AD

ANTI-DUMPING AGREEMENT (AGREEMENT ON IMPLEMENTATION OF ARTICLE VI OF

THE GATT 1994)



JUMP TO A SPECIFIC PROVISION/TOPIC WITHIN THE AGREEMENT:



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 15 | Article 17 | Article 18 |

Annex I | Annex II | Other Terms and Concepts



Article 1 (Principles: Imposition of Anti-dumping Duties Must be Consistent with GATT

Article VI and AD Agreement)



 U.S. - Zeroing (Japan) (Panel) (Based on its rejection of the claims against simple

zeroing under other provisions, Panel rejected claims under AD Agreement Articles 1 and

18.4 and WTO Agreement Article XVI:4. See paras. 7.171-175; rejected Japan's claims

that simple zeroing as applied in 11 periodic reviews is inconsistent with AD Agreement

Articles 1, 2.1, 2.4, 2.4.2 and 9.1-9.3, GATT Articles VI:1 and VI:2. See paras. 7.225-227)

 U.S. - "Zeroing" of Dumping Margins (AB) (Declared "moot, and of no legal effect" the

Panel's finding that the zeroing methodology used by the United States in administrative

reviews is not inconsistent, as such, with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 11.1,

11.2, and 18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4. See

paras. 226-227; declared "moot, and of no legal effect" the Panel's finding that Section

351.414(c)(2) is not inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1,

11.2, 11.3, and 18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4.

See paras. 235-242)

 U.S. - "Zeroing" of Dumping Margins (Panel) (Found that Sections 771(35)(A) and (B),

731 and 777A(d) of the Tariff Act are not "as such" inconsistent with AD Agreement

Articles 1, 2.4, 2.4.2, 5.8, 9.3 and 18.4, GATT Articles VI:1 and VI:2, and WTO

Agreement Article XVI:4 with respect to the use of a "zeroing" methodology in the

calculation of margins of dumping in original investigations. See paras 7.37-69; with

regard to the claims that the "Standard Zeroing Procedures" used by the United States in

administrative reviews or the U.S. practice or methodology of zeroing, Sections

771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and Section

351.414(c)(2) of the DOC Regulations are inconsistent with AD Agreement Articles 1,

2.4, 2.4.2, 9.3, 11.1, 11.2 and 18.4, GATT Articles VI:1 and VI:2, WTO Agreement Article

XVI:4, Panel majority said that these claims are "dependent upon a violation of Articles

2.4 and/or 2.4.2" and thus it also rejected these dependent claims. See paras. 7.289-291;

with regard to the claims that the "Standard Zeroing Procedures" used by the United

States in new shipper reviews, changed circumstances reviews and sunset reviews,

Sections 771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and

Section 351.414(c)(2) of the DOC Regulations are inconsistent with AD Agreement

Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3 and 18.4, GATT Articles VI:1 and VI:2,

WTO Agreement Article XVI:4, Panel majority said that the claims are "dependent upon a

violation of Articles 2.4 and/or 2.4.2" and thus it also rejected these dependent claims.

See paras. 7.292-294)

 EC - Pipe Fittings (AB) (Upheld Panel's finding that Brazil did not establish that the

European Communities violated AD Agreement Article 1 or GATT Article VI:2 in imposing

an anti-dumping measure in this case following the devaluation of the Brazilian currency

at the beginning of the fourth quarter of the investigation period. See paras. 65-84)

 EC - Pipe Fittings (Panel) (Found that Brazil did not establish that the European

Communities violated AD Agreement Article 1 or GATT Article VI:2 in imposing an anti-

dumping measure in this case following the devaluation of the Brazilian currency at the

beginning of the fourth quarter of the investigation period. See paras. 7.87-108)

 U.S. - 1916 Act (Panel) (Discussed in context of Claims under the AD Agreement; based

on violations of other provisions of the AD Agreement, Panel found violation of Article 1.

See para. 6.217 of panel report in complaint by EC; para. 6.264 of panel report in

complaint by Japan)



Article 2 (Determination of Dumping)



Article 2.1 (Dumping)



 U.S. - Zeroing (Japan) (AB) (Reversed Panel's findings that "simple zeroing" in original

investigations is not inconsistent with AD Agreement Article 2.1 and GATT Articles VI:1

and VI:2; said that Article 2.1 and Article VI:1 are "definitional provisions," as they set out

a definition of "dumping" for the purposes of the AD Agreement and the GATT, and "read

in isolation, [they] do not impose independent obligations." See paras. 139-140)

 U.S. - Zeroing (Japan) (Panel) (Found that "by maintaining simple zeroing procedures in

the context of original investigations," the DOC does not act inconsistently with AD

Agreement Articles 2.1 and 2.4.2 and GATT Articles VI:1 and VI:2 -- reversed on appeal.

See paras. 7.90-143; found that by maintaining simple zeroing procedures in the context

of periodic reviews and new shipper reviews, the DOC does not act inconsistently with

AD Agreement Articles 2.1, 2.4, 2.4.2, 9.1-9.3, 9.5, 18.4, GATT Articles VI:1 and VI:2,

and WTO Agreement Article XVI:4 -- reversed on appeal. See paras. 7.189-224; for the

same reasons, Panel rejected Japan's claims that simple zeroing as applied in 11

periodic reviews is inconsistent with AD Agreement Articles 1, 2.1, 2.4, 2.4.2 and 9.1-9.3,

GATT Articles VI:1 and VI:2 -- reversed on appeal. See paras. 7.225-227; after

concluding that Japan has failed to adduce evidence necessary to establish that a rule,

norm or standard of general and prospective application exists by virtue of which the

DOC relies on margins of dumping calculated in prior proceedings to support its

determinations in changed circumstances reviews and sunset reviews, Panel found that

Japan has failed to make a prima facie case that by maintaining zeroing procedures in

the context of these reviews the DOC acts inconsistently with AD Agreement Articles 2

and 11. See paras. 7.230-244; based on its finding that the AD Agreement does not

proscribe simple zeroing in periodic reviews within the meaning of Article 9.3, Panel

found that the DOC did not violate AD Agreement Articles 2 and 11 in relying on margins

of dumping calculated in periodic reviews on the basis of simple zeroing -- reversed on

appeal. See paras. 7.245-257)

 U.S. - Hot-Rolled Steel from Japan (AB) (Upheld, under modified reasoning, Panel's

finding that the U.S. "arm's length" test violates Article 2.1. See paras. 131-158; reversed

Panel's finding that the replacement of excluded sales with downstream replacement

sales violates Article 2.1, finding that the identity of the seller is not necessarily the

determinative factor as to whether or not a sale is "comparable." See paras. 159-173)

 U.S. - Hot-Rolled Steel from Japan (Panel) (Concluded that the U.S. "arm's length" test

does not relate to a permissible interpretation of the term "sales in the ordinary course of

trade," such that this practice, as applied in the hot-rolled investigation, is inconsistent

with AD Agreement Article 2.1. See paras. 7.91-120; also found the use of downstream

sales in place of excluded affiliated sales to violate Article 2.1, holding that the

comparison prices must come from the exporter under investigation and not a

downstream re-seller -- reversed on appeal. See paras. 7.91-120)

 Guatemala - Cement II (Panel) (Nothing in Articles 2.1 or 2.2 prevents a Member from

requesting cost data, even if there are no allegations of sales below costs. See paras.

8.180-183)

 U.S. - 1916 Act (Panel) (Finding that the 1916 Act does not specify a comparison price

that must be used, and finding that the Act could be interpreted consistently with the AD

Agreement Article 2 comparison requirements, rejected Japan's claim that the 1916 Act

requires a comparison to an improper home market price. See paras. 6.242-250; in

complaint by EC, found that the EC failed to make its prima facie case on its claim under

this provision. See paras. 6.209-210)

Article 2.2 (Constructed Value)



 Korea - Paper AD Duties (Panel) (In response to claim of violation of Article 2.2 based on

investigating authority's failure "to make a determination as to whether or not one of the

two bases that would allow resorting to constructed normal value was present in the

investigation at issue," Panel recalled its finding that "the KTC's decision to disregard the

domestic sales data submitted by Indah Kiat and Pindo Deli was not WTO-inconsistent

because those data were not verifiable," and concluded that "the KTC did not act

inconsistently with Article 2.2 in basing its normal value determination on constructed

value under Article 2.2 for these two companies." See paras. 7.87-94)

 EC - Pipe Fittings (Panel) (Found that Brazil did not establish that the European

Communities acted inconsistently with Articles 2.2 and 2.2.2 by including data from sales

of product types with internal product codes 68 and 69 -- which fell within the definition of

"like product" but were alleged not to be "identical" to the export products -- for the

purposes of constructing normal value. See paras. 7.141-151)

 Thailand - Steel (Panel) (Interpreted "category of products" in Article 2.2.2(i) to suggest a

narrow category as opposed to a broad one; no separate "reasonability" test necessary in

determining profit amount; rejected claim of violation of Article 2.2. See paras. 7.97-129)

 EC - Bed Linen (Panel) (When applied correctly, Article 2.2.2(ii) "necessarily yields

reasonable amounts for profits," and nothing in AD Agreement Article 2.2 requires

consideration of a separate reasonability test. See paras. 6.88-101)

 Guatemala - Cement II (Panel) (Nothing in Articles 2.1 or 2.2 prevents a Member from

requesting cost data, even if there are no allegations of sales below costs. See paras.

8.180-183)

 U.S. - 1916 Act (Panel) (Finding that the 1916 Act does not specify a comparison price

that must be used, and finding that the Act could be interpreted consistently with the AD

Agreement Article 2 comparison requirements, rejected Japan's claim that the 1916 Act

requires a comparison to an improper home market price. See paras. 6.242-250; in

complaint by EC, found that the EC failed to make its prima facie case on its claim under

this provision. See paras. 6.209-210)



Article 2.2.1.1 (Cost Data)



 U.S. - Lumber AD Final (AB) (Reversed Panel's legal interpretation under AD Agreement

Article 2.2.1.1 that the phrase "consider all available evidence on the proper allocation of

costs" does not require that investigating authorities compare various cost allocation

methodologies in deciding which methodology to use; on this basis, reversed Panel's

finding that the United States did not act inconsistently with AD Agreement Article 2.2.1.1

in its calculation of the amount for financial expense for softwood lumber for Abitibi;

however, Appellate Body did not make findings on whether the United States acted

consistently or inconsistently with that provision. See paras. 118-143; upheld the Panel's

finding that the United States did not act inconsistently with AD Agreement Article 2.2.1.1

in its treatment of by-product revenue for the company Tembec. See paras. 146-181)

 U.S. - Lumber AD Final (Panel) (Said that "Article 2.2.1.1 does not ... require that costs

be calculated in accordance with GAAP nor that they reasonably reflect the costs

associated with the production and sale of the product under consideration," but rather "it

simply requires that costs be calculated on the basis of the exporter or producer's

records, in so far as those records are in accordance with GAAP and reasonably reflect

the costs associated with the production and sale of the product under consideration";

also said that "Article 2.2.1.1 "does not require that investigating authorities compare

various allocation methodologies to assess their advantages and disadvantages but to

'consider' all available evidence on the proper allocation of cost" -- reversed on appeal;

Panel "reject[ed] Canada's contention that the United States failed to 'consider all

available evidence on the proper allocation of costs,'" and therefore found that the DOC

"met the requirement set forth in Article 2.2.1.1" -- reversed on appeal; rejected Canada's

claim that the United States is in breach of Article 2.2.1.1 "by failing to make an allocation

of financial expense to softwood lumber which 'reasonably reflects the costs associated

with the production and sale of the product under consideration.'" See paras. 7.227-245;

found that "an unbiased and objective investigating authority could have determined the

amounts for G&A expenses for softwood lumber as DOC did [for the respondent

Tembec]," and therefore rejected Canada's claim that the United States acted in violation

of Article 2.2.1.1 by basing the G&A expense on the company-wide financial statement,

rather than the divisional financial statement. See paras. 7.246-269; rejected Canada's

claim that the United States violated Article 2.2.1.1 "by improperly ignoring

Weyerhaeuser's books and records and establishing G&A costs for Weyerhaeuser

Canada that did not 'reasonably reflect' its costs for producing and selling softwood

lumber," in relation to the hardboard siding settlement fund. See paras. 7.270-297;

concluded that, "an unbiased and objective investigating authority could have used the

actual cost of the input as recorded in Tembec's books as a benchmark for valuing

internal transfers of wood chips," and therefore rejected Canada's claim that the United

States acted inconsistently with Article 2.2.1.1; in this regard, rejected Canada's

argument that Article 2.2.1.1 requires that a by-product offset must reasonably reflect

"market value"; rejected Canada's claim that, "in re-valuing West Fraser's revenue from

sales of wood chips to affiliated parties, instead of using the value recorded in West

Fraser's books, the United States acted inconsistently with Article 2.2.1.1." See paras.

7.298-348; in considering Canada's argument that the DOC should have offset Slocan's

financial expenses with the futures profits in determining constructed normal value in

accordance with Article 2.2.1.1, the Panel considered that Canada's argument does not

"relate to any of the obligations imposed in Article 2.2.1.1," and therefore rejected the

argument. See paras. 7.349-373)

 Egypt - Rebar from Turkey (Panel) (Because Turkey failed to provide any evidence to

demonstrate a relationship between short-term interest income and the cost of producing

rebar, Panel found that "Turkey has not established a prima facie case that the

[investigating authority] violated Article 2.2.1.1 or 2.2.2 in deciding not to make an interest

income offset in calculating cost of production and constructed normal value." See paras.

7.389-426)

 U.S. - DRAMS (Panel) (Korea failed to make its prima facie case challenging DOC's

acceptance of certain cost data; in particular, Korea failed to address DOC's bases for

rejecting the information; therefore, claim under Article 2.2.1.1 was rejected. See paras.

6.63-73)



Article 2.2.2 (SG&A Costs and Profits)



 U.S. - Lumber AD Final (Panel) (Rejected Canada's argument that the DOC's calculation

of financial expense was not based on "actual data pertaining to production and sales" of

softwood lumber, as required by Article 2.2.2. See paras. 7.227-245; found that the

United States did not violate Article 2.2.2 "by determining the G&A ratio – and the

resulting amounts for G&A for softwood lumber – based on Tembec's company-wide

G&A data [rather than data specific to one division]." See paras. 7.246-269; rejected

Canada's argument that the DOC calculated an "inflated amount" for Weyerhaeuser

Canada's G&A costs, in violation of Article 2.2.2, by including a cost that in Canada's

view did not "pertain to" Weyerhaeuser Canada's production and sale of Canadian

softwood lumber. See paras. 7.270-297)

 EC - Pipe Fittings (AB) (Upheld Panel's finding that the European Communities did not

act inconsistently with Article 2.2.2 "by including actual data from 'low-volume' sales in

determining the amounts for SG&A and profits for the construction of normal value." See

paras. 85-102)

 EC - Pipe Fittings (Panel) (Found that Brazil did not establish that the European

Communities violated Article 2.2.2 by including data relating to "low volume" sales in its

calculation of constructed normal value. See paras. 7.121-139; found that Brazil did not

establish that the European Communities acted inconsistently with Articles 2.2 and 2.2.2

by including data from sales of product types with internal product codes 68 and 69 --

which fell within the definition of "like product" but were alleged not to be "identical" to the

export products -- for the purposes of constructing normal value. See paras. 7.141-151)

 EC - Bed Linen, Article 21.5 (Panel) (Rejected claim that the EC violated Article 2.2.2(ii)

when it calculated a weighted average on the basis of sales value instead of volume. See

paras. 6.69-94)

 Egypt - Rebar from Turkey (Panel) (Because Turkey failed to provide any evidence to

demonstrate a relationship between short-term interest income and the cost of producing

rebar, Panel found that "Turkey has not established a prima facie case that the

[investigating authority] violated Article 2.2.1.1 or 2.2.2 in deciding not to make an interest

income offset in calculating cost of production and constructed normal value." See para.

7.389-426)

 Thailand - Steel (Panel) (Interpreted "category of products" in Article 2.2.2(i) to suggest a

narrow category as opposed to a broad one; no separate "reasonability" test necessary in

determining profit amount; rejected claim of violation of Article 2.2. See paras. 7.97-129)

 EC - Bed Linen (AB) (Reversed Panel's finding regarding the number of other producers

necessary for a profit calculation under Article 2.2.2(ii), holding that profit so calculated

must be based on more than one "other" producer; reversed Panel's finding regarding the

treatment of sales outside the ordinary course of trade, and held instead that

investigating authorities may not exclude data from sales outside the ordinary course of

trade in this profit calculation. See paras. 67-85)

 EC - Bed Linen (Panel) (There is no hierarchy among the different Article 2.2.2

provisions; profit calculated under Article 2.2.2(ii) may be based on one "other" producer -

- reversed on appeal; profit calculation may exclude data from sales outside the ordinary

course of trade -- reversed on appeal. See paras. 6.49-87)



Article 2.4



Article 2.4 (General)



 U.S. - Corrosion-Resistant Steel Sunset Review (AB) (Reversed Panel's legal

interpretation concerning the use of past dumping margins as part of the "likelihood"

determination in sunset reviews, concluding that such margins must be consistent with

AD Agreement Article 2.4; however, concluded that it could not complete the analysis on

this issue, due to insufficient factual findings by the Panel. See paras. 118-138)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Concluded, "[w]e … do not

believe that the substantive disciplines in Article 2 governing the calculation of dumping

margins in making a determination of dumping apply in making a determination of

likelihood of continuation or recurrence of dumping under Article 11.3"; therefore, found

that the United States did not act inconsistently with Article 2.4 in its use of past margins

as evidence under Article 11.3 -- reversed on appeal. See paras. 7.157-170)



Article 2.4 (Due Allowances for Differences Affecting Price Comparability)



 U.S. - "Zeroing" of Dumping Margins (AB) (Upheld Panel's finding that "zeroing is not an

impermissible allowance or adjustment under Article 2.4, third to fifth sentences"; noted

that "adjustments or allowances made in relation to differences in price between export

transactions and domestic transactions—such as zeroing—cannot be adjustments or

allowances covered by the third sentence of Article 2.4, including its a contrario

application." See paras. 148-159)

 U.S. - "Zeroing" of Dumping Margins (Panel) (Rejected claim that "zeroing" in duty

assessment proceedings amounts to "an allowance or adjustment to export price, normal

value or otherwise, so as to effectively reduce the (true) export price, for a difference

other than a difference affecting price comparability" and is thereby inconsistent with the

third to fifth sentences of Article 2.4, stating that such a conclusion cannot be reconciled

with the fact that "zeroing" is only addressed by Article 2.4.2 in the context of original

investigations, and also that Article 2.4.2 permits "zeroing" in certain circumstances. See

paras. 7.276-280)

 Korea - Paper AD Duties (Panel) (Panel was not convinced that there were sales-related

services provided by CMI with respect to domestic sales of Indah Kiat's and Pindo Deli's

products in the Indonesian market which were not provided in these two companies'

export sales to Korea, and therefore rejected Indonesia's claim related to differences

affecting price comparability under Article 2.4. See paras. 7.132-147)

 U.S. - Lumber AD Final (Panel) (Stated, "[a] discernible pattern of price differences is in

our view necessary for a conclusion that a given difference affects price comparability";

concluded that Canada "has not established that the United States acted in a manner

inconsistent with Article 2.4 of the AD Agreement in not granting the requested

adjustment for differences in dimension." See paras. 7.159-184; in response to Canada's

argument that the DOC should have made an adjustment, under AD Agreement Article

2.4, for Slocan's profits and losses from lumber futures hedging contracts traded on the

Chicago Mercantile Exchange, the Panel concluded, "an unbiased and objective

investigating authority could have concluded that the adjustment requested by Slocan

under Article 2.4 … was not warranted and, hence, that such an investigating authority

could have refused granting that adjustment." See paras. 7.349-373)

 EC - Pipe Fittings (Panel) (Found that Brazil did not establish that the European

Communities violated AD Agreement Article 2.4 or GATT Article VI in not granting an

adjustment in relation to the IPI Premium Credit and did not establish that the European

Communities violated the obligation to ensure a fair comparison under AD Agreement

Article 2.4 or its obligations under GATT Article VI by the methodology it applied in

calculating the PIS/COFINS adjustment. See paras. 7.152-179; found that Brazil did not

establish that the European Communities acted inconsistently with its obligations under

Article 2.4 by: (1) denying an adjustment with respect to packing costs; (2) failing to

indicate what information was necessary to ensure a fair comparison; or (3) imposing an

unreasonable burden of proof in respect of packing costs. See paras. 7.181-193)

 Argentina - Poultry AD Duties (Panel) (Concluded that Argentina violated Article 2.4 by

failing to make the freight cost adjustment to normal value requested by Sadia; by

contrast, found that there is nothing on the record to suggest that Avipal had supplied any

documentary evidence in support of its request for a freight cost adjustment and therefore

the DCD was entitled to reject the freight cost adjustment requested by Avipal. See

paras. 7.231-240; found that Argentina violated Article 2.4 "by failing to make

adjustments when comparing the export price with normal value established on the basis

of JOX domestic sales data." See paras. 7.241-249; found that the DCD violated Article

2.4 by increasing all exporters' normal values by 9.09 percent to reflect alleged

differences in the physical characteristics of poultry sold in Brazil and Argentina. See

paras. 7.250-260)

 Egypt - Rebar from Turkey (Panel) (Stating that respondents should have raised their

"concerns" regarding credit cost adjustments at the time the investigating authority shifted

its analysis to a constructed normal value approach, Panel found that Turkey did not

make a prima facie case of a violation of Article 2.4. See paras. 7.347-388)

 Argentina - Floor Tiles (Panel) (Article 2.4 means "at a minimum that the authority has to

evaluate identified differences in physical characteristics to see whether an adjustment is

required to maintain price comparability and to ensure a fair comparison between normal

value and export price under Article 2.4 of the AD Agreement, and to adjust where

necessary"; here, found that the Argentine authority violated Article 2.4 by failing to make

due allowance for price differences resulting from model differences. See paras. 6.106-

117)

 U.S. - Hot-Rolled Steel from Japan (AB) (In context of findings under Article 2.1,

emphasized that "due allowances" under Article 2.4 must be made to ensure the

comparability of the downstream sales; here, based on a lack of undisputed facts, the

Appellate Body was unable to complete the analysis and determine whether the

replacement sales used by DOC in the hot-rolled investigation required any further "due

allowances." See paras. 167-180)

 U.S. - Sheet/Plate from Korea (Panel) (With respect to unpaid sales made through the

Korean exporter's affiliated importer, the United States improperly calculated a

constructed export price by deducting the bad debt costs as "allowances" under AD

Agreement Article 2.4; similarly, DOC's adjustment for unpaid sales through unaffiliated

importers was not a permissible "due allowance" and was thus inconsistent with the third

sentence of AD Agreement Article 2.4. See paras. 6.56-101)



Article 2.4 (Fair Comparison)



 U.S. - Zeroing (Japan) (AB) (Reversed Panel's finding that the United States does not act

inconsistently with AD Agreement Article 2.4 by maintaining zeroing procedures when

calculating margins of dumping on the basis of T-T comparisons in original investigations;

found instead that the United States acts inconsistently with this provision. See paras.

141-147; reversed Panel's finding that zeroing in the context of periodic reviews and new

shipper reviews is not, as such, inconsistent with Article 2.4; found instead that zeroing is,

as such, inconsistent with that provision. See paras. 167-169; reversed Panel's finding

that zeroing, as applied by the United States in the 11 periodic reviews at issue in this

appeal, is not inconsistent with AD Agreement Articles 2.1, 2.4, 9.1, and 9.3 and GATT

Articles VI:1 and VI:2; found instead that the United States acted inconsistently with

Articles 2.4 and 9.3 and Article VI:2. See paras. 172-177)

 U.S. - Zeroing (Japan) (Panel) (Found that in "maintaining simple zeroing procedures in

the context of original investigations," the DOC does not act inconsistently with Article 2.4

-- reversed on appeal. See paras. 7.144-161; found that by maintaining simple zeroing

procedures in the context of periodic reviews and new shipper reviews, the DOC does

not act inconsistently with AD Agreement Articles 2.1, 2.4, 2.4.2, 9.1-9.3, 9.5, 18.4, GATT

Articles VI:1 and VI:2, and WTO Agreement Article XVI:4 -- reversed on appeal. See

paras. 7.189-224; for the same reasons, Panel rejected Japan's claims that simple

zeroing as applied in 11 periodic reviews is inconsistent with AD Agreement Articles 1,

2.1, 2.4, 2.4.2 and 9.1-9.3, GATT Articles VI:1 and VI:2 -- reversed on appeal. See paras.

7.225-227; after concluding that Japan has failed to adduce evidence necessary to

establish that a rule, norm or standard of general and prospective application exists by

virtue of which the DOC relies on margins of dumping calculated in prior proceedings to

support its determinations in changed circumstances reviews and sunset reviews, Panel

found that Japan has failed to make a prima facie case that by maintaining zeroing

procedures in the context of these reviews the DOC acts inconsistently with AD

Agreement Articles 2 and 11. See paras. 7.230-244; based on its finding that the AD

Agreement does not proscribe simple zeroing in periodic reviews within the meaning of

Article 9.3, Panel found that the DOC did not violate AD Agreement Articles 2 and 11 in

relying on margins of dumping calculated in periodic reviews on the basis of simple

zeroing -- reversed on appeal. See paras. 7.245-257)

 U.S. - Lumber AD Final, Article 21.5 (AB) (Reversed Panel's finding that the DOC's

Section 129 Determination is not inconsistent with AD Agreement Article 2.4; instead,

Appellate Body concluded that the DOC's use of "zeroing" under the transaction-to-

transaction comparison methodology in the Section 129 Determination is inconsistent

with the "fair comparison" requirement of Article 2.4. See paras. 125-146)

 U.S. - Lumber AD Final, Article 21.5 (Panel) (Rejected claim that the DOC's use of

"zeroing" in the transaction-to-transaction comparison methodology violates the fair

comparison obligation provided for in the first sentence of Article 2.4 -- reversed on

appeal. See paras. 5.67-78)

 U.S. - "Zeroing" of Dumping Margins (AB) (Declined to rule on whether the Panel's

finding under AD Agreement Article 2.4 is in error, and "declare[d] moot, and of no legal

effect" the finding of the Panel that zeroing, as applied by the DOC in the administrative

reviews at issue, is not inconsistent with the first sentence of Article 2.4; saw "nothing

incorrect" in the Panel's reasoning that the "fair comparison" language in the first

sentence of Article 2.4 "creates an independent obligation" and that "the scope of this

obligation is not exhausted by the general subject matter expressly addressed by

paragraph 4 (that is to say, the price comparability)"; with regard to the meaning of "fair

comparison," the Appellate Body agreed with the Panel that "the legal rule set out in the

first sentence of Article 2.4 is expressed in terms of a general and abstract standard,"

which, it said, implies that "this requirement is also applicable to proceedings governed

by Article 9.3." See paras. 136-147; declared "moot, and of no legal effect" the Panel's

finding that the zeroing methodology used by the United States in administrative reviews

is not inconsistent, as such, with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and

18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4. See paras. 226-

227; declared "moot, and of no legal effect" the Panel's finding that Section 351.414(c)(2)

is not inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and

18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4. See paras. 235-

242)

 U.S. - "Zeroing" of Dumping Margins (Panel) (Found that Sections 771(35)(A) and (B),

731 and 777A(d) of the Tariff Act are not "as such" inconsistent with AD Agreement

Articles 1, 2.4, 2.4.2, 5.8, 9.3 and 18.4, GATT Articles VI:1 and VI:2, and WTO

Agreement Article XVI:4 with respect to the use of a "zeroing" methodology in the

calculation of margins of dumping in original investigations. See paras 7.37-69; Panel

majority found that the United States did not act inconsistently with Article 2.4 "when in

the administrative review proceedings challenged by the European Communities in this

dispute USDOC calculated dumping margins by comparing average monthly normal

value with prices of individual export transactions and did not include in the numerator of

the dumping margins any amounts by which export prices of individual transactions

exceeded the normal value" (i.e., "simple zeroing") -- on appeal, Appellate Body declared

this finding to be "moot, and of no legal effect." See paras. 7.224-284; with regard to the

claims that the "Standard Zeroing Procedures" used by the United States in

administrative reviews or the U.S. practice or methodology of zeroing, Sections

771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and Section

351.414(c)(2) of the DOC Regulations are inconsistent with AD Agreement Articles 1,

2.4, 2.4.2, 9.3, 11.1, 11.2 and 18.4, GATT Articles VI:1 and VI:2, WTO Agreement Article

XVI:4, Panel majority said that these claims are "dependent upon a violation of Articles

2.4 and/or 2.4.2" and thus it also rejected these dependent claims. See paras. 7.289-291;

with regard to the claims that the "Standard Zeroing Procedures" used by the United

States in new shipper reviews, changed circumstances reviews and sunset reviews,

Sections 771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and

Section 351.414(c)(2) of the DOC Regulations are inconsistent with AD Agreement

Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3 and 18.4, GATT Articles VI:1 and VI:2,

WTO Agreement Article XVI:4, Panel majority said that the claims are "dependent upon a

violation of Articles 2.4 and/or 2.4.2" and thus it also rejected these dependent claims.

See paras. 7.292-294; one panelist dissented, stating that he would have found: (a) that

simple and model zeroing are inconsistent with Articles 2.4 and 2.4.2 in assessment

proceedings, except where there is targeted dumping; (b) that § 351.414 (c)(2) of the

U.S. Anti-Dumping Regulations, which foresees simple zeroing in review proceedings, is

inconsistent with Articles 2.4 and 2.4.2; and (c) that the United States zeroing

methodology used in assessment and review proceedings is inconsistent with Articles 2.4

and 2.4.2. See paras. 9.1-62)

 U.S. - Lumber AD Final (Panel) (With respect to Canada's claim of violation under Article

2.4, based on the argument that "zeroing" does not produce a "fair comparison," Panel

majority considered that as a result of its finding that the DOC's methodology violates

Article 2.4.2, "it is neither appropriate, nor necessary for us to rule on Canada's Article

2.4 claim." See paras. 7.225-226; one panelist dissented on the issue of "zeroing,"

stating: "Canada has not established that the application of zeroing in the underlying

investigation methodology was inconsistent with the United States' obligation under

Article 2.4 to conduct a 'fair comparison.'" See paras. 9.1-24)

 EC - Pipe Fittings (Panel) (Found that Brazil did not establish that the European

Communities violated AD Agreement Article 2.4 or GATT Article VI in not granting an

adjustment in relation to the IPI Premium Credit and did not establish that the European

Communities violated the obligation to ensure a fair comparison under AD Agreement

Article 2.4 or its obligations under GATT Article VI by the methodology it applied in

calculating the PIS/COFINS adjustment. See paras. 7.152-179; with respect to Brazil's

allegation that, by using data from "low volume" sales and not making an adjustment for

the use of this data under Article 2.4, the European Communities breached the Article 2.4

requirement to make a "fair comparison" between normal value and export price, Panel

said this argument relates to the identification of normal value under Article 2.2 and 2.2.2,

rather than to the requirement to ensure a fair comparison under Article 2.4, and

therefore declined to consider Brazil's allegation on this point under Article 2.4. See para.

7.140; found that Brazil did not establish that the European Communities acted

inconsistently with its obligations under Article 2.4 by: (1) denying an adjustment with

respect to packing costs; (2) failing to indicate what information was necessary to ensure

a fair comparison; or (3) imposing an unreasonable burden of proof in respect of packing

costs. See paras. 7.181-193)

 Argentina - Poultry AD Duties (Panel) (Noted that "Article 2.4 imposes obligations in

respect of the comparison between normal value and export price," and therefore,

because "Article 2.4 does not impose obligations in respect of the fixing of the period of

investigation by the investigating authority," Panel rejected Brazil's claim. See paras.

