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WTO ANALYTICAL INDEX: ANTI-DUMPING AGREEMENT Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) |
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> Article 1 |
Article 6: Evidence 6.1 All interested parties in an anti-dumping investigation shall be given notice of the information which the authorities require and ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question.
6.1.1 Exporters or foreign producers receiving questionnaires used in an anti-dumping investigation shall be given at least 30 days for reply.(15) Due consideration should be given to any request for an extension of the 30-day period and, upon cause shown, such an extension should be granted whenever practicable.
(footnote original) 15 As a general rule, the time-limit for exporters shall be counted from the date of receipt of the questionnaire, which for this purpose shall be deemed to have been received one week from the date on which it was sent to the respondent or transmitted to the appropriate diplomatic representative of the exporting Member or, in the case of a separate customs territory Member of the WTO, an official representative of the exporting territory.
6.1.2 Subject to the requirement to protect confidential information, evidence presented in writing by one interested party shall be made available promptly to other interested parties participating in the investigation.
6.1.3 As soon as an investigation has been initiated, the authorities shall provide the full text of the written application received under paragraph 1 of Article 5 to the known exporters(16) and to the authorities of the exporting Member and shall make it available, upon request, to other interested parties involved. Due regard shall be paid to the requirement for the protection of confidential information, as provided for in paragraph 5.
(footnote original) 16 It being understood that, where the number of exporters involved is particularly high, the full text of the written application should instead be provided only to the authorities of the exporting Member or to the relevant trade association.
6.2 Throughout the anti-dumping investigation all interested parties shall have a full opportunity for the defence of their interests. To this end, the authorities shall, on request, provide opportunities for all interested parties to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered. Provision of such opportunities must take account of the need to preserve confidentiality and of the convenience to the parties. There shall be no obligation on any party to attend a meeting, and failure to do so shall not be prejudicial to that party's case. Interested parties shall also have the right, on justification, to present other information orally.
6.3 Oral information provided under paragraph 2 shall be taken into account by the authorities only in so far as it is subsequently reproduced in writing and made available to other interested parties, as provided for in subparagraph 1.2.
6.4 The authorities shall whenever practicable provide timely opportunities for all interested parties to see all information that is relevant to the presentation of their cases, that is not confidential as defined in paragraph 5, and that is used by the authorities in an anti-dumping investigation, and to prepare presentations on the basis of this information.
6.5 Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it.(17)
(footnote original) 17 Members are aware that in the territory of certain Members disclosure pursuant to a narrowly-drawn protective order may be required.
6.5.1 The authorities shall require interested parties providing confidential information to furnish non-confidential summaries thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided.
6.5.2 If the authorities find that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information public or to authorize its disclosure in generalized or summary form, the authorities may disregard such information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct.(18)
(footnote original) 18 Members agree that requests for confidentiality should not be arbitrarily rejected.
6.6 Except in circumstances provided for in paragraph 8, the authorities shall during the course of an investigation satisfy themselves as to the accuracy of the information supplied by interested parties upon which their findings are based.
6.7 In order to verify information provided or to obtain further details, the authorities may carry out investigations in the territory of other Members as required, provided they obtain the agreement of the firms concerned and notify the representatives of the government of the Member in question, and unless that Member objects to the investigation. The procedures described in Annex I(302) shall apply to investigations carried out in the territory of other Members. Subject to the requirement to protect confidential information, the authorities shall make the results of any such investigations available, or shall provide disclosure thereof pursuant to paragraph 9, to the firms to which they pertain and may make such results available to the applicants.
6.8 In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. The provisions of Annex II(303) shall be observed in the application of this paragraph.
6.9 The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests.
6.10 The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis of information available to the authorities at the time of the selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated.
6.10.1 Any selection of exporters, producers, importers or types of products made under this paragraph shall preferably be chosen in consultation with and with the consent of the exporters, producers or importers concerned.
6.10.2 In cases where the authorities have limited their examination, as provided for in this paragraph, they shall nevertheless determine an individual margin of dumping for any exporter or producer not initially selected who submits the necessary information in time for that information to be considered during the course of the investigation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome to the authorities and prevent the timely completion of the investigation. Voluntary responses shall not be discouraged.
6.11 For the purposes of this Agreement, "interested parties" shall include:
(i) an exporter or foreign producer or the importer of a product subject to investigation, or a trade or business association a majority of the members of which are producers, exporters or importers of such product;
(ii) the government of the exporting Member; and
(iii) a producer of the like product in the importing Member or a trade and business association a majority of the members of which produce the like product in the territory of the importing Member.
This list shall not preclude Members from allowing domestic or foreign parties other than those mentioned above to be included as interested parties.
6.12 The authorities shall provide opportunities for industrial users of the product under investigation, and for representative consumer organizations in cases where the product is commonly sold at the retail level, to provide information which is relevant to the investigation regarding dumping, injury and causality.
6.13 The authorities shall take due account of any difficulties experienced by interested parties, in particular small companies, in supplying information requested, and shall provide any assistance practicable.
6.14 The procedures set out above are not intended to prevent the authorities of a Member from proceeding expeditiously with regard to initiating an investigation, reaching preliminary or final determinations, whether affirmative or negative, or from applying provisional or final measures, in accordance with relevant provisions of this Agreement. (i) Failure to indicate the information required 247. In Argentina - Ceramic Tiles, the Panel, when examining whether the investigating authorities were entitled to resort to facts available pursuant to Article 6.8, concluded that an investigating authority could not fault an interested party for not providing information it was not clearly requested to submit: "Article 6.1 of the AD Agreement thus requires that interested parties be given notice of the information which the authorities require. In our view, it follows that, independently of the purpose for which the information or documentation is requested, an investigating authority may not fault an interested party for not providing information it was not clearly requested to submit."(304) (ii) Failure to set time-limits for the presentation of arguments and evidence 248. In Guatemala - Cement II, Mexico argued that Guatemala's investigating authority had violated Article 6.1 by failing to set a time-limit for the presentation of arguments and evidence during the final stage of the investigation while it had fixed a time-limit for the submission of arguments and evidence for the early part of the investigation. The Panel rejected this argument: "In our view, Article 6.1 of the AD Agreement does not require investigating authorities to set time-limits for the presentation of arguments and evidence during the final stage of the investigation. The only time-limit provided for in Article 6.1 is that contained in Article 6.1.1, whereby exporters shall be given at least 30 days for replying to questionnaires. ...
