, paras. 7.142–7.143. back to text
1064. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 197. back to text
1065. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews, paras. 7.93–7.99. back to text
1066. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 234. back to text
1067. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.63. back to text
1068. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.74. back to text
1069. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.76. back to text
1070. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.77. back to text
1071. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.91. back to text
1072. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.96. back to text
1073. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.101. back to text
1074. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.101. back to text
1075. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews (Article 21.5 — Argentina), paras. 146–147 and
151. back to text
1076. Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 149. In paragraph
155, the Appellate Body
rejected the argument that Article 6.10 would require such
company-specific sunset review determinations:
“We have already
concluded that investigating authorities are not required to
calculate or rely on dumping margins in making a likelihood
determination in a sunset review under Article
11.3. This means that the
requirement in Article 6.10 that dumping margins, “as a rule”, be
calculated “for each known exporter or producer concerned” is not,
in principle, relevant to sunset reviews. Therefore, the reference in
Article 11.4 to “[t]he provisions of Article 6 regarding evidence and
procedure” does not import into Article 11.3
an obligation for
investigating authorities to calculate dumping margins (on a
company-specific basis or otherwise) in a sunset review. Nor does
Article 11.4 import into Article 11.3 an obligation for investigating
authorities to make their likelihood determination on a company-specific
basis.” back to text
1077. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), paras 7.37–7.38. back to text
1078. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), paras. 7.39–7.40. back to text
1079. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews (Article 21.5 — Argentina), paras. 118–121. back to text
1080. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews, para. 7.187. back to text
1081. (footnote original) Panel Report, US — Oil Country Tubular Goods Sunset
Reviews, para. 7.185. back to text
1082. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 360. back to text
1083. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 358. back to text
1084. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 364. back to text
1085. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.26. back to text
1086. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.27. With respect to Article
5.6, the Panel noted
that “the text of Article
5.6 gives no indication that its evidentiary
standards apply to anything but the self-initiation of investigations”.
Panel Report, United States — Corrosion Resistant Steel Sunset
Review, para. 7.36. back to text
1087. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews (Article 21.5 — Argentina), para. 7.60. back to text
1088. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews (Article 21.5 — Argentina), para. 163. back to text
1089. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews (Article 21.5 — Argentina), paras. 167–168 and
171. back to text
1090. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, paras. 7.67–7.68. back to text
1091. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.70. back to text
1092. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.85. back to text
1093. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 294. back to text
1094. See Appellate Body Report, EC
— Tube or Pipe Fittings, para. 116. back to text
1095. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 297. back to text
1096. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.95. back to text
1097. Panel Report, US — Corrosion-Resistant Steel Sunset
Review, para. 7.102. The Panel was of the view that:
“[E]ven assuming arguendo that the provisions of Article 3
may be generally applicable throughout the Anti-Dumping Agreement,
an issue we need not and do not decide, this would not necessarily make
every single provision in that article applicable throughout the
Agreement. An article that has been found generally to apply throughout
the Agreement may well contain certain specific provisions whose scope
of application is limited, by their own terms, in certain respects. In
our view, Article
3.3 is such a specific provision, which limits its
scope of application by its own terms.”
Report, US — Corrosion-Resistant Steel Sunset Review,
para. 7.101. back to text
1098. Panel Report, US — Oil Country Tubular Goods Sunset
Reviews, para. 7.336. back to text
1099. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 302. back to text
1100. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews, para. 323. back to text
1101. Appellate Body Report, US — Oil Country Tubular Goods
Sunset Reviews (Article 21.5 — Argentina), para. 172. back to text
1102. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 105. back to text
1103. (footnote original) The use of the word “likely”
in Article 11.3 shows that “an affirmative likelihood determination
may be made only if the evidence demonstrates that dumping [and injury]
would be probable if the duty were terminated — and not simply if the
evidence suggests that such a result might be possible or plausible.”
(Appellate Body Report, US — Corrosion-Resistant Steel
Sunset Review, para. 111). back to text
1104. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 108. back to text
1105. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 109. back to text
1106. (footnote original) We recognize that, in a sunset
review determination under Article 11.3, it could be properly determined
that there may be a likelihood of recurrence of injury if the duty
expires. back to text
1107. (footnote original) Appellate Body Report, US
— Oil Country Tubular Goods Sunset Reviews, para. 359. back to text
1108. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, paras. 117–118. back to text
1109. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 123. back to text
1110. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 121. back to text
1111. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 123. back to text
1112. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 124. back to text
1113. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 127. back to text
1114. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 166. back to text
1115. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 153. back to text
1116. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 159. back to text
1117. (footnote original) Appellate Body Report, US
— Oil Country Tubular Goods Sunset Reviews, para. 323 (quoted in
United States’ appellee’s submission, para. 60). back to text
1118. (footnote original) Ibid. back to text
1119. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 163. back to text
1120. (footnote original) Appellate Body Report, US
— Oil Country Tubular Goods Sunset Reviews, para. 301. back to text
1121. (footnote original) Ibid., para. 302. back to text
1122. Appellate Report, US — Anti-Dumping Measures on Oil
Country Tubular Goods, para. 172. back to text
1123. (footnote original) See Appellate Body Report, US
— Oil Country Tubular Goods Sunset Reviews, para. 284. back to text
1124. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 171. back to text
1125. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 210. back to text
1126. (footnote original) The Panel also reviewed a “sampling”
of 206 cases, and decided that five cases were not relevant to its task,
as mentioned above in paragraphs 203–204. back to text
1127. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 209. back to text
1128. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 196. back to text
1129. Appellate Body Report, US — Anti-Dumping Measures on
Oil Country Tubular Goods, para. 201. back to text
|
|