7.261-266)

 Egypt - Rebar from Turkey (Panel) (Found that Article 2.4 relates to the comparison of

export price to normal value and does not establish generally applicable rule as to burden

of proof, such that Article 2.4 is not applicable to the investigating authority's decision to

resort to facts available. See para. 7.269)

 U.S. - Sheet/Plate from Korea (Panel) (Rejected claim that the "double conversion" of

local sales from dollars to won and back to dollars was inconsistent with a "fair

comparison" requirement in the chapeau of Article 2.4. See paras. 6.42-45; use of

multiple averaging periods did not violate the fair comparison requirement. See paras.

6.132-136)



Article 2.4 (Unreasonable Burden of Proof)



 EC - Pipe Fittings (Panel) (Found that Brazil did not establish that the European

Communities acted inconsistently with its obligations under Article 2.4 by: (1) denying an

adjustment with respect to packing costs; (2) failing to indicate what information was

necessary to ensure a fair comparison; or (3) imposing an unreasonable burden of proof

in respect of packing costs. See paras. 7.181-193)

 Egypt - Rebar from Turkey (Panel) (Found that Article 2.4 relates to the comparison of

export price to normal value, and thus does not apply to the investigating authority’s

establishment of normal value as such; found that Turkey had not established that the

request for certain cost information imposed an unreasonable burden of proof under

Article 2.4. See paras. 7.330-337)



Article 2.4.1 (Currency Conversion)



 EC - Pipe Fittings (Panel) (Found that Brazil did not establish that Article 2.4.1 provides a

legal basis for its claim concerning the currency conversions for adjustments, and

therefore the Panel did not "consider the merits of Brazil's claim under Article 2.4.1." See

paras. 7.194-200)

 U.S. - Sheet/Plate from Korea (Panel) (Investigating authority violated Article 2.4.1 when

it knowingly converted the won price to a dollar price, despite the fact that the authority

should have known that the won price already reflected a dollar value; there was no

violation, however, in the investigation of a different product, for which the investigating

authority could not have known that the won price reflected a dollar value. See paras.

6.7-41)



Article 2.4.1 (Applicability to Multiple Averaging)



 U.S. - Sheet/Plate from Korea (Panel) (Article 2.4.1 does not prohibit the use of multiple

averaging periods, even when that methodology is undertaken to account for currency

depreciation. See paras. 6.126-131)



Article 2.4.2, first sentence (Comparison of a Weighted Average Normal Value with a

Weighted Average of Prices of All Comparable Export Transactions / Comparison of

Normal Value and Export Prices on a Transaction-to-Transaction Basis)



 U.S. - Shrimp AD Measure (Ecuador) (Panel) (Concluded that by using "zeroing" in

calculating the margins of dumping in the three measures challenged by Ecuador, the

DOC has acted inconsistently with AD Agreement Article 2.4.2, first sentence in its final

and amended final affirmative anti-dumping determinations, and also in its final

antidumping duty order, with respect to certain frozen warmwater shrimp from Ecuador.

See paras. 7.13-43)

 U.S. - Zeroing (Japan) (AB) (Reversed Panel's finding that the United States does not act

inconsistently with Article 2.4.2 by maintaining zeroing procedures when calculating

margins of dumping on the basis of T-T comparisons in original investigations; found

instead that the United States acts inconsistently with that provision. See paras. 117-138)

 U.S. - Zeroing (Japan) (Panel) (Concluded that model zeroing procedures in the context

of original investigations are, as such, inconsistent with Article 2.4.2, and thus found that

"by maintaining model zeroing procedures in the context of original investigations" the

DOC acts inconsistently with Article 2.4.2. See paras. 7.60-86; found that "by maintaining

simple zeroing procedures in the context of original investigations," the DOC does not act

inconsistently with AD Agreement Articles 2.1 and 2.4.2 and GATT Articles VI:1 and VI:2

-- reversed on appeal. See paras. 7.90-143; found that "by using model zeroing in the

anti-dumping investigation of imports of certain cut-to-length carbon quality steel products

from Japan," the DOC acted inconsistently with AD Agreement Article 2.4.2. See paras.

7.176-179; found that by maintaining simple zeroing procedures in the context of periodic

reviews and new shipper reviews, the DOC does not act inconsistently with AD

Agreement Articles 2.1, 2.4, 2.4.2, 9.1-9.3, 9.5, 18.4, GATT Articles VI:1 and VI:2, and

WTO Agreement Article XVI:4 -- reversed on appeal. See paras. 7.189-224; for the same

reasons, Panel rejected Japan's claims that simple zeroing as applied in 11 periodic

reviews is inconsistent with AD Agreement Articles 1, 2.1, 2.4, 2.4.2 and 9.1-9.3, GATT

Articles VI:1 and VI:2 -- reversed on appeal. See paras. 7.225-227; after concluding that

Japan has failed to adduce evidence necessary to establish that a rule, norm or standard

of general and prospective application exists by virtue of which the DOC relies on

margins of dumping calculated in prior proceedings to support its determinations in

changed circumstances reviews and sunset reviews, Panel found that Japan has failed to

make a prima facie case that by maintaining zeroing procedures in the context of these

reviews the DOC acts inconsistently with AD Agreement Articles 2 and 11. See paras.

7.230-244; based on its finding that the AD Agreement does not proscribe simple zeroing

in periodic reviews within the meaning of Article 9.3, Panel found that the DOC did not

violate AD Agreement Articles 2 and 11 in relying on margins of dumping calculated in

periodic reviews on the basis of simple zeroing -- reversed on appeal. See paras. 7.245-

257)

 U.S. - Lumber AD Final, Article 21.5 (AB) (Reversed Panel's finding that the U.S.

Department of Commerce ("DOC") "was entitled not to offset the non-dumped

transactions against the dumped transactions when calculating the margin of dumping for

each respondent foreign producer or exporter"; also reversed Panel's conclusion that the

determination of the DOC in the Section 129 proceeding investigation is not inconsistent

with AD Agreement Article 2.4.2; instead, Appellate Body concluded that the use of

"zeroing" by the DOC under the transaction-to-transaction comparison methodology in

the Section 129 Determination is inconsistent with Article 2.4.2. See paras. 71-124)

 U.S. - Lumber AD Final, Article 21.5 (Panel) (Concluded that "neither the ordinary

meaning of the first sentence of Article 2.4.2 as a whole, nor the ordinary meaning of the

phrase 'margins of dumping' in particular, require that all transaction-specific

comparisons under the T-T comparison methodology must be treated as 'intermediate

values' and aggregated, without zeroing, in order to arrive at a single margin of dumping

for the product as a whole"; thus, concluded that "the DOC was entitled not to offset the

non-dumped transactions against the dumped transactions when calculating the margin

of dumping for each respondent foreign producer or exporter"; accordingly, rejected claim

that the DOC's use of "zeroing" in the transaction-to-transaction comparison methodology

at issue is inconsistent with AD Agreement Article 2.4.2 -- reversed on appeal. See

paras. 5.9-66)

 U.S. - "Zeroing" of Dumping Margins (AB) (Stated that it did not express any view as to

whether Article 2.4.2 is applicable to administrative reviews under Article 9.3; thus, it said,

the Panel's findings on this issue "should not be considered to have been endorsed by

the Appellate Body." See paras. 160-164; upheld Panel's conclusion, "albeit for reasons

different from those set out by the Panel," that "the zeroing methodology, as it relates to

original investigations in which the weighted-average-to-weighted-average comparison

method is used to calculate margins of dumping, is inconsistent, as such," with AD

Agreement Article 2.4.2. See paras. 173-222; declared "moot, and of no legal effect" the

Panel's finding that the zeroing methodology used by the United States in administrative

reviews is not inconsistent, as such, with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 11.1,

11.2, and 18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4. See

paras. 226-227; declared "moot, and of no legal effect" the Panel's finding that Section

351.414(c)(2) is not inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1,

11.2, 11.3, and 18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4.

See paras. 235-242)

 U.S. - "Zeroing" of Dumping Margins (Panel) (Found that the United States acted

inconsistently with Article 2.4.2 "when in the anti-dumping investigations at issue USDOC

did not include in the numerator used to calculate weighted average dumping margins

any amounts by which average export prices in individual averaging groups exceeded the

average normal value for such groups" (i.e., when it used "model zeroing"). See paras

7.9-32; found that Sections 771(35)(A) and (B), 731 and 777A(d) of the Tariff Act are not

"as such" inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 5.8, 9.3 and 18.4, GATT

Articles VI:1 and VI:2, and WTO Agreement Article XVI:4 with respect to the use of a

"zeroing" methodology in the calculation of margins of dumping in original investigations.

See paras 7.37-69; found that "the United States' zeroing methodology, as it relates to

original investigations, is a norm which, as such, is inconsistent with Article 2.4.2." See

paras. 7.70-106; Panel majority found that the United States did not act inconsistently

with Article 2.4.2 when, in the administrative reviews at issue, the DOC "used a

methodology that involved asymmetrical comparisons between export price and normal

value and in which no account was taken of any amount by which export prices exceeded

normal value" (i.e., "simple zeroing"). See paras. 7.113-223; with regard to the claims that

the "Standard Zeroing Procedures" used by the United States in administrative reviews or

the U.S. practice or methodology of zeroing, Sections 771(35)(A) and (B), 731, 777A(d)

and 751(a)(2)(i) and (ii) of the Tariff Act, and Section 351.414(c)(2) of the DOC

Regulations are inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2 and

18.4, GATT Articles VI:1 and VI:2, WTO Agreement Article XVI:4, Panel majority said that

these claims are "dependent upon a violation of Articles 2.4 and/or 2.4.2" and thus it also

rejected these dependent claims. See paras. 7.289-291; with regard to the claims that the

"Standard Zeroing Procedures" used by the United States in new shipper reviews,

changed circumstances reviews and sunset reviews, Sections 771(35)(A) and (B), 731,

777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and Section 351.414(c)(2) of the DOC

Regulations are inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1,

11.2, 11.3 and 18.4, GATT Articles VI:1 and VI:2, WTO Agreement Article XVI:4, Panel

majority said that the claims are "dependent upon a violation of Articles 2.4 and/or 2.4.2"

and thus it also rejected these dependent claims. See paras. 7.292-294; one panelist

dissented, stating that he would have found: (a) that simple and model zeroing are

inconsistent with Articles 2.4 and 2.4.2 in assessment proceedings, except where there is

targeted dumping; (b) that § 351.414 (c)(2) of the U.S. Anti-Dumping Regulations, which

foresees simple zeroing in review proceedings, is inconsistent with Articles 2.4 and 2.4.2;

and (c) that the United States zeroing methodology used in assessment and review

proceedings is inconsistent with Articles 2.4 and 2.4.2. See paras. 9.1-62)

 U.S. - Lumber AD Final (AB) (Upheld the Panel's finding that the United States acted

inconsistently with AD Agreement Article 2.4.2 in determining the existence of margins of

dumping on the basis of a methodology incorporating the practice of "zeroing." See

paras. 63-117)

 U.S. - Lumber AD Final (Panel) (Panel majority found that through the use of "zeroing,"

the United States violated AD Agreement Article 2.4.2 "by not taking into account all

comparable export transactions when DOC calculated the overall margin of dumping as

Article 2.4.2 requires that the existence of margins of dumping has to be established for

softwood lumber on the basis of a comparison of the weighted-average-normal value with

the weighted average of prices of all comparable export transactions, that is, for all

transactions involving all types of the product under investigation." See paras. 7.185-224;

one panelist dissented, stating: "I consider that the US interpretation of Article 2.4.2 as

not prohibiting zeroing is a permissible one"; thus, the dissenter found that "the

application by DOC of 'zeroing' in this case was not inconsistent with Article 2.4.2 of the

AD Agreement." See paras. 9.1-24)

 EC - Pipe Fittings (Panel) (Noted that the European Communities "has admitted" that it

applied "zeroing" in this case and that this "practice" has been found in other WTO

dispute settlement cases to be a violation of Article 2.4.2; on this basis, found that the

European Communities violated Article 2.4.2 "by failing to consider the weighted average

of 'all comparable export transactions.'" See paras. 7.209-219)

 Argentina - Poultry AD Duties (Panel) (Because the DCD established weighted average

normal values on the basis of "statistical samples" of domestic sales transactions, rather

than on the basis of all domestic sales transactions, the Panel found that the DCD

violated Article 2.4.2 by failing to compare the weighted average export price with a

"proper" weighted average normal value. See paras. 7.267-276)

 EC - Bed Linen (AB) (Upheld Panel's finding of a violation of Article 2.4.2 based on the

EC's use of "zeroing." See paras. 46-66)

 EC - Bed Linen (Panel) (Found EC's use of "zeroing" to violate Article 2.4.2 -- by using

zeroing for some models, the EC failed to carry out a comparison with all transactions.

See paras. 6.102-119)

 U.S. - Sheet/Plate from Korea (Panel) (Use of multiple averaging periods without a

proper determination of non-comparability violates the Article 2.4.2 requirement to

compare "a weighted average normal value with a weighted average of prices of all

comparable export transactions." See paras. 6.106-125)



Article 2.4.2, second sentence (Comparison of a Weighted Average Normal Value with

Individual Export Transactions)



 U.S. - Lumber AD Final, Article 21.5 (AB) (In the context of its findings under AD

Agreement Article 2.4.2, first sentence, Appellate Body explained that Article 2.4.2,

second sentence is an "exception." See paras. 95-100)



Article 2.6 ("Like Product" Shall Be Interpreted To Mean a Product which is Identical To,

or Closely Resembles, the Product under Consideration)

 Korea - Paper AD Duties (Panel) (Rejected Indonesia's argument that PPC and WF are

not, in fact, like products, and therefore "to conform to the provisions of Article 2.6 of the

Agreement, the KTC should have analyzed the effect of Indonesian PPC on Korean PPC

producers and the effect of Indonesian WF on Korean WF producers, separately";

therefore rejected Indonesia's claim that the KTC's like product definition was

inconsistent with Article 2.6, and, consequently, also rejected the claims related to

Articles 3.1, 3.2, 3.4, 3.5 and 3.7. See paras. 7.211-224)

 U.S. - Lumber AD Final (Panel) (Found that having defined the "product under

consideration," the DOC "used an identical definition for the 'like product'"; therefore, the

Panel said, "[o]n its face … it would appear that DOC has defined the 'like product' in this

investigation in a manner consistent with the definition found in Article 2.6"; rejected

Canada's interpretation of Article 2.6, under which, "rather than comparing the overall

scope of the product under consideration with the overall scope of the like product,"

Article 2.6 would require "that each individual item within the 'like product' must be 'like'

each individual item within the 'product under consideration'"; on this basis, Panel

concluded that the DOC's "approach" to "like product" was "not inconsistent" with the

definition of "like product" in Article 2.6. See paras. 7.139-158)

 EC - Pipe Fittings (Panel) (Found that Brazil did not establish that the European

Communities acted inconsistently with Articles 2.2 and 2.2.2 by including data from sales

of product types with internal product codes 68 and 69 -- which fell within the definition of

"like product" but were alleged not to be "identical" to the export products -- for the

purposes of constructing normal value. See paras. 7.141-151)



Article 3 (Determination of Injury)



Applicability of Article 3 to Sunset Reviews



 U.S. - OCTG Sunset Reviews (AB) (Upheld Panel's finding that the obligations in Article 3

"do not apply to likelihood-of injury determinations in sunset reviews.". See paras. 271-

280; in response to Argentina's argument that Article 11.3, "in and of itself, imposes

'substantive obligations' on investigating authorities to make their sunset review

determinations in a particular manner, and that the Panel erred in failing to recognize the

existence of these obligations," Appellate Body concluded: "We are not persuaded by the

argument of Argentina that a likelihood-of-injury determination can rest on a 'sufficient

factual basis' and can be regarded as a 'reasoned conclusion' only after undertaking all

the analyses detailed in the paragraphs of Article 3." See paras. 281-284)

 U.S. - OCTG Sunset Reviews (Panel) (Concluded that the obligations contained in Article

3 pertain to injury determinations and not the likelihood determinations carried out in

sunset reviews under Article 11; stated, therefore, that Article 3 applies to a sunset

review to the extent that an investigating authority carries out an injury determination or

relies upon a previous injury determination. See paras. 7.268-276)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Found that the obligations in

Article 3.3 pertain to cumulative analysis in "investigations," and that they are not

applicable to "sunset reviews''; concluded that "the United States did not act

inconsistently with Articles 11.3, 3.3 or 5.8 in the instant sunset review by cumulating

imports from Japan with imports from other countries without applying the negligibility

standard set out in Article 3.3 and 5.8 for original investigations." See paras. 7.89-105)



Article 3.1 ("Positive Evidence"; "Objective Examination")



 Mexico - Pipes and Tubes AD Duties (Panel) (Explained that "positive evidence" is

"evidence that is relevant and pertinent with the issue to be decided, and that has the

characteristics of being inherently reliable and creditworthy"; explained that "[a]n

'objective examination' requires that the domestic industry, and the effects of dumped

imports, be investigated in an unbiased manner, without favouring the interests of any

interested party, or group of interested parties, in the investigation" and that "the

identification, investigation and evaluation of the relevant factors must be 'even-handed.'"

See paras. 7.211-215; concluded that Guatemala failed to establish that Economía

violated AD Agreement Articles 3.1, 3.2, 3.4 and 3.5 "by relying on data from an

investigation period that terminated about eight months prior to the initiation and about

two years prior to the imposition of the definitive measures." See paras. 7.217-240;

concluded that "Economía's reliance, without sufficient justification, upon a subset of data

temporally limited to three six-month periods (July-December) over three consecutive

years (1998, 1999, 2000), as proposed by the applicant, was not capable of yielding an

accurate and representative picture enabling Economía to make an objective

examination of positive evidence in reaching its affirmative injury determination";

therefore concluded that Economía acted inconsistently with AD Agreement Articles 3.1,

3.2, 3.4 and 3.5. See paras. 7.241-261; with regard to volume effects, concluded that "the

methodology applied by Economía to estimate the volume of imports from sources other

than Guatemala – i.e. reliance on limited samples of varying magnitudes for the three

relevant periods in 1998, 1999 and 2000 as the basis for identifying the ranges of

minimum and maximum prices for the imports known to be of the relevant product, and

on the assumption that all imported products with prices within those ranges were

investigated products – was inconsistent with the requirements of Articles 3.1 and 3.2 of

the Anti-Dumping Agreement to conduct an objective examination of positive evidence";

with regard to price effects, concluded that "Guatemala failed to establish a prima facie

case of inconsistency with Articles 3.1 and 3.2." See paras. 7.262-295; concluded that

"Economía failed to conduct an objective examination on the basis of positive evidence,

as required by Article 3.1, of injury to the domestic industry as that term is defined in

Article 4.1, and consequently also violated Articles 3.2, 3.4 and 3.5, by failing to gather

and analyse representative and consistent data pertaining to the domestic industry, in

particular the data concerning the financial indicators of the 'domestic industry,' as

defined by it." See paras. 7.296-333; rejected Guatemala's claims that changes in the

definition of the product under investigation/like product in the course of the investigation

rendered the determinations of injury and causal link inconsistent with AD Agreement

Articles 3.1, 3.2, 3.4, 3.5, 4.1 and 5.4. See paras. 7.334-347; with regard to

causation/non-attribution, Panel found that Economía acted inconsistently with Articles

3.1, 3.2, 3.4 and 3.5 in its treatment of the decrease in exports in its causation analysis;

however, concluded that Guatemala failed to establish a prima facie case of

inconsistency with Articles 3.1, 3.2, 3.4 and 3.5 in relation to the treatment of operating

costs. See paras. 7.348-372)

 U.S. - Zeroing (Japan) (Panel) (Based on its rejection of the claims against simple

zeroing under other provisions, Panel rejected claims under Articles 3.1-3.5. See paras.

7.162-166)

 Mexico - Rice AD Measures (AB) (In light of Panel's assessment of various

circumstances, Appellate Body said it accepted that "a gap of 15 months between the

end of the period of investigation and the initiation of the investigation, and another gap of

almost three years between the end of the period of investigation and the imposition of

the final anti-dumping duties, may raise real doubts about the existence of a sufficiently

relevant nexus between the data relating to the period of investigation and current injury";

thus, upheld Panel's finding that Economía's use of a period of investigation ending in

August 1999 resulted in a failure to make a determination of injury based on "positive

evidence" as required by Article 3.1, and also upheld the Panel's finding that by choosing

this period of investigation Mexico acted inconsistently with Articles 3.2, 3.4, and 3.5. See

paras. 158-172; upheld Panel's finding that "in limiting the injury analysis to the March to

August period of 1997, 1998, and 1999, Mexico failed to make a determination of injury

that involves an 'objective examination,' as required by Article 3.1," and thus also upheld

the finding that "Mexico acted inconsistently with Article 3.5." See paras. 173-188; upheld

Panel's findings that Economía's injury analysis with respect to the volume and price

effects of dumped imports was inconsistent with the requirements of Articles 3.1 and 3.2

to conduct an objective examination based on positive evidence. See paras. 189-206)

 Mexico - Rice AD Measures (Panel) (Concluded, "by choosing to base its determination

of injury on a period of investigation which ended more than fifteen months before the

initiation of the investigation," Mexico acted inconsistently with the Article 3.1 requirement

to make a determination of injury which is based on positive evidence and which involves

an objective examination "of the volume and price effects of the alleged dumped imports

or of the consequent impact of these imports on domestic producers of the like product at

the time measures were imposed." See paras. 7.50-65; due the exclusion of six months

of data from each year of the investigation period, found that the investigating authority's

injury analysis is inconsistent with AD Agreement Article 3.1 "as it is not based on

positive evidence and does not allow for an objective examination, as it necessarily, and

without any proper justification, provides only a part of the picture of the situation"; in

addition, it found that "the particular choice of the limited period of investigation in this

case was not that of an unbiased and objective investigating authority as the authority

was aware of, and accepted, the fact that the period chosen reflected the highest import

penetration, thus ignoring data from a period in which it can be expected that the

domestic industry was faring better." See paras. 7.66-87; found that the investigating

authority's use of assumptions in its evaluation of export volumes and price effects

resulted in a violation of AD Agreement Articles 3.1 and 3.2; said that it was not

convinced "that an objective and unbiased investigating authority had no choice but to

base itself on the above unsubstantiated assumptions"; on this basis, found that the

investigating authority's injury analysis with regard to the volume and price effects of

dumped imports is inconsistent with the AD Agreement Articles 3.1 and 3.2 requirement

"to conduct an objective examination based on positive evidence of the volume and price

effects of the dumped imports." See paras. 7.89-116)

 Korea - Paper AD Duties (Panel) (Rejected Indonesia's argument that PPC and WF are

not, in fact, like products, and therefore "to conform to the provisions of Article 2.6 of the

Agreement, the KTC should have analyzed the effect of Indonesian PPC on Korean PPC

producers and the effect of Indonesian WF on Korean WF producers, separately";

therefore rejected Indonesia's claim that the KTC's like product definition was

inconsistent with Article 2.6, and, consequently, also rejected the claims related to

Articles 3.1, 3.2, 3.4, 3.5 and 3.7. See paras. 7.211-224; in response to Indonesia's claim

that "the data collected by the KTC with respect to prices could not support its finding that

dumped imports caused material injury to the Korean industry," Panel concluded that "the

KTC has clearly considered whether there was price undercutting, price suppression and

price depression caused by dumped imports"; therefore, Panel rejected Indonesia's claim

that the KTC's analysis concerning the price effects of dumped imports on the Korean

industry was inconsistent with Articles 3.1, 3.2 and 3.4. See paras. 7.238-254)

 U.S. - OCTG AD Measures (Panel) (Found that 19 U.S.C. §§ 1675a(a)(1) and (5) are not

inconsistent with AD Agreement Articles 3.1, 3.2, 3.4, 3.7, 3.8, 11.1 and 11.3 in relation to

the determination of whether injury is likely to continue or recur. See paras. 7.84-108)

 U.S. - OCTG Sunset Reviews (Panel) (Observed that the ITC's determination makes

clear that it is about the likelihood of continuation or recurrence of injury, and Argentina

did not argue that the ITC carried out an injury determination nor did it claim that the ITC

relied on a past injury determination that is now inconsistent with Article 3; thus, the

Panel said that it would examine only the Article 11.3 aspects of Argentina's claim and

would "decline" those relating to Article 3. See paras. 7.278-279)

 U.S. - Lumber ITC Investigation (Panel) (While it made no findings on the AD Agreement

Article 3.1 and SCM Agreement Article 15.1 claims, Panel nonetheless recognized "the

importance of these obligations to its evaluation of the determination at issue"; thus, it

said that it "considered the obligations established in those provisions in evaluating the

determination" and "kept in mind statements of the Appellate Body regarding the

meaning of 'positive evidence' and 'objective examination.'" See paras. 7.24-28)

 EC - Pipe Fittings (AB) (Found that the Panel did not fail to assess whether the European

Commission's establishment of the facts was proper under Article 17.6(i) and did not

incorrectly interpret Articles 3.1 and 3.4 "by including Exhibit EC-12 within its assessment

of the European Commission's evaluation of the injury factors listed in Article 3.4." See

paras. 119-133)

 EC - Pipe Fittings (Panel) (Found that the European Communities did not violate Articles

3.2 and 3.1 with respect to its use of "zeroing" as part of its price undercutting

methodology. See paras. 7.268-285; found that the European Communities did not

violate Articles 3.2 and 3.1 in not granting an adjustment for price comparability in its

comparison of sales prices of black heart and white heart fittings in the context of its

consideration of price undercutting. See paras. 7.286-297; concluded that the European

Communities did not violate Articles 3.4 or 3.1 in its evaluation of injury factors. See

paras. 7.298-345)

 Argentina - Poultry AD Duties (Panel) (Found that the CNCE acted inconsistently with

Article 3.1 by only examining 1999 data for certain injury factors, but not others. See

paras. 7.277-288; found that Argentina violated Articles 3.1, 3.2, 3.4 and 3.5 by including

"non-dumped" imports from Nicolini and Seara in the injury analysis. See paras. 7.295-

307; found that Argentina violated Articles 3.1(b) and 3.4 by failing to evaluate all of the

factors and indices listed in Article 3.4. See paras. 7.308-327)

 EC - Bed Linen, Article 21.5 (AB) (Found that the EC violated Articles 3.1 and 3.2 when it

considered all imports from unexamined Indian producers/exporters to be "dumped" for

purposes of the injury analysis. See paras. 101-146)

 EC - Bed Linen, Article 21.5 (Panel) (Rejected claim that the EC violated Articles 3.1 and

3.3 by conducting a cumulative assessment of the effects of dumped imports from India

and Pakistan, given that, at the time of the redetermination, the only determination

regarding imports from Pakistan established that those imports were dumped. See paras.

6.95-116; rejected argument that the EC violated Articles 3.1 and 3.2 when it considered

all imports from unexamined Indian producers/exporters to be "dumped" for purposes of

the injury analysis -- reversed on appeal. See paras. 6.117-144; concluded that the EC's

analysis and conclusions in respect of its evaluation of the Article 3.4 factors were

consistent with Articles 3.1 and 3.4. See paras. 6.145-217)

 Egypt - Rebar from Turkey (Panel) (Found that Turkey had not established that an

objective and unbiased investigating authority could not have found "price undercutting"

to exist on the basis of the evidence on the record; therefore, rejected Turkey's claim that

the price undercutting finding at issue was not based on "positive evidence" under Article

3.1. See paras. 7.67-76; rejected Turkey's claim that the investigating authority failed to

develop "positive evidence" (i.e., by failing to collect a certain type of evidence), under

Articles 3.1 and 3.5, that dumped imports had an effect on domestic prices, or any impact

on the domestic industry. See paras. 7.97-106; finally, rejected Turkey's claim under

Articles 3.1 and 3.5 that the investigating authority improperly found a causal link

between imports and injury despite certain alleged timing discrepancies between

decreased prices and falling profits. See paras. 7.127-132)

 Mexico - HFCS, Article 21.5 (AB) (Upheld Panel's finding of a violation of Article 3.1. See

paras. 94-101)

 Mexico - HFCS, Article 21.5 (Panel) (Violation of Article 3.1 found on the basis of a lack

of evidence supporting investigating authority's projections in respect of factors contained

in AD Agreement Article 3.7. See paras. 6.24-36)

 U.S. - Hot-Rolled Steel from Japan (AB) (Upheld Panel's conclusion regarding Japan's

challenge to the captive production provision "as such," albeit under different reasoning;

in particular, emphasized that the captive production provision does not require exclusive

focus on the merchant market and would allow the investigating authority to examine

both market segments; reversed Panel's conclusion that the United States did not violate

Article 3.1 in respect of its application of the captive production provision in the hot-rolled

investigation; emphasized that the ITC report in the hot-rolled investigation discloses no

data on the captive market. See paras. 181-215)

 U.S. - Hot-Rolled Steel from Japan (Panel) (In the context of the U.S. captive production

provision, found that because the provision does not require an exclusive focus on the

merchant market, it is not inconsistent on its face with the "objective examination"

requirement of Article 3.1; similarly, as applied in the hot-rolled investigation, the U.S.

investigating authority in fact examined injury to the domestic industry as a whole,

consistently with Article 3.1 -- reversed on appeal. See paras. 7.169-215; U.S. ITC

properly evaluated all of Article 3.4 factors and justified its focus on a two-year, period

consistently with Article 3.1. See paras. 7.216-236)

 Thailand - Steel (AB) (Reversed the Panel's interpretation of Articles 3.1 and 17.6(i),

holding that investigating authorities may rely on confidential information not shared with

the parties in reaching their determinations. See paras. 98-112)

 Thailand - Steel (Panel) (Article 3.1, read together with standard of review in Article

17.6(i), dictates that "the reasoning supporting the determination be 'formally or explicitly

stated' in documents in the record of the anti-dumping investigation to which interested

parties (and/or their legal counsel) have access at least from the time of the final

determination," and similarly, the factual basis relied upon by the authority "must also be

discernible from those documents" -- reversed on appeal. See paras. 7.130-152; found

that Thailand violated Article 3.2 and Article 3.1 on the basis of the lack of any "positive

evidence" supporting its finding of negative price effects. See paras. 7.153-215; violation

of Article 3.4 (and 3.1) found on basis of authority's failure to examine all of the Article 3.4

factors, and its failure to provide a sufficient explanation of "how and why, in light of the

positive trends in so many injury factors, they nonetheless concluded that the domestic

industry was injured." See paras. 7.216-256; because it had rejected the Thai authority's

conclusions as inconsistent with certain other AD Agreement provisions, held that there

was no basis for a finding of a causal link, in violation of Articles 3.5 and 3.1. See paras.

7.258-284)

 EC - Bed Linen (Panel) (A dumping determination is made in respect of a product, such

that, if any dumping is found, then the investigating authority can consider all import

volumes of the product from particular producers/exporters to represent "dumped

imports" in the context of the injury determination; therefore, no violation of Article 3.1

found based on inclusion of non-dumped transactions in injury analysis. See paras.