Article 6.1 requires investigating authorities to provide interested parties 'ample opportunity' to present in writing certain evidence. Article 6.1 does not explicitly require an investigating authority to set time limits for the submission of arguments and evidence during the final stage of an investigation.(305) Article 6.1 simply requires that interested parties shall have 'ample' opportunity to present evidence and 'full' opportunity to defend their interests. Interested parties may have such opportunity without the investigating authority setting time limits for the submission of evidence. In other words, these provisions impose substantive obligations, without requiring those obligations to be met through any particular form (except as provided for in sub-paragraphs 1 through 3 of Article 6.1). What counts is whether, in practice, sufficient opportunity was provided, not whether time limits for the submission of evidence were set. Thus, even if the Ministry had failed to set time-limits for the submission of arguments and evidence during the final stage of the investigation, this would not ipso facto constitute a violation of Article 6.1 of the AD Agreement."(306) 249. The Panel further rejected Mexico's argument that "the Ministry's public notice of initiation granted interested parties 30 days in which to defend their interests, whereas no such time-limit was included in the public notice concerning the imposition of a provisional measure":(307) "We would note that Article 12.1.1(vi) explicitly provides that a public notice of the initiation of an investigation shall include adequate information on the 'time-limits allowed to interested parties for making their views known'. No such obligation is included in Article 12.2.1, concerning the contents of public notices on the imposition of provisional measures. We consider that Article 12.2.1 constitutes useful context when examining Mexico's claim under Article 6.1. In particular, the fact that there is no requirement for investigating authorities to include time-limits for the submission of evidence in the public notice of their preliminary determinations confirms the conclusion set forth in the preceding paragraph."(308) (iii) Failure to provide information concerning the extension of the period of investigation 250. In Guatemala - Cement II, Mexico argued that because Guatemala's authority extended the period of investigation during the investigation procedure, and did not respond to requests for information from a Mexican producer concerning the extension, the Mexican producer was unable to defend its interests in respect of the extension of the period of investigation contrary to Articles 6.1 and 6.2. The Panel rejected this argument, stating: "[W]e consider that Mexico's interpretation of that provision is too expansive. The plain language of Article 6.1 merely requires that interested parties be given (1) notice of the information which the authorities require, and (2) ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation. First, we note that Cruz Azul [the Mexican producer] was given two weeks in which to present data concerning the extended POI. Cruz Azul therefore had two weeks' notice of the information required by the Ministry in respect of the extended POI.(309) Second, Mexico has made no claim to the effect that Cruz Azul was prevented from adducing written 'evidence' concerning the extended POI. Whereas Mexico claims that Cruz Azul was denied any opportunity to comment on the extension of the POI per se, Article 6.1 does not explicitly require the provision of opportunities for interested parties to comment on decisions taken by the investigating authority in respect of the information it requires."(310) (iv) Failure to allow interested parties access to information 251. In Guatemala - Cement II, the Panel examined Mexico's argument that Guatemala's authority acted inconsistently with Articles 6.1, 6.2 and 6.4 by failing to allow a Mexican producer "proper access" to the information submitted by a Guatemalan domestic producer at the public hearing it held. Noting that it had found a violation of Articles 6.1.2 and 6.4 on the same factual foundation, as referenced in paragraphs 256-257 below, the Panel stated: "Since we consider [Articles 6.1.2 and 6.4] to be the specific provisions of the AD Agreement governing an interested party's right to information submitted by another interested party, we do not consider it necessary to address Mexico's claims under Articles 6.1 and 6.2. These provisions do not specifically address an interested party's right of access to information submitted by another interested party."(311) 252. In Guatemala - Cement II, the Panel rejected Mexico's claim that Guatemala's authority had acted inconsistently with Articles 6.1, 6.2 and 6.9 by changing its injury determination from a preliminary determination of threat of material injury to a final determination of actual material injury during the course of the investigation, without informing a Mexican producer of that change, and without giving the producer a full and ample opportunity to defend itself. Referring to Article 12.2, the Panel first made the following general observation: "We do not consider that an investigating authority need inform interested parties in advance when, having issued a preliminary affirmative determination on the basis of threat of material injury, it subsequently makes a final determination of actual material injury. No provision of the AD Agreement requires an investigating authority to inform interested parties, during the course of the investigation, that it has changed the legal basis for its injury determination. Investigating authorities are instead required to forward to interested parties a public notice, or a separate report, setting forth 'in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities', consistent with Article 12.2 of the AD Agreement. If decisions on issues of law had to be disclosed to interested parties during the course of the investigation, there would be little need for interested parties to receive the notice provided for in Article 12.2. Furthermore, to the extent that there is any difference between the preliminary determination of injury and the final determination of injury, that change will be apparent to interested parties comparing the public notice of the investigating authority's preliminary determination with the public notice of its final determination."(312) 253. The Panel on Guatemala - Cement II then went on to draw a distinction, in regard to Article 6.1, between "information", "evidence" and "essential facts" on the one hand and "legal determinations" on the other: "We note that Articles 6.1 and 6.9 impose certain obligations on investigating authorities in respect of 'information', 'evidence' and 'essential facts'. However, Mexico's claim does not concern interested parties' right to have access to certain factual information during the course of an investigation. Mexico's claim concerns interested parties' alleged right to be informed of an investigating authority's legal determinations during the course of an investigation."(313) 254. In Egypt - Steel Rebar, the Panel addressed the question of whether "questionnaires" as referred to in Article 6.1.1 are only the original questionnaires in an investigation, or whether this term would also include all other requests for information, or certain types of requests, including requests in addition and subsequent to original questionnaires.(314) The Panel, which noted that the term "questionnaire" was not defined anywhere in the Anti-Dumping Agreement, considered that the references in Annex I, paragraphs 6 and 7, to this term provide strong contextual support for its interpretation in Article 6.1.1 as referring only to the original questionnaires sent to interested parties at the outset of an investigation: "The term 'questionnaire' as used in Article 6.1.1 is not defined in the AD Agreement, and in fact, this term only appears in Article 6.1.1, and in paragraphs 6 and 7 of Annex I. In our view, the references in Annex I, paragraphs 6 and 7 provide strong contextual support for interpreting the term 'questionnaires' in Article 6.1.1 as referring only to the original questionnaires sent to interested parties at the outset of an investigation. In particular, both of these provisions refer to 'the questionnaire' in the singular, implying that there is only one document that constitutes a 'questionnaire' in a dumping investigation, namely the initial questionnaire, at least as far as the foreign companies (producers and exporters) that might be visited are concerned. Paragraph 6 refers to visits by an investigating authority to the territory of an exporting Member 'to explain the questionnaire'. Paragraph 7 provides that 'on-the-spot investigation ... should be carried out after the response to the questionnaire has been received...'
If any requests for information other than the initial questionnaire were to be considered 'questionnaires' in the sense of Article 6.1.1, a number of operational and logistical problems would arise in respect of other obligations under the AD Agreement. First, there is no basis in the AD Agreement on which to determine that some, but not all, information requests other than the initial questionnaire also would constitute 'questionnaires'. Thus, even if an investigating authority was not obligated to provide the minimum time-period in Article 6.1.1 in respect of every request for information, it would not be able to determine from the Agreement which of its requests were and were not subject to that time-period. On the other hand, if all requests for information in an investigation were 'questionnaires' in the sense of Article 6.1.1, this could make it impossible for an investigation to be completed within the maximum one year (or exceptionally, 18 months) allowed by the AD Agreement in Article 5.10. Moreover, a 30- or 37-day deadline for requests for information made in the context of an on-the-spot verification - i.e., the 'obtain[ing of] further details' explicitly referred to in Article 6.7 to as one of the purposes of such verifications - obviously would be completely illogical as well as unworkable. Finally, such an interpretation would render superfluous the requirement in Annex II, paragraph 6 to allow a 'reasonable period ...' for the provision of any explanations concerning identified deficiencies in submitted information."(315) 255. In US - Hot-Rolled Steel, the United States authorities had rejected certain information provided by two Japanese exporters which was submitted beyond the deadlines for responses to the questionnaires and thus applied "facts available" in the calculation of the dumping margins. The United States interpreted Article 6.8(316) as permitting investigating authorities to rely upon reasonable, pre-established deadlines for the submission of data and argued that such an interpretation is supported by Article 6.1.1. The Appellate Body agreed with the Panel that "in the interest of orderly administration investigating authorities do, and indeed must establish such deadlines".(317) It further considered that those deadlines are "not necessarily absolute and immutable": "We observe that Article 6.1.1 does not explicitly use the word 'deadlines'. However, the first sentence of Article 6.1.1 clearly contemplates that investigating authorities may impose appropriate time-limits on interested parties for responses to questionnaires. That first sentence also prescribes an absolute minimum of 30 days for the initial response to a questionnaire. Article 6.1.1, therefore, recognizes that it is fully consistent with the Anti-Dumping Agreement for investigating authorities to impose time-limits for the submission of questionnaire responses. Investigating authorities must be able to control the conduct of their investigation and to carry out the multiple steps in an investigation required to reach a final determination. Indeed, in the absence of time-limits, authorities would effectively cede control of investigations to the interested parties, and could find themselves unable to complete their investigations within the time-limits mandated under the Anti-Dumping Agreement. We note, in that respect, that Article 5.10 of the Anti-Dumping Agreement stipulates that anti-dumping investigations shall normally be completed within one year, and in any event in no longer than 18 months, after initiation. Furthermore, Article 6.14 provides generally that the procedures set out in Article 6 'are not intended to prevent the authorities of a Member from proceeding expeditiously'. (emphasis added) We, therefore, agree with the Panel that 'in the interest of orderly administration investigating authorities do, and indeed must establish such deadlines.'(318)
While the United States stresses the significance of the first sentence of Article 6.1.1, we believe that importance must also be attached to the second sentence of that provision. According to the express wording of the second sentence of Article 6.1.1, investigating authorities must extend the time-limit for responses to questionnaires 'upon cause shown', where granting such an extension is 'practicable'. (emphasis added) This second sentence, therefore, indicates that the time-limits imposed by investigating authorities for responses to questionnaires are not necessarily absolute and immutable."(319) (i) "evidence presented ... by one party shall be made available promptly to other interested parties" 256. In Guatemala - Cement II, Mexico claimed that Guatemala's authority violated Articles 6.1.2, 6.2 and 6.4 by (a) refusing a Mexican producer access to the file at a certain date during the investigation, and (b) failing to promptly provide the producer with a copy of a submission made by the applicant. In examining this claim, the Panel juxtaposed the notion of "access to the file" on the one hand and, on the other hand, the requirements that evidence presented by one interested party be "made available promptly" and that parties shall have "timely opportunities" to see all relevant information: "Article 6.1.2 of the AD Agreement provides that evidence presented by one interested party shall be 'made available promptly' to other interested parties. Article 6.4 provides that an interested party shall have 'timely opportunities' to see all information that is relevant to the presentation of its case. On their face, neither Article 6.1.2 nor Article 6.4 necessarily require access to the file. For example, if an investigating authority required each interested party to serve its submissions on all other interested parties, or if the investigating authority itself undertook to provide copies of each interested party's submission to other interested parties, there may be no need for interested parties to have access to the file. If, however, there is no service of evidence by interested parties, or no provision of copies by the investigating authority, access to the file may be the only practical means by which evidence presented by one interested party could be 'made available promptly' to other interested parties (consistent with Article 6.1.2), or by which interested parties could have 'timely opportunities' to see information relevant to the presentation of their cases (consistent with Article 6.4). Assuming access to the file is the only practical means of complying with Articles 6.1.2 and 6.4, access to the file need not necessarily be unlimited. Nor need the file be made available on demand. Provided access to the file is regular and routine, we consider that the requirements of Articles 6.1.2 and 6.4 would be satisfied."(320) 257. The Panel on Guatemala - Cement II then stated that "[i]n principle, ... a 20-day delay is inconsistent with ... Article 6.1.2 obligation [of Guatemala's authority] to make [the subject] submission available to [other interested parties] 'promptly'."(321) (ii) "subject to the requirement to protect confidential information" 258. With respect to the claim by Mexico that the failure to make a submission available to a Mexican producer was inconsistent with Article 6.1.2, the Panel on Guatemala - Cement II rejected Guatemala's argument that the failure was justified because the submission contained confidential information: "In this regard, we note that the obligation in Article 6.1.2 is qualified by the words '[s]ubject to the requirement to protect confidential information'. In principle, therefore, evidence presented by one interested party need not be made available 'promptly' to other interested parties if it is 'confidential'. However, insofar as confidentiality is concerned, Article 6.1.2 must be read in the context of Article 6.5, which governs the treatment of confidential information. We examine Article 6.5 in detail ... below. We have noted that Article 6.5 reserves special treatment for 'confidential' information only 'upon good cause shown', and we have determined that the requisite 'good cause' must be shown by the interested party which submitted the information at issue. Guatemala has not demonstrated, or even argued, that Cementos Progreso [the applicant] requested confidential treatment for its ... submission, or that 'good cause' for confidential treatment was otherwise shown.(322) The Article 6.1.2 proviso regarding the 'requirement to protect confidential information', when read in the context of Article 6.5, cannot be interpreted to allow an investigating authority to delay making available evidence submitted by one interested party to another interested party for 20 days simply because of the possibility - which is unsubstantiated(323) by any request for confidential treatment from the party submitting the evidence - that the evidence contains confidential information. We do not believe that the specific requirement of Article 6.1.2 may be circumvented simply by an investigating authority determining that there is a possibility that the evidence at issue contains confidential information. Such an interpretation could undermine the purpose of Article 6.1.2, since in principle there is a possibility that any evidence could contain confidential information (and therefore not be 'made available promptly' to interested parties). Accordingly, we find that the Ministry violated Article 6.1.2 of the AD Agreement by failing to make Cementos Progreso's 19 December 1996 submission available to Cruz Azul until 8 January 1997."(324) 259. In Guatemala - Cement II, the Panel found the communication of Guatemala of the full text of the application at the earliest 18 days after initiation of the investigation to be inconsistent with Article 6.1.3. The Panel based its findings under Article 6.1.3 on the interpretation of the phrase that the text of the application be provided "as soon as an investigation has been initiated": "We note that Article 6.1.3 does not specify the number of days within which the text of the application shall be provided. What it does specify is that the text of the application be provided 'as soon as' the investigation has been initiated. In this regard, the term 'as soon as' conveys a sense of substantial urgency. In fact, the terms 'immediately' and 'as soon as' are considered to be interchangeable. We do not consider that providing the text of the application 24 or even 18 days after the date of initiation fulfils the requirement of Article 6.1.3 that the text be provided 'as soon as an investigation has been initiated.'