6.121-142)

 Guatemala - Cement II (Panel) (Discussed in the context of Article 3 - Final Injury

Determination; because Guatemala was unable to answer the Panel's question as to

whether its import volume table included certain imports, Panel found a violation of

Articles 3.1, 3.2 and 3.5 on the basis that Guatemala failed to rebut Mexico's prima facie

case that it had improperly excluded certain imports. See paras. 8.261-272)

 Mexico - HFCS (Panel) (In the context of "threat of material injury," found that Article 3.1

requires that all Article 3.4 factors be examined; here, failure to examine all of those

factors resulted in a violation of Article 3.1. See paras. 7.111-142; similarly, in the context

of Mexico's examination of the domestic industry, Mexico's failure to examine the

domestic industry as a whole resulted in a violation of Article 3.1. See paras. 7.143-162)



Article 3.2 (Increase in Dumped Imports / Price Effects / Price Undercutting)



 Mexico - Pipes and Tubes AD Duties (Panel) (Concluded that Guatemala failed to

establish that Economía violated AD Agreement Articles 3.1, 3.2, 3.4 and 3.5 "by relying

on data from an investigation period that terminated about eight months prior to the

initiation and about two years prior to the imposition of the definitive measures." See

paras. 7.217-240; concluded that "Economía's reliance, without sufficient justification,

upon a subset of data temporally limited to three six-month periods (July-December) over

three consecutive years (1998, 1999, 2000), as proposed by the applicant, was not

capable of yielding an accurate and representative picture enabling Economía to make

an objective examination of positive evidence in reaching its affirmative injury

determination"; therefore concluded that Economía acted inconsistently with AD

Agreement Articles 3.1, 3.2, 3.4 and 3.5. See paras. 7.241-261; with regard to volume

effects, concluded that "the methodology applied by Economía to estimate the volume of

imports from sources other than Guatemala – i.e. reliance on limited samples of varying

magnitudes for the three relevant periods in 1998, 1999 and 2000 as the basis for

identifying the ranges of minimum and maximum prices for the imports known to be of the

relevant product, and on the assumption that all imported products with prices within

those ranges were investigated products – was inconsistent with the requirements of

Articles 3.1 and 3.2 of the Anti-Dumping Agreement to conduct an objective examination

of positive evidence"; with regard to price effects, concluded that "Guatemala failed to

establish a prima facie case of inconsistency with Articles 3.1 and 3.2." See paras. 7.262-

295; concluded that "Economía failed to conduct an objective examination on the basis of

positive evidence, as required by Article 3.1, of injury to the domestic industry as that

term is defined in Article 4.1, and consequently also violated Articles 3.2, 3.4 and 3.5, by

failing to gather and analyse representative and consistent data pertaining to the

domestic industry, in particular the data concerning the financial indicators of the

'domestic industry,' as defined by it." See paras. 7.296-333; rejected Guatemala's claims

that changes in the definition of the product under investigation/like product in the course

of the investigation rendered the determinations of injury and causal link inconsistent with

AD Agreement Articles 3.1, 3.2, 3.4, 3.5, 4.1 and 5.4. See paras. 7.334-347; with regard

to causation/non-attribution, Panel found that Economía acted inconsistently with Articles

3.1, 3.2, 3.4 and 3.5 in its treatment of the decrease in exports in its causation analysis;

however, concluded that Guatemala failed to establish a prima facie case of

inconsistency with Articles 3.1, 3.2, 3.4 and 3.5 in relation to the treatment of operating

costs. See paras. 7.348-372)

 U.S. - Zeroing (Japan) (Panel) (Based on its rejection of the claims against simple

zeroing under other provisions, Panel rejected claims under Articles 3.1-3.5. See paras.

7.162-166)

 Mexico - Rice AD Measures (AB) (Upheld Panel's finding that Economía's use of a period

of investigation ending in August 1999 resulted in a failure to make a determination of

injury based on "positive evidence" as required by Article 3.1, and also upheld the Panel's

finding that by choosing this period of investigation Mexico acted inconsistently with

Articles 3.2, 3.4, and 3.5. See paras. 158-172; upheld Panel's findings that Economía's

injury analysis with respect to the volume and price effects of dumped imports was

inconsistent with the requirements of Articles 3.1 and 3.2 to conduct an objective

examination based on positive evidence. See paras. 189-206)

 Mexico - Rice AD Measures (Panel) (Concluded, "by choosing to base its determination

of injury on a period of investigation which ended more than fifteen months before the

initiation of the investigation," Mexico acted inconsistently with the Article 3.1 requirement

to make a determination of injury which is based on positive evidence and which involves

an objective examination "of the volume and price effects of the alleged dumped imports

or of the consequent impact of these imports on domestic producers of the like product at

the time measures were imposed"; as a consequence, it found that Mexico violated

Articles 3.2, 3.4 and 3.5 "when considering the volume and price effects of the dumped

imports, all relevant factors affecting the state of the industry and the causal relationship

between dumped imports and the alleged injury to the domestic industry, respectively."

See paras. 7.50-65; found that the investigating authority's use of assumptions in its

evaluation of export volumes and price effects resulted in a violation of AD Agreement

Articles 3.1 and 3.2; said that it was not convinced "that an objective and unbiased

investigating authority had no choice but to base itself on the above unsubstantiated

assumptions"; on this basis, found that the investigating authority's injury analysis with

regard to the volume and price effects of dumped imports is inconsistent with the AD

Agreement Articles 3.1 and 3.2 requirement "to conduct an objective examination based

on positive evidence of the volume and price effects of the dumped imports." See paras.

7.89-116)

 Korea - Paper AD Duties (Panel) (Rejected Indonesia's argument that PPC and WF are

not, in fact, like products, and therefore "to conform to the provisions of Article 2.6 of the

Agreement, the KTC should have analyzed the effect of Indonesian PPC on Korean PPC

producers and the effect of Indonesian WF on Korean WF producers, separately";

therefore rejected Indonesia's claim that the KTC's like product definition was

inconsistent with Article 2.6, and, consequently, also rejected the claims related to

Articles 3.1, 3.2, 3.4, 3.5 and 3.7. See paras. 7.211-224; in response to Indonesia's claim

that "the data collected by the KTC with respect to prices could not support its finding that

dumped imports caused material injury to the Korean industry," Panel concluded that "the

KTC has clearly considered whether there was price undercutting, price suppression and

price depression caused by dumped imports"; Panel also stated its view that it did not

read Article 3.2 as requiring that the word "significant" appear in the text of the

determination, and said that the requirements of that provision "will be satisfied if the

determination demonstrates that the [investigating authority] properly considered whether

or not prices of dumped imports had one of the three price effects set out under Article

3.2"; here, Panel concluded that the determination properly addressed this issue and

therefore it did not agree with Indonesia that the KTC acted inconsistently with Article 3.2;

therefore, Panel rejected Indonesia's claim that the KTC's analysis concerning the price

effects of dumped imports on the Korean industry was inconsistent with Articles 3.1, 3.2

and 3.4. See paras. 7.238-254)

 U.S. - OCTG AD Measures (Panel) (Found that 19 U.S.C. §§ 1675a(a)(1) and (5) are not

inconsistent with AD Agreement Articles 3.1, 3.2, 3.4, 3.7, 3.8, 11.1 and 11.3 in relation to

the determination of whether injury is likely to continue or recur. See paras. 7.84-108)

 U.S. - OCTG Sunset Reviews (Panel) (Observed that the ITC's determination makes

clear that it is about the likelihood of continuation or recurrence of injury, and Argentina

did not argue that the ITC carried out an injury determination nor did it claim that the ITC

relied on a past injury determination that is now inconsistent with Article 3; thus, the

Panel said that it would examine only the Article 11.3 aspects of Argentina's claim and

would "decline" those relating to Article 3. See paras. 7.278-279)

 U.S. - Lumber ITC Investigation (Panel) (Noting that it saw no basis for concluding that

the injury factors set out in AD Agreement Article 3.2 and SCM Agreement Article 15.2

must be directly considered in a "predictive" context in making a threat of material injury

determination, Panel found "no violation" of AD Agreement Articles 3.2 and 3.4 and SCM

Agreement Articles 15.2 and 15.4. See paras. 7.97-112)

 EC - Pipe Fittings (AB) (Upheld Panel's finding that the European Communities did not

act inconsistently with AD Agreement Articles 3.2 or 3.3 by failing to analyze the volume

and prices of dumped imports from Brazil individually, pursuant to Article 3.2, as a pre-

condition to cumulatively assessing the effects of these imports under Article 3.3. See

paras. 103-118)

 EC - Pipe Fittings (Panel) (Found that the European Communities did not violate Articles

3.2 and 3.1 with respect to its use of "zeroing" as part of its price undercutting

methodology. See paras. 7.268-285; found that the European Communities did not

violate Articles 3.2 and 3.1 in not granting an adjustment for price comparability in its

comparison of sales prices of black heart and white heart fittings in the context of its

consideration of price undercutting. See paras. 7.286-297; rejected Brazil's claim that

prior to an Article 3.3 cumulation analysis, the investigating authority must conclude,

pursuant to Article 3.2, that there has been a "significant increase" in imports from the

country at issue; with regard to claim as to whether the European Communities'

"determination" regarding the cumulative assessment was "appropriate" in light of the

"conditions of competition between the imported products and the conditions of

competition between the imported products and the like domestic product," found no

violation of Article 3.3(b). See paras. 7.220-267)

 Argentina - Poultry AD Duties (Panel) (Found that Argentina violated Articles 3.1, 3.2, 3.4

and 3.5 by including "non-dumped" imports from Nicolini and Seara in the injury analysis.

See paras. 7.295-307)

 EC - Bed Linen, Article 21.5 (AB) (Found that the EC violated Articles 3.1 and 3.2 when it

considered all imports from unexamined Indian producers/exporters to be "dumped" for

purposes of the injury analysis. See paras. 101-146)

 EC - Bed Linen, Article 21.5 (Panel) (Rejected argument that the EC violated Articles 3.1

and 3.2 when it considered all imports from unexamined Indian producers/exporters to be

"dumped" for purposes of the injury analysis -- reversed on appeal. See paras. 6.117-

144)

 Egypt - Rebar from Turkey (Panel) (Stated that the "plain text" of Article 3.2 does not

contain a requirement that a price undercutting analysis be conducted "in any particular

way, that is, at any particular level of trade"; therefore, Panel rejected Turkey's claim,

finding that an "objective and unbiased" investigating authority could have performed a

price undercutting analysis on the basis used here. See paras. 7.67-76)

 Thailand - Steel (Panel) (Found, inter alia, that an explicit finding (i.e., one that uses the

word "significant") on import volumes and price effects is not required under Article 3.2;

here, Thailand violated Article 3.2 on the basis of the lack of any "positive evidence"

supporting its finding of negative price effects. See paras. 7.153-215)

 Guatemala - Cement II (Panel) (Discussed in the context of Article 3 - Final Injury

Determination; because Guatemala was unable to answer the Panel's question as to

whether its import volume table included certain imports, Panel found a violation of Article

3.1, 3.2 and 3.5 on the basis that Guatemala failed to rebut Mexico's prima facie case

that it had improperly excluded certain imports. See paras. 8.261-272; in addition, Panel

considered a 1-year price data collection period to be proper and found that the

investigating authority in fact examined prices in all regions of the country; moreover,

given that there was only one domestic producer, the Panel noted that negative effects in

the single region in which that producer was located could evidence injury to the

domestic industry; thus, Guatemala did not violate Article 3.2 on this basis. See paras.

8.273-277)

 Mexico - HFCS (Panel) (Failure to examine the domestic industry as a "whole" resulted in

a violation of Article 3.2, among other provisions. See paras. 7.143-162)



Article 3.3 (Cumulation)



 U.S. - Zeroing (Japan) (Panel) (Based on its rejection of the claims against simple

zeroing under other provisions, Panel rejected claims under Articles 3.1-3.5. See paras.

7.162-166)

 U.S. - OCTG AD Measures (AB) (Upheld the Panel's finding that the ITC's decision to

conduct a cumulative assessment of imports in making its likelihood-of-injury

determination was not inconsistent with Articles 3.3 and 11.3. See paras. 144-173)

 U.S. - OCTG AD Measures (Panel) (Concluded that the ITC's determination in the sunset

review of OCTG "is not inconsistent with Articles 3.3 and 11.3 of the Agreement because

it involved a cumulative analysis." See paras. 7.145-151)

 U.S. - OCTG Sunset Reviews (AB) (Upheld Panel's findings that AD Agreement Article

11.3 "does not preclude investigating authorities from cumulating the effects of likely

dumped imports in the course of their likelihood-of-injury determinations, and that the

conditions of Article 3.3 of the Anti-Dumping Agreement do not apply in the context of

sunset reviews." See paras. 286-304)

 U.S. - OCTG Sunset Reviews (Panel) (Rejected claim that the ITC acted inconsistently

with AD Agreement Articles 3.3 and 11.3 in its use of cumulation in the sunset review,

finding that cumulation is permitted in sunset reviews and is not subject to the conditions

established under Article 3.3; stated that the conditions contained in Article 3.3 are limited

to the application of cumulation in investigations. See paras. 7.323-338)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Found that the obligations in

Article 3.3 pertain to cumulative analysis in "investigations," and that they are not

applicable to "sunset reviews''; concluded that "the United States did not act

inconsistently with Articles 11.3, 3.3 or 5.8 in the instant sunset review by cumulating

imports from Japan with imports from other countries without applying the negligibility

standard set out in Article 3.3 and 5.8 for original investigations." See paras. 7.89-105)

 EC - Pipe Fittings (AB) (Upheld Panel's finding that the European Communities did not

act inconsistently with AD Agreement Articles 3.2 or 3.3 by failing to analyze the volume

and prices of dumped imports from Brazil individually, pursuant to Article 3.2, as a pre-

condition to cumulatively assessing the effects of these imports under Article 3.3. See

paras. 103-118)

 EC - Pipe Fittings (Panel) (Rejected Brazil's claim that prior to an Article 3.3 cumulation

analysis, the investigating authority must conclude, pursuant to Article 3.2, that there has

been a "significant increase" in imports from the country at issue; with regard to claim as

to whether the European Communities' "determination" regarding the cumulative

assessment was "appropriate" in light of the "conditions of competition between the

imported products and the conditions of competition between the imported products and

the like domestic product," found no violation of Article 3.3(b). See paras. 7.220-267)

 EC - Bed Linen, Article 21.5 (Panel) (Rejected claim that the EC violated Articles 3.1 and

3.3 by conducting a cumulative assessment of the effects of dumped imports from India

and Pakistan, noting that, at the time of the redetermination, the determination regarding

imports from Pakistan established that those imports were dumped. See paras. 6.95-116)



Article 3.4 (Impact of Dumped Imports -- Injury)



 Mexico - Pipes and Tubes AD Duties (Panel) (Concluded that Guatemala failed to

establish that Economía violated AD Agreement Articles 3.1, 3.2, 3.4 and 3.5 "by relying

on data from an investigation period that terminated about eight months prior to the

initiation and about two years prior to the imposition of the definitive measures." See

paras. 7.217-240; concluded that "Economía's reliance, without sufficient justification,

upon a subset of data temporally limited to three six-month periods (July-December) over

three consecutive years (1998, 1999, 2000), as proposed by the applicant, was not

capable of yielding an accurate and representative picture enabling Economía to make

an objective examination of positive evidence in reaching its affirmative injury

determination"; therefore concluded that Economía acted inconsistently with AD

Agreement Articles 3.1, 3.2, 3.4 and 3.5. See paras. 7.241-261; concluded that

"Economía failed to conduct an objective examination on the basis of positive evidence,

as required by Article 3.1, of injury to the domestic industry as that term is defined in

Article 4.1, and consequently also violated Articles 3.2, 3.4 and 3.5, by failing to gather

and analyse representative and consistent data pertaining to the domestic industry, in

particular the data concerning the financial indicators of the 'domestic industry,' as

defined by it." See paras. 7.296-333; rejected Guatemala's claims that changes in the

definition of the product under investigation/like product in the course of the investigation

rendered the determinations of injury and causal link inconsistent with AD Agreement

Articles 3.1, 3.2, 3.4, 3.5, 4.1 and 5.4. See paras. 7.334-347; with regard to

causation/non-attribution, Panel found that Economía acted inconsistently with Articles

3.1, 3.2, 3.4 and 3.5 in its treatment of the decrease in exports in its causation analysis;

however, concluded that Guatemala failed to establish a prima facie case of

inconsistency with Articles 3.1, 3.2, 3.4 and 3.5 in relation to the treatment of operating

costs. See paras. 7.348-372)

 U.S. - Zeroing (Japan) (Panel) (Based on its rejection of the claims against simple

zeroing under other provisions, Panel rejected claims under Articles 3.1-3.5. See paras.

7.162-166)

 Mexico - Rice AD Measures (AB) (Upheld Panel's finding that Economía's use of a period

of investigation ending in August 1999 resulted in a failure to make a determination of

injury based on "positive evidence" as required by Article 3.1, and also upheld the Panel's

finding that by choosing this period of investigation Mexico acted inconsistently with

Articles 3.2, 3.4, and 3.5. See paras. 158-172)

 Korea - Paper AD Duties (Panel) (Rejected Indonesia's argument that PPC and WF are

not, in fact, like products, and therefore "to conform to the provisions of Article 2.6 of the

Agreement, the KTC should have analyzed the effect of Indonesian PPC on Korean PPC

producers and the effect of Indonesian WF on Korean WF producers, separately";

therefore rejected Indonesia's claim that the KTC's like product definition was

inconsistent with Article 2.6, and, consequently, also rejected the claims related to

Articles 3.1, 3.2, 3.4, 3.5 and 3.7. See paras. 7.211-224)

 U.S. - OCTG AD Measures (Panel) (Found that 19 U.S.C. §§ 1675a(a)(1) and (5) are not

inconsistent with AD Agreement Articles 3.1, 3.2, 3.4, 3.7, 3.8, 11.1 and 11.3 in relation to

the determination of whether injury is likely to continue or recur. See paras. 7.84-108)

 U.S. - Lumber ITC Investigation (Panel) (Stated that a threat determination is made

against the background of an evaluation of the condition of the industry in light of the

Article 3.4/15.4 factors; once such an analysis has been carried out in the context of an

investigation of material injury, however, Panel said that none of the relevant provisions

of Article 3 or Article 15 require a second analysis of the injury factors in cases involving

threat of material injury; Panel found it "clear on the face of the USITC determination" that

the ITC considered the relevant injury factors in the context of finding no present material

injury and that the ITC took this consideration into account in its threat of material injury

analysis; noting that the ITC then went on to address the additional threat factors set out

in AD Agreement Article 3.7 and SCM Agreement Article 15.7, Panel further stated, "this

is an adequate approach to the analysis of threat of material injury with respect to the

requirements of consideration of the elements set out in Articles 3.2, 3.4, and 3.7 of the

AD Agreement, and the corresponding provisions of the SCM Agreement"; therefore, the

Panel found "no violation" of AD Agreement Articles 3.2 and 3.4 and SCM Agreement

Articles 15.2 and 15.4. See paras. 7.97-112)

 Mexico - HFCS, Article 21.5 (AB) (Upheld Panel's finding of a violation of Article 3.4;

emphasized improvement in domestic industry's financial indicators despite underselling

by imports. See paras. 94-101)

 Mexico - HFCS, Article 21.5 (Panel) (Violation of Article 3.4 found, based on lack of

evidence in support of investigating authority's projections and the fact that these

projections are contrary to observed trends. See paras. 6.24-36)



"all relevant ... factors"



 Mexico - Rice AD Measures (Panel) (Concluded, "by choosing to base its determination

of injury on a period of investigation which ended more than fifteen months before the

initiation of the investigation," Mexico acted inconsistently with the Article 3.1 requirement

to make a determination of injury which is based on positive evidence and which involves

an objective examination "of the volume and price effects of the alleged dumped imports

or of the consequent impact of these imports on domestic producers of the like product at

the time measures were imposed"; as a consequence, it found that Mexico violated

Articles 3.2, 3.4 and 3.5 "when considering the volume and price effects of the dumped

imports, all relevant factors affecting the state of the industry and the causal relationship

between dumped imports and the alleged injury to the domestic industry, respectively."

See paras. 7.50-65)

 Korea - Paper AD Duties (Panel) (In response to Indonesia's claim that "the data

collected by the KTC with respect to prices could not support its finding that dumped

imports caused material injury to the Korean industry," Panel concluded that "the KTC

has clearly considered whether there was price undercutting, price suppression and price

depression caused by dumped imports"; therefore, Panel rejected Indonesia's claim that

the KTC's analysis concerning the price effects of dumped imports on the Korean

industry was inconsistent with Articles 3.1, 3.2 and 3.4. See paras. 7.238-254; in

response to Indonesia's argument that "the KTC should have considered the fact that the

Korean producers were importing substantial quantities of the subject product from

Indonesia as an injury factor under Article 3.4 of the Agreement," the Panel did not view

this factor as descriptive of the state of the Korean industry, and therefore did not

understand "in what sense this fact could qualify as an injury factor under Article 3.4."

See paras. 7.278-288; concluded that "since the KTC did not adequately evaluate the

injury factors, especially those that showed a positive trend, and explain their relevance

in the determination of material injury," Korea acted inconsistently with Article 3.4. See

paras. 7.265-273)

 U.S. - OCTG Sunset Reviews (Panel) (Based on its conclusion that Article 3 does not

apply to sunset reviews, the Panel declined Argentina's claim that the ITC failed to

address some of the Article 3.4 injury factors. See paras. 7.313-317)

 EC - Pipe Fittings (AB) (Found that the Panel did not fail to assess whether the European

Commission's establishment of the facts was proper under Article 17.6(i), and did not

incorrectly interpret Articles 3.1 and 3.4 "by including Exhibit EC-12 within its assessment

of the European Commission's evaluation of the injury factors listed in Article 3.4." See

paras. 119-133; upheld the Panel's finding that the European Communities' "implicit"

analysis of the "growth" factor did not violate Article 3.4. See paras. 151-166)

 EC - Pipe Fittings (Panel) (Found that the European Communities did not violate its

obligations under Article 3.4 in its treatment of "growth" and that it addressed each of the

listed Article 3.4 factors; concluded that the European Communities did not violate

Articles 3.4 or 3.1 in its evaluation of injury factors. See paras. 7.298-345)

 Argentina - Poultry AD Duties (Panel) (Found that Argentina violated Articles 3.1(b) and

3.4 by failing to evaluate all of the factors and indices listed in Article 3.4. See paras.

7.308-327)

 EC - Bed Linen, Article 21.5 (Panel) (Found that the EC had properly collected data on

inventories and capacity utilization in the original investigation and therefore rejected

claim that data had not been collected in violation of Article 3.4; concluded that the EC's

analysis and conclusions in respect of its evaluation of the Article 3.4 factors were

consistent with Articles 3.1 and 3.4. See paras. 6.145-217)

 Egypt - Rebar from Turkey (Panel) (Found that while the investigating authority "gathered

data on all of the factors listed in Article 3.4," it failed to "evaluate" some of these factors -

- productivity, actual and potential negative effects on cash flow, employment, wages,

and ability to raise capital or investments -- in violation of this provision; by contrast, with

regard to "capacity utilization" and "return on investment," the Panel rejected the claim

that the authority "failed to adequately evaluate" these factors; also said that "all factors"

affecting domestic prices and profits does not mean that the investigating authority must

consider "all" possible factors, but only that they must carry out an evaluation in this

regard; here, Turkey raised no claim that the investigating authority failed to analyze

profit factors and, in respect of domestic prices, the investigating authority in fact carried

out the price analysis required under Articles 3.1 and 3.2, thereby fulfilling this

requirement; finally, the Panel rejected Turkey's argument that Article 3.4 requires a full

"non-attribution" analysis. See paras. 7.33-66)

 U.S. - Hot-Rolled Steel from Japan (AB) (Held that examination of market segments

(such as merchant market or captive market) is permissible as long as segments are

examined in an "objective" manner; upheld (albeit under partly different reasoning)

Panel's finding that the captive production provision on its face does not violate Article

3.4 because it allows the U.S. authority to examine both the merchant market and the

captive market; reversed Panel's finding regarding the captive production provision as

applied in the hot-rolled investigation -- specifically, found that the U.S. authority failed to

examine the captive market, as it was required to do, once it had examined the merchant

market segment. See paras. 181-215)

 U.S. - Hot-Rolled Steel from Japan (Panel) (Held that the U.S. captive production

provision, on its face, does not violate, inter alia, Article 3.4 because it does not require

the U.S. authority to examine the Article 3.4 factors only with respect to the merchant

market; rather, it allows for examination with respect to the domestic market as a whole

as well; similarly, the captive production provision as applied in the hot-rolled

investigation did not violate, inter alia, Article 3.4 because the U.S. authority in fact

examined the domestic market as a whole in addition to the merchant market segment --

reversed on appeal. See paras. 7.169-215; U.S. ITC properly evaluated all of Article 3.4

factors. See paras. 7.216-236)

 Thailand - Steel (AB) (Upheld Panel's finding of violation of Article 3.4, and that each of

the 15 listed factors must be considered by an investigating authority. See paras. 121-

128)

 Thailand - Steel (Panel) (Each of the 15 factors listed in Article 3.4 must be considered by

investigating authority; here, violation of Article 3.4 (and 3.1) found on basis of authority's

failure to examine all of the Article 3.4 factors, and its failure to provide a sufficient

explanation of "how and why, in light of the positive trends in so many injury factors, they

nonetheless concluded that the domestic industry was injured." See paras. 7.216-256)

 EC - Bed Linen (Panel) (Held that all of the listed Article 3.4 factors must be considered

by investigating authority; here, found a violation in light of EC failure to collect data on all

of the factors, let alone consider this data. See paras. 6.145-169)

 Guatemala - Cement II (Panel) (Discussed in the context of Article 3 - Final Injury

Determination; held that authorities must consider all of the Article 3.4 factors; here,

violation found based on failure to consider all Article 3.4 factors. See paras. 8.278-286)

 Mexico - HFCS (Panel) (Investigating authorities must consider each factor listed in

Article 3.4 any time they are called upon to reach an injury determination, either of

material injury or threat of material injury. See paras. 7.111-142; failure to examine the

domestic industry as a "whole" resulted in a violation of Article 3.4, among other

provisions. See paras. 7.143-162)



consideration of "dumped imports"



 Argentina - Poultry AD Duties (Panel) (Found that Argentina violated Articles 3.1, 3.2, 3.4

and 3.5 by including "non-dumped" imports from Nicolini and Seara in the injury analysis.

See paras. 7.295-307)

 EC - Bed Linen (Panel) (A dumping determination is made in respect of a product, such

that, if any dumping is found, then the investigating authority can consider all import

volumes of the product from particular producers/exporters to represent "dumped

imports" in the context of the injury determination; India failed to make a prima facie case

in respect of its claim regarding dumped imports during the period before the dumping

investigation. See paras. 6.121-142)



use of samples



 EC - Bed Linen (Panel) (EC had conducted injury analysis in respect of a sample of 17 of

the 35 companies that it defined as the domestic industry; Panel found that it was not a

violation of Article 3.4 when the EC examined data from companies outside the sample of

17 (but within the 35 defined as composing the domestic industry); however, it was a

violation of Article 3.4 when the EC examined a company falling outside of the 35

companies that had been defined as the domestic industry. See paras. 6.170-183)



Article 3.5 (Causation/Attribution)



 Mexico - Pipes and Tubes AD Duties (Panel) (Concluded that Guatemala failed to

establish that Economía violated AD Agreement Articles 3.1, 3.2, 3.4 and 3.5 "by relying

on data from an investigation period that terminated about eight months prior to the

initiation and about two years prior to the imposition of the definitive measures." See

paras. 7.217-240; concluded that "Economía's reliance, without sufficient justification,

upon a subset of data temporally limited to three six-month periods (July-December) over

three consecutive years (1998, 1999, 2000), as proposed by the applicant, was not

capable of yielding an accurate and representative picture enabling Economía to make

an objective examination of positive evidence in reaching its affirmative injury

determination"; therefore concluded that Economía acted inconsistently with AD

Agreement Articles 3.1, 3.2, 3.4 and 3.5. See paras. 7.241-261; concluded that

"Economía failed to conduct an objective examination on the basis of positive evidence,

as required by Article 3.1, of injury to the domestic industry as that term is defined in

Article 4.1, and consequently also violated Articles 3.2, 3.4 and 3.5, by failing to gather

and analyse representative and consistent data pertaining to the domestic industry, in

particular the data concerning the financial indicators of the 'domestic industry,' as

defined by it." See paras. 7.296-333; rejected Guatemala's claims that changes in the

definition of the product under investigation/like product in the course of the investigation

rendered the determinations of injury and causal link inconsistent with AD Agreement

Articles 3.1, 3.2, 3.4, 3.5, 4.1 and 5.4. See paras. 7.334-347; with regard to

causation/non-attribution, Panel found that Economía acted inconsistently with Articles

3.1, 3.2, 3.4 and 3.5 in its treatment of the decrease in exports in its causation analysis;

however, concluded that Guatemala failed to establish a prima facie case of

inconsistency with Articles 3.1, 3.2, 3.4 and 3.5 in relation to the treatment of operating

costs. See paras. 7.348-372)

 U.S. - Zeroing (Japan) (Panel) (Based on its rejection of the claims against simple

zeroing under other provisions, Panel rejected claims under Articles 3.1-3.5. See paras.

7.162-166)

 U.S. - Lumber ITC Investigation, Article 21.5 (AB) (Concluded that Panel failed to comply

with DSU Article 11 "in the standard of review that it articulated and applied to assess the

consistency of the Section 129 Determination with" AD Agreement Articles 3.5 and 3.7

and SCM Agreement Articles 15.5 and 15.7; therefore, Appellate Body reversed Panel's

finding that there was no violation of these provisions; however, it was not able to

complete the analysis as to whether the measure at issue was consistent with these

provisions. See paras. 89-161)

 U.S. - Lumber ITC Investigation, Article 21.5 (Panel) (Concluded that the determination of

the ITC is not inconsistent with the requirements of AD Agreement Article 3.5 and SCM

Agreement Article 15.5 with respect to causal link -- reversed on appeal. See paras. 7.58-

63; concluded that the ITC's determination regarding other factors potentially threatening

injury to the U.S. industry is not inconsistent with AD Agreement Article 3.5 and SCM

Agreement Article 15.5 -- reversed on appeal. See paras. 7.64-70)

 Mexico - Rice AD Measures (AB) (Upheld Panel's finding that Economía's use of a period

of investigation ending in August 1999 resulted in a failure to make a determination of

injury based on "positive evidence" as required by Article 3.1, and also upheld the Panel's

finding that by choosing this period of investigation Mexico acted inconsistently with

Articles 3.2, 3.4, and 3.5. See paras. 158-172; upheld Panel's finding that "in limiting the

injury analysis to the March to August period of 1997, 1998, and 1999, Mexico failed to

make a determination of injury that involves an 'objective examination,' as required by

Article 3.1," and thus also upheld the finding that "Mexico acted inconsistently with Article

3.5." See paras. 173-188)

 Mexico - Rice AD Measures (Panel) (Concluded, "by choosing to base its determination

of injury on a period of investigation which ended more than fifteen months before the

initiation of the investigation," Mexico acted inconsistently with the Article 3.1 requirement

to make a determination of injury which is based on positive evidence and which involves

an objective examination "of the volume and price effects of the alleged dumped imports

or of the consequent impact of these imports on domestic producers of the like product at

the time measures were imposed"; as a consequence, it found that Mexico violated

Articles 3.2, 3.4 and 3.5 "when considering the volume and price effects of the dumped

imports, all relevant factors affecting the state of the industry and the causal relationship

between dumped imports and the alleged injury to the domestic industry, respectively."