We further consider that the timeliness of the provision of the text of the application should be evaluated in the context of its purpose and function. Timely access to the application is important for the exporters to enable preparation of the arguments in defence of their interests before the investigating authorities. Moreover, once the investigation has been initiated the timetable of the investigation commences and the timing for many events in the proceeding are counted from initiation including the 12 or 18 months total for completion of the investigation provide for in Article 5.10. Since deadlines in the timetable of the investigation are counted from the date of initiation it is critical that the investigating authority provide the text of the application 'as soon as an investigation has been initiated', for the exporter to be able to devise a strategy to defend the allegations it is being confronted with. Also, Article 7.3 of the AD Agreement allows a Member to impose provisional measures as early as sixty days after the date of initiation of an investigation. Access to the text of the application is crucial for the exporter to prepare its defence, and even more so if the authorities are likely to consider applying a provisional measure which may come as early as 60 days after initiation.(325)"(326) 260. In Guatemala - Cement II, the Panel rejected Guatemala's argument that the actions of its investigating authority under Articles 5.5, 12.1.1 and 6.1.3, even if the Panel were to find that they constituted violations of the Anti-Dumping Agreement, had not affected the course of the investigation, and thus: (a) the alleged violations were not harmful according to the principle of "harmless error"; (b) Mexico "convalidated" the alleged violations by not objecting immediately after their occurrence; and (c) the alleged violations did not cause nullification or impairment of benefits accruing to Mexico under the Anti-Dumping Agreement. See paragraphs 217-220 above. (e) Relationship with other paragraphs in Article 6 261. The Panel on Guatemala - Cement II addressed Mexico's claims of violations of Articles 6.1, 6.2, 6.4, 6.5, 6.5.1 and 6.5.2, all of which were based on the same factual foundation. See paragraph 289 below. 262. In Guatemala - Cement II, Mexico claimed that Guatemala's investigating authority violated Articles 6.1, 6.2, 6.8 and Annex II(5) and (6) of the Anti-Dumping Agreement by rejecting certain technical accounting evidence submitted by a Mexican interested party one day before the public hearing held by Guatemala's authority. The Panel considered it unnecessary to address this claim, on the ground that the claim was dependent on the issue of whether the cancellation by the authority of its verification visit to the Mexican producer was inconsistent with Article 6.8, and the Panel had already found the cancellation in violation of Article 6.8.(327) 263. In Guatemala - Cement II, the Panel considered it unnecessary to examine Article 6.2 claims because it had already found violations of Article 6.1.2, 6.1.3, 6.4 and 6.5.1 on the same sets of facts. See paragraph 274 below. 264. The Panel on Guatemala - Cement II addressed Mexico's claims of violations of Articles 6.1, 6.2, 6.4, 6.5, 6.5.1 and 6.5.2, all of which were based on the same factual foundation. See paragraph 289 below. 265. The Panel on Argentina - Ceramic Tiles, when examining whether the investigating authorities were entitled to resort to facts available pursuant to Article 6.8, referred to Article 6.1 to support its conclusion that the investigating authorities could not do so when they did not clearly request the relevant information from the party in question. See paragraphs 247 above and 312 below. The Appellate Body in US - Hot-Rolled Steel further analysed the relationship of Article 6.8 and Annex II with Article 6.1.1. See paragraphs 255 above and 324 and 327 below. 266. The Panel on Guatemala - Cement II further referred to Article 6.5 in interpreting Article 6.1.2. See paragraph 258 above. 267. In Guatemala - Cement II, having found that Guatemala's failure to disclose the "essential facts" forming the basis of its final determination was in violation of Article 6.9, as referenced in paragraphs 354, 355 and 357 below, the Panel considered it unnecessary to examine whether it was also inconsistent with Articles 6.1 and 6.2.(328) (a) "shall have a full opportunity for the defence of their interests" (i) Article 6.2, first sentence as a fundamental due process provision 268. In Guatemala - Cement II, Mexico argued that because Guatemala's authority extended the period of investigation during the investigation procedure, and did not respond to requests for information from a Mexican producer concerning the extension, the Mexican producer was not given any opportunity to comment on the applicant's request for extension of the period of investigation contrary to Article 6.2. The Panel, which agreed with this argument, interpreted the first sentence of Article 6.2 "as a fundamental due process provision": "We interpret the first sentence of Article 6.2 of the AD Agreement as a fundamental due process provision. In our view, when a request for an extension of the POI comes from one interested party, due process requires that the investigating authority seeks the views of other interested parties before acting on that request. Failure to respect the requirements of due process would conflict with the requirement to provide interested parties with 'a full opportunity for the defence of their interests', consistent with Article 6.2.(329) Clearly, an interested party is not able to defend its interests if it is prevented from commenting on requests made by other interested parties in pursuit of their interests. In the present case, Cementos Progreso's request for extension of the POI was made on 1 October 1996. The Ministry's decision to extend the POI was made on 4 October 1996, only three days after Cementos Progreso's request. There is no evidence to suggest that the Ministry sought the views of Cruz Azul [the Mexican producer], or other interested parties, before deciding to extend the POI. Accordingly, we find that by extending the POI pursuant to a request from Cementos Progreso without seeking the views of other interested parties in respect of that request, the Ministry failed to provide Cruz Azul with 'a full opportunity for the defence of [its] interests', contrary to Guatemala's obligations under Article 6.2 of the AD Agreement."(330) (ii) General nature and extent of the obligations under Article 6.2 269. In Guatemala - Cement II, the Panel rejected Mexico's claim that Guatemala's authority was in violation of Articles 6.1, 6.2 and 6.9 by changing its injury determination from a preliminary determination of threat of material injury to a final determination of actual material injury during the course of the investigation, without informing the Mexican producer of that change, and without giving the producer a full and ample opportunity to defend itself. Following the observation based upon Article 12.2, quoted in paragraph 252 above, the Panel explained that the first sentence of Article 6.2 is very general in nature: "As for Article 6.2, we note that the first sentence of that provision is very general in nature. We are unable to interpret such a general sentence in a way that would impose a specific obligation on investigating authorities to inform interested parties of the legal basis for its final determination on injury during the course of an investigation, when the express wording of Article 12.2 only imposes such a specific obligation on investigating authorities at the end of the investigation."(331) 270. In Egypt - Steel Rebar, the Panel emphasized that "the language of the provision at issue creates an obligation on the [investigating authorities] to provide opportunities for interested parties to defend their interests." The Panel further considered that the "[f]ailure by respondents to take the initiative to defend their own interests in an investigation cannot be equated, through WTO dispute settlement, with failure by an investigating authority to provide opportunities for interested parties to defend their interests".(332) (b) Relationship with other paragraphs in Article 6 271. In Guatemala - Cement II, the Panel examined Mexico's argument that Guatemala's authority was in violation of Articles 6.1, 6.2 and 6.4 by failing to allow the Mexican producer "proper access" to the information submitted by the Guatemalan domestic producer at the public hearing it held. Noting that it had found a violation of Articles 6.1.2 and 6.4 on the same factual foundation, the Panel considered it unnecessary to examine the claim of a violation of Articles 6.1 and 6.2 because these provisions, in the view of the Panel, did not specifically address the issue. See paragraph 251 above. 272. The Panel on Guatemala - Cement II addressed Mexico's claims of violations of Articles 6.1, 6.2, 6.4, 6.5, 6.5.1 and 6.5.2, all of which were based on the same factual foundation. See paragraph 289 below. 273. In Guatemala - Cement II, Mexico claimed that Guatemala's investigating authority violated Articles 6.1, 6.2, 6.8 and Annex II(5) and (6) of the Anti-Dumping Agreement by rejecting certain technical accounting evidence submitted by a Mexican producer one day before the public hearing held by Guatemala's authority. The Panel considered it unnecessary to address this claim, on the grounds that the claim was dependent on the issue of whether the cancellation by the authority of its verification visit to the Mexican producer was inconsistent with Article 6.8, and the Panel had found the cancellation in violation of Article 6.8.(333) 274. The Panel on Guatemala - Cement II touched on the relationship between the obligations under Article 6.2 and other provisions. See paragraph 276 below. The Panel went on to find it unnecessary to examine Article 6.2 claims because it had already found violations of Article 6.1.2, 6.1.3, 6.4 and 6.5.1 on the same set of facts.(334) 275. In Guatemala - Cement II, having found that Guatemala's failure to disclose the "essential facts" forming the basis of its final determination was in violation of Article 6.9, as referenced in paragraphs 354, 355 and 357 below, the Panel considered it unnecessary to examine whether it was also inconsistent with Articles 6.1 and 6.2.(335) (c) Relationship with other provisions of the Anti-Dumping Agreement 276. Addressing Mexico's claim that Guatemala's authority had violated Article 6.2, the Panel on Guatemala - Cement II decided to exercise judicial economy because it had already made findings concerning the conduct allegedly violating Article 6.2 under other, more specific provisions of the Anti-Dumping Agreement: "Whereas this provision clearly imposes a general duty on investigating authorities to ensure that interested parties have a full opportunity throughout an anti-dumping investigation for the defence of their interests, it provides no specific guidance as to what steps investigating authorities must take in practice. By contrast, other more specific provisions apply to the facts at hand, in respect of which Mexico has also made claims. Although there may be cases in which a panel will nevertheless need to address claims under Article 6.2, we do not consider it necessary for us to do when we have already made findings concerning the conduct allegedly violating Article 6.2 under other, more specific provisions of the AD Agreement.(336)"(337) (a) "shall ... provide timely opportunities for all interested parties to see all information" 277. In Guatemala - Cement II, Mexico claimed that Guatemala's authority violated Articles 6.1.2, 6.2 and 6.4 by: (a) refusing the Mexican producer access to the file on a certain date during the investigation; and (b) failing to promptly provide the producer with a copy of a submission made by the applicant for the investigation. Mexico also claimed that Guatemala's investigating authority violated Article 6.4 by: (a) failing to provide the Mexican producer with copies of the file; and (b) failing to provide the producer with a full record of a public hearing held by the authority. In examining these claims, the Panel explained the scope and precise meaning of the relevant provisions. See paragraph 256 above. 278. In Guatemala - Cement II, in response to Mexico's claim that in violation of Article 6.4, Guatemala's authority did not provide copies of the file to the Mexican producer, Guatemala argued that it was justified in doing so because the producer had not paid the required fee. The Panel found a violation of Article 6.4 because the Mexican producer had offered to pay for the copies it requested. In so doing, the Panel noted that "[t]here are various ways in which an investigating authority could satisfy the Article 6.4 obligation to provide 'whenever practicable ... timely opportunities for all interested parties to see all information that is relevant to the presentation of their cases ...'."(338) 279. In Guatemala - Cement II, Mexico's argued that Guatemala's authority had acted inconsistently with Article 6.4 by not providing the Mexican producer with a complete copy of the record of its public hearing. The copy of the record of the public hearing which had been transmitted to Mexico was missing two identified individual pages, such that the words at the beginning of one page did not follow on from the phrase at the end of the immediately preceding page. Guatemala argued that even if the copy was incomplete, the Mexican producer could have requested a complete copy as soon as it realized that an omission had occurred. The Panel did not find a violation of Article 6.4: "Despite the factual accuracy of Mexico's argument, we do not consider that [the Ministry's action] amounts to a violation of Article 6.4 of the AD Agreement, as Mexico has failed to adduce any evidence that the Ministry's failure to provide a full copy of its record of the public hearing was anything other than inadvertent. Although we consider that an interested party is entitled to see a full version of the investigating authority's record of any public hearing, it is not inconceivable that an investigating authority which chooses to provide interested parties with a copy of the record could inadvertantly fail to provide a complete copy. In our view, such an inadvertent omission on the part of an investigating authority does not constitute a violation of Article 6.4. Although a violation could arise if an investigating authority failed to correct its omission after having been informed of that omission by an interested party, there is no evidence that Cruz Azul informed the Ministry of its omission in the present case." 280. Referring to its finding quoted in paragraph 217 above, the Panel emphasized that it was not finding a "harmless error", an argument put forward previously by Guatemala in a different context: "In order to avoid any uncertainty, we wish to emphasize that we do not consider that the inadvertent nature of the Ministry's omission renders that omission 'harmless', in the sense of being a defence to a violation of Article 6.4 of the AD Agreement .... Our position is not that there was a violation of Article 6.4, but that such violation should be disregarded because it was 'harmless'. Rather, our position is that the factual circumstances before us do not amount to a violation. The question of whether or not any violation is 'harmless' therefore does not arise."(339) (b) Relationship with other paragraphs in Article 6 281. The Panel on Guatemala - Cement II addressed Mexico's claims of violations of Articles 6.1, 6.2, 6.4, 6.5, 6.5.1 and 6.5.2, all of which were based on the same factual foundation. See paragraph 289 below. 282. In Guatemala - Cement II, the Panel examined Mexico's argument that Guatemala's authority was in violation of Articles 6.1, 6.2 and 6.4 by failing to allow the Mexican producer "proper access" to the information submitted by the Guatemalan domestic producer at the public hearing it held. Noting that it had found a violation of Articles 6.1.2 and 6.4 on the same factual foundation, the Panel considered it unnecessary to examine the claim of a violation of Articles 6.1 and 6.2 because these provisions do not specifically address the issue. See paragraph 251 above. 283. In Guatemala - Cement II, the Panel addressed Mexico's claim that Guatemala's delay in making a submission of the applicant available to the Mexican producer was inconsistent with Articles 6.1.2 and 6.4. After having found a violation of Article 6.1.2, the Panel considered it unnecessary to examine whether the subject facts also constituted a violation of Article 6.4.(340) 284. In Guatemala - Cement II, the Panel also considered it unnecessary to examine Article 6.2 claims because it had already found violations of Article 6.1.2, 6.1.3, 6.4 and 6.5.1 on the same sets of facts. See paragraph 274 above. 285. The Panel on Guatemala - Cement II touched on the relationship between the obligations under Articles 6.4 and 6.9. See paragraph 355 below. (a) Showing of "good cause" for confidential treatment 286. In Guatemala - Cement II, the Panel examined the claim that Guatemala's authority violated Articles 6.5, 6.5.1 and 6.5.2 by granting a submission from the domestic producer confidential treatment on its own initiative, i.e. without "good cause" having been shown by the producer. The Panel upheld this claim, stating: "The text of Article 6.5 distinguishes between two types of confidential information: (1) 'information which is by nature confidential', and (2) information 'which is provided on a confidential basis'. Article 6.5 then provides that the provision of confidential treatment is conditional on 'good cause' being shown. Logically, one might expect that 'good cause' for confidential treatment of information which is 'by nature confidential' could be presumed, and that 'good cause' need only be shown for information which is not 'by nature confidential' (but for which confidential treatment is nonetheless sought). It is presumably for this reason that, in rejecting Mexico's claim, Guatemala argues that the relevant information was 'clearly of a confidential nature'. While we have some sympathy for Guatemala's argument, given the logical appeal of such an interpretation of Article 6.5, we note that Article 6.5 is not drafted in a way which suggests this approach. Instead, the requirement to show 'good cause' appears to apply for both types of confidential information, such that even information 'which is by nature confidential' cannot be afforded confidential treatment unless 'good cause' has been shown.(341)