See paras. 7.50-65; due the exclusion of six months of data from each year of the

investigation period, found that the investigating authority's injury analysis is inconsistent

with AD Agreement Article 3.1 "as it is not based on positive evidence and does not allow

for an objective examination, as it necessarily, and without any proper justification,

provides only a part of the picture of the situation"; in addition, it found that "the particular

choice of the limited period of investigation in this case was not that of an unbiased and

objective investigating authority as the authority was aware of, and accepted, the fact that

the period chosen reflected the highest import penetration, thus ignoring data from a

period in which it can be expected that the domestic industry was faring better"; as a

consequence, also found that Mexico acted inconsistently with AD Agreement Article 3.5

"as it failed to base its determination of the existence of a causal relationship between the

dumped imports and the alleged injury to the domestic industry on all relevant evidence

before the authorities." See paras. 7.66-87)

 Korea - Paper AD Duties (Panel) (Rejected Indonesia's argument that PPC and WF are

not, in fact, like products, and therefore "to conform to the provisions of Article 2.6 of the

Agreement, the KTC should have analyzed the effect of Indonesian PPC on Korean PPC

producers and the effect of Indonesian WF on Korean WF producers, separately";

therefore rejected Indonesia's claim that the KTC's like product definition was

inconsistent with Article 2.6, and, consequently, also rejected the claims related to

Articles 3.1, 3.2, 3.4, 3.5 and 3.7. See paras. 7.211-224; in response to Indonesia's

argument that, pursuant to Article 3.5, the KTC should have considered the fact that the

Korean producers were importing substantial quantities of the subject product from

Indonesia as a "potential other factor that might have contributed to the material injury

suffered by the Korean industry," Panel observed that the KTC did in fact exclude two of

the Korean producers who imported significant amounts of the subject product from the

subject countries and noted the share that these imports represented for the remaining

14 producers, and also that these imports stopped completely as of 2001. See paras.

7.278-288)

 U.S. - OCTG Sunset Reviews (Panel) (Based on its conclusion that Article 3 does not

apply to sunset reviews, the Panel declined Argentina's claim that the ITC failed to

conduct the causal link analysis required under Article 3.5. See paras. 7.318-322)

 U.S. - Lumber ITC Investigation (Panel) (Given that the ITC's causation analysis "rests

upon" the determination of substantially increased imports found to be in violation, and

having found that "a fundamental element of the causal analysis is not consistent with the

Agreements," Panel found, therefore, that "the causal analysis cannot be consistent with

the Agreements"; thus, Panel concluded that the determination is "not consistent" with

AD Agreement Article 3.5 and SCM Agreement Article 15.5 in this regard. See paras.

7.119-122; in light of its earlier finding of a violation in respect of the ITC's causation

analysis, Panel said that it could not "meaningfully evaluate" the question of violation of

the non-attribution aspect of AD Agreement Article 3.5 and SCM Agreement Article 15.5;

nonetheless, it said that "[g]iven the overall absence of discussion of other factors

potentially causing injury in the future," it "would conclude that the USITC determination

is not consistent with the obligation in [these provisions] that 'injuries caused by these

other factors must not be attributed' to the subject imports." See paras. 7.123-137)

 EC - Pipe Fittings (AB) (Upheld Panel's finding "that the difference in cost of production

between the Brazilian exporter and the European Communities industry was not a 'known

factor[ ] other than the dumped imports which at the same time [was] injuring the

domestic industry,'" and therefore there was no violation of Article 3.5; upheld Panel's

finding "that the causality methodology applied by the European Commission in this

investigation, which did not include an examination of the collective impact of other

known causal factors, did not attribute the injuries caused by those other factors to the

dumped imports," and therefore the European Communities did not violate Article 3.5.

See paras. 167-195)

 EC - Pipe Fittings (Panel) (Concluded that Brazil did not establish that the causation

methodology applied by the European Communities violates Article 3.5 -- upheld on

appeal under different reasoning; found that Brazil did not establish that the European

Communities' evaluation of injury caused by factors other than the dumped imports was

inconsistent with Article 3.5. See paras. 7.350-416)

 Argentina - Poultry AD Duties (Panel) (Found that there is nothing in the AD Agreement

to suggest that the periods of review for dumping and injury must necessarily end at the

same point in time, and therefore rejected Brazil's claim of violation of Article 3.5. See

paras. 7.277-288; concluded that imports from Nicolini and Seara should have been

excluded from the CNCE's injury analysis, but it "is clear from the record that CNCE

failed to do this," therefore the Panel found that Argentina violated Articles 3.1, 3.2, 3.4

and 3.5 by including "non-dumped" imports from Nicolini and Seara in the injury analysis.

See paras. 7.295-307)

 EC - Bed Linen, Article 21.5 (Panel) (Found that India failed to demonstrate that the EC

causation determination was one that an unbiased and objective investigating authority

could not reach on the basis of the evidence, and, therefore, concluded that the EC did

not violate Article 3.5; as an "alternative" finding to its earlier finding that the "other

factors" claim was outside the terms of reference, concluded that the "other causes"

pointed to by India were not actually "causes" of injury at all, such that the EC measure is

"not inconsistent with Article 3.5 for failure to properly ensure that injury caused by other

factors is not attributed to dumped imports." See paras. 6.218-246)

 Egypt - Rebar from Turkey (Panel) (Rejected Turkey's claim that the investigating

authority failed to develop "positive evidence" (i.e., by failing to collect a certain type of

evidence), under Articles 3.1 and 3.5, that dumped imports had an effect on domestic

prices, or any impact on the domestic industry; said it is was undisputed that the

investigating authority "gathered and analyzed the kinds of information that are

specifically required by the plain language of the AD Agreement, and that the

respondents made no attempt during the course of the investigation to complement or

expand that information with additional sorts of evidence that are not specifically referred

to by the AD Agreement." See paras. 7.97-106; Panel also found that Turkey had not

established that "the [investigating authority's] evaluation of the possible causation of

injury by factors other than the dumped imports was inconsistent with Article 3.5." See

paras. 7.107-126; finally, Panel dismissed Turkey's claim under Articles 3.1 and 3.5 that

the investigating authority improperly found a causal link between imports and injury

despite certain alleged timing discrepancies between decreased prices and falling profits.

See paras. 7.127-132)

 U.S. - Hot-Rolled Steel from Japan (AB) (Reversed Panel's interpretation of the non-

attribution language in Article 3.5 (relying in large part on findings in U.S. - Wheat Gluten

(AB)); said that under Article 3.5, an investigating authority is required to separate and

distinguish the injurious effects of imports and other factors; due to insufficient record

information, Appellate Body was unable to complete the analysis under a proper

interpretation of Article 3.5. See paras. 216-236)

 U.S. - Hot-Rolled Steel from Japan (Panel) (Interpreted Article 3.5 to require that an

authority "examine and ensure" that any "other factors" do not "break the causal link that

appeared to exist between dumped imports and material injury on the basis of an

examination of the volume and effects of the dumped imports"; here, found that the U.S.

authority considered any relevant "other factors" appropriately, such that there was no

violation of Article 3.5 -- reversed on appeal. See paras. 7.237-261; held that the U.S.

captive production provision, on its face, does not violate, inter alia, Article 3.5; similarly,

the captive production provision as applied in the hot-rolled investigation did not violate,

inter alia, Article 3.5 -- reversed on appeal. See paras. 7.169-215)

 Thailand - Steel (Panel) (Because it had rejected the Thai authority's conclusions as

inconsistent with certain other AD Agreement provisions, held that there was no basis for

a finding of a causal link, in violation of Articles 3.5 and 3.1; also held that a panel need

only consider those "other factors" that are "clearly raised" by an interested party; here,

found that the Thai authority had examined all of those "other factors" that had been

clearly raised before it -- the "clearly raised" standard has been called into question by

the Appellate Body in U.S. - Wheat Gluten (AB) in the context of the Safeguards

Agreement. See paras. 7.258-284)

 EC - Bed Linen (Panel) (A dumping determination is made in respect of a product, such

that, if any dumping is found, then the investigating authority can consider all import

volumes of the product to represent "dumped imports" in the context of the injury

determination; India failed to make a prima facie case in respect of its claim regarding

dumped imports during the period before the dumping investigation. See paras. 6.121-

142)

 Guatemala - Cement II (Panel) (Discussed in the context of Article 3 - Final Injury

Determination; Guatemala's apparent failure to examine imports by an affiliate of the

petitioner violated Article 3.5, because these figures are a potential "other cause" of

injury. See paras. 8.261-272)



Article 3.6



 U.S. - Hot-Rolled Steel from Japan (Panel) (Held that the U.S. captive production

provision, on its face, does not violate, inter alia, Article 3.6; similarly, the captive

production provision as applied in the hot-rolled investigation did not violate, inter alia,

Article 3.6 -- reversed on appeal. See paras. 7.169-215)



Article 3.7 (Threat of Material Injury)



Article 3.7 - General



 U.S. - Lumber ITC Investigation, Article 21.5 (AB) (With regard to "threat" determinations,

Appellate Body expressed concern about certain statements by the Panel, but did not

find these statements to constitute error; in particular, it said that one of the Panel's

statements "could imply a greater likelihood of panels upholding a threat of injury

determination, as compared to a determination of current material injury, when those

determinations rest on the same level of evidence"; the Appellate Body said that "[a]ny

such implication would be erroneous," but said, "we do not view the Panel's statement as

having such an implication"; in addition, in relation to another of the Panel's statements,

the Appellate Body said "[w]e are not persuaded that, in making this observation, the

Panel intended to express the view that a threat of injury determination must be upheld if

the investigating authority's report discloses the occurrence of injury as one reasonable

prediction within the possible range of future occurrences"; the Appellate Body

emphasized that such a view "would be erroneous." See paras. 106-110)

 U.S. - Lumber ITC Investigation, Article 21.5 (Panel) (Recalling a prior Appellate Body

statement on "threat" determinations, the Panel said that "[t]he possible range of

reasonable predictions of the future that may be drawn based on the observed events of

the period of investigation may be broader than the range of reasonable conclusions

concerning the present that might be drawn based on those same facts"; further noted,

"predictions based on the observed facts may be less susceptible to being found, on

review by a panel, to be outside the range of conclusions that might be reached by an

unbiased and objective decision maker on the basis of the facts and in light of the

explanations given." See para. 7.13)

 Korea - Paper AD Duties (Panel) (Rejected Indonesia's argument that PPC and WF are

not, in fact, like products, and therefore "to conform to the provisions of Article 2.6 of the

Agreement, the KTC should have analyzed the effect of Indonesian PPC on Korean PPC

producers and the effect of Indonesian WF on Korean WF producers, separately";

therefore rejected Indonesia's claim that the KTC's like product definition was

inconsistent with Article 2.6, and, consequently, also rejected the claims related to

Articles 3.1, 3.2, 3.4, 3.5 and 3.7. See paras. 7.211-224)



Article 3.7 ("Change in circumstances" must be "clearly foreseen and imminent")



 U.S. - OCTG Sunset Reviews (Panel) (Concluded that Articles 3.7 and 3.8 do not apply

to sunset reviews, and therefore rejected Argentina's argument that Sections 752(a)(1)

and (5) of the Tariff Act are inconsistent with Articles 3.7 and 3.8 due to the use of a

"within a reasonably foreseeable time" standard. See paras. 7.188-192)

 U.S. - Lumber ITC Investigation (Panel) (Noted that the change in circumstances that

would give rise to a situation in which injury would occur encompasses a single event, or

a series of events, or developments in the situation of the industry, and/or concerning the

dumped or subsidized imports; Panel concluded that the ITC did, in fact, "consider[]

whether there would be a change in circumstances such that the dumped and subsidized

imports would cause injury," as required under AD Agreement Article 3.7 and SCM

Agreement Article 15.7. See paras. 7.45-60)



Article 3.7 (Factors to be considered in the threat of material injury determination)



 U.S. - Lumber ITC Investigation, Article 21.5 (AB) (Concluded that Panel failed to comply

with DSU Article 11 "in the standard of review that it articulated and applied to assess the

consistency of the Section 129 Determination with" AD Agreement Articles 3.5 and 3.7

and SCM Agreement Articles 15.5 and 15.7; therefore, Appellate Body reversed Panel's

finding that there was no violation of these provisions; however, it was not able to

complete the analysis as to whether the measure at issue was consistent with these

provisions. See paras. 89-161)

 U.S. - Lumber ITC Investigation, Article 21.5 (Panel) (Concluded that the determination of

the ITC with respect to the likely volume and price effects of imports from Canada is not

inconsistent with AD Agreement Article 3.7 and SCM Agreement 15.7 -- reversed on

appeal. See paras. 7.17-57)

 U.S. - OCTG AD Measures (Panel) (Found that 19 U.S.C. §§ 1675a(a)(1) and (5) are not

inconsistent with AD Agreement Articles 3.1, 3.2, 3.4, 3.7, 3.8, 11.1 and 11.3 in relation to

the determination of whether injury is likely to continue or recur. See paras. 7.84-108)

 U.S. - Lumber ITC Investigation (Panel) (Panel found no violation of AD Agreement

Article 3.7 and SCM Agreement Article 15.7 based on claims relating to the listed factors;

however, Panel found, "in light of the totality of the factors considered and the reasoning

in the USITC's determination, we cannot conclude that the finding of a likely imminent

substantial increase in imports is one which could have been reached by an objective

and unbiased investigating authority"; as a result, Panel concluded that the ITC's

determination is "not consistent" with AD Agreement Article 3.7 and SCM Agreement

Article 15.7. See paras. 7.61-96)

 Mexico - HFCS, Article 21.5 (AB) (Upheld Panel's finding of a violation of Article 3.7 with

respect to the likely impact of dumped imports; because the Mexican authority had

treated the existence of the alleged restraint agreement as if it were a "fact," the Panel

was correct in examining the authority's assumptions regarding that agreement, and

therefore upheld Panel's finding that the redetermination was inconsistent with AD

Agreement Article 3.7(i). See paras. 77-101)

 Mexico - HFCS, Article 21.5 (Panel) (Found that, in its redetermination, the Mexican

authority's analysis regarding the projected effects of the alleged restraint agreement

"remains the same" as it was in Mexico's original determination, such that the Panel

found a violation of Article 3.7; concluded that the redetermination with respect to the

likely impact of dumped imports is inconsistent with AD Agreement Articles 3.1, 3.4 and

3.7. See paras. 6.6-36)

 Mexico - HFCS (Panel) (Violation of Article 3.7(i) found in light of the Mexican authority's

failure to evaluate properly the facts concerning, and provide a reasoned explanation of

its conclusions regarding, the potential effects of the alleged restraint agreement. See

paras. 7.163-178; Panel concluded that, in an investigation of threat of material injury,

factors relating to the impact of imports on the domestic industry must also be

considered, in particular those contained in Article 3.4; here, because Mexico failed to

address adequately the factors set out in Article 3.4, Panel concluded that Mexico's

determination of threat of material injury is in violation of AD Agreement Articles 3.1, 3.4

and 3.7. See paras. 7.111-142; Panel determined that Mexico failed to consider the

domestic market "as a whole," and, as a result, Mexico's "determination of threat of injury

is inconsistent with its obligations under Article 3.1, 3.2, 3.4 and 3.7 of the AD

Agreement." See paras. 7.143-162)

Article 3.8 (Special Care in Threat Cases)



 U.S. - OCTG AD Measures (Panel) (Found that 19 U.S.C. §§ 1675a(a)(1) and (5) are not

inconsistent with AD Agreement Articles 3.1, 3.2, 3.4, 3.7, 3.8, 11.1 and 11.3 in relation to

the determination of whether injury is likely to continue or recur. See paras. 7.84-108)

 U.S. - OCTG Sunset Reviews (Panel) (Concluded that Articles 3.7 and 3.8 do not apply

to sunset reviews, and therefore rejected Argentina's argument that Sections 752(a)(1)

and (5) of the Tariff Act are inconsistent with Articles 3.7 and 3.8 due to the use of a

"within a reasonably foreseeable time" standard. See paras. 7.188-192)

 U.S. - Lumber ITC Investigation (Panel) (Panel considered the phrase "special care" to

mean that "a degree of attention over and above that required of investigating authorities

in all antidumping and countervailing duty injury cases is required in the context of cases

involving threat of material injury"; furthermore, despite the use of the term "application"

in the provisions, Panel found that AD Agreement Article 3.8 and SCM Agreement Article

15.8 apply "during the process of investigation and determination of threat of material

injury, that is, in the establishment of whether the prerequisites for application of a

measure exist, and not merely afterward when final decisions whether to apply a

measure are taken"; however, because the factual circumstances underlying the Article

3.8/15.8 claims were the same as those for the other specific violations alleged, Panel

made no findings on these claims. See paras. 7.29-37)



Article 4 (Definition of Domestic Industry)



Article 4.1



 Mexico - Pipes and Tubes AD Duties (Panel) (Concluded that "Economía failed to

conduct an objective examination on the basis of positive evidence, as required by Article

3.1, of injury to the domestic industry as that term is defined in Article 4.1, and

consequently also violated Articles 3.2, 3.4 and 3.5, by failing to gather and analyse

representative and consistent data pertaining to the domestic industry, in particular the

data concerning the financial indicators of the 'domestic industry,' as defined by it." See

paras. 7.296-333; rejected Guatemala's claims that changes in the definition of the

product under investigation/like product in the course of the investigation rendered the

determinations of injury and causal link inconsistent with AD Agreement Articles 3.1, 3.2,

3.4, 3.5, 4.1 and 5.4. See paras. 7.334-347)

 Argentina - Poultry AD Duties (Panel) (Rejected claim that Argentina violated Article 4.1

by defining the "major proportion" of the "domestic industry" in terms of domestic

producers representing 46 percent of total domestic production. See paras. 7.328-344)

 U.S. - Hot-Rolled Steel from Japan (AB) (Upheld Panel's finding that the captive

production provision is not, on its face, inconsistent with AD Agreement Articles 3 and 4.

See paras. 181-209)

 U.S. - Hot-Rolled Steel from Japan (Panel) (Because the captive production provision

allows the U.S. authority to examine the domestic industry "as a whole," it is not

inconsistent with AD Agreement Articles 3 and 4, either on its face or as applied --

findings on the provision as applied reversed on appeal. See paras. 7.169-215)

 U.S. - 1916 Act (Panel) (Found a violation of AD Agreement Articles 4 and 5 because the

1916 Act does not require that a complaint be made "on behalf of the domestic industry."

See paras. 6.212-214 of panel report in complaint by EC; paras. 6.255-257 of panel

report in complaint by Japan)

 Mexico - HFCS (Panel) (Examined as context to Article 3; Article 4.1 defines the term

"domestic industry" as "referring to the domestic producers as a whole"; Mexico's

exclusion of the household sector from its injury analysis violated AD Agreement Article

3. See para. 7.147)

Article 5 (Initiation and Subsequent Investigation)



Article 5.1 (Domestic Industry Representation)



 U.S. - 1916 Act (Panel) (Found a violation of AD Agreement Articles 4 and 5 because the

1916 Act does not require that a complaint be made "on behalf of the domestic industry."

See paras. 6.212-214 of panel report in complaint by EC; paras. 6.255-257 of panel

report in complaint by Japan)



Article 5.2 (Sufficiency of Application for Initiation of an Investigation)



 U.S. - Lumber AD Final (Panel) (Panel said that it must establish "whether the application

contained information on the matters specified in Article 5.2, in particular as required by

sub-paragraph (iii) thereof [regarding information on prices], and not whether it contained

all such information as is reasonably available to the applicant"; found that "the

application contained the information required by Article 5.2(iii)," and it concluded "that

Canada has failed to establish that the United States has acted inconsistently with Article

5.2." See paras. 7.44-61)

 Argentina - Poultry AD Duties (Panel) (Panel stated: "Without ruling on this matter, we do

not exclude the possibility that Article 5.2 could oblige Members to verify that applications

contain evidence, and not mere assertion, of dumping, injury, and causal link." See

paras. 7.90-98)

 Thailand - Steel (Panel) (Article 5.2 claim rejected on basis that the application in fact

contained data, evidence, and information regarding injury and causation. See paras.

7.60-79)

 U.S. - 1916 Act (Panel) (Violation of Article 5.2 found on basis that the U.S. Federal

Rules of Civil Procedure do not require evidence of dumping, injury or causation in the

"application" for a lawsuit. See para. 6.258 of panel report in complaint by Japan;

violation of AD Agreement Articles 4 and 5 found because the 1916 Act does not require

that a complaint be made "on behalf of the domestic industry." See paras. 6.212-214 of

panel report in complaint by EC; paras. 6.255-257 of panel report in complaint by Japan)

 Mexico - HFCS (Panel) (Found that Article 5.2 establishes a flexible standard as to the

specific types of information that must be included in an investigation application; rejected

the argument that Article 5.2 includes a requirement that an application for an anti-

dumping investigation must contain specific information regarding the injury factors

contained in AD Agreement Article 3; here, noting that the application contained evidence

pertaining to the relevant Article 5.2 factors, Panel concluded that the application met the

requirements of Article 5.2. See paras. 7.63-78)



Article 5.3 (Sufficiency of Evidence to Justify Initiation)



 Mexico - Pipes and Tubes AD Duties (Panel) (Found that the Mexican Ministry of

Economy violated AD Agreement Article 5.3 in its assessment of the sufficiency of the

evidence of dumping and injury in relation to the initiation of the anti-dumping

investigation at issue. See paras. 7.10-60)

 U.S. - Lumber AD Final (Panel) (Panel concluded, "an unbiased and objective

investigating authority could have concluded that there was sufficient evidence on

dumping in the application to justify the initiation of the softwood lumber anti-dumping

investigation at issue"; therefore, it found, "the United States has not violated the

provisions of Article 5.3 of the AD Agreement." See paras. 7.62-127)

 Argentina - Poultry AD Duties (Panel) (Concluded, on several bases, that Argentina acted

inconsistently with Article 5.3 by determining that there was sufficient evidence of

dumping to justify the initiation of an investigation. See paras. 7.51-89)

 Thailand - Steel (Panel) (Article 5.3 claim rejected on the basis that the application for a

dumping investigation did in fact contain data, evidence and information regarding injury

and causation. See paras. 7.60-79)

 EC - Bed Linen (Panel) (Article 5.3 says nothing about how a Panel is to examine the

evidence contained in the application; here, the Panel was convinced that the European

Commission had examined the evidence, such that there was no violation of Article 5.3.

See paras. 6.185-201)

 Guatemala - Cement II (Panel) (An objective and unbiased investigating authority could

not have properly determined that there was sufficient evidence of threat of injury to

justify the initiation of an investigation; the obligations contained in Articles 5.2 and 5.3

are different, and an authority may gather information on its own initiative in order to meet

its Article 5.3 obligations and justify initiation. See paras. 8.29-62)

 Mexico - HFCS (Panel) (Noting that the Mexican authority relied on evidence contained in

the application, as well as evidence that it collected itself, and stating that an authority

does not have to consider all of the Article 3.4 factors in the context of initiation, the Panel

found that an unbiased and objective authority could have found sufficient evidence to

justify initiation; Article 5.3 does not require investigating authorities to resolve all factual

disputes prior to initiation. See paras. 7.91-110)

 Guatemala - Cement I (Panel) (Violation of AD Agreement Article 5.3 found on the basis

that the investigating authority did not have sufficient evidence of dumping, threat of

material injury and causal link upon which to justify initiation -- this panel report was

reversed on procedural grounds. See paras. 7.44-80)



Article 5.4 (Domestic Industry Support for Investigation)



 Mexico - Pipes and Tubes AD Duties (Panel) (Rejected Guatemala's claims that changes

in the definition of the product under investigation/like product in the course of the

investigation rendered the determinations of injury and causal link inconsistent with AD

Agreement Articles 3.1, 3.2, 3.4, 3.5, 4.1 and 5.4. See paras. 7.334-347)

 U.S. - Offset Act ("Byrd Amendment") (AB) (Reversed Panel's finding of violation of

Article 5.4. See paras. 275-299)

 U.S. - Offset Act ("Byrd Amendment") (Panel) (Found that the measure "undermined the

value" of the Article 5.4 "standing" requirement and therefore violated this provision --

reversed on appeal. See paras. 7.53-66)

 EC - Bed Linen (Panel) (No violation found; Panel considered that EC demonstrated over

25% support based on individual statements made by domestic producers; it was

unnecessary for the Panel to decide whether, under Article 5.4, it was proper for the EC

to count the support of industry associations in its evaluation of overall support for the

investigation. See paras. 6.202-218)

 U.S. - 1916 Act (Panel) (Violation of AD Agreement Articles 4 and 5 found because the

1916 Act does not require that a complaint be made "on behalf of the domestic industry."

See paras. 6.212-214 of panel report in complaint by EC; paras. 6.255-257 of panel

report in complaint by Japan)



Article 5.5 (Notification Prior to Initiation)



 Thailand - Steel (Panel) (Thailand's verbal notification to the Polish Government

regarding the filing of the application for the anti-dumping investigation at issue, which

occurred six weeks prior to initiation, satisfied the requirements of Article 5.5. See paras.

7.80-94)

 Guatemala - Cement II (Panel) (Guatemala violated AD Agreement Article 5.5 by failing

to notify the Government of Mexico prior to its initiation of the dumping investigation. See

paras. 8.76-83)

 U.S. - 1916 Act (Panel) (1916 Act violates AD Agreement Article 5.5 because it fails to

provide for notification to the governments concerned before a case is initiated. See

paras. 6.215-216 of panel report in complaint by EC)

 Guatemala - Cement I (Panel) (Failure to notify initiation of the investigation to the

Government of Mexico in a timely fashion resulted in a violation of Article 5.5 -- this panel

report was reversed on procedural grounds. See paras. 7.30-43)



Article 5.6 (Investigation Shall Proceed Only with Sufficient Evidence)



 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Rejected 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; therefore,

found that U.S. statute and regulations at issue are not inconsistent with Article 11.3, nor

with Articles 11.1, 12.1, 12.3, and 5.6, in respect of the evidentiary standards applicable

to the self-initiation of sunset reviews and that the United States did not act inconsistently

with the AD Agreement by automatically self-initiating the instant sunset review. See

paras. 7.11-57)



Article 5.7 (Simultaneous Consideration of Dumping and Injury)



 Argentina - Poultry AD Duties (Panel) (Noting that it is with respect to the Secretary's

decision on initiation that evidence of dumping and injury must be considered

simultaneously, the Panel rejected claim of violation of Article 5.7; also rejected argument

regarding the periods of investigation for dumping and injury, noting that such an

argument deals with the substantive nature of the determinations rather than the

procedural timing. See paras. 7.113-124)

 EC - Bed Linen, Article 21.5 (Panel) (Finding that the obligation set out in Article 5.7 to

consider evidence of dumping and injury simultaneously applies only to "Initiation and

Subsequent Investigation," the Panel rejected India's argument that the EC violated this

provision in respect of the redetermination and subsequent partial review. See paras.

6.95-116)

 Guatemala - Cement II (Panel) (Rejected argument that a lack of evidence supporting a

finding of dumping and injury resulted in an automatic violation of the requirement in

Article 5.7 to consider dumping and injury simultaneously; held that Article 5.7 is about

timing and is not conditioned upon the substantive nature of the evidence. See paras.

8.63-68)



Article 5.8



Article 5.8 (Rejection of Application and Termination of Investigation Due to Lack of

Sufficient Evidence)



 Mexico - Pipes and Tubes AD Duties (Panel) (On the basis of the findings relating to

evidence of dumping and injury for purposes of initiation, Panel concluded that "[a]s there

was no proper determination that there was sufficient evidence of dumping or injury to

justify proceeding with the case under Article 5.3, the application should have been

rejected and the investigation should not have been initiated by the terms of Article 5.8."

See para. 7.61)

 U.S. - Zeroing (Japan) (Panel) (Based on its rejection of the claims against simple

zeroing under other provisions, Panel rejected claims under Article 5.8. See paras. 7.167-

170)

 U.S. - "Zeroing" (Panel) (Found that Sections 771(35)(A) and (B), 731 and 777A(d) of the

Tariff Act are not "as such" inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 5.8, 9.3

and 18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4 with respect to

the use of a "zeroing" methodology in the calculation of margins of dumping in original

investigations. See paras 7.37-69)

 Mexico - Rice AD Measures (AB) (Upheld Panel's finding that Mexico acted inconsistently

with AD Agreement Article 5.8 "when it did not terminate immediately the investigation in

respect of Farmers Rice and Riceland because Economía did not exclude them from the

application of the definitive anti-dumping measure, whereas these exporters were found

by Economía not to have been dumping," but rather considered them to be "covered" by

the measure. See paras. 207-221; by requiring Economía to conduct a review for

exporters with no margins and de minimis margins, Appellate Body concluded that Article

68 of the Foreign Trade Act is inconsistent with AD Agreement Article 5.8 and SCM

Agreement Article 11.9. See paras. 300-307)

 Mexico - Rice AD Measures (Panel) (Concluded that "by not terminating the investigation

against two US exporters which the authority found to have exported at undumped prices

and by not excluding these two exporters from the application of the definitive anti-

dumping measure, Mexico acted in a manner which is inconsistent with Article 5.8 of the

AD Agreement." See paras. 7.133-145; concluded that Article 5.8 "requires the

termination of the investigation with regard to such exporters found not to have been

dumping above de minimis levels, and requires that such exporters be excluded from the

measures imposed"; therefore, it found, Article 68 of the Act "is as such inconsistent with

Article 5.8 of the AD Agreement," as it "requires the review of producers for which during

the original investigation it was determined that they had not been engaged in dumping

practices or had not received any subsidies"; for the same reasons, Article 68 violates

SCM Agreement Article 11.9. See paras. 7.243-251)

 U.S. - Lumber AD Final (Panel) (Given the earlier finding that there was no violation of

Article 5.3, Panel also found no violation of Article 5.8 in respect of initiation of the

investigation; found that Article 5.8 does not impose "a continuing obligation after

initiation to continue to assess the sufficiency of the evidence in the application and to

terminate the investigation on the grounds that other information undermines the

sufficiency of that evidence"; on this basis, Panel rejected Canada's claim under Article

5.8. See paras. 7.128-138)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Concluded that "the United

States did not act inconsistently with Articles 11.3, 3.3 or 5.8 in the instant sunset review

by cumulating imports from Japan with imports from other countries without applying the

negligibility standard set out in Article 3.3 and 5.8 for original investigations." See paras.

7.89-105)

 Argentina - Poultry AD Duties (Panel) (Found that, pursuant to Article 5.8, the Secretary

should have rejected the application "as soon as" it received the CNCE's negative injury

determination; because the Secretary "kept the file open, subsequently deciding to

initiate the investigation following the submission of additional information by the

applicant," the Panel concluded that the Secretary "failed to meet the requirements" of

Article 5.8. See paras. 7.99-112)

 Guatemala - Cement II (Panel) (Because the Panel had already found there to be a lack

of sufficient evidence to justify initiation under Article 5.3, concluded that the Guatemalan

authorities also should have rejected the application under Article 5.8. See paras. 8.69-

75)

 Mexico - HFCS (Panel) (Because the Panel had already found initiation to be proper

under AD Agreement Article 5.3, considered that SECOFI also acted properly under

Article 5.8 when it decided not to reject the domestic industry's application for an anti-

dumping investigation. See para. 7.99)



Article 5.8 (De minimis Amounts in a Duty Assessment Procedure / Sunset Review)



 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Concluded that the 2 percent de

minimis standard of Article 5.8 "does not apply in the context of sunset reviews," and

therefore the U.S. law and instant sunset review are not inconsistent with Article 11.3 or

Article 5.8 in respect of the de minimis standard applicable in sunset reviews. See paras.