In our view, the requisite 'good cause' must be shown by the interested party submitting the confidential information at issue. We do not consider that Article 6.5 envisages 'good cause' being shown by the investigating authority itself, since - with respect to information that is not 'by nature confidential' in particular - the investigating authority may not even know whether or why there is cause to provide confidential treatment."(342) (i) Purpose of non-confidential summaries 287. In Argentina - Ceramic Tiles, the Panel, while examining whether the authorities were allowed to based themselves on confidential information in their determination (see paragraph 343 below), considered that the purpose of the non-confidential summaries is to inform the interested parties so as to enable them to defend their interests: "Consistent with our view that authorities may rely on confidential information in making their determination, the purpose of the non-confidential summaries provided for in Article 6.5.1 is to inform the interested parties so as to enable them to defend their interests. We do not consider that the purpose of the non-confidential summaries is to enable the authorities to arrive at public conclusions, as Argentina contends. [footnote omitted] Thus, an authority would not in our view be justified in rejecting the exporters' responses simply because the information in the non-confidential summaries was not sufficient to allow the calculation of normal value, export price, and the margin of dumping."(343) (ii) Requirement to provide reasons for confidentiality 288. In Guatemala - Cement II, Mexico argued that Guatemala's authority violated Article 6.5.2 by failing to require the domestic producer to provide reasons why certain information could not be made public. The Panel agreed with this argument, stating: "Although Article 6.5.1 does not explicitly provide that 'the authorities shall require' interested parties to provide a statement of the reasons why summarization is not possible, any meaningful interpretation of Article 6.5.1 must impose such an obligation on the investigating authorities. It is certainly not possible to conclude that the obligation concerning the need to provide a statement of reasons is an obligation imposed exclusively on the interested party submitting the information, and not the investigating authority, since the AD Agreement is not addressed at interested parties. The AD Agreement imposes obligations on WTO Members and their investigating authorities. Accordingly, in our view Article 6.5.1 imposes an obligation on investigating authorities to require parties that indicate that information is not susceptible of summary to provide a statement of the reasons why summarization is not possible. ... In making this finding, we attach no importance whatsoever to Guatemala's assertions concerning the alleged treatment of similar information by other WTO Members. Whether or not other WTO Members act in conformity with Article 6.5.1 is of no relevance to the present dispute, which concerns the issue of whether or not the Ministry acted in conformity with that provision."(344) 289. The Panel then considered it unnecessary to address Mexico's claim under Articles 6.1, 6.2, 6.4, 6.5 and 6.5.2 on the same factual ground, because "the need for a statement of the reasons why the information is not susceptible of summary is specifically addressed by Article 6.5.1."(345) 290. In Guatemala - Cement II, the Panel rejected Mexico's claim that Guatemala's authority had violated Article 6.5.2 by agreeing to provide confidential treatment for certain information submitted during the verification visit at the domestic producer's premises. Mexico's claim of violation was based on the domestic producer's alleged failure to justify its request for confidential treatment. The Panel held: "Article 6.5.2 does not require any justification to be provided by the interested party requesting confidential treatment. If any such obligation exists, it derives from Article 6.5, not 6.5.2. Mexico has not based this claim on Article 6.5. Article 6.5.2 speaks only to events when 'the authorities find that a request for confidentiality is not warranted'."(346) (d) Relationship with other paragraphs in Article 6 291. The Panel on Guatemala - Cement II addressed Mexico's claims of violations of Articles 6.1, 6.2, 6.4, 6.5, 6.5.1 and 6.5.2, all of which were based on the same factual foundation. See paragraph 289 above. 292. In Guatemala - Cement II, the Panel considered it unnecessary to examine Article 6.2 claims because it had already found violations of Article 6.1.2, 6.1.3, 6.4 and 6.5.1 on the same sets of facts. See paragraph 274 above. 293. The Panel, in Argentina - Ceramic Tiles, referred to Articles 6.5 and 6.5.1 of the Anti-Dumping Agreement as support of its conclusion that an investigating authority may rely on confidential information in making determinations while respecting its obligation to protect the confidentiality of that information. See paragraph 343 below. (a) "satisfy themselves as to the accuracy of the information" 294. In support of its opinion that the text of Article 6.6 does not explicitly require verification of all information relied upon, the Panel on US - DRAMS stated: "Article 6.6 simply requires Members to 'satisfy themselves as to the accuracy of the information'. In our view, Members could 'satisfy themselves as to the accuracy of the information' in a number of ways without proceeding to some type of formal verification, including for example reliance on the reputation of the original source of the information. Indeed, we consider that anti-dumping investigations would become totally unmanageable if investigating authorities were required to actually verify the accuracy of all information relied on.(347)"(348) 295. In Guatemala - Cement II, addressing Mexico's claim under Article 6.6, the Panel explained the nature of the obligation under this Article: "In our view, it is important to distinguish between the accuracy of information, and the substantive relevance of such information. Once an investigating authority has determined what information is of substantive relevance to its investigation, Article 6.6 requires the investigating authority to satisfy itself (except when 'best information available' is used) that the substantively relevant information is accurate. Thus, Article 6.6 applies once an initial determination has been made that the information is of substantive relevance to the investigation. Article 6.6 provides no guidance in respect of the initial determination of whether information is, or is not, of substantive relevance to the investigation."(349) (b) Burden on the investigating authorities 296. In Argentina - Ceramic Tiles, the Panel confirmed that "the burden of satisfying oneself of the accuracy of the information" is "on the investigating authority": "Article 6.6 of the AD Agreement thus places the burden of satisfying oneself of the accuracy of the information on the investigating authority. As a general rule, the exporters are therefore entitled to assume that unless otherwise indicated they are not required to also automatically and in all cases submit evidence to demonstrate the accuracy of the information they are supplying. ...(350) We believe that if no on-the-spot verification is going to take place but certain documents are required for verification purposes, the authorities should in a similar manner inform the exporters of the nature of the information for which they require such evidence and of any further documents they require."(351) (a) Relationship between Article 6.7 and Annex I 297. As regards the relationship between Article 6.7 and Annex I, in Egypt - Steel Rebar, the Panel came to the same conclusion as with the relationship between Article 6.8 and Annex II (see paragraph 307 below), i.e. that Annex I is incorporated by reference into Article 6.7: "Concerning the relationship of Annex I to Article 6.7, we come to the same conclusion as in respect of Annex II and Article 6.8.(352) In particular, we note Article 6.7's explicit cross-reference to Annex I: '[T]he procedures described in Annex I shall apply to investigations carried out in the territory of other Members'. This language thus establishes that the specific parameters that must be respected in carrying out foreign verifications in compliance with Article 6.7 are found in Annex I."(353) (b) On-the-spot verifications as an option 298. The Panel on Argentina - Ceramic Tiles, indicated in a footnote that, although common practice, there is no requirement to carry out on-the-spot verifications: "There does not exist a requirement in the Agreement to carry out investigations in the territory of other Members for verification purposes. Article 6.7 of the AD Agreement merely provides for this possibility. While such on-site verification visits are common practice, the Agreement does not say that this is the only way or even the preferred way for an investigating authority to fulfil its obligation under Article 6.6 to satisfy itself as to the accuracy of the information supplied by interested parties on which its findings are based."(354) (c) Information verifiable on-the-spot 299. In Guatemala - Cement II, Mexico argued Guatemala's authority had acted inconsistently with Article 6.7 and paragraph 7 of Annex I by seeking to verify certain information that was not submitted by the Mexican producer subject to the investigation because it pertained to a period of investigation newly added during the course of the investigation. The Panel rejected this argument: "Although Annex I(7) provides that the 'main purpose' of the verification visit is to verify information already provided, or to obtain further details in respect of that information, it also provides that an investigating authority may 'prior to the visit ... advise the firms concerned ... of any further information which needs to be provided'. Since there would be little point in advising a firm of 'further information ... to be provided' in advance of the verification visit if the investigating authority were precluded from examining that 'further information' during the visit, we consider that the phrase 'further information ... to be provided' refers to information to be provided during the course of the verification. Mexico's view that an investigating authority may only verify information submitted prior to the verification visit is not consistent with this interpretation of Annex I(7).
In response to a question from the Panel, Mexico argues that the phrase 'any further information ... to be provided' refers to accounting information to be provided by the verified company during verification in order to substantiate the information previously supplied to the investigating authority. We note, however, that the phrase does not read 'any further accounting information ... to be provided'. The term 'information' is not qualified in any way by the express wording of Annex I(7), and there are no elements in the context which plead for such qualification.
Furthermore, we note that the last phrase of Annex I(7) refers to on-the-spot requests for further details to be provided in light of 'information obtained'. Thus, although it should be 'standard practice' to advise firms of additional information to be provided in advance of the verification visit, this does not preclude an investigating authority from requesting 'further details' during the course of the investigation, 'in light of the information obtained'. In our view, the reference to 'information obtained' cannot mean the information obtained from the exporter in advance of the verification visit, since (consistent with 'standard practice') requests regarding that information should be made prior to the visit, and not during the course of the investigation. Accordingly, the 'information obtained' must refer to information obtained during the course of the verification visit, since it is only information obtained during the course of a verification visit which may prompt a request for further details during the course of the verification visit. The last phrase of Annex I(7) therefore confirms our understanding that an investigating authority may seek new information during the course of the verification visit."(355) (d) Participation of non-governmental experts in the on-the-spot verification 300. In Guatemala - Cement II, Mexico claimed that a verification visit by Guatemala's authority to the Mexican producer's site was inconsistent with Article 6.7 and Annex I(2), (3), (7) and (8) because the authority included non-governmental experts with an alleged conflict of interest in its verification team. The Panel rejected this claim because none of the cited provisions explicitly prohibits such conduct.(356) However, the Panel found that given the participation of non-governmental experts with an alleged conflict of interest in Guatemala's verification team, the investigating authority could not argue that the Mexican producer's refusal to allow the verification meant that the producer was "significantly impeding" the investigation within the meaning of Article 6.8. See also paragraph 337 below. 301. In Guatemala - Cement II, the Panel considered that under paragraph 2 of Annex I, a national authority is required to inform the government of exporting Members of its intention to include non-governmental experts in the verification team for visit to foreign producers/exporters.(357) With respect to the burden of proof on this point, referring to a finding of the Panel on US - Section 301 Trade Act(358), the Panel stated: "In principle, Mexico bears the burden to prove that the Ministry failed to inform it of the inclusion of non-governmental experts in the Ministry's verification team. As a practical matter, this burden is impossible for Mexico to meet: one simply cannot prove that one was not informed of something. Although Mexico cannot establish definitively that it was not informed by the Ministry of the Ministry's intention to include non-governmental experts in its verification team, there is sufficient evidence before us to suggest strongly that it was not so informed. Although an investigating authority should normally be able to demonstrate that it complied with a formal requirement to inform the authorities of another Member, Guatemala has failed to rebut the strong suggestion that it failed to do so. In fact, Guatemala has simply referred to the very letter which suggests strongly that Mexico was not notified by Guatemala.(359) In these circumstances, we do not consider that the evidence and arguments of the parties 'remain in equipoise'. Accordingly, we find that the Ministry violated paragraph 2 of Annex I of the AD Agreement by failing to inform the Government of Mexico of the inclusion of non-governmental experts in the Ministry's verification team.(360)"(361) 302. In Guatemala - Cement II, the Panel disagreed with Mexico's argument that under paragraph 2 of Annex I, Guatemala's authority should have informed the Government of Mexico not only of the Guatemalan authority's intention to include non-governmental experts in its verification team, but also of the exceptional circumstances justifying the participation of these experts in the investigating team: "Whereas paragraph 2 of Annex I requires the exporting Member to be 'so informed', the logical conclusion from the structure of that provision is that the exporting Member need only be informed of the intention to include non-governmental experts in the investigating team. If the intention of the drafters had been to impose an obligation on authorities to inform exporting Members of the 'exceptional circumstances' at issue, presumably the first sentence of Annex I(2) would have been drafted in a manner that clearly provided for that obligation."(362) 7. Article 6.8 and Annex II: "facts available" (i) Function of Article 6.8 and Annex II 303. In US - Hot-Rolled Steel, the Panel indicated that "[o]ne of the principle elements governing anti-dumping investigations that emerges from the whole of the AD Agreement is the goal of ensuring objective decision-making based on facts. Article 6.8 and Annex II advance that goal by ensuring that even where the investigating authority is unable to obtain the "first-best" information as the basis of its decision, it will nonetheless base its decision on facts, albeit perhaps "second-best" facts."(363) 304. In Egypt - Steel Rebar, the Panel stated that Article 6.8 "addresses the dilemma in which investigating authorities might find themselves - they must base their calculations of normal value and export price on some data, but the necessary information may not have been submitted". The Panel indicated that "Article 6.8 identifies the circumstances in which an [investigating authority] may overcome this lack of necessary information by relying on facts which are otherwise available to the investigating authority."(364) The Panel also concluded that it is clear that the provisions of Annex II that address what information can be used as facts available "have to do with ensuring the reliability of the information used by the investigating authority" and referred to the negotiating history of Annex II as confirmation of its conclusions: "It is clear that the provisions of Annex II that address what information can be used as facts available (which, along with the other provisions of Annex II, 'shall be observed') have to do with ensuring the reliability of the information used by the investigating authority. This view may further be confirmed, as foreseen in Article 32 of the Vienna Convention on the Law of Treaties(365), by the negotiating history of Annex II. In particular, this Annex was originally developed by the Tokyo Round Committee on Anti-Dumping Practices, which adopted it on 8 May 1984 as a 'Recommendation Concerning Best Information Available in Terms of Article 6:8'.(366) During the Uruguay Round negotiations, the substantive provisions of the original recommendation were incorporated with almost no changes as Annex II to the AD Agreement. A preambular paragraph to the original recommendation, which was not retained when Annex II was created, in our view, provides some insight into the intentions of the drafters concerning its application. This paragraph reads as follows:
'The authorities of the importing country have a right and an obligation to make decisions on the basis of the best information available during the investigation from whatever source, even where evidence has been supplied by the interested party. The Anti-Dumping Code recognizes the right of the importing country to base findings on the facts available when any interested party refuses access to or does not provide the necessary information within a reasonable period, or significantly impedes the investigation (Article 6:8). However, all reasonable steps should be taken by the authorities of the importing countries to avoid the use of information from unreliable sources.'
To us, this preambular language conveys that the full package of provisions in the recommendation, applicable in implementing Article 6:8 of the Tokyo Round Anti-Dumping Code, was intended, inter alia, to ensure that in using facts available (i.e, in applying Article 6:8), information from unreliable sources would be avoided."(367) (ii) Relationship between Article 6.8 and Annex II 305. In US - Hot-Rolled Steel, the Appellate Body ruled that Annex II "is incorporated by reference into Article 6.8".(368) 306. In US - Steel Plate, the Panel explained the relationship between Article 6.8 and Annex II of the Anti-Dumping Agreement and concluded that the provisions of Annex II inform the investigating authority's evaluation whether necessary information has been provided and whether resort to facts available with respect to that element of information is justified: "In our view, the failure to provide necessary information, that is information which is requested by the investigating authority and which is relevant to the determination to be made,(369) triggers the authority granted by Article 6.8 to make determinations on the basis of facts available. The provisions of Annex II, which set out conditions on the use of facts available, inform the question of whether necessary information has not been provided, by establishing considerations for when information submitted must be used by the investigating authority. Thus, the provisions of Annex II inform an investigating authority's evaluation whether necessary information, in the sense of Article 6.8, has been provided, and whether resort to facts available with respect to that element of information is justified. If, after considering the provisions of Annex II, and in particular the criteria of paragraph 3, the conclusion is that information provided satisfies the conditions therein, the investigating authority must use that information in its determinations, and may not resort to facts available with respect to that element of information. That is, the investigating authority may not conclude, with respect to that information, that "necessary information" has not been provided."(370) 307. In Egypt - Steel Rebar, the Panel considered that the cross-reference in Article 6.8 to Annex II, "[t]he provisions of Annex II shall be observed in the application of this paragraph" indicates that Annex II applies to Article 6.8 in its entirety: "...we find significant the specific wording of that cross-reference: '[t]he provisions of Annex II shall be observed in the application of this paragraph' (emphasis added). In other words, the reference to 'this paragraph' indicates that Annex II applies to Article 6.8 in its entirety, and thus contains certain substantive parameters for the application of the individual elements of that article. The phrase 'shall be observed' indicates that these parameters, which address both when facts available can be used, and what information can be used as facts available, must be followed.