7.58-88)

 U.S. - DRAMS (Panel) (Held that the de minimis requirement of Article 5.8 does not apply

to Article 9.3 duty assessment procedures. See paras. 6.83-91)



Article 5.10 (Deadline for Completion of Investigation and Decision to Impose Duties)



 U.S. - 1916 Act (Panel) (Failure to include in the 1916 Act an 18 month deadline for

completion of the investigation and issuance of a decision does not necessarily constitute

a violation of Article 5.10, as courts could interpret the 1916 Act consistently with the

provision. See paras. 6.259-260 of panel report in complaint by Japan)



Article 6 (Evidence)



Article 6.1 (Notice of Information Required)



 Mexico - Rice AD Measures (AB) (Concluded that the notification requirements in AD

Agreement Articles 6.1 and 12.1 apply only to interested parties for which the

investigating authority had "actual knowledge," and do not cover those for which the

authority merely "could have obtained knowledge"; here, Appellate Body was satisfied

that Economía sent questionnaires to all companies of which it had actual knowledge and

thus did not violate Articles 12.1 or 6.1; thus, 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. See paras. 245-253)

 Mexico - Rice AD Measures (Panel) (Found that the investigating authority failed to

comply with AD Agreement Articles 6.1 and 12.1 "as it failed to notify all interested parties

known to have an interest in the investigation of the initiation of the investigation and of

the information required of them" -- reversed on appeal; said that in case the authorities

do not properly notify and inform the interested parties, they are "not permitted to apply

the facts available to make determinations with regard to these interested parties," and

thus, "by applying the facts available in the calculation of a margin of dumping for the US

exporters or producers that were known or could reasonably have been known to the

authority, Mexico acted in a manner which is inconsistent with Article 6.8 and paragraph

1 of Annex II of the AD Agreement." See paras. 7.169-201)

 Egypt - Rebar from Turkey (Panel) (Found that Turkey had not established that the

investigating authority violated Articles 6.1 and 6.2 in respect of the scope of the injury

investigation (i.e., whether the investigation covered threat or material injury) and the

notice thereof provided to the Turkish respondents. See paras. 7.77-96)



Article 6.1 (Submission of Evidence During Investigation)



 U.S. - OCTG Sunset Reviews, Article 21.5 (Panel) (Rejected Argentina's claims that the

DOC "failed to give the Argentine exporters an ample opportunity to submit evidence,

inconsistently with Article 6.1" and that "Argentine exporters were denied the right to

defend their interests as mentioned in Article 6.2"; also noted that hearings are to be held

when requested, but there was no "clear indication" that such a request had been made

here; thus, Panel rejected Argentina's claims under Articles 6.1 and 6.2. See paras.

7.109-120)

 U.S. - OCTG Sunset Reviews (AB) (With respect to respondents who file incomplete

submissions in response to the DOC's notice of initiation of a sunset review, Appellate

Body upheld Panel's findings that Section 351.218(d)(2)(iii) is inconsistent, as such, with

Articles 6.1 and 6.2; by contrast, with respect to respondents that file no submission in

response to the DOC's notice of initiation, Appellate Body reversed Panel's finding that

"the failure to accord those respondents the rights detailed in Articles 6.1 and 6.2 renders

the deemed waiver provision inconsistent, as such, with those provisions." See paras.

236-253)

 U.S. - OCTG Sunset Reviews (Panel) (Found that Section 351.218(d)(2)(iii) of the

Regulations relating to deemed waivers, as such, is inconsistent with AD Agreement

Articles 6.1 and 6.2. See paras. 7.104-128; in response to Argentina's claim that the

conduct of an expedited sunset review and the application of the waiver provisions in the

instant sunset review violated AD Agreement Articles 6.1 and 6.2, Panel rejected claim

under Article 6.1, but found a violation under Article 6.2 due to the absence of a hearing.

See paras. 7.227-236)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Concluded that the DOC "did

not act inconsistently with Articles 6.1 or 6.2 of the Anti-dumping Agreement by declining

to consider the information contained in NSC's submission dated 11 May 2000 on the

grounds of untimeliness." See paras. 7.247-263)

 Guatemala - Cement II (Panel) (Stated that Article 6.1 does not require authorities to

establish time limits for the presentation of arguments and evidence -- it simply requires

them to provide "ample opportunity" to present written evidence; therefore, claim under

Article 6.1 was rejected. See paras. 8.115-119; rejected another claim, finding that the

respondent was given two weeks to present the additional data, and was therefore given

"ample opportunity to present in writing" relevant evidence as required under Article 6.1.

See para. 8.178; rejected claim that by failing to inform respondent of a change in injury

theories, the Ministry violated AD Agreement Articles 6.1, 6.2, and 6.9. See paras. 8.233-

239)



Article 6.1.1 (30-Day Deadline for Questionnaires) and footnote 15



 Mexico - Rice AD Measures (AB) (Concluded, "we 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." See paras. 7.262-263;

upheld Panel's findings that Article 53 of the FTA -- which provides that "[t]he interested

parties shall submit their arguments, information and evidence in conformity with the

applicable legislation, within a period of 28 days from the day following the publication of

the initiating resolution" -- is inconsistent, as such, with AD Agreement Article 6.1.1 and

SCM Agreement Article 12.1.1. See paras. 7.276-283)

 Mexico - Rice AD Measures (Panel) (Found that, "by using the date of publication of the

initiation notice as the starting point for the time period for questionnaire responses,

Article 53 of the Act effectively prevents Mexico from giving each exporter or foreign

producer receiving a questionnaire 30 days to respond"; therefore, it concluded, Article

53 is inconsistent "with the unequivocal requirement in Article 6.1.1 of the AD Agreement

to provide for 30 days to respond to questionnaires." See paras. 7.213-225)

 Argentina - Poultry AD Duties (Panel) (Concluded that since the DCD did not allow

certain exporters an initial period of at least 30 days to respond to the "questionnaires" at

issue, Argentina failed to comply with Article 6.1.1; found that the failure to send a

particular questionnaire to exporters or foreign producers does not constitute a violation

of Article 6.1.1, and therefore Argentina did not violate Article 6.1.1 by not sending the

CNCE's injury questionnaire to the exporters identified by Brazil. See paras. 7.136-147)

 Egypt - Rebar from Turkey (Panel) (Concluded that the investigating authority's

supplemental requests for information did not constitute "questionnaires" under Article

6.1.1 and, therefore, the deadline imposed for those responses was not inconsistent with

that provision. See paras. 7.270-279 and paras. 7.285-287)



Article 6.1.2 (Availability of Evidence)



 Argentina - Poultry AD Duties (Panel) (Concluded that because the exporters in

question were not even aware of the investigation, they could not have "participated" in

that investigation and the investigating authority was not required to make evidence

promptly available to them; therefore, rejected claim that Argentina violated Article 6.1.2.

See paras. 7.148-154)

 Guatemala - Cement II (Panel) (Discussed in context of AD Agreement Article 6 --

Access to Case File; Guatemala violated Article 6.1.2 when it: 1) failed to grant Mexico

regular and routine access to the investigation file, and 2) delayed by 20 days the

provision of a copy of one of the petitioner's submissions to the Mexican respondent

company. See paras. 8.126-158)



Article 6.1.3 (Requirement to Provide Full Text of Application)



 Argentina - Poultry AD Duties (Panel) (Concluded that Argentina did not "provide" the full

text of the application to the known Brazilian exporters and the Brazilian authorities, and

thus acted inconsistently with Article 6.1.3. See paras. 7.163-173)

 Guatemala - Cement II (Panel) (Held that the term "as soon as" in Article 6.1.3 is

interchangeable with the term "immediately"; here, Guatemala's provision of the text of

the application to both the known exporters and the Mexican Government did not meet

the "as soon as" standard. See paras. 8.97-104)



Article 6.2 (Rights of Defense)



 U.S. - OCTG Sunset Reviews, Article 21.5 (Panel) (Rejected Argentina's claims that the

DOC "failed to give the Argentine exporters an ample opportunity to submit evidence,

inconsistently with Article 6.1" and that "Argentine exporters were denied the right to

defend their interests as mentioned in Article 6.2"; also noted that hearings are to be held

when requested, but there was no "clear indication" that such a request had been made

here; thus, Panel rejected Argentina's claims under Articles 6.1 and 6.2. See paras.

7.109-120)

 Korea - Paper AD Duties (Panel) (Stating that Article 6.2 does not address interested

parties' right to see the information on the record, Panel considered that "there is no legal

basis for Indonesia's claim under Article 6.2 in light of the acknowledged facts." See

paras. 7.304-307)

 U.S. - OCTG Sunset Reviews (AB) (With respect to respondents who file incomplete

submissions in response to the DOC's notice of initiation of a sunset review, Appellate

Body upheld Panel's findings that Section 351.218(d)(2)(iii) is inconsistent, as such, with

Articles 6.1 and 6.2; by contrast, with respect to respondents that file no submission in

response to the DOC's notice of initiation, Appellate Body reversed Panel's finding that

"the failure to accord those respondents the rights detailed in Articles 6.1 and 6.2 renders

the deemed waiver provision inconsistent, as such, with those provisions." See paras.

236-253)

 U.S. - OCTG Sunset Reviews (Panel) (Found that Section 351.218(d)(2)(iii) of the

Regulations relating to deemed waivers, as such, is inconsistent with AD Agreement

Articles 6.1 and 6.2. See paras. 7.104-128; in response to Argentina's claim that the

conduct of an expedited sunset review and the application of the waiver provisions in the

instant sunset review violated AD Agreement Articles 6.1 and 6.2, Panel rejected claim

under Article 6.1, but found a violation under Article 6.2 due to the absence of a hearing.

See paras. 7.227-236)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Concluded that the DOC "did

not act inconsistently with Articles 6.1 or 6.2 of the Anti-dumping Agreement by declining

to consider the information contained in NSC's submission dated 11 May 2000 on the

grounds of untimeliness." See paras. 7.247-263)

 EC - Pipe Fittings (AB) (Found that the European Communities acted inconsistently with

Articles 6.2 and 6.4 "by failing to disclose to the interested parties during the antidumping

investigation the information on the injury factors listed in Article 3.4 that is contained in

Exhibit EC-12," thereby reversing Panel's finding to the contrary. See paras. 134-150)

 EC - Pipe Fittings (Panel) (Given that certain information was considered not relevant

and was not specifically relied upon in making the anti-dumping determination, the Panel

found that the European Communities did not violate Articles 6.2 or 6.4 -- reversed on

appeal. See paras. 7.346-349; noting that certain information was considered to be

confidential within the meaning of Article 6.5, and that Brazil had not invoked Article 6.5 in

this connection, the Panel found that the European Communities did not violate Article

6.2 or 6.4 in this respect. See paras. 7.379-380)

 Argentina - Poultry AD Duties (Panel) (Said that it did not consider it necessary to

address claims under Article 6.2 where it had already made findings concerning the

conduct allegedly violating Article 6.2 under other, more specific, provisions of the AD

Agreement. See paras. 7.155-162)

 Egypt - Rebar from Turkey (Panel) (Found that Turkey had not established that the

investigating authority violated Articles 6.1 and 6.2 in respect of the scope of the injury

investigation (i.e., whether the investigation covered threat or material injury) and the

notice thereof provided to the Turkish respondents. See paras. 7.77-96; also found that

because, as a factual matter, the deadline given to respondents to respond to the

investigating authority's August 19 request for additional information was "reasonable,"

the investigating authority did not violate Article 6.2. See paras. 7.280-284; similarly,

because, inter alia, respondents did not object to the deadline given in the September 23

letter, the Panel found that the investigating authority did not violate Article 6.2. See

paras. 7.288-295; based on its factual finding that respondents did not "request" a

meeting with the investigating authority, but merely "offered" to meet with the authority,

the Panel rejected Turkey's claim under Article 6.2. See paras. 7.338-346)

 Guatemala - Cement II (Panel) (Rejected claim under Article 6.2, based on Mexico's

failure to submit evidence regarding Guatemala's response to a request for a non-

confidential version of certain evidence. See paras. 8.159-165; found no evidence to

suggest that the views of a particular respondent were sought, and, therefore, the

Ministry violated Article 6.2 by failing to provide the company with "a full opportunity for

the defence of [its] interests." See para. 8.179; rejected claim that by failing to inform

respondent of a change in injury theories, the Ministry violated AD Agreement Articles

6.1, 6.2, and 6.9. See paras. 8.233-239)



Article 6.4 (Opportunities to See Relevant Information)



 U.S. - OCTG Sunset Reviews, Article 21.5 (Panel) (Examining five memoranda at issue,

Panel rejected Argentina's claims regarding the first three, two of which dealt with the

DOC's "reasoning," to which, the Panel said, Article 6.4 does not apply; with regard to the

latter two, however, Panel noted that for one, the DOC used this information, but the

Argentine exporters had not been informed about it; and for another, which covered

information taken from the original sunset review, the DOC had not demonstrated that it

was not practicable to allow the Argentine exporters to see it; therefore, Panel found that

the DOC acted inconsistently with Article 6.4 with regard to these two memoranda. See

paras. 7.121-129)

 Korea - Paper AD Duties (Panel) (Concluded that the KTC acted inconsistently with

Article 6.4 "with respect to disclosing information regarding the calculation of the

constructed normal values for Indah Kiat and Pindo Deli to those companies." See paras.

7.195-201; since the Sinar Mas Group's request was directed at confidential information,

Panel concluded that Indonesia failed to establish a legal basis for its claim under Article

6.4. See paras. 7.299-303 and paras. 7.321-322)

 EC - Pipe Fittings (AB) (Found that the European Communities acted inconsistently with

Articles 6.2 and 6.4 "by failing to disclose to the interested parties during the antidumping

investigation the information on the injury factors listed in Article 3.4 that is contained in

Exhibit EC-12," thereby reversing Panel's finding to the contrary. See paras. 134-150)

 EC - Pipe Fittings (Panel) (Given that certain information was considered not relevant

and was not specifically relied upon in making the anti-dumping determination, the Panel

found that the European Communities did not violate Articles 6.2 or 6.4 -- reversed on

appeal. See paras. 7.346-349; noting that certain information was considered to be

confidential within the meaning of Article 6.5, and that Brazil had not invoked Article 6.5 in

this connection, the Panel found that the European Communities did not violate Article

6.2 or 6.4 in this respect. See paras. 7.379-380; said that it did 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," and therefore found that the

European Communities did not violate Article 6.4. See paras. 7.201-208)

 Guatemala - Cement II (Panel) (Discussed in context of AD Agreement Article 6 --

Access to Case File; Guatemala violated Article 6.4 when it 1) failed to provide Mexico

with two copies of the investigation file upon request and upon Mexico's offer to pay the

requisite fee, and 2) failed to grant Mexico regular and routine access to the investigation

file; Guatemala's failure to provide Mexico with a complete copy of the record from the

hearing, based simply upon Guatemala's inadvertent failure to include a couple of pages,

did not rise to the level of a violation of Article 6.4. See paras. 8.126-158)

 Mexico - HFCS (Panel) (Rejected a U.S. claim of violation of Article 6.4, made on

grounds that certain documents had not been shared with the parties during the

investigation; held that Article 6.4 should not be interpreted to impose an independent

obligation on the investigating authority to issue explanations or conclusions that are not

required to be issued under Article 5.3. See paras. 7.106-109)



Article 6.5 (Confidential Information)



 Mexico - Pipes and Tubes AD Duties (Panel) (Found that Guatemala "has not

established that Mexico violated its obligations under Article 6.5 and 6.5.1 in its treatment

of requests for confidentiality and assertions of reasons why summarization of

confidential information was not possible." See paras. 7.373-399)

 Korea - Paper AD Duties (Panel) (Concluded that "the KTC acted inconsistently with

Article 6.5 in the investigation at issue by not requiring that good cause be shown with

respect to the information submitted in the application which was by nature confidential."

See paras. 7.329-335)

 Guatemala - Cement II (Panel) (Guatemala violated Article 6.5 by granting confidential

treatment to submissions by the petitioner even though Guatemala could present no

evidence that the petitioner had even requested confidential treatment. See paras. 8.207-

223)



Article 6.5.1 (Confidential Information)



 Mexico - Pipes and Tubes AD Duties (Panel) (Found that Guatemala "has not

established that Mexico violated its obligations under Article 6.5 and 6.5.1 in its treatment

of requests for confidentiality and assertions of reasons why summarization of

confidential information was not possible." See paras. 7.373-399)

 U.S. - OCTG Sunset Reviews, Article 21.5 (Panel) (Panel concluded that the DOC "acted

inconsistently with its obligation under Article 6.5.1 of the Agreement to require [the

petitioner] to provide a non-confidential summary of the confidential information that it

excluded from its submission to the USDOC, or, alternatively, to explain why the

information is not susceptible to summarization"; in addition, Panel rejected the U.S.

argument that "because US law allows counsel for parties to access all confidential

information on the record, there was no violation of Article 6.5.1 in the sunset review at

issue"; with regard to two other sets of documents, the Panel noted that for the first,

Argentina had not submitted the text of document at issue; and for the second, the

documents were memoranda prepared by the DOC, which the Panel said were not

covered by Article 6.5.1; thus, Panel rejected these other claims. See paras. 7.131-139)

 Guatemala - Cement II (Panel) (Guatemala violated Article 6.5.1 because there was no

evidence demonstrating either that petitioner provided a statement of reasons as to why

summarization was not possible or that the Ministry even requested such a statement.

See paras. 8.207-223)



Article 6.5.2 (Confidential Information)



 Guatemala - Cement II (Panel) (Article 6.5.2 does not require a party to provide a

justification for confidential treatment, but simply establishes rules in the situation where

the authority finds that a request for confidentiality "is not warranted"; rejected Mexico's

claim that certain information should have been summarized, in light of Mexico's failure to

demonstrate that the information at issue could be summarized. See paras. 8.207-223)



Article 6.6 (Satisfaction as to Accuracy of Information)



 U.S. - OCTG Sunset Reviews, Article 21.5 (Panel) (Concluded that Article 6.6 "could not

have been violated by the USDOC because of the information that it declined to use in its

determination." See paras. 7.140-143)

 Guatemala - Cement II (Panel) (Because the Panel classified Mexico's concerns as

pertaining to the substantive relevance of the information at issue, rather than to the

accuracy of the information, rejected Mexico's claim regarding import data under Article

6.6. See paras. 8.166-174)

 U.S. - DRAMS (Panel) (Article 6.6 does not require verification of all information upon

which the authority relies, as there are many ways to "satisfy" oneself as to the accuracy

of information, including "reliance on the reputation of the original source of the

information"; Panel rejected claims under this provision. See paras. 6.74-82)



Article 6.7 (Verification)



 Korea - Paper AD Duties (Panel) (Because the KTC "did not inform the two Sinar Mas

Group companies of the verification results in a manner that would allow them to properly

prepare their case for the rest of the investigation," Panel concluded that "the KTC acted

inconsistently with Article 6.7 of the Agreement in this regard." See paras. 7.183-193)

 Egypt - Rebar from Turkey (Panel) (Rejected Turkey's argument that the investigating

authority violated Article 6.7 and Annex I(7) by waiting until after the "on-the-spot"

verification to raise certain cost issues; noting the use of the word "may" in Article 6.7, the

Panel concluded that "on-the-spot" verifications are "permitted, but not required" under

this provision. See paras. 7.322-328)

 Guatemala - Cement II (Panel) (The inclusion on the verification team of non-

governmental experts with a conflict of interest does not violate Article 6.7. See paras.

8.184-198)



Article 6.8 (Facts Available)



 Mexico - Pipes and Tubes AD Duties (Panel) (Concluded that Economía acted

inconsistently with Annex II, paragraphs 3 and 5, and thus Article 6.8, "when it decided to

reject in their entirety the data that Tubac had submitted and to rely instead on facts

available." See paras. 7.108-184; found that Economía "acted inconsistently with

paragraph 6 of Annex II, and thus Article 6.8, by failing to inform Tubac that its data were

being rejected and of the reasons for that decision, and by failing to provide Tubac with

an opportunity to submit further explanations." See paras. 7.185-190; concluded that

Economía "acted inconsistently with paragraph 7 of Annex II and Article 6.8 because in

applying as facts available the normal value evidence that was provided by the applicant

and used in Economía's initiation decision it failed to use 'special circumspection.'" See

paras. 7.191-197)

 Mexico - Rice AD Measures (AB) (Upheld Panel's finding that "by applying the facts

available contained in the application submitted by the petitioner in calculating the margin

of dumping for United States exporters that Economía did not investigate," Mexico acted

inconsistently with AD Agreement Annex II(1) and, therefore, with AD Agreement Article

6.8. See paras. 258-261; noted that Article 64 of the Foreign Trade Act "does not on its

face permit the agency to use any information that might be provided by a foreign

producer or exporter, even if incomplete, where the use of such information would result

in a margin lower than the highest facts available margin," "[n]or does it allow the agency

to engage in the 'evaluative, comparative assessment' necessary in order to determine

which facts are 'best' to fill in the missing information"; thus, upheld Panel's findings that

Article 64 is inconsistent, as such, with AD Agreement Article 6.8 and Annex II(1, 3, 5,

and 7), as well as SCM Agreement Article 12.7. See paras. 284-298)

 Mexico - Rice AD Measures (Panel) (Examining the record, Panel said that it found "no

basis to consider that the authority made any attempt to check the applicant's information

against information obtained from other interested parties or undertook the evaluative,

comparative assessment that would have enabled the authority to assess whether the

information provided by the applicant was indeed the best information available," nor did

the investigating authority use the applicant's information with "special circumspection" as

required by paragraph 7 of Annex II; thus, Panel found that the Mexican investigating

authority calculated a dumping margin on the basis of facts available for the exporter

Producers Rice in a manner which is inconsistent with AD Agreement Article 6.8, read in

light of Annex II, paragraph 7. See paras. 7.160-168; Panel found that the investigating

authority failed to comply with AD Agreement Articles 6.1 and 12.1 "as it failed to notify all

interested parties known to have an interest in the investigation of the initiation of the

investigation and of the information required of them"; said that in case the authorities do

not properly notify and inform the interested parties, they are "not permitted to apply the

facts available to make determinations with regard to these interested parties," and thus,

"by applying the facts available in the calculation of a margin of dumping for the US

exporters or producers that were known or could reasonably have been known to the

authority, Mexico acted in a manner which is inconsistent with Article 6.8 and paragraph

1 of Annex II of the AD Agreement." See paras. 7.169-201; found that since Article 64 of

the Foreign Trade Act effectively prevents the authorities from using the best information

to replace the missing data, it "is inconsistent with Article 6.8 and paragraphs 1, 3, 5 and

7 of Annex II of the AD Agreement." See paras. 7.226-242)

 Korea - Paper AD Duties (Panel) (Concluded that "CMI's financial statements and

accounting records constituted 'necessary information' for purposes of the investigation at

issue"; stated that the financial statements at issue were submitted past the deadline

established by the KTC in the investigation at issue; concluded that the Sinar Mas

Group's submission of CMI's financial statements on April 10 was not made within a

reasonable period, and that the KTC "was entitled to disregard CMI's financial statements

and resort to facts available"; furthermore, the Sinar Mas Group's post-verification

submission was limited to CMI's financial statements, and the Group "never attempted to

submit other accounting records which … were also sought by the KTC during verification

and not submitted by the Group"; thus, Panel concluded that "the KTC did not act

inconsistently with Article 6.8 in resorting to facts available with respect to Indah Kiat and

Pindo Deli." See paras. 7.40-56; concluded that "the KTC did not act inconsistently with

Article 6.8 of the Agreement and paragraph 3 of Annex II in disregarding the domestic

sales data provided by Indah Kiat and Pindo Deli in determining normal values for these

two companies." See paras. 7.57-72; concluded that the KTC did not act inconsistently

with Article 6.8 and Annex II(6) "with respect to informing the Sinar Mas Group of its

decision to reject the domestic sales data submitted by Indah Kiat and Pindo Deli and

giving them an opportunity to make further explanations within a reasonable period." See

paras. 7.73-86; rejected two claims that the KTC failed to use "special circumspection" in

using information from secondary sources, but concluded that "the KTC acted

inconsistently with Article 6.8 of the Agreement and paragraph 7 of Annex II with respect

to determining financial expenses of CMI in the context of calculating the constructed

normal values for Indah Kiat and Pindo Deli." See paras. 7.95-111; concluded that the

KTC acted inconsistently with Article 6.8 and Annex II(7) "by failing to fulfil its obligation to

corroborate information obtained from secondary sources for purposes of calculating

Tjiwi Kimia's dumping margin against other independent sources at its disposal";

regarding Indonesia's argument that "the magnitude of the margin of dumping calculated

for Tjiwi Kimia also demonstrates that the KTC failed to exercise special circumspection,"

Panel said this does not "have a bearing on the WTO-consistency of the KTC's

calculation as long as the calculation conforms to the relevant provisions of the

Agreement." See paras. 7.121-127; found that the KTC "did not act inconsistently with

Article 6.8 and paragraph 6 of Annex II in not giving either Tjiwi Kimia or the Sinar Mas

Group another opportunity to submit information which had already been withheld from

the KTC." See paras. 7.128-131)

 U.S. - OCTG Sunset Reviews (Panel) (Found that the DOC did not act inconsistently with

AD Agreement Article 6.8 and Annex II in its use of facts available in the sunset review at

issue. See paras. 7.237-245)

 Argentina - Poultry AD Duties (Panel) (Considered three separate claims under this

provision, as follows: (1) found that the DCD was justified in disregarding data submitted

by one company because the company "had not accredited itself in accordance with

domestic legislation," such that there was no violation of Article 6.8; (2) after examining

the record of the investigation, the Panel said that it could not find reference to any of the

reasons provided by Argentina with respect to certain other companies, and considered

that Argentina's arguments here were an "ex post rationalization" that should not be

taken into account, leading to a violation of Article 6.8; (3) considered that one company

did not submit "the necessary information within a reasonable period," and therefore

Argentina was justified in disregarding this information under Article 6.8. See paras.

7.174-198)

 Egypt - Rebar from Turkey (Panel) (Determined that the cost information that had been

requested was "necessary" in the sense of Article 6.8; concluded that "Egypt violated

Article 6.8 and Annex II, paragraph 6, in respect of IDC and Icdas, because the

[investigating authority], having identified to these respondents the information

'necessary' to verify their cost data, and having received that information, nevertheless

found that they had failed to provide 'necessary information'; and further, did not inform

these companies of this finding and did not give them an opportunity to provide further

explanations"; by contrast, found that "an unbiased and objective investigating authority

could have found that Habas, Diler and Colakoglu failed to provide necessary information

in the sense of Article 6.8," and therefore Egypt did not violate Article 6.8 or Annex II(5) in

resorting to "facts available" for these respondents. See paras. 7.143-266)

 U.S. - Steel Plate from India (Panel) (DOC's decision to reject U.S. sales price

information "lacked a valid basis" under Annex II, paragraph 3; therefore, DOC acted

inconsistently with AD Agreement Article 6.8 and Annex II, paragraph 3 in concluding,

with respect to the respondent's U.S. sales information, that "necessary information" was

not provided and in relying entirely on facts available in determining the dumping margin.

See paras. 7.34-80; U.S. statutory provisions governing the application of facts available

are discretionary and therefore do not "on their face" violate Article 6.8 and Annex II,

paragraph 3. See paras. 7.81-100)

 Argentina - Floor Tiles (Panel) (Argentine authority violated AD Agreement Article 6.8 by

disregarding the exporters' information in whole or in part and applying facts available;

violation also found based on the failure to inform the exporters as to why certain

information supplied by them was not accepted, the failure to provide an opportunity to

provide further explanations within a reasonable period, and the failure to give, in any

published determinations, the reasons for the rejection of evidence or information. See

paras. 6.12-81)

 U.S. - Hot-Rolled Steel from Japan (AB) (Upheld Panel's findings of violations of Article

6.8 with respect to all exporters; stated that the "'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," and it listed a set of factors that authorities should consider;

U.S. authority was not entitled to reject data submitted by exporters solely because it was

received after the deadlines for the submission of that information. See paras. 63-110)

 U.S. - Hot-Rolled Steel from Japan (Panel) (Despite the fact that two of the exporters

submitted certain data after the official deadlines set by the United States, the Panel held

that because the data could have been verified and incorporated into the U.S. analysis,

the information had been submitted in a "reasonable period of time," and it was a

violation of Article 6.8 to reject that data and apply facts available in its place; because an

unbiased and objective authority could not have concluded that a third exporter did not

cooperate with the U.S. investigating authority, the Panel held that the United States' use

of adverse facts available violated Article 6.8 and Annex II(7). See paras. 7.31-74)

 Guatemala - Cement II (Panel) (Because the exporter acted reasonably in refusing to

allow verification of its information (based on the fact that Guatemala had included people

with a conflict of interest on its proposed verification team), Guatemala's determination

that the exporter impeded the investigation was improper, and therefore the use of facts

available in place of the data submitted by the exporter violated Article 6.8. See paras.

8.240-256)



Article 6.9 (Essential Facts under Consideration)



 U.S. - OCTG Sunset Reviews, Article 21.5 (Panel) (Noting that the memoranda at issue

contained the DOC's "reasoning, and not facts," Panel found that the obligation under

Article 6.9 "applies to essential facts," and thus rejected the claim under this provision.

See paras. 7.147-150)

 Korea - Paper AD Duties (Panel) (Noted that "the 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." See paras. 7.202-204;

rejected Indonesia's claim that the KTC's failure to include in the non-confidential version

of the final investigation report the absolute figures with respect to the Korean industry's

prices was inconsistent with Article 6.9. See paras. 7.323-328)

 Argentina - Poultry AD Duties (Panel) (Panel concluded: "Since some of the elements

identified by Brazil are not 'essential facts,' and the remainder are facts which do not

'form the basis for the decision whether to apply definitive measures,' we reject Brazil's

claim that Argentina failed to inform interested parties of 'the essential facts under

consideration which form the basis for the decision whether to apply definitive

measures.'" See paras. 7.218-230)

 Argentina - Floor Tiles (Panel) (Violation of Article 6.9 found, based on fact that exporters

could not have been aware from the record that the Argentine authority would rely largely

on petitioners' information in calculating the dumping margin; harmless error defense

rejected. See paras. 6.118-131)

 Guatemala - Cement II (Panel) (Violation of Article 6.9 found, in light of Panel's rejection

of Guatemala's reference to its disclosure of the facts underlying the preliminary

determination as evidence that the "essential facts" had been disclosed; held that when

the basis for the preliminary determination is significantly different from the factual basis

for the final determination, disclosure of only those facts pertaining to the preliminary

determination is insufficient. See paras. 8.224-232; rejected claim that by failing to inform

respondent of a change in injury theories, the Ministry violated AD Agreement Articles

6.1, 6.2, and 6.9. See paras. 8.233-239)



Article 6.10 (Margins for Individual Exporters/Producers)



 Mexico - Rice AD Measures (AB) (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"; here, Appellate Body said, Economía acted

consistently with Article 6.10 "given that it determined an individual margin of dumping for

each exporter of which it knew at the time it calculated the dumping margins"; thus,

Appellate Body reversed Panel's finding that "with respect to the exporters that Economía

did not investigate, Mexico acted inconsistently with Article 6.10." See paras. 254-257)

 Mexico - Rice AD Measures (Panel) (Panel found that Mexico violated Article 6.10 "by

remaining entirely passive in the identification of exporters or producers interested in the

investigation, and by not calculating an individual margin for dumping for each exporter or

producer that was known or should reasonably have been known to the investigating

authority" -- reversed on appeal. See paras. 7.169-201)

 Korea - Paper AD Duties (Panel) (Concluded that "when read in context, 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";

therefore, rejected Indonesia's claim that the KTC acted inconsistently with Article 6.10

"by treating Indah Kiat, Pindo Deli and Tjiwi Kimia as a single exporter for purposes of its

dumping margin calculations." See paras. 7.148-168)

 U.S. - Corrosion-Resistant Steel Sunset Review (AB) (Upheld Panel's finding that the

DOC's use of an "order-wide" basis to make the "likelihood" determination did not violate

AD Agreement Articles 6.10 or 11.3, either "as such" or as applied in the sunset review at

issue. See paras. 139-163)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Concluded that Article 6.10

does not require "that the determination of likelihood of continuation or recurrence of

dumping under Article 11.3 be made on a company-specific basis," and therefore found

that "the United States did not act inconsistently with its obligations in this case by

determining likelihood of continuation or recurrence of dumping on an order-wide basis."