Our view of the relationship of Annex II to Article 6.8 is consistent with that of the Appellate Body in United States - Hot-Rolled Steel. In that case, the Appellate Body stated that Annex II is 'incorporated by reference' into Article 6.8,(371) i.e., that it forms part of Article 6.8..."(372) (iii) Mandatory nature of Annex II provisions 308. In US - Steel Plate, the Panel considered that the wording of Article 6.8 reference to Annex II provisions establishes that the provisions of Annex II are mandatory: "We note that there is disagreement between the parties as to whether the provisions of Annex II, which are largely phrased in the conditional tense ('should') are mandatory. We consider that Article 6.8 itself answers this question. Article 6.8. explicitly provides that 'The provisions of Annex II shall be observed in the application of this paragraph' (emphasis added). In our view, the use of the word 'shall' in this context establishes that the provisions of Annex II are mandatory. Indeed, this would seem a necessary conclusion. The alternative reading would mean that investigating authorities are required ('shall') to apply provisions which are not themselves required, an interpretation that makes no sense.(373) Moreover, the provisions of Annex II, while worded in the conditional, give specific guidance to investigating authorities regarding certain aspects of their determinations which, without more, clearly establish the operational requirements. Thus, we consider that that the provisions of Annex II are mandatory, not because of the wording of those provisions themselves, but because of the obligation to observe them set out in Article 6.8.(374)"(375) (b) Authorities' duty to "specify in detail the information required from an interested party" 309. In Guatemala - Cement II, Mexico pointed out that paragraph 1 of Annex II requires "[a]s soon as possible after the initiation of the investigation" that the investigating authorities specify in detail the information required from interested parties. Mexico argued that, in the light of this requirement, investigating authorities are effectively precluded from extending the period of investigation during the course of the investigation. The Panel disagreed with Mexico's argument, agreeing with Guatemala that there may be a number of circumstances in which the investigating authority will need updated information during the course of its investigation: "We are not persuaded that paragraph 1 of Annex II, or any other provision of the AD Agreement, prevents an investigating authority from extending the POI during the course of an investigation. We agree with Guatemala that there may be a number of circumstances in which the investigating authority will need updated information during the course of its investigation. In this regard, we would also note that the extension of a POI may in certain cases lead to negative findings of dumping and/or injury, to the benefit of exporters. The fact that the POI may be extended after the imposition of provisional measures is not necessarily problematic, since even without any extension of the POI there is no guarantee that the factual basis for the preliminary determination will be the same as that of the final determination. The factual basis may change, for example, if a preliminary affirmative determination of injury is made on the basis of data provided by the complainant, and if some (or all) of that data are shown to be erroneous during verification of the domestic industry. Indeed, in such cases differences in the factual bases of the preliminary and final determinations would normally be necessary in order to preserve the integrity of the investigation. Although Annex II(1) provides that interested parties should be informed of the information required by the investigating authority 'as soon as possible after the initiation of the investigation', this does not mean that information concerning a particular period of time may only be required if the request for that information is made immediately after initiation. We interpret the first sentence of paragraph 1 of Annex II to mean that any request for specific information should be communicated to interested parties 'as soon as possible'. Since Mexico has not advanced any argument that it was possible for the Ministry to have requested information concerning the extended POI before it actually did so, we reject Mexico's claim that the Ministry's extension of the POI violated Guatemala's obligations under paragraph 1 of Annex II of the AD Agreement."(376) 310. In Egypt - Steel Rebar, the Panel indicated that paragraph 1 of Annex II sets forth rules to be followed by the authority, in particular that it must specify the required information "in detail", "as soon as possible after the initiation of the investigation", and that it also must specify "the manner in which that information should be structured by the interested party in its response". Thus, in the Panel's view, "there is a clear burden on the authority to be both prompt and precise in identifying the information that it needs from a given interested party".(377) 311. In Egypt - Steel Rebar, the investigating authorities had requested certain supplemental cost information as well as explanations concerning certain of the cost information originally submitted in response to the questionnaires. The Panel found "no basis on which to conclude that an investigating authority is precluded by paragraph 1 of Annex II or by any other provision from seeking additional information during the course of an investigation".(378) (ii) Failure to specify in detail the information required 312. In Argentina - Ceramic Tiles, the Panel, when analysing whether the investigating authorities were entitled to resort to facts available because the alleged failure on a party to provide sufficient supporting documentation, considered that "a basic obligation concerning the evidence-gathering process is for the investigating authorities to indicate to the interested parties the information they require for their determination", as set forth in Article 6.1. The Panel concluded that, "independently of the purpose for which the information or documentation is requested, an investigating authority may not fault an interested party for not providing information it was not clearly requested to submit."(379) The Panel further stated that: "In our view, the inclusion, in an Annex relating specifically to the use of best information available under Article 6.8, of a requirement to specify in detail the information required, strongly implies that investigating authorities are not entitled to resort to best information available in a situation where a party does not provide certain information if the authorities failed to specify in detail the information which was required. ... ... we conclude that an investigating authority may not disregard information and resort to facts available under Article 6.8 on the grounds that a party has failed to provide sufficient supporting documentation in respect of information provided unless the investigating authority has clearly requested that the party provide such supporting documentation."(380) (c) When to resort to facts available 313. In Argentina - Ceramic Tiles, the Panel enunciated the conditions under which the investigating authorities may resort to facts available: "It is clear to us, and both parties agree, that an investigating authority may disregard the primary source information and resort to the facts available only under the specific conditions of Article 6.8 and Annex II of the AD Agreement. (footnote omitted) Thus, an investigating authority may resort to the facts available only where a party: (i) refuses access to necessary information; (ii) otherwise fails to provide necessary information within a reasonable period; or (iii) significantly impedes the investigation."(381) 314. In Egypt - Steel Rebar, the Panel explained that paragraphs 3 and 5 of Annex II "together ... provide key elements of the substantive basis" for the investigating authority to determine whether it can resort to facts available. "These two paragraphs together thus provide key elements of the substantive basis for an IA to determine whether it can justify rejecting respondents' information and resorting to facts available in respect of some item, or items, of information, or whether instead, it must rely on the information submitted by respondents "when determinations are made". Some of the elements referred to in these paragraphs have to do with the inherent quality of the information itself, and some have to do with the nature and quality of the interested party's participation in the IA's information-gathering process. Where all of the mentioned elements are satisfied, resort to facts available is not justified under Article 6.8."(382) 315. In Egypt - Steel Rebar, the Panel reiterated that paragraph 3 of Annex II applies to an investigating authority's decision to use "facts available" in respect of certain elements of information and stressed that "it does not have to do with determining which particular facts available will be used for those elements of information once that decision has been made".(383) (d) When not to resort to facts available 316. In US - Hot-Rolled Steel, the Appellate Body concluded that, according to paragraph 3 of Annex II, investigating authorities are directed to use information if three, and, in some circumstances, four, conditions are satisfied. These conditions are that the information is (i) verifiable, (ii) appropriately submitted so that it can be used in the investigation