See paras. 7.192-208)

 Argentina - Poultry AD Duties (Panel) (Rejected argument that a condition for the

determination of an individual margin is that the exporter must supply the necessary

information, and therefore concluded that Argentina violated Article 6.10 by not

determining an individual margin for Catarinense and Frangosul. See paras. 7.209-217)

 EC - Bed Linen, Article 21.5 (AB) (Discussed in the context of findings under AD

Agreement Articles 3.1 and 3.2. See paras. 116-117 and paras. 134-139)

 Argentina - Floor Tiles (Panel) (Argentina's failure to provide an explanation in its final

determination as to why it could not calculate individual dumping margins constitutes a

sufficient basis on which to determine that the investigating authority failed to perform an

objective and unbiased evaluation of the facts; moreover, based on the facts in this case,

the Argentine authority should have determined an individual dumping margin for each of

the four exporters in the sample. See paras. 6.82-105)



Article 7 (Provisional Measures)



Article 7.4 (Period of Application of Provisional Measure)



 Mexico - HFCS (Panel) (Mexico's application of the measure for more than six months

was inconsistent with Article 7.4. See paras. 7.179-183)



Article 8 (Price Undertakings)



Article 8.3 (Acceptance of Undertakings by the Authorities)



 U.S. - Offset Act ("Byrd Amendment") (Panel) (Because the measure at issue did not

mandate the U.S. investigating authority to reject offers for undertakings, Panel rejected

claims of violation of Article 8.3. See paras. 7.67-82)

Article 9 (Imposition and Collection of Anti-Dumping Duties)



Article 9.1 (Decision to Impose Duties and Decision on Amount of Duties)



 U.S. - Zeroing (Japan) (Panel) (Found that by maintaining simple zeroing procedures in

the context of periodic reviews and new shipper reviews, the DOC does not act

inconsistently with AD Agreement Articles 2.1, 2.4, 2.4.2, 9.1-9.3, 9.5, 18.4, GATT

Articles VI:1 and VI:2, and WTO Agreement Article XVI:4 -- reversed on appeal. See

paras. 7.189-224; for the same reasons, Panel rejected Japan's claims that simple

zeroing as applied in 11 periodic reviews is inconsistent with AD Agreement Articles 1,

2.1, 2.4, 2.4.2 and 9.1-9.3, GATT Articles VI:1 and VI:2 -- reversed on appeal. See paras.

7.225-227)



Article 9.2 (Appropriate Amounts)



 U.S. - Zeroing (Japan) (Panel) (Found that by maintaining simple zeroing procedures in

the context of periodic reviews and new shipper reviews, the DOC does not act

inconsistently with AD Agreement Articles 2.1, 2.4, 2.4.2, 9.1-9.3, 9.5, 18.4, GATT

Articles VI:1 and VI:2, and WTO Agreement Article XVI:4 -- reversed on appeal. See

paras. 7.189-224; for the same reasons, Panel rejected Japan's claims that simple

zeroing as applied in 11 periodic reviews is inconsistent with AD Agreement Articles 1,

2.1, 2.4, 2.4.2 and 9.1-9.3, GATT Articles VI:1 and VI:2 -- reversed on appeal. See paras.

7.225-227)

 Argentina - Poultry AD Duties (Panel) (Since it had already found that Argentina's

variable anti-dumping duties are not inconsistent with Article 9.3, the Panel rejected

Brazil's claim that the duties are not in "appropriate amounts" under Article 9.2. See

paras. 7.345-367)



Article 9.3 (Amount of Duty Shall Not Exceed the Dumping Margin Established Under

Article 2)



 U.S. - Zeroing (Japan) (AB) (Reversed Panel's finding that the United States does not act

inconsistently with AD Agreement Articles 9.3 and 9.5 and GATT Article VI:2 by

maintaining zeroing procedures in periodic reviews and new shipper reviews; found

instead that the United States acts inconsistently with these provisions. See paras. 149-

166; reversed Panel's finding that zeroing, as applied by the United States in the 11

periodic reviews at issue in this appeal, is not inconsistent with AD Agreement Articles

2.1, 2.4, 9.1, and 9.3 and GATT Articles VI:1 and VI:2; found instead that the United

States acted inconsistently with Articles 2.4 and 9.3 and Article VI:2. See paras. 172-177)

 U.S. - Zeroing (Japan) (Panel) (Found that by maintaining simple zeroing procedures in

the context of periodic reviews and new shipper reviews, the DOC does not act

inconsistently with AD Agreement Articles 2.1, 2.4, 2.4.2, 9.1-9.3, 9.5, 18.4, GATT

Articles VI:1 and VI:2, and WTO Agreement Article XVI:4 -- reversed on appeal. See

paras. 7.189-224; for the same reasons, Panel rejected Japan's claims that simple

zeroing as applied in 11 periodic reviews is inconsistent with AD Agreement Articles 1,

2.1, 2.4, 2.4.2 and 9.1-9.3, GATT Articles VI:1 and VI:2 -- reversed on appeal. See paras.

7.225-227)

 U.S. - "Zeroing" of Dumping Margins (AB) (Found that the "simple zeroing" methodology

applied by the DOC in the administrative reviews at issue is inconsistent with AD

Agreement Article 9.3 and GATT Article VI:2. See paras. 108-135; declared "moot, and of

no legal effect" the Panel's finding that the zeroing methodology used by the United

States in administrative reviews is not inconsistent, as such, with AD Agreement Articles

1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and 18.4, GATT Articles VI:1 and VI:2, and WTO Agreement

Article XVI:4. See paras. 226-227; declared "moot, and of no legal effect" the Panel's

finding that Section 351.414(c)(2) is not inconsistent with AD Agreement Articles 1, 2.4,

2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4, GATT Articles VI:1 and VI:2, and WTO

Agreement Article XVI:4. See paras. 235-242)

 U.S. - "Zeroing" of Dumping Margins (Panel) (Found that Sections 771(35)(A) and (B),

731 and 777A(d) of the Tariff Act are not "as such" inconsistent with AD Agreement

Articles 1, 2.4, 2.4.2, 5.8, 9.3 and 18.4, GATT Articles VI:1 and VI:2, and WTO

Agreement Article XVI:4 with respect to the use of a "zeroing" methodology in the

calculation of margins of dumping in original investigations. See paras 7.37-69; because

it had rejected the claims under AD Agreement Articles 2.4 and 2.4.2, the Panel also

rejected the "dependent" claims under AD Agreement Articles 1, 9.3, 11.1, 11.2 and 18.4,

GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4 with regard to "zeroing"

in administrative reviews -- reversed on appeal with regard to "as applied" claims under

Article 9.3. See paras. 7.286-288; with regard to the claims that the "Standard Zeroing

Procedures" used by the United States in administrative reviews or the U.S. practice or

methodology of zeroing, Sections 771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and

(ii) of the Tariff Act, and Section 351.414(c)(2) of the DOC Regulations are inconsistent

with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2 and 18.4, GATT Articles VI:1

and VI:2, WTO Agreement Article XVI:4, Panel majority said that these claims are

"dependent upon a violation of Articles 2.4 and/or 2.4.2" and thus it also rejected these

dependent claims. See paras. 7.289-291; with regard to the claims that the "Standard

Zeroing Procedures" used by the United States in new shipper reviews, changed

circumstances reviews and sunset reviews, Sections 771(35)(A) and (B), 731, 777A(d)

and 751(a)(2)(i) and (ii) of the Tariff Act, and Section 351.414(c)(2) of the DOC

Regulations are inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1,

11.2, 11.3 and 18.4, GATT Articles VI:1 and VI:2, WTO Agreement Article XVI:4, Panel

majority said that the claims are "dependent upon a violation of Articles 2.4 and/or 2.4.2"

and thus it also rejected these dependent claims. See paras. 7.292-294)

 Mexico - Rice AD Measures (AB) (Based on the provision in Article 68 of the Foreign

Trade Act requiring "respondents, in order to obtain an administrative or changed

circumstances review, to show that the volume of their exports to Mexico during the

period of review was 'representative,'" Appellate Body upheld Panel's findings that Article

68 is inconsistent, as such, with AD Agreement Articles 9.3 and 11.2 and SCM

Agreement Article 21.2. See paras. 308-316)

 Mexico - Rice AD Measures (Panel) (Found that "by imposing th[e] additional

requirement that interested parties requesting a review are required to always satisfy the

authority that the volume of the export sales was representative, Article 68 of the Act is

as such inconsistent with Articles 9.3 and 11.2 of the AD Agreement and, mutatis

mutandis, Article 21.2 of the SCM Agreement." See paras. 7.243-260)

 Korea - Paper AD Duties (Panel) (Rejected Indonesia's argument that "Article 9.3 was

violated because the single margin imposed on the single entity was higher than the

individual margin calculated for Indah Kiat in the KTC's preliminary dumping

determinations … ." See paras. 7.169-171)

 Argentina - Poultry AD Duties (Panel) (Rejected claim that the "variable" anti-dumping

duties imposed violate Article 9.3. See paras. 7.345-367)

 U.S. - DRAMS (Panel) (Discussed in context of the de minimis margin provision under

Article 5.8; held that the de minimis requirement of Article 5.8 does not apply to Article

9.3 duty assessment procedures. See paras. 6.83-91)



Article 9.3.2 (Prospective Duty Assessment)



 Mexico - Rice AD Measures (AB) (Noting that Articles 68 and 97 of the Foreign Trade Act

"appear to impose a condition on duty assessment and changed circumstances

reviews—that is, the completion of judicial proceedings—that is not provided for in" AD

Agreement Articles 9.3.2 and 11.2 and SCM Agreement Article 21.2, Appellate Body

upheld Panel's findings that Articles 68 and 97, read together, are inconsistent, as such,

with AD Agreement Articles 9.3.2 and 11.2 and SCM Agreement Article 21.2. See paras.

339-350)

 Mexico - Rice AD Measures (Panel) (Concluded that AD Agreement Articles 9.3.2 and

11.2 make clear that in case the conditions set out there are met, "the authority is not

allowed to reject such requests for reason that the judicial review of the measures in

question is still ongoing"; therefore, found that Articles 68 and 97 of the Foreign Trade

Act are inconsistent as such with AD Agreement Articles 9.3.2 and 11.2 and SCM

Agreement 21.2 "by requiring the authority to reject requests for reviews until after the

conclusion of the judicial review proceedings." See paras. 7.281-297)



Article 9.4 (Other Exporters or Producers)



 Mexico - Rice AD Measures (Panel) (With respect to U.S. claim that the residual duty for

Producers Rice should have been determined on the basis of the methodology described

in Article 9.4, Panel said that Article 9.4 deals only with the issue of duty calculations

where a "sampling" of producers/exporters is used, and does not apply in any other

situations; since sampling was not used here, Article 9.4 does not apply. See paras.

7.155-159)

 EC - Bed Linen, Article 21.5 (AB) (Discussed in the context of findings under AD

Agreement Articles 3.1 and 3.2. See paras. 119-132)

 U.S. - Hot-Rolled Steel from Japan (AB) (Upheld Panel's findings that the U.S. statute is

"on its face" inconsistent with Article 9.4, to the extent that it requires the inclusion of

margins based in part on facts available in the calculation of the "all others" rate; also

upheld Panel's finding of a violation in the context of the hot-rolled investigation, based

on the application of the inconsistent U.S. statute. See paras. 111-130)

 U.S. - Hot-Rolled Steel from Japan (Panel) (U.S. statute is "on its face" inconsistent with

Article 9.4, to the extent that it requires the inclusion of margins based in part on facts

available in the calculation of the "all others" rate; given that the United States applied

this statute in this investigation, also found that the investigating authority's calculation of

the all others rate in the hot-rolled investigation violated Article 9.4. See paras. 7.75-90)



Article 9.5 (Expedited New Shipper Reviews)



 U.S. - Zeroing (Japan) (AB) (Reversed Panel's finding that the United States does not act

inconsistently with AD Agreement Articles 9.3 and 9.5 and GATT Article VI:2 by

maintaining zeroing procedures in periodic reviews and new shipper reviews; found

instead that the United States acts inconsistently with these provisions. See paras. 149-

166)

 U.S. - Zeroing (Japan) (Panel) (Found that by maintaining simple zeroing procedures in

the context of periodic reviews and new shipper reviews, the DOC does not act

inconsistently with AD Agreement Articles 2.1, 2.4, 2.4.2, 9.1-9.3, 9.5, 18.4, GATT

Articles VI:1 and VI:2, and WTO Agreement Article XVI:4 -- reversed on appeal. See

paras. 7.189-224)

 U.S. - "Zeroing" of Dumping Margins (AB) (Declared "moot, and of no legal effect" the

Panel's finding that Section 351.414(c)(2) is not inconsistent with AD Agreement Articles

1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4, GATT Articles VI:1 and VI:2, and WTO

Agreement Article XVI:4. See paras. 235-242)

 U.S. - "Zeroing" of Dumping Margins (Panel) (With regard to the claims that the

"Standard Zeroing Procedures" used by the United States in new shipper reviews,

changed circumstances reviews and sunset reviews, Sections 771(35)(A) and (B), 731,

777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and Section 351.414(c)(2) of the DOC

Regulations are inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1,

11.2, 11.3 and 18.4, GATT Articles VI:1 and VI:2, WTO Agreement Article XVI:4, Panel

majority said that the claims are "dependent upon a violation of Articles 2.4 and/or 2.4.2"

and thus it also rejected these dependent claims. See paras. 7.292-294)

 Mexico - Rice AD Measures (AB) (Based on the requirement of Article 89D of the Foreign

Trade Act that "[p]roducers of goods subject to a final countervailing duty who exported

no such goods during the period under investigation in the proceedings that gave rise to

such duty may request the Ministry to initiate a procedure for new exporters with a view

to assessing individual margins of price discrimination, provided that: … The requesting

party shall satisfy the Ministry that the volume of exports during the period of review is

representative," Appellate Body upheld Panel's findings that Article 89D is inconsistent,

as such, with AD Agreement Article 9.5 and SCM Agreement Article 19.3. See paras.

317-324)

 Mexico - Rice AD Measures (Panel) (Found that to the extent that Article 89D of the

Foreign Trade Act "subjects the entitlement to a prompt review to a showing of

representative volumes of export sales, it is inconsistent with Article 9.5 of the AD

Agreement"; for similar reasons, the Panel considered that Article 89D is inconsistent

with SCM Agreement Article 19.3, "as it imposes an additional requirement not provided

for in Article 19.3 of the SCM Agreement for the exporters to be entitled to an expedited

review." See paras. 7.261-269; with regard to the U.S. challenge related to expedited

reviews under AD Agreement Article 9.5 and SCM Agreement 19.3, Panel stated that the

United States "has provided insufficient evidence that Article 68 of the Act, or Articles 97

of the Act or 366 of the FCCP deal with such reviews." See para. 7.299)



Article 10 (Retroactivity)



Article 10.2 (Retroactive Application of Anti-Dumping Duties)



 Mexico - HFCS (Panel) (Mexico's retroactive application of dumping duties, despite its

failure to reach an explicit finding on whether, in the absence of provisional measures,

the effect of the dumped imports would have led to a determination of injury to the

domestic industry, constitutes a violation of Article 10.2. See paras. 7.184-193)



Article 10.4 (Refunds of Cash Deposits and Release of Bonds)



 Mexico - HFCS (Panel) (Having found a violation of Article 10.2, the Panel further

concluded that "the failure expeditiously to release bonds and/or cash deposits collected

under the provisional measure is inconsistent with Article 10.4 of the AD Agreement."

See para. 7.193)



Articles 10.1, 10.6 and 10.7 (Critical Circumstances)



 U.S. - Hot-Rolled Steel from Japan (Panel) (The U.S. statute governing critical

circumstances, on its face, properly addresses the requisite issues and requires evidence

therefore; rejected Japan's claim of an Article 10 violation in the hot-rolled investigation,

finding that sufficient evidence existed with respect to critical circumstances. See paras.

7.121-168)



Article 11 (Duration and Review of Anti-Dumping Duties and Price Undertakings)



Article 11.1 (Remain in force only as long as and to the extent necessary to counteract

injurious dumping)



 U.S. - "Zeroing" of Dumping Margins (AB) (Upheld 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. See paras. 165-169; declared "moot, and of no legal effect" the Panel's finding

that the zeroing methodology used by the United States in administrative reviews is not

inconsistent, as such, with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and 18.4,

GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4. See paras. 226-227;

declared "moot, and of no legal effect" the Panel's finding that Section 351.414(c)(2) is

not inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and

18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4. See paras. 235-

242)

 U.S. - "Zeroing" of Dumping Margins (Panel) (With regard to the claims that the

"Standard Zeroing Procedures" used by the United States in administrative reviews or the

U.S. practice or methodology of zeroing, Sections 771(35)(A) and (B), 731, 777A(d) and

751(a)(2)(i) and (ii) of the Tariff Act, and Section 351.414(c)(2) of the DOC Regulations

are inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2 and 18.4, GATT

Articles VI:1 and VI:2, WTO Agreement Article XVI:4, Panel majority said that these

claims are "dependent upon a violation of Articles 2.4 and/or 2.4.2" and thus it also

rejected these dependent claims. See paras. 7.289-291; with regard to the claims that the

"Standard Zeroing Procedures" used by the United States in new shipper reviews,

changed circumstances reviews and sunset reviews, Sections 771(35)(A) and (B), 731,

777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and Section 351.414(c)(2) of the DOC

Regulations are inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1,

11.2, 11.3 and 18.4, GATT Articles VI:1 and VI:2, WTO Agreement Article XVI:4, Panel

majority said that the claims are "dependent upon a violation of Articles 2.4 and/or 2.4.2"

and thus it also rejected these dependent claims. See paras. 7.292-294)

 U.S. - OCTG AD Measures (Panel) (Found that 19 U.S.C. §§ 1675a(a)(1) and (5) are not

inconsistent with AD Agreement Articles 3.1, 3.2, 3.4, 3.7, 3.8, 11.1 and 11.3 in relation to

the determination of whether injury is likely to continue or recur. See paras. 7.84-108)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Rejected 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; therefore,

found that U.S. statute and regulation at issue are not inconsistent with Article 11.3, nor

with Articles 11.1, 12.1, 12.3, and 5.6, in respect of the evidentiary standards applicable

to the self-initiation of sunset reviews and that the United States did not act inconsistently

with the AD Agreement by automatically self-initiating the instant sunset review. See

paras. 7.11-57)

 EC - Pipe Fittings (Panel) (Found that Brazil did not establish that the European

Communities violated Articles 11.1 or 11.2 "by imposing definitive anti-dumping

measures in this case or by not, simultaneously with that imposition, self-initiating a

review following the devaluation of Brazil's currency … at the beginning of the fourth

quarter of the [investigation period]." See paras. 7.109-120)



Article 11.2 (Authorities shall review the need for the continued imposition of the duty)



 U.S. - Zeroing (Japan) (Panel) (After concluding that Japan has failed to adduce

evidence necessary to establish that a rule, norm or standard of general and prospective

application exists by virtue of which the DOC relies on margins of dumping calculated in

prior proceedings to support its determinations in changed circumstances reviews and

sunset reviews, Panel found that Japan has failed to make a prima facie case that by

maintaining zeroing procedures in the context of these reviews the DOC acts

inconsistently with AD Agreement Articles 2 and 11. See paras. 7.230-244)

 U.S. - "Zeroing" of Dumping Margins (AB) (Upheld 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. See paras. 165-169; declared "moot, and of no legal effect" the Panel's finding

that the zeroing methodology used by the United States in administrative reviews is not

inconsistent, as such, with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2, and 18.4,

GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4. See paras. 226-227;

declared "moot, and of no legal effect" the Panel's finding that Section 351.414(c)(2) is

not inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and

18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4. See paras. 235-

242)

 U.S. - "Zeroing" of Dumping Margins (Panel) (With regard to the claims that the

"Standard Zeroing Procedures" used by the United States in administrative reviews or the

U.S. practice or methodology of zeroing, Sections 771(35)(A) and (B), 731, 777A(d) and

751(a)(2)(i) and (ii) of the Tariff Act, and Section 351.414(c)(2) of the DOC Regulations

are inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 11.1, 11.2 and 18.4, GATT

Articles VI:1 and VI:2, WTO Agreement Article XVI:4, Panel majority said that these

claims are "dependent upon a violation of Articles 2.4 and/or 2.4.2" and thus it also

rejected these dependent claims. See paras. 7.289-291; with regard to the claims that the

"Standard Zeroing Procedures" used by the United States in new shipper reviews,

changed circumstances reviews and sunset reviews, Sections 771(35)(A) and (B), 731,

777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and Section 351.414(c)(2) of the DOC

Regulations are inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1,

11.2, 11.3 and 18.4, GATT Articles VI:1 and VI:2, WTO Agreement Article XVI:4, Panel

majority said that the claims are "dependent upon a violation of Articles 2.4 and/or 2.4.2"

and thus it also rejected these dependent claims. See paras. 7.292-294)

 Mexico - Rice AD Measures (AB) (Based on the provision in Article 68 of the Foreign

Trade Act requiring "respondents, in order to obtain an administrative or changed

circumstances review, to show that the volume of their exports to Mexico during the

period of review was 'representative,'" Appellate Body upheld Panel's findings that Article

68 is inconsistent, as such, with AD Agreement Articles 9.3 and 11.2 and SCM

Agreement Article 21.2. See paras. 308-316; noting that Articles 68 and 97 of the Foreign

Trade Act "appear to impose a condition on duty assessment and changed

circumstances reviews—that is, the completion of judicial proceedings—that is not

provided for in" AD Agreement Articles 9.3.2 and 11.2 and SCM Agreement Article 21.2,

Appellate Body upheld Panel's findings that Articles 68 and 97, read together, are

inconsistent, as such, with AD Agreement Articles 9.3.2 and 11.2 and SCM Agreement

Article 21.2. See paras. 339-350)

 Mexico - Rice AD Measures (Panel) (Found that "by imposing th[e] additional

requirement that interested parties requesting a review are required to always satisfy the

authority that the volume of the export sales was representative, Article 68 of the Act is

as such inconsistent with Articles 9.3 and 11.2 of the AD Agreement and, mutatis

mutandis, Article 21.2 of the SCM Agreement." See paras. 7.243-260; concluded that AD

Agreement Articles 9.3.2 and 11.2 make clear that in case the conditions set out there

are met, "the authority is not allowed to reject such requests for reason that the judicial

review of the measures in question is still ongoing"; therefore, found that Articles 68 and

97 of the Foreign Trade Act are inconsistent as such with AD Agreement Articles 9.3.2

and 11.2 and SCM Agreement 21.2 "by requiring the authority to reject requests for

reviews until after the conclusion of the judicial review proceedings." See paras. 7.281-

297)

 U.S. - OCTG AD Measures (Panel) (Concluded that the DOC did not act inconsistently

with Article 11.2 "in determining not to revoke the anti-dumping duty in the fourth

administrative review." See paras. 7.152-177)

 EC - Pipe Fittings (Panel) (Found that Brazil did not establish that the European

Communities violated Articles 11.1 or 11.2 "by imposing definitive anti-dumping

measures in this case or by not, simultaneously with that imposition, self-initiating a

review following the devaluation of Brazil's currency … at the beginning of the fourth

quarter of the [investigation period]." See paras. 7.109-120)

 U.S. - DRAMS (Panel) (Panel rejected Korea's claim that AD Agreement Article 11.2

requires revocation as soon as an exporter is found to have ceased dumping, and also its

claim that the continuation of an anti-dumping duty is precluded a priori in any

circumstances other than where there is present dumping. See paras. 6.24-34; rejected

the U.S. "not likely" standard as inconsistent with the "necessity" requirement in Article

11.2. See paras. 6.35-51; finding a U.S. certification requirement to be non-mandatory,

the Panel rejected Korea's challenge to it under Article 11. See paras. 6.52-53; rejected

Korea's challenge to (1) the U.S. authority's alleged failure to self-initiate a review in the

DRAMS investigation and (2) the absence in the statute of any provision for self-initiation.

See paras. 6.56-62)



Article 11.3 (Five Year/"Sunset" Review)



 U.S. - OCTG Sunset Reviews, Article 21.5 (AB) (Appellate Body noted that 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" as part of its order-wide determination; therefore, Appellate Body

reversed Panel's finding 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, is inconsistent with AD Agreement Article 11.3. See paras. 87-122; upheld

Panel's finding that the DOC did not act inconsistently with AD Agreement Articles 11.3

and 11.4 "by developing a new factual basis pertaining to the original review period for

purposes of its Section 129 Determination." See paras. 153-175)

 U.S. - OCTG Sunset Reviews, Article 21.5 (Panel) (Said that given that Section

751(c)(4)(B) requires the DOC to make an affirmative likelihood determination for

individual exporters who waive their right to participate, the Panel said "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"; thus, it

concluded 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"; concluded that having found that the U.S.

statutory and regulatory waiver provisions "may, in some situations, preclude the USDOC

from making a reasoned determination of likelihood of continuation or recurrence of

dumping based on an adequate factual foundation," 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, is inconsistent with AD Agreement Article 11.3 --

reversed on appeal. See paras. 7.5-41; rejected Argentina's claim that the DOC acted

inconsistently with AD Agreement Articles 11.3 and 11.4 "by developing a new factual

basis pertaining to the original review period for purposes of its Section 129

Determination." See paras. 7.43-60; recalling that it had found that "both factual

foundations of the USDOC's order-wide likelihood determination with respect to the

imports of OCTG from Argentina, i.e. its findings regarding likely past dumping and the

volume of imports, lack a sufficient factual basis," Panel found that the DOC's

determination is inconsistent with AD Agreement Article 11.3. See paras. 7.62-104)

 U.S. - Zeroing (Japan) (AB) (Reversed Panel's finding that the United States acted

consistently with Articles 2 and 11 when, in the sunset reviews at issue in this case, it

relied on margins of dumping calculated in previous periodic review proceedings using

simple zeroing; found instead that the United States acted inconsistently with Article 11.3.

See paras. 178-187)

 U.S. - Zeroing (Japan) (Panel) (After concluding that Japan has failed to adduce

evidence necessary to establish that a rule, norm or standard of general and prospective

application exists by virtue of which the DOC relies on margins of dumping calculated in

prior proceedings to support its determinations in changed circumstances reviews and

sunset reviews, Panel found that Japan has failed to make a prima facie case that by

maintaining zeroing procedures in the context of these reviews the DOC acts

inconsistently with AD Agreement Articles 2 and 11. See paras. 7.230-244; based on its

finding that the AD Agreement does not proscribe simple zeroing in periodic reviews

within the meaning of Article 9.3, the Panel found that the DOC did not violate AD

Agreement Articles 2 and 11 in relying, for the purposes of certain sunset reviews, on

margins of dumping calculated in periodic reviews on the basis of simple zeroing --

reversed on appeal. See paras. 7.245-257)

 U.S. - "Zeroing" of Dumping Margins (AB) (Declared "moot, and of no legal effect" the

Panel's finding that Section 351.414(c)(2) is not inconsistent with AD Agreement Articles

1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3, and 18.4, GATT Articles VI:1 and VI:2, and WTO

Agreement Article XVI:4. See paras. 235-242)

 U.S. - "Zeroing" of Dumping Margins (Panel) (With regard to the claims that the

"Standard Zeroing Procedures" used by the United States in new shipper reviews,

changed circumstances reviews and sunset reviews, Sections 771(35)(A) and (B), 731,

777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and Section 351.414(c)(2) of the DOC

Regulations are inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1,

11.2, 11.3 and 18.4, GATT Articles VI:1 and VI:2, WTO Agreement Article XVI:4, Panel

majority said that the claims are "dependent upon a violation of Articles 2.4 and/or 2.4.2"

and thus it also rejected these dependent claims. See paras. 7.292-294)

 U.S. - OCTG AD Measures (AB) (Disagreed with Mexico that there is a requirement to

establish the existence of a causal link between likely dumping and likely injury in a

sunset review determination under Article 11.3. See paras. 103-125; 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, "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." See paras. 126-127; upheld the

Panel's finding that the ITC's decision to conduct a cumulative assessment of imports in

making its likelihood-of-injury determination was not inconsistent with Articles 3.3 and

11.3. See paras. 144-173; emphasized that "when an authority chooses to cumulate

imports in a likelihood-of-injury determination under Article 11.3," it may in some cases be

necessary "for it to determine whether such a cumulative assessment is appropriate in

the light of the conditions of competition in the market place"; in particular cases, it said,

"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." See para. 171;

rejecting claim under AD Agreement Article 2, Appellate Body said, "we do not see how a

margin that the USDOC did not 'rely upon' could taint the USITC's and the USDOC's

determinations in the context of the OCTG sunset review at issue." See paras. 179-180;

found that the Panel "did not fail to comply with Article 11 of the DSU in declining to make

a specific finding that the United States had no legal basis to continue the antidumping

duties on OCTG from Mexico beyond the five-year period established by Article 11.3 of

the Anti-Dumping Agreement." See paras. 183-190; 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"; accordingly, the Appellate Body reversed the Panel's

finding that Section II.A.3 of the SPB, as such, is inconsistent with Article 11.3. See

paras. 191-210; saw "no merit in Mexico's contention that the Tariff Act, the SAA, and the

SPB, 'collectively and independently,' establish a standard that is inconsistent with Article

11.3." See paras. 212-214)

 U.S. - OCTG AD Measures (Panel) (Concluded that "the SPB establishes an irrebuttable

presumption [with regard to the determination of likelihood of continuation or recurrence

of dumping], and consequently that Mexico has demonstrated that the SPB is, as such,

inconsistent with Article 11.3 of the AD Agreement" -- reversed on appeal. See paras.

7.9-64; concluded that "the sunset determination at issue is not consistent with Article

11.3 of the AD Agreement because USDOC's determination that dumping is likely to

continue or recur is not supported by reasoned and adequate conclusions based on the

facts before it." See paras. 7.68-80; found that 19 U.S.C. §§ 1675a(a)(1) and (5) are not

inconsistent with AD Agreement Articles 3.1, 3.2, 3.4, 3.7, 3.8, 11.1 and 11.3 in relation to

the determination of whether injury is likely to continue or recur. See paras. 7.84-108;

concluded that 19 U.S.C. §§ 1675a(a)(1) and (5) were not applied inconsistently with

Articles 11.3 and 3 of the AD Agreement in the OCTG sunset review in relation to the

time-frame for determining likelihood of continuation or recurrence of injury. See paras.

7.109-112; concluded that the ITC did not act inconsistently with Article 11.3 in making its

determination of likelihood of continuation or recurrence of injury in the sunset review at

issue. See paras. 7.113-143; concluded that the ITC's determination in the sunset review

of OCTG "is not inconsistent with Articles 3.3 and 11.3 of the Agreement because it

involved a cumulative analysis." See paras. 7.145-151)

 U.S. - OCTG Sunset Reviews (AB) (Because the Panel did not "make an objective

assessment of the matter" as required by DSU Article 11, Appellate Body reversed the

Panel's finding that Section II.A.3 of the Sunset Policy Bulletin is inconsistent, as such,

with AD Agreement Article 11.3. See paras. 190-215; upheld Panel's findings that the

waiver provisions in Section 751(c)(4)(B) of the Tariff Act of 1930 and Section

351.218(d)(2)(iii) of the DOC Regulations are inconsistent, as such, with AD Agreement

Article 11.3. See paras. 224-235; upheld Panel's finding that the obligations in Article 3

"do not apply to likelihood-of injury determinations in sunset reviews." See paras. 271-

280; in response to Argentina's argument that Article 11.3, "in and of itself, imposes

'substantive obligations' on investigating authorities to make their sunset review

determinations in a particular manner, and that the Panel erred in failing to recognize the

existence of these obligations," Appellate Body concluded: "We are not persuaded by the

argument of Argentina that a likelihood-of-injury determination can rest on a 'sufficient

factual basis' and can be regarded as a 'reasoned conclusion' only after undertaking all

the analyses detailed in the paragraphs of Article 3." See paras. 281-284; upheld Panel's

findings that AD Agreement Article 11.3 "does not preclude investigating authorities from

cumulating the effects of likely dumped imports in the course of their likelihood-of-injury

determinations, and that the conditions of Article 3.3 of the Anti-Dumping Agreement do

not apply in the context of sunset reviews." See paras. 286-304; found that "the Panel did

not err in its interpretation of the term 'likely' in Article 11.3 of the Anti-Dumping

Agreement." See paras. 305-314; upheld Panel's findings that the ITC's likelihood-of-

injury determination was consistent with Article 11.3. See paras. 315-352; upheld Panel's

findings that the standard of continuation or recurrence of injury "within a reasonably

foreseeable time," as provided in the U.S. statute and as applied here, is not inconsistent

with AD Agreement Article 11.3. See paras. 353-364)

 U.S. - OCTG Sunset Reviews (Panel) (Found that "both affirmative and deemed waivers

provisions of US law, i.e. Section 751(c)(4)(B) of the Tariff Act and Section

351.218(d)(2)(iii) of the … Regulations, are inconsistent with the … obligation to

determine likelihood of continuation or recurrence of dumping under Article 11.3 of the

Anti-Dumping Agreement." See paras. 7.72-103; found that the alleged "irrefutable

presumption" in Section II.A.3 of the Sunset Policy Bulletin is inconsistent with Article

11.3 -- reversed on appeal. See paras. 7.129-173; found that Sections 752(a)(1) and (5)

of the Tariff Act, and their application in the instant sunset review, are not WTO-

inconsistent in respect of the "within a reasonably foreseeable" time-frame. See paras.

7.174-193 and paras. 7.256-260; concluded that the DOC's determination in the instant

sunset review is inconsistent with AD Agreement Article 11.3, regarding the likelihood of

continuation or recurrence of dumping, because the factual basis of the DOC's finding

that dumping continued over the life of the measure was "not proper" and because of the

application of the deemed waivers provisions. See paras. 7.194-223; rejected Argentina's

claim that instead of the "likely" standard contained in AD Agreement Article 11.3, the

ITC, in the OCTG sunset review, impermissibly applied a "possibility" standard in respect

of its determinations regarding the likely volume of dumped imports, the likely price effect

of such imports and their likely impact on the U.S. domestic industry. See paras. 7.261-

312; rejected claim that the ITC acted inconsistently with AD Agreement Articles 3.3 and

11.3 in its use of cumulation in the sunset review, finding that cumulation is permitted in

sunset reviews and is not subject to the conditions established under Article 3.3. See

paras. 7.323-338)

 U.S. - Corrosion-Resistant Steel Sunset Review (AB) (Reversed Panel's legal

interpretation concerning the use of past dumping margins as part of the "likelihood"

determination in sunset reviews, concluding that such margins must be consistent with

AD Agreement Article 2.4; however, concluded that it could not complete the analysis on

this issue, due to insufficient factual findings by the Panel. See paras. 118-138; upheld

Panel's finding that the DOC's use of an "order-wide" basis to make the "likelihood"

determination did not violate AD Agreement Articles 6.10 or 11.3, either "as such" or as

applied in the sunset review at issue. See paras. 139-163; was "unable to rule" on

Japan's claim that the Sunset Policy Bulletin, as such, is inconsistent with Article 11.3 in

respect of the factors considered by the DOC in reaching its likelihood determination;

rejected Japan's claim that certain provisions of the Sunset Policy Bulletin, as applied in

this sunset review, are inconsistent with Article 11.3 as regards the factors to be

considered by DOC in making a likelihood determination in a sunset review. See paras.

164-207)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Found that the failure of the

exporter at issue to raise concerns about the use of past dumping margins during the

sunset review meant that the United States did not act inconsistently with Article 11.3 in

relying on the past margins -- reversed on appeal. See paras. 7.172-184; found that the

obligations in Article 3.3 pertain to cumulative analysis in "investigations" and that they

are not also applicable to "sunset reviews," and thus concluded that "the United States

did not act inconsistently with Articles 11.3, 3.3 or 5.8 in the instant sunset review by

cumulating imports from Japan with imports from other countries without applying the

negligibility standard set out in Article 3.3 and 5.8 for original investigations." See paras.

7.89-105; concluded that the 2 percent de minimis standard of Article 5.8 "does not apply

in the context of sunset reviews," and therefore the U.S. law and instant sunset review

are not inconsistent with Article 11.3 or Article 5.8 in respect of the de minimis standard

applicable in sunset reviews. See paras. 7.58-88; rejected 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, and therefore

found that U.S. statute and regulations at issue are not inconsistent with Article 11.3, nor

with Articles 11.1, 12.1, 12.3, and 5.6, in respect of the evidentiary standards applicable

to the self-initiation of sunset reviews and that the United States did not act inconsistently

with the AD Agreement by automatically self-initiating the instant sunset review. See

paras. 7.11-57; concluded that Article 6.10 does not require "that the determination of

likelihood of continuation or recurrence of dumping under Article 11.3 be made on a

company-specific basis," and therefore found that "the United States did not act

inconsistently with its obligations in this case by determining likelihood of continuation or

recurrence of dumping on an order-wide basis." See paras. 7.192-208; rejected argument

that the "not likely" standard in the U.S. regulations on sunset reviews is not consistent

with the "likely" standard in Article 11.3. See paras. 7.209-239; rejected argument that the

DOC's non-consideration of the information submitted by NSC near the end of the

investigation period indicates that the DOC failed to properly determine likelihood in this

sunset review, and the argument that the DOC failed to make a proper, prospective

likelihood determination within the meaning of Article 11.3. See paras. 7.265-283)



Article 11.4 (Provisions of Article 6 on Evidence Shall Apply to Reviews)



 U.S. - OCTG Sunset Reviews, Article 21.5 (AB) (Upheld Panel's finding that the DOC did

not act inconsistently with AD Agreement Articles 11.3 and 11.4 "by developing a new

factual basis pertaining to the original review period for purposes of its Section 129

Determination." See paras. 153-175)

 U.S. - OCTG Sunset Reviews, Article 21.5 (Panel) (Rejected Argentina's claim that the

DOC acted inconsistently with AD Agreement Articles 11.3 and 11.4 "by developing a

new factual basis pertaining to the original review period for purposes of its Section 129

Determination." See paras. 7.43-60)

Article 12 (Public Notice and Explanation of Determinations)



Article 12.1 (Public Notice of Initiation)



 Mexico - Rice AD Measures (AB) (Concluded that the notification requirements in AD

Agreement Articles 6.1 and 12.1 apply only to interested parties for which the

investigating authority had "actual knowledge," and do not cover those for which the

authority merely "could have obtained knowledge"; here, Appellate Body was satisfied

that Economía sent questionnaires to all companies of which it had actual knowledge and

thus did not violate Articles 12.1 or 6.1; thus, Appellate Body reversed Panel's findings

that, with respect to the exporters that Economía did not investigate, Mexico acted

inconsistently with Articles 6.1 and 12.1. See paras. 245-253)

 Mexico - Rice AD Measures (Panel) (Found that the investigating authority failed to

comply with AD Agreement Articles 6.1 and 12.1 "as it failed to notify all interested parties

known to have an interest in the investigation of the initiation of the investigation and of

the information required of them" -- reversed on appeal; said that in case the authorities

do not properly notify and inform the interested parties, they are "not permitted to apply

the facts available to make determinations with regard to these interested parties," and

thus, "by applying the facts available in the calculation of a margin of dumping for the US

exporters or producers that were known or could reasonably have been known to the

authority, Mexico acted in a manner which is inconsistent with Article 6.8 and paragraph

1 of Annex II of the AD Agreement." See paras. 7.169-201)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Rejected 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; therefore,

found that U.S. statute and regulations at issue are not inconsistent with Article 11.3, nor

with Articles 11.1, 12.1, 12.3, and 5.6, in respect of the evidentiary standards applicable

to the self-initiation of sunset reviews and that the United States did not act inconsistently

with the AD Agreement by automatically self-initiating the instant sunset review. See

paras. 7.11-57)

 Argentina - Poultry AD Duties (Panel) (Found that Argentina violated Article 12.1 by

failing to notify the exporters in question of the initiation of the investigation. See paras.

7.125-135)

 Guatemala - Cement II (Panel) (Interpreted this provision to require notification and public

notice once the decision to initiate has been made, but not before the decision to initiate;

here, the notice met the requirements of Article 12.1; viewed the "requirement" under

Article 12.1 for the authority to "satisfy" itself of the sufficiency of the evidence as

imposing a procedural obligation, rather than a substantive one, and it rejected Mexico's

substantive challenge. See paras. 8.84-89)

 Mexico - HFCS (Panel) (The "summary of factors" required under Article 12.1.1(iv)

cannot reasonably be read to establish a requirement that the investigating authority

address, in the notice of initiation, the definition of the relevant domestic industry; here,

Mexico's notice of initiation met the requirements of Articles 12.1 and 12.1.1. See paras.

7.79-90)



Article 12.1.1 (Contents of the Public Notice)



 Guatemala - Cement II (Panel) (Considered that all of the listed elements must have

been included in the public notice to meet the requirements of Article 12.1.1; here, under

the third element of Article 12.1.1, while Guatemala's notice included a legal basis on

which dumping is alleged, it failed to refer to any factual basis for this allegation. See

paras. 8.90-96)

 Mexico - HFCS (Panel) (The "summary of factors" required under Article 12.1.1(iv)

cannot reasonably be read to establish a requirement that the investigating authority

address, in the notice of initiation, the definition of the relevant domestic industry; here,

Mexico's notice of initiation met the requirements of Articles 12.1 and 12.1.1. See paras.

7.79-90)



Article 12.2 (Public Notice of Determination)



 Mexico - Pipes and Tubes AD Duties (Panel) (Made no findings for the claim under AD

Agreement Article 12.2, noting that "it is meaningless to consider whether the notice of a

decision that is substantively inconsistent with the requirements of the Anti-Dumping

Agreement is, as a separate matter, insufficient under Article 12.2." See para. 7.400)

 Korea - Paper AD Duties (Panel) (Stated that, "[g]iven that the KTC was precluded from

including confidential information in the public notice by virtue of Article 6.5 and that the

KTC's Final Determination and the Final Investigation Report were attached to the public

notice," Indonesia failed to make a prima facie case with regard to the alleged violation of

Article 12.2. See paras. 7.205-210; recalling that the information at issue was confidential

and that Indonesia has not raised any claim under Article 6.5 regarding its confidentiality,

explained that Article 12.2 "does not allow an IA to disclose confidential information in its

public notice imposing a final measure," and it therefore rejected claims under Article

12.2 and 12.2.2. See paras. 7.311-316)

 U.S. - OCTG Sunset Reviews (Panel) (Rejected both aspects of Argentina's Article 12

claim, concluding, first, that the determination was consistent with Article 12.2 because

when "viewed in its entirety" the memorandum's explanation of the treatment of Siderca

is clear, and, second, that contrary to Argentina's implication "neither Article 12.2 nor the

other paragraphs of Article 12 contain substantive obligations regarding the conduct of

sunset reviews." See paras. 7.246-254)

 EC - Pipe Fittings (Panel) (Found that the European Communities did not violate Article

12.2 by not including the issue of exploration of constructive remedies in its published

final determination; found that the European Communities acted inconsistently with

Articles 12.2 and 12.2.2 "in that it is not directly discernible from the published Provisional

or Definitive Determination that the European Communities addressed or explained the

lack of significance of certain listed Article 3.4 factors"; concluded that the European

Communities did not violate Articles 12.2 or 12.2.2 in respect of information relating to

export performance. See paras. 7.417-444)

 U.S. - Sheet/Plate from Korea (Panel) (No violation found on basis that Korea had

established a claim only with respect to the substantive adequacy of the U.S.

determination on this issue, and failed to establish that the United States did not provide

a statement of reasons for its determination. See paras. 6.46-54)

 Mexico - HFCS (Panel) (The lack of any findings or conclusions on the authority's

decision to impose duties on a retroactive basis was inconsistent with Mexico's

obligations under Articles 12.2 and 12.2.2. See paras. 7.194-198)



Article 12.2.2 (Public Notice of Conclusion of Investigation Shall Contain All Relevant

Information on the Matters of Fact and Law and Reasons Which Have Led to the

Imposition of Final Measures)



 Korea - Paper AD Duties (Panel) (Recalling that the information at issue was confidential

and that Indonesia has not raised any claim under Article 6.5 regarding its confidentiality,

explained that Article 12.2 "does not allow an IA to disclose confidential information in its

public notice imposing a final measure," and it therefore rejected claims under Article

12.2 and 12.2.2. See paras. 7.311-316)

 U.S. - OCTG Sunset Reviews (Panel) (Rejected both aspects of Argentina's Article 12

claim, concluding, first, that the determination was consistent with Article 12.2 because

when "viewed in its entirety" the memorandum's explanation of the treatment of Siderca

is clear, and, second, that contrary to Argentina's implication "neither Article 12.2 nor the

other paragraphs of Article 12 contain substantive obligations regarding the conduct of

sunset reviews." See paras. 7.246-254)

 U.S. - Lumber ITC Investigation (Panel) (Noted the finding of a previous panel that "[a]

finding that the notice of an inconsistent action is inadequate does not add anything to

the finding of violation, the resolution of the dispute before us, or to the understanding of

the obligations imposed by the AD Agreement," and the Panel said that it shared these

views and "adopt them as our own"; therefore, the Panel said that it would "make no

findings with respect to the alleged violations of" AD Agreement Article 12.2.2 and SCM

Agreement Article 22.5. See paras. 7.38-42)

 EC - Pipe Fittings (Panel) (Found that the European Communities acted inconsistently

with Articles 12.2 and 12.2.2 "in that it is not directly discernible from the published

Provisional or Definitive Determination that the European Communities addressed or

explained the lack of significance of certain listed Article 3.4 factors"; concluded that the

European Communities did not violate Articles 12.2 or 12.2.2 in respect of information

relating to export performance. See paras. 7.417-444)

 Argentina - Poultry AD Duties (Panel) (Found that it was "not necessary" to make findings

under Article 12.2.2 where a violation of the AD Agreement's substantive provisions has

already been found with regard to the factual circumstances at issue. See paras. 7.199-

208, paras. 7.289-294, para. 7.326 and para. 7.366)

 EC - Bed Linen (Panel) (EC explanation of the basis for its determination was sufficient to

meet the requirements of Article 12.2.2; rejected India's argument that the EC was

required to give sufficient notice that it was applying Article 2.2.2 to calculate profit and to

explain why it chose a certain alternative; disagreed that Article 12.2.2 requires any

explanation relating to initiation to be set forth in the final determination notice. See

paras. 6.239-261)

 Mexico - HFCS (Panel) (The lack of any findings or conclusions on the authority's

decision to impose duties on a retroactive basis was inconsistent with Mexico's

obligations under Articles 12.2 and 12.2.2. See paras. 7.194-198)



Article 12.3 (Article 12 Shall Apply to the Initiation and Completion of Reviews Pursuant to

Article 11)



 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Rejected 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; therefore,

found that U.S. statute and regulations at issue are not inconsistent with Article 11.3, nor

with Articles 11.1, 12.1, 12.3, and 5.6, in respect of the evidentiary standards applicable

to the self-initiation of sunset reviews and that the United States did not act inconsistently

with the AD Agreement by automatically self-initiating the instant sunset review. See

paras. 7.11-57)



Article 15 (Developing Country Members)



Article 15, first sentence (Special Regard to Developing Country Members)



 EC - Pipe Fittings (Panel) (Said that the second sentence of Article 15 provides

"operational indications as to the nature of the specific action required" and "articulates

certain operational modalities of the first sentence." See paras. 7.56-85)

 U.S. - Steel Plate from India (Panel) (Found that because there are no specific

requirements for actions to be taken under AD Agreement Article 15, first sentence, this

provision imposes "no specific or general obligation" on Members to undertake any

particular action; therefore, rejected India's claim under Article 15, first sentence. See

paras. 7.104-118)



Article 15, second sentence (Constructive Remedies)

 EC - Pipe Fittings (Panel) (Concluded that the European Communities' failure to explore

undertakings other than price undertakings did not violate Article 15; found that the

European Communities' failure to explore possibilities of constructive remedies before the

imposition of the provisional measure did not violate Article 15; found that contact by the

European Communities with the Brazilian government in relation to constructive

remedies, as opposed to the exporter itself, was consistent with Article 15. See paras.

7.56-85)

 EC - Bed Linen, Article 21.5 (Panel) (Because the EC had not yet "applied" duties against

bed linen from India, the Panel rejected India's claim of a violation of Article 15 based on

an alleged failure to explore possibilities of constructive remedies. See paras. 6.247-261)

 U.S. - Offset Act ("Byrd Amendment") (Panel) (Rejected claim under Article 15, based on

rejection of factual premise that the measure would lead to the rejection of price

undertakings. See paras. 7.83-88)

 U.S. - Steel Plate from India (Panel) (Rejected India's claim under Article 15, second

sentence, finding it clear that the possibilities of "constructive remedies" under this

provision had been explored by the U.S. (in the form of discussions of a proposed

suspension agreement). See paras. 7.104-118)

 EC - Bed Linen (Panel) (Article 15 requires an authority "to actively consider, with an

open mind, the possibility of such a remedy prior to imposition of an anti-dumping

measure"; here, the EC's "bare rejection" of a request for constructive remedies,

particularly given that a desire for undertakings had been expressed by the exporters,

constituted a violation of Article 15. See paras. 6.219-238)



Article 17 (Consultation and Dispute Settlement)



Article 17.4 (Referring a Matter to the DSB)



 Mexico - Rice AD Measures (Panel) (Stated that, provided the panel request "concerns a

dispute on which consultations have been requested, there is no need for the matter (i.e.

the specific measures at issue and the legal basis of the complaint) as identified in the

request for establishment to be identical to the matter on which consultations were

requested"; here, concluded that "consultations were … held on the matter on which the

establishment of a Panel was requested," and it therefore rejected Mexico's argument

that the panel request "contains a number of violations of Agreement provisions which

were not mentioned in the request for consultations and on which … no consultations

were held." See paras. 7.38-45)

 Mexico - HFCS (Panel) (Because the U.S. panel request did not simply list the provisions

at issue, but "also sets forth facts and circumstances describing the substance of the

dispute" in a sufficiently detailed manner, it was sufficient to meet the requirements of

DSU Article 6.2 and AD Agreement Article 17.4; AD Agreement Article 17.4 does not set

forth any additional requirements with respect to the degree of specificity with which

claims must be set out, above those set out in DSU Article 6.2. See paras. 7.6-18; also

discussed in context of terms of reference, where U.S. claim against provisional measure

was found to be within these terms. See paras. 7.44-55)

 Guatemala - Cement I (AB) (Under DSU Article 6.2 and AD Agreement Article 17.4,

Members must identify one of the following three measures in a panel request relating to

an antidumping investigation: definitive antidumping duties, the acceptance of a price

undertaking, or a provisional measure; here, Mexico failed to identify one of the three

measures, and therefore the Appellate Body reversed Panel's finding that the matter

raised in Mexico's panel request was within its terms of reference. See paras. 57-89)

 Guatemala - Cement I (Panel) (The matter raised in Mexico's panel request was within

the terms of reference, despite Mexico's failure to identify one of the three types of anti-

dumping measures described in Article 17.4 -- reversed on appeal. See paras. 7.4-27)

Article 17.5(i) (Allegation of Nullification or Impairment)



 Mexico - Rice AD Measures (Panel) (Panel said that U.S. allegations of violation are

sufficient to indicate how nullification or impairment occurred; in any event, concluded

that contentions of violation of Article 17.5(i) were dependent on allegations made against

panel request, which it had already rejected. See paras. 7.46-48)

 Mexico - HFCS (Panel) (Rejected Mexico's argument that the U.S. panel request violates

AD Agreement 17.5(i) because it fails to provide an explicit statement indicating how

Mexico's final anti-dumping measure nullifies or impairs benefits; considered that Article

17.5(i) does not require a complaining Member to use the words "nullify" or "impair" in a

panel request; here, description of the factual and legal circumstances leading to

allegations of violations of specific AD Agreement provisions was sufficient to meet the

requirements of Article 17.5(i). See paras. 7.19-30)



Article 17.5(ii) (Factual Basis for Panel's Examination)



 U.S. - Lumber AD Final (Panel) (Excluded from its consideration regression analyses that

had not been part of the underlying investigation, even though the data itself had been on

the record of the investigation. See paras. 7.31-43, as well as para. 7.168; by contrast,

did not exclude certain charts, stating, it "is clear to us that these charts display in

graphical form data which was before DOC during the course of the investigation." See

para. 7.168)

 EC - Pipe Fittings (Panel) (Excluded certain evidence submitted by Brazil because it was

not on the record of the underlying investigation. See paras. 7.28-36, fn. 156, fn. 169, and

para. 7.174; referring to Articles 17.5 and 17.6(i), found that it is "required … to take into

account all information upon which the investigating authority relied in order to reach its

final determination, whether or not this information forms part of the non-confidential or

disclosed record of the investigation or whether its consideration can be discerned from

the published documents." See paras. 7.42-47)

 Egypt - Rebar from Turkey (Panel) (Because it was clear, and the parties agreed, that

certain evidence at issue had not been made available to the investigating authority, and

because consideration of this evidence would constitute an impermissible de novo

review, the Panel said that it would not take this evidence into consideration "when

reviewing the measures of the determinations and actions of" the Egyptian investigating

authority. See paras. 7.15-21; Panel dismissed Turkey's challenge to Egypt's reliance on

a document that had not been sent to Turkey or respondents, but had been made

available to them as part of the public file. See paras. 7.110-113)

 EC - Bed Linen (Panel) (Discussed in context of Other Evidentiary Issues; refused to

exclude a document submitted by the EC, explaining that, while AD Agreement Article

17.5(ii) requires panels to consider only facts made available in conformity with the

domestic anti-dumping investigation at issue, this provision does not require a panel to

consider those facts only in the format in which they were originally presented to the

authority; here, because the exhibit does not contain any new evidence outside the facts

established in the investigation record, the Panel found no basis to exclude it. See paras.

6.41-43)

 U.S. - Steel Plate from India (Panel) (Panel admitted affidavits submitted by India, finding

that they did not constitute "new evidence," but simply served as an "expert opinion"

about one of India's arguments. See paras. 7.10-13)

 U.S. - Hot-Rolled Steel from Japan (Panel) (Discussed in the context of the Exclusion of

Certain Evidence; considered that, when examining a claim of violation of the AD

Agreement in a particular determination, a panel may not consider facts or evidence

presented to it, unless they had been made available in conformity with the appropriate

domestic procedures to the authorities of the investigating country during the

investigation; here, Panel refused to exclude evidence at the outset in light of the

possible relevance of the evidence to Japan's claims under the GATT, which is not

subject to the Article 17.5(ii) restrictions. See paras. 7.2-12)

 Thailand - Steel (Panel) (Discussed in the context of the Standard of Review; stated that

"the 'facts' upon which the determination is based must be properly established in both

the confidential and non-confidential record of the investigation" -- effectively reversed on

appeal through the Appellate Body's findings under Article 17.6(i). See para. 7.52)

 Guatemala - Cement II (Panel) (Panel considered that its review of the evidence is limited

by AD Agreement Article 17.5(ii) to "facts before the investigating authority" and,

therefore, the Panel refused to examine any "new evidence that was not part of the

record of the investigation." See para. 8.19)

 Mexico - HFCS (Panel) (The U.S. objected to consideration of a particular Mexican

exhibit, arguing that it is not part of the record, and may therefore not be taken into

account; Panel rejected this argument, stating that it was "satisfied, based on Mexico's

arguments and submissions in this proceeding, that [the exhibit] is genuine, and may be

considered in this dispute under Article 17.5(ii)." See paras. 7.106-108)



Article 17.6(i) (Factual Standard of Review)



 U.S. - Lumber ITC Investigation, Article 21.5 (AB) (Noted that it need not answer the

question of "whether there may ever be circumstances in which separate consideration of

a single injury determination would be required in the light of the standards of review

under the Anti-Dumping Agreement and the SCM Agreement," as "this is not such a

case, and neither of the participants requests such separate consideration"; whether

"such separate consideration is called for," it said, "may depend not only on Article 11 of

the DSU and Article 17.6 of the Anti-Dumping Agreement, but also on the substantive

provisions of the Anti-Dumping Agreement and SCM Agreement that are at issue in the

dispute"; provided a detailed explanation of the requirements for panels reviewing

determinations of domestic investigating authorities, including: (1) "[a] panel's

examination of those conclusions must be critical and searching, and be based on the

information contained in the record and the explanations given by the authority in its

published report"; (2) "the standard of review to be applied in a given case is also a

function of the substantive provisions of the specific covered agreements that are at issue

in the dispute"; (3) "the panel's scrutiny should test whether the reasoning of the authority

is coherent and internally consistent"; (4) "[t]he panel must undertake an in-depth

examination of whether the explanations given disclose how the investigating authority

treated the facts and evidence in the record and whether there was positive evidence

before it to support the inferences made and conclusions reached by it"; (5) "[t]he panel

must examine whether the explanations provided demonstrate that the investigating

authority took proper account of the complexities of the data before it, and that it

explained why it rejected or discounted alternative explanations and interpretations of the

record evidence"; (6) when the inferences and conclusions of an investigating authority

are challenged, "it is the task of a panel to assess whether the explanations provided by

the authority are 'reasoned and adequate' by testing the relationship between the

evidence on which the authority relied in drawing specific inferences, and the coherence

of its reasoning"; on the facts of the case here, the Appellate Body rejected Canada's

argument that the Panel "erred in identifying the appropriate standard of review to be

applied in reviewing a determination of threat of injury, in particular, by identifying a lower

standard for such determinations" and applying that "more deferential standard" here;

however, considering all the evidence, concluded that "the Panel failed to comply with"

DSU Article 11 "in the standard of review that it articulated and applied to assess the

consistency of the Section 129 Determination with" AD Agreement Articles 3.5 and 3.7

and SCM Agreement Articles 15.5 and 15.7. See paras. 89-140)

 EC - Pipe Fittings (AB) (Found that the Panel did not fail to assess whether the European

Commission's establishment of the facts was proper under Article 17.6(i) and did not

incorrectly interpret Articles 3.1 and 3.4 "by including Exhibit EC-12 within its assessment

of the European Commission's evaluation of the injury factors listed in Article 3.4." See

paras. 119-133)

 EC - Pipe Fittings (Panel) (Referring to Articles 17.5 and 17.6(i), found that it is "required

… to take into account all information upon which the investigating authority relied in

order to reach its final determination, whether or not this information forms part of the

non-confidential or disclosed record of the investigation or whether its consideration can

be discerned from the published documents." See paras. 7.42-47)

 EC - Bed Linen, Article 21.5 (AB) (Rejected India's claims that the Panel acted

inconsistently with Article 17.6(i) by failing to seek information pursuant to DSU Article 13

and by failing to "actively" review the facts. See paras. 165-171)

 Egypt - Rebar from Turkey (Panel) (Said that it would not engage in a de novo review of

the facts. See paras. 7.8-14; also, after dismissing Turkey's claim under Article 17.6(i) --

that the investigating authority failed to establish the facts properly and evaluate the facts

in an objective and unbiased manner -- as outside the terms of reference, the Panel

expressed doubts as to whether this provision can be the subject of a claim, since it sets

forth the panel's standard of review in examining a matter. See paras. 7.134-142)

 U.S. - Steel Plate from India (Panel) (Because there is no conflict between Article 17.6

and DSU Article 11 and because Article 17.6 supplements DSU Article 11, India's

reference to DSU Article 11 in its discussion of the standard of review was proper. See

paras. 7.1-7)

 Mexico - HFCS, Article 21.5 (AB) (Rejected a challenge to the Panel's application of the

standard of review, disagreeing with Mexico's characterization of the issue as one of

legal interpretation, and finding instead that the Panel had correctly applied the factual

standard of review. See paras. 127-134)

 U.S. - Hot-Rolled Steel from Japan (AB) (Found no conflict between Article 17.6(i) and

DSU Article 11, explaining "it is inconceivable that Article 17.6(i) should require anything

other than that panels make an objective 'assessment of the matter'"; panels interpreting

the AD Agreement must also follow the additional standards provided in Article 17.6(i)

(proper establishment of facts and objective and unbiased evaluation), standards which

the Appellate Body saw as effectively defining when investigating authorities can be

considered to have acted inconsistently with the AD Agreement. See paras. 55-56)

 U.S. - Hot-Rolled Steel from Japan (Panel) (Described a two-step factual standard of

review similar to that used by the Panel in Mexico - HFCS (see below). See para. 7.26)

 Thailand - Steel (AB) (Stated that "to the extent that the Panel examined the facts in

assessing whether Thailand's injury determination was consistent with Article 3.1, we are

of the view that the Panel correctly conducted its examination consistently with the

applicable standard of review under Article 17.6(i) of the Anti-Dumping Agreement." See

para. 137; reversed the Panel's interpretation of Articles 3.1 and 17.6(i), holding that

investigating authorities may rely on confidential information not shared with the parties in

reaching their determinations. See paras. 98-120)

 Thailand - Steel (Panel) (Discussed in the context of the Standard of Review and in the

injury context in conjunction with AD Agreement Article 3.1; described a factual standard

of review similar to that of the panel in Mexico - HFCS (see below). See para. 7.51; held

that Article 3.1, read together with the standard of review established in Article 17.6(i),

dictates that "the reasoning supporting the determination be 'formally or explicitly stated'

in documents in the record of the anti-dumping investigation to which interested parties

(and/or their legal counsel) have access at least from the time of the final determination,"

and similarly the factual basis relied upon by the authority "must also be discernible from

those documents" -- reversed on appeal. See paras. 7.130-151)

 U.S. - Sheet/Plate from Korea (Panel) (Adopted what it considered to be the approach of

the panel in Mexico - HFCS (see below). See para. 6.3)

 Guatemala - Cement II (Panel) (See the Commentary section of the DSC; citing Articles

17.6(i) and 17.5(ii), Panel said that it would limit its review of the facts to "facts before the

investigating authority." See paras. 8.17-19)

 Mexico - HFCS (Panel) (Discussed in the context of claims regarding Sufficiency of the

Evidence and the Examination Thereof; described its approach under Article 17.6(i) as:

to examine whether the evidence before the investigating authority at the time it initiated

the investigation was such that an unbiased and objective investigating authority

evaluating that evidence could properly have determined that sufficient evidence of

dumping, injury, and causal link existed to justify initiation. See para. 7.95)



Article 17.6(ii) (Legal Standard of Review)



 U.S. - Zeroing (Japan) (AB) (Said that "there is no room for recourse to the second

sentence of Article 17.6(ii) in this appeal" because AD Agreement Articles 2.4, 2.4.2, 9.3,

9.5, and 11.3 and GATT Articles VI:1 and VI:2, "when interpreted in accordance with

customary rules of interpretation of public international law, as required by the first

sentence of Article 17.6(ii), do not admit of another interpretation of these provisions as

far as the issue of zeroing before us is concerned." See paras. 188-189)

 U.S. - Zeroing (Japan) (Panel) (On the basis of its consideration of AD Agreement Article

2.1 and GATT Articles VI:1 and VI:2, as well as AD Agreement Article 2.4.2, the Panel

concluded that "it is permissible within the meaning of Article 17.6(ii) of the AD

Agreement to interpret Article VI of the GATT 1994 and relevant provisions of the AD

Agreement to mean that there is no general requirement to determine dumping and

margins of dumping for the product as a whole, which, by itself or in conjunction with a

requirement to establish margins of dumping for exporters or foreign producers, entails a

general prohibition of zeroing." See para. 7.142)

 U.S. - Lumber AD Final, Article 21.5 (AB) (Having found that AD Agreement Article 2.4.2

"does not admit an interpretation that would allow the use of zeroing under the

transaction-to-transaction comparison methodology," Appellate Body said that "the

contrary view is not a permissible interpretation of Article 2.4.2 within the meaning of

Article 17.6(ii) of the Anti-Dumping Agreement." See para. 123)

 U.S. - Lumber AD Final, Article 21.5 (Panel) (Rejected Canada's interpretation of the

phrase "margins of dumping" in the context of the transaction-to-transaction comparison

methodology provided for in the first sentence of Article 2.4.2 and found that "the

interpretation put forward by the United States is permissible" -- reversed on appeal. See

para. 5.66)

 U.S. - "Zeroing" of Dumping Margins (AB) (Noted that it was "mindful of the standard of

review" set out in AD Agreement Article 17.6(ii), but said that Article 9.3 and Article VI:2

"when interpreted in accordance with customary rules of interpretation of public

international law, as required by Article 17.6(ii), do not, in our view, allow the use of the

methodology applied by the United States in the administrative reviews at issue." See

para. 134)

 Mexico - Rice AD Measures (AB) (With regard to Mexico's argument that Panel should

have found that Mexico's interpretation concerning the "integration" of the data collection

period was "permissible" under AD Agreement Article 17.6(ii), Appellate Body noted that

the issue was "the manner in which Economía conducted the injury analysis," not the

interpretation of a specific provision of the Anti-Dumping Agreement; furthermore, it said,

"[i]t appears to us that the Panel's view is compatible with Mexico's own reading of the

Anti-Dumping Agreement"; therefore, the Appellate Body concluded that Mexico's

argument regarding Article 17.6(ii) "is without merit." See paras. 170-171)

 U.S. - Lumber AD Final (AB) (Rejected two U.S. arguments that the Panel had not

followed the Article 17.6(ii) standard of review, concluding that the U.S. interpretation was

not a "permissible" one and that the Panel had not, in fact, acknowledged that the U.S.

interpretation was "permissible." See paras. 113-116)

 U.S. - Lumber AD Final (Panel) (A dissenting opinion found that the U.S. interpretation of

AD Agreement Article 2.4.2 to allow "zeroing" was a "permissible" one under the Article

17.6(ii) standard of review. See paras. 9.1-24)

 Argentina - Poultry AD Duties (Panel) (Discussed in Commentary section; in the context

of claims under AD Agreement Article 4.1 and Articles 9.2 and 9.3, found that the

interpretation by the Member complained against was "permissible," in the sense of

Article 17.6(ii), and therefore there was no violation. See paras. 7.340-341 and para.

7.361)

 EC - Bed Linen, Article 21.5 (AB) (In the context of findings under AD Agreement Articles

3.1 and 3.2, found that the requirements at issue are not ambiguous, and they do not

"admit of more than one permissible interpretation" within the meaning of the second

sentence of Article 17.6(ii); therefore, said: "[t]his leaves no room, in this appeal, for

recourse to the second sentence of Article 17.6(ii) in interpreting paragraphs 1 and 2 of

Article 3." See para. 118)

 U.S. - Steel Plate from India (Panel) (Because there is no conflict between Article 17.6

and DSU Article 11 and because Article 17.6 supplements DSU Article 11, India's

reference to DSU Article 11 in its discussion of the standard of review was proper. See

paras. 7.1-7)

 Mexico - HFCS, Article 21.5 (AB) (Rejected a challenge to the Panel's application of the

standard of review, disagreeing with Mexico's characterization of the issue as one of

legal interpretation and finding instead that the Panel had correctly applied the factual

standard of review. See paras. 127-134)

 U.S. - Hot-Rolled Steel from Japan (AB) (Found no conflict between Article 17.6(ii) and

DSU Article 11 and also noted the similarity between Article 17.6(ii) and DSU Article 3.2;

said that Article 17.6(ii) confirms that the traditional customary rules of interpretation

apply to the AD Agreement; recognized that the second sentence of Article 17.6(ii)

"presupposes" that application of the customary rules of interpretation could give rise to

two or more interpretations of some provisions in the AD Agreement; emphasized,

however, that "a permissible interpretation is one which is found to be appropriate after

application of the rules of the Vienna Convention." See paras. 57-62; concluded that the

Panel did not err in its application of the standard of review under Article 17.6(ii) in its

interpretation of Article 9.4. See para. 130)

 U.S. - Hot-Rolled Steel from Japan (Panel) (Explained that under Article 17.6(ii), it would

first interpret the provisions of the AD Agreement in accordance with the principles set

out in the VCLT, and it would then evaluate whether the interpretation by the investigating

authority is one that is "'permissible' in light of the customary rules of interpretation of

international law." See para. 7.27)

 Thailand - Steel (AB) (In the context of the Panel's findings under AD Agreement Article

3.4, upheld Panel's initial interpretation of the provision under the customary rules of

international law and the Panel's subsequent finding that Thailand's interpretation was

not "permissible." See paras. 121-128)

 EC - Bed Linen (AB) (EC argued that the Panel did not establish that the EC

interpretation of Article 2.4.2 was "impermissible," and therefore argued that the Panel

acted inconsistently with Article 17.6(ii); Appellate Body rejected this argument, finding

that the Panel properly interpreted Article 2.4.2 in accordance with international law and

also found the EC interpretation not to be "permissible." See paras. 63-65)

 U.S. - Sheet/Plate from Korea (Panel) (Stated that it would first consider the appropriate

interpretation of the AD Agreement in accordance with the principles set out in the VCLT;

then it would determine whether the United States' interpretation was "permissible" in

light of the customary rules of interpretation of international law. See para. 6.4)



Article 18 (Final Provisions)



Article 18.1 (Specific Action Taken against Dumping Must Be in Accordance with GATT, as

interpreted by AD Agreement)



 Mexico - Rice AD Measures (Panel) (Concluded that under Article 93V of the Foreign

Trade Act fines may be imposed "only following a determination that the constituent

elements of dumping or subsidization are present, and such fines therefore constitute a

'specific action' related to dumping or a subsidy within the meaning of Article 18.1 of the

AD Agreement and of Article 32.1 of the SCM Agreement"; in addition, found that "by

threatening to impose fines on anyone importing the product subject to an anti-dumping

investigation, Article 93V of the Act clearly provides for a specific action against dumping

or subsidization which is not provided for in the AD or SCM Agreement"; thus, Panel

concluded that Article 93V is inconsistent with AD Agreement Article 18.1 and SCM

Agreement Article 32.1. See paras. 7.270-280)

 U.S. - Offset Act ("Byrd Amendment") (AB) (Upheld Panel's finding that the measure was

a non-permissible "specific action against" dumping, in violation of Article 18.1. See

paras. 224-274)

 U.S. - Offset Act ("Byrd Amendment") (Panel) (Found that the measure was a non-

permissible "specific action against" dumping, in violation of Article 18.1. See paras. 7.7-

51)

 U.S. - 1916 Act (AB) (Discussed in context of Applicability of GATT Article VI and the AD

Agreement to the 1916 Act; considered that a "specific action against dumping" can be

taken only when the constituent elements of "dumping" are present; moreover, concluded

that it follows from this provision that GATT Article VI "is applicable to any 'specific action

against dumping' of exports, i.e., action that is taken in response to situations presenting

the constituent elements of 'dumping.'" See paras. 121-126)

 U.S. - 1916 Act (Panel) (Discussed in context of claims under the AD Agreement; based

on violations of other provisions of the AD Agreement, Panel found violation of Article

18.1. See para. 6.204, para. 6.231, and para. 6.264 of panel report in complaint by

Japan)



Article 18.3 (Temporal Application)



 U.S. - DRAMS (Panel) (Discussed in the context of the Terms of Reference claims; under

the temporal restriction of Article 18.3, refused to review the U.S. 1993 scope

determination in the DRAMS investigation. See paras. 6.10-17)



Article 18.4 (Necessary Steps to Ensure Conformity of Laws, Regulations and

Administrative Procedures)



 U.S. - Zeroing (Japan) (Panel) (Said that the "zeroing procedures" norm can be

characterized as an "administrative procedure" within the meaning of Article 18.4. See

para. 7.55; based on its rejection of the claims against simple zeroing under other

provisions, Panel rejected claims under AD Agreement Articles 1 and 18.4 and WTO

Agreement Article XVI:4. See paras. 7.171-175; found that by maintaining simple zeroing

procedures in the context of periodic reviews and new shipper reviews, the DOC does

not act inconsistently with AD Agreement Articles 2.1, 2.4, 2.4.2, 9.1-9.3, 9.5, 18.4, GATT

Articles VI:1 and VI:2, and WTO Agreement Article XVI:4. See paras. 7.189-224)

 U.S. - "Zeroing" of Dumping Margins (AB) (Declared "moot, and of no legal effect" the

Panel's finding that the zeroing methodology used by the United States in administrative

reviews is not inconsistent, as such, with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 11.1,

11.2, and 18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4. See

paras. 226-227; declared "moot, and of no legal effect" the Panel's finding that Section

351.414(c)(2) is not inconsistent with AD Agreement Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1,

11.2, 11.3, and 18.4, GATT Articles VI:1 and VI:2, and WTO Agreement Article XVI:4.

See paras. 235-242)

 U.S. - "Zeroing" of Dumping Margins (Panel) (Found that Sections 771(35)(A) and (B),

731 and 777A(d) of the Tariff Act are not "as such" inconsistent with AD Agreement

Articles 1, 2.4, 2.4.2, 5.8, 9.3 and 18.4, GATT Articles VI:1 and VI:2, and WTO

Agreement Article XVI:4 with respect to the use of a "zeroing" methodology in the

calculation of margins of dumping in original investigations. See paras 7.37-69; with

regard to the claims that the "Standard Zeroing Procedures" used by the United States in

administrative reviews or the U.S. practice or methodology of zeroing, Sections

771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and Section

351.414(c)(2) of the DOC Regulations are inconsistent with AD Agreement Articles 1,

2.4, 2.4.2, 9.3, 11.1, 11.2 and 18.4, GATT Articles VI:1 and VI:2, WTO Agreement Article

XVI:4, Panel majority said that these claims are "dependent upon a violation of Articles

2.4 and/or 2.4.2" and thus it also rejected these dependent claims. See paras. 7.289-291;

with regard to the claims that the "Standard Zeroing Procedures" used by the United

States in new shipper reviews, changed circumstances reviews and sunset reviews,

Sections 771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act, and

Section 351.414(c)(2) of the DOC Regulations are inconsistent with AD Agreement

Articles 1, 2.4, 2.4.2, 9.3, 9.5, 11.1, 11.2, 11.3 and 18.4, GATT Articles VI:1 and VI:2,

WTO Agreement Article XVI:4, Panel majority said that the claims are "dependent upon a

violation of Articles 2.4 and/or 2.4.2" and thus it also rejected these dependent claims.

See paras. 7.292-294)

 U.S. - Corrosion-Resistant Steel Sunset Review (AB) (Upheld Panel's findings that the

measures at issue were not in violation of AD Agreement Article 18.4 and WTO

Agreement Article XVI:4. See paras. 208-211; stated that, "[t]aken as a whole, the phrase

'laws, regulations and administrative procedures' seems to us to encompass the entire

body of generally applicable rules, norms and standards adopted by Members in

connection with the conduct of anti-dumping proceedings." See para. 87)

 U.S. - Corrosion-Resistant Steel Sunset Review (Panel) (Because the Panel did not find

any aspect of U.S. law to be inconsistent with the covered agreements, it did not find any

violation of AD Agreement Article 18.4 and WTO Agreement Article XVI:4. See paras.

7.311-315; in the context of the issue of the Use of Dumping Margins in Sunset Reviews,

rejected claim that the Sunset Policy Bulletin is covered by the phrase "administrative

procedures" under AD Agreement Article 18.4 -- reversed on appeal. See paras. 7.132-

139)

 U.S. - Offset Act ("Byrd Amendment") (AB) (Based on violation of Article 18.1, found a

violation of Article 18.4. See paras. 300-302)

 U.S. - Offset Act ("Byrd Amendment") (Panel) (Based on violations of Articles 18.1 and

5.4, found a violation of Article 18.4. See paras. 7.89-93)

 U.S. - Steel Plate from India (Panel) (Discussed in context of Examination of U.S.

"Practice"; stated that the "practice" challenged by India is not within the scope of

measures that may be challenged under AD Agreement Article 18.4, which refers to

"laws, regulations, and administrative procedures," stating, "we do not agree with the

notion that the practice is an 'administrative procedure' in the sense of Article 18.4," since

"[i]t is not a pre-established rule for the conduct of anti-dumping investigations." See

paras. 7.21-22)

 U.S. - Hot-Rolled Steel from Japan (AB) (Upheld Panel's finding of violation of Article

18.4 in context of claims under Article 9.4. See para. 129)

 U.S. - Hot-Rolled Steel from Japan (Panel) (Discussed in context of findings under

Articles 9.4, 10, 3 and 4; where the Panel found specific violations of the AD Agreement

by the measures on their face, it also found a violation of Article 18.4; where there were

no violations by the measures on their face, there was no violation of Article 18.4. See

para. 7.90, para. 7.150 and para. 7.199)

 U.S. - 1916 Act (Panel) (Based on its findings of specific violations of the AD Agreement,

also found a violation of Article 18.4. See paras. 6.282-288 of panel report in complaint

by Japan)



Annex I ("On-the-Spot Investigations" -- Verification)



 Egypt - Rebar from Turkey (Panel) (Rejected Turkey's argument that the investigating

authority violated Article 6.7 and Annex I(7) by waiting until after the "on-the-spot"

verification to raise certain cost issues. See paras. 7.322-328)

 Guatemala - Cement II (Panel) (Nothing in Annex I explicitly prohibits the inclusion on the

verification team of non-governmental experts with a conflict of interest; noted, however,

that "an impartial and objective investigating authority would not include

nongovernmental experts with a conflict of interest in its verification team"; Guatemala

violated Annex I(2) by failing to inform Mexico of the inclusion of non-governmental

experts in the Ministry's verification team; rejected the argument that Annex I(2) requires

authorities to inform exporting Members not only of the names of the experts, but also of

the "exceptional circumstances" that the Member believes justifies including such

experts; found that Annex I(7) permits an authority to request new information during

verification, and rejected claim of violation of this provision. See paras. 8.184-198)



Annex II ("Best Information Available" -- Facts Available)



Annex II (General)



 U.S. - OCTG Sunset Reviews (Panel) (Found that the DOC did not act inconsistently with

AD Agreement Article 6.8 and Annex II in its use of facts available in the sunset review at

issue. See paras. 7.237-245)



Annex II(1) (Specification of Information Required)



 Mexico - Rice AD Measures (AB) (Upheld Panel's finding that "by applying the facts

available contained in the application submitted by the petitioner in calculating the margin

of dumping for United States exporters that Economía did not investigate," Mexico acted

inconsistently with AD Agreement Annex II(1) and, therefore, with AD Agreement Article

6.8. See paras. 258-261; noted that Article 64 of the Foreign Trade Act "does not on its

face permit the agency to use any information that might be provided by a foreign

producer or exporter, even if incomplete, where the use of such information would result

in a margin lower than the highest facts available margin," "[n]or does it allow the agency

to engage in the 'evaluative, comparative assessment' necessary in order to determine

which facts are 'best' to fill in the missing information"; thus, upheld Panel's findings that

Article 64 is inconsistent, as such, with AD Agreement Article 6.8 and Annex II(1, 3, 5,

and 7), as well as SCM Agreement Article 12.7. See paras. 284-298)

 Mexico - Rice AD Measures (Panel) (Panel found that the investigating authority failed to

comply with AD Agreement Articles 6.1 and 12.1 "as it failed to notify all interested parties

known to have an interest in the investigation of the initiation of the investigation and of

the information required of them"; said that in case the authorities do not properly notify

and inform the interested parties, they are "not permitted to apply the facts available to

make determinations with regard to these interested parties," and thus, "by applying the

facts available in the calculation of a margin of dumping for the US exporters or

producers that were known or could reasonably have been known to the authority,

Mexico acted in a manner which is inconsistent with Article 6.8 and paragraph 1 of Annex

II of the AD Agreement." See paras. 7.169-201; found that since Article 64 of the Foreign

Trade Act effectively prevents the authorities from using the best information to replace

the missing data, it "is inconsistent with Article 6.8 and paragraphs 1, 3, 5 and 7 of Annex

II of the AD Agreement." See paras. 7.226-242)

 Egypt - Rebar from Turkey (Panel) (Rejected Turkey's claim that the investigating

authority's request for supplemental cost information violated Annex II(1), noting that the

request simply asked for follow-up information to the cost information that had been

initially requested with the original questionnaire; stated that neither Annex II(1) nor any

other provision precludes authorities from seeking additional information during an

investigation. See paras. 7.318-320)

 Guatemala - Cement II (Panel) (Found that neither Annex II(1) nor any other provision of

the AD Agreement prevents an investigating authority from extending the POI during the

course of an investigation; concluded that, since Mexico had not advanced any argument

that it was possible for the Ministry to have requested information concerning the

extended POI before it actually did so, Mexico's claim that the Ministry's extension of the

POI violated Annex II(1) must fail. See paras. 8.175-177)



Annex II(2)



 U.S. - Hot-Rolled Steel from Japan (AB) (Annex II(2) is an expression of "good faith,"

which restrains investigating authorities from imposing on exporters burdens which, in the

circumstances, are not reasonable. See para. 101)



Annex II(3)



 Mexico - Pipes and Tubes AD Duties (Panel) (Concluded that Economía acted

inconsistently with Annex II, paragraphs 3 and 5, and thus Article 6.8, "when it decided to

reject in their entirety the data that Tubac had submitted and to rely instead on facts

available." See paras. 7.108-184)

 Mexico - Rice AD Measures (AB) (Noted that Article 64 of the Foreign Trade Act "does

not on its face permit the agency to use any information that might be provided by a

foreign producer or exporter, even if incomplete, where the use of such information would

result in a margin lower than the highest facts available margin," "[n]or does it allow the

agency to engage in the 'evaluative, comparative assessment' necessary in order to

determine which facts are 'best' to fill in the missing information"; thus, upheld Panel's

findings that Article 64 is inconsistent, as such, with AD Agreement Article 6.8 and Annex

II(1, 3, 5, and 7), as well as SCM Agreement Article 12.7. See paras. 284-298)

 Mexico - Rice AD Measures (Panel) (Found that since Article 64 of the Foreign Trade Act

effectively prevents the authorities from using the best information to replace the missing

data, it "is inconsistent with Article 6.8 and paragraphs 1, 3, 5 and 7 of Annex II of the AD

Agreement." See paras. 7.226-242)

 Korea - Paper AD Duties (Panel) (Explained that "during the verification the Sinar Mas

Group clearly refused to submit corroborating information," and therefore said "we do not

see how the domestic sales data submitted by the Sinar Mas Group could have been

considered reliable and taken into consideration by the KTC"; in response to Indonesia's

argument that the "completeness" of the domestic sales data "could have been verified

through a comparison of the list of sales from Indah Kiat and Pindo Deli to CMI with the

list of CMI's sales to independent buyers," said that this comparison could not verify the

values of domestic sales; rejected Indonesia's assumption that the sole purpose of

verification is to confirm the "completeness" of the data, noting that accuracy of the data

is also important, and also rejected the argument that verification of sample transactions

was sufficient; concluded that "the KTC did not act inconsistently with Article 6.8 of the

Agreement and paragraph 3 of Annex II in disregarding the domestic sales data provided

by Indah Kiat and Pindo Deli in determining normal values for these two companies." See

paras. 7.57-72)

 Argentina - Poultry AD Duties (Panel) (Concluded that information submitted by

Catarinense was not "appropriately submitted" within the meaning of Annex II(3) because

Catarinense had not complied with Argentina's accreditation requirements; concluded

that Frangosul's information was not supplied in a "timely fashion" under Annex II(3). See

paras. 7.174-198)

 Egypt - Rebar from Turkey (Panel) (Held that Annex II(3) does not apply to an

investigating authority's choice of particular "facts available." See paras. 7.306-309 and

paras. 7.311-313)

 U.S. - Steel Plate from India (Panel) (DOC's decision to reject U.S. sales price

information "lacked a valid basis" under Annex II(3); therefore, DOC acted inconsistently

with AD Agreement Article 6.8 and Annex II, paragraph 3 in concluding, with respect to

the respondent's U.S. sales information, that "necessary information" was not provided

and in relying entirely on facts available in determining the dumping margin. See paras.

7.34-80; U.S. statutory provisions governing the application of facts available are

discretionary and therefore do not "on their face" violate Article 6.8 and Annex II,

paragraph 3. See paras. 7.81-100)



Annex II(5)



 Mexico - Pipes and Tubes AD Duties (Panel) (Concluded that Economía acted

inconsistently with Annex II, paragraphs 3 and 5, and thus Article 6.8, "when it decided to

reject in their entirety the data that Tubac had submitted and to rely instead on facts

available." See paras. 7.108-184)

 Mexico - Rice AD Measures (AB) (Noted that Article 64 of the Foreign Trade Act "does

not on its face permit the agency to use any information that might be provided by a

foreign producer or exporter, even if incomplete, where the use of such information would

result in a margin lower than the highest facts available margin," "[n]or does it allow the

agency to engage in the 'evaluative, comparative assessment' necessary in order to

determine which facts are 'best' to fill in the missing information"; thus, upheld Panel's

findings that Article 64 is inconsistent, as such, with AD Agreement Article 6.8 and Annex

II(1, 3, 5, and 7), as well as SCM Agreement Article 12.7. See paras. 284-298)

 Mexico - Rice AD Measures (Panel) (Found that since Article 64 of the Foreign Trade Act

effectively prevents the authorities from using the best information to replace the missing

data, it "is inconsistent with Article 6.8 and paragraphs 1, 3, 5 and 7 of Annex II of the AD

Agreement." See paras. 7.226-242)

 Argentina - Poultry AD Duties (Panel) (Failed to see how Catarinense could be said to

have acted to the "best of its ability" under Annex II(5); said that it cannot consider that

Frangosul acted to the "best of its ability" in the sense of Annex II(5). See paras. 7.174-

198)

 Egypt - Rebar from Turkey (Panel) (Stated that the phrase "to the best of one's ability"

connotes a high level of effort; found that "an unbiased and objective investigating

authority could have found that Habas, Diler and Colakoglu failed to provide necessary

information in the sense of Article 6.8," and therefore Egypt did not violate Article 6.8 or

Annex II(5) in resorting to "facts available" for these respondents. See paras. 7.143-266)



Annex II(6)



 Mexico - Pipes and Tubes AD Duties (Panel) (Found that Economía "acted inconsistently

with paragraph 6 of Annex II, and thus Article 6.8, by failing to inform Tubac that its data

were being rejected and of the reasons for that decision, and by failing to provide Tubac

with an opportunity to submit further explanations." See paras. 7.185-190)

 Korea - Paper AD Duties (Panel) (Concluded that the KTC did not act inconsistently with

Article 6.8 and Annex II(6) "with respect to informing the Sinar Mas Group of its decision

to reject the domestic sales data submitted by Indah Kiat and Pindo Deli and giving them

an opportunity to make further explanations within a reasonable period." See paras. 7.73-

86; found that the KTC "did not act inconsistently with Article 6.8 and paragraph 6 of

Annex II in not giving either Tjiwi Kimia or the Sinar Mas Group another opportunity to

submit information which had already been withheld from the KTC." See paras. 7.128-

131)

 Egypt - Rebar from Turkey (Panel) (Concluded that "Egypt violated Article 6.8 and Annex

II, paragraph 6, in respect of IDC and Icdas, because the [investigating authority], having

identified to these respondents the information 'necessary' to verify their cost data, and

having received that information, nevertheless found that they had failed to provide

'necessary information'; and further, did not inform these companies of this finding and

did not give them an opportunity to provide further explanations." See paras. 7.143-266;

as a factual matter, found that the deadline given the respondents to respond to the

August 19 request for additional information was "reasonable." See paras. 7.280-284;

given that the September 23 letter constituted a "follow-up" request, Panel held that

Turkey failed to establish a factual basis of violation of Annex II(6). See paras. 7.288-295;

in light of its findings that the investigating authority did not violate Article 6.7 or Annex

II(1) by waiting until after the completion of the "on-the-spot" verification before it raised

certain cost issues, the Panel also rejected Turkey's claim under Annex II(6). See para.

7.329; based on its factual finding that respondents did not "request" a meeting with the

investigating authority, but merely "offered" to meet with the authority, the Panel rejected

Turkey's claim of a violation of Annex II(6). See paras. 7.338-346)

 Argentina - Floor Tiles (Panel) (Argentine authority acted inconsistently with Article 6.8,

read in conjunction with Annex II(6), in that the authority (i) did not inform the exporters

why certain information supplied by them was not accepted; (ii) did not provide the

exporters an opportunity to provide further explanations within a reasonable period; and

(iii) did not give, in any published determinations, the reasons for the rejection of

evidence or information. See paras. 6.12-81)



Annex II(7)



 Mexico - Pipes and Tubes AD Duties (Panel) (Concluded that Economía "acted

inconsistently with paragraph 7 of Annex II and Article 6.8 because in applying as facts

available the normal value evidence that was provided by the applicant and used in

Economía's initiation decision it failed to use 'special circumspection.'" See paras. 7.191-

197)

 Mexico - Rice AD Measures (AB) (Noted that Article 64 of the Foreign Trade Act "does

not on its face permit the agency to use any information that might be provided by a

foreign producer or exporter, even if incomplete, where the use of such information would

result in a margin lower than the highest facts available margin," "[n]or does it allow the

agency to engage in the 'evaluative, comparative assessment' necessary in order to

determine which facts are 'best' to fill in the missing information"; thus, upheld Panel's

findings that Article 64 is inconsistent, as such, with AD Agreement Article 6.8 and Annex

II(1, 3, 5, and 7), as well as SCM Agreement Article 12.7. See paras. 284-298)

 Mexico - Rice AD Measures (Panel) (Examining the record, Panel said that it found "no

basis to consider that the authority made any attempt to check the applicant's information

against information obtained from other interested parties or undertook the evaluative,

comparative assessment that would have enabled the authority to assess whether the

information provided by the applicant was indeed the best information available," nor did

the investigating authority use the applicant's information with "special circumspection" as

required by paragraph 7 of Annex II; thus, Panel found that the Mexican investigating

authority calculated a dumping margin on the basis of facts available for the exporter

Producers Rice in a manner which is inconsistent with AD Agreement Article 6.8, read in

light of Annex II, paragraph 7. See paras. 7.160-168; found that since Article 64 of the

Foreign Trade Act effectively prevents the authorities from using the best information to

replace the missing data, it "is inconsistent with Article 6.8 and paragraphs 1, 3, 5 and 7

of Annex II of the AD Agreement." See paras. 7.226-242)

 Korea - Paper AD Duties (Panel) (Rejected two claims that the KTC failed to use "special

circumspection" in using information from secondary sources, but concluded that "the

KTC acted inconsistently with Article 6.8 of the Agreement and paragraph 7 of Annex II

with respect to determining financial expenses of CMI in the context of calculating the

constructed normal values for Indah Kiat and Pindo Deli." See paras. 7.95-111;

concluded that the KTC acted inconsistently with Article 6.8 and Annex II(7) "by failing to

fulfil its obligation to corroborate information obtained from secondary sources for

purposes of calculating Tjiwi Kimia's dumping margin against other independent sources

at its disposal"; regarding Indonesia's argument that "the magnitude of the margin of

dumping calculated for Tjiwi Kimia also demonstrates that the KTC failed to exercise

special circumspection," Panel said this does not "have a bearing on the WTO-

consistency of the KTC's calculation as long as the calculation conforms to the relevant

provisions of the Agreement." See paras. 7.121-127)

 Argentina - Poultry AD Duties (Panel) (Panel did not see the relevance of Annex II(7)

since Brazil failed to explain how the exercise of "special circumspection" by the DCD

would have remedied the fact that Catarinense failed to comply with Argentina's

accreditation requirement; Panel did not see how "special circumspection," in the sense

of Annex II(7), would have required the DCD to accept Frangosul's normal value data.

See paras. 7.174-198)

 Egypt - Rebar from Turkey (Panel) (Concluded that "an objective and unbiased

investigating authority could have reached the conclusion that 5 per cent was the

approximate average monthly inflation rate in Turkey during the period of investigation"

and, therefore, the investigating authority exercised "special circumspection" in its choice

of facts available. See para. 7.296-305)

 U.S. - Hot-Rolled Steel from Japan (AB) (Upheld Panel's finding of a violation, under

different reasoning; said that the requisite degree of cooperation in Annex II(7) is a "high

one," such that interested parties must "act to the 'best' of their abilities"; based on the

facts in the hot-rolled investigation, agreed with Panel's finding that the DOC's conclusion

that the exporter at issue failed to "'cooperate' in the investigation did not rest on a

permissible interpretation of that word." See paras. 98-109)

 U.S. - Hot-Rolled Steel from Japan (Panel) (Because an unbiased and objective authority

could not have concluded that a particular exporter did not cooperate with the U.S.

investigating authority, the U.S. use of adverse facts available violated Article 6.8 and

Annex II(7). See paras. 7.61-74)



Applicability of



 U.S. - 1916 Act (AB) (Upheld Panels' conclusions that GATT Article VI and the AD

Agreement apply to 1916 Act; focused on AD Agreement Article 18.1 and fact that 1916

Act addresses the constituent elements of "dumping," suggesting that the 1916 Act

provides for "specific action against dumping." See paras. 103-133)

 U.S. - 1916 Act (Panel) (Panels found that GATT Article VI and the AD Agreement apply

to the 1916 Act, noting in particular the similarity between the definition of dumping in

these agreements and the price discrimination test under the 1916 Act. See paras. 6.93-

165 of panel report in complaint by EC; paras. 6.108-184 of panel report in complaint by

Japan)



"As Such" Claims



 U.S. - 1916 Act (AB) (Upheld Panel's finding that anti-dumping legislation can be

challenged "as such," outside the context of a specific application of the legislation. See

paras. 51-81)

 U.S. - 1916 Act (Panel) (Discussed in the context of the Scope of the AD Agreement;

anti-dumping legislation can be challenged "as such," outside the context of a specific

application of the legislation. See paras. 5.15-27 of panel report in complaint by EC;

paras. 6.82-91 of panel report in complaint by Japan)



General Obligations of Investigating Authorities/Interested Parties



 Egypt - Rebar from Turkey (Panel) (AD Agreement "appears to impose two types of

procedural obligations on an investigating authority, namely, on the one hand, those that

are stipulated explicitly and in detail, and which have to be performed in a particular way

in every investigation, and, on the other hand, those that establish certain due process or

procedural principles, but leave to the discretion of the investigating authority exactly how

they will be performed"; for the first type of obligation, Panel said that investigating

authorities are required to perform these obligations exactly as specified in the

agreement on their own initiative; for the second type of obligation, Panel focused on the

responsibilities of the interested parties to raise these issues properly. See paras. 7.1-3)



Standard of Review



See Article 17.6(i) and Article 17.6(ii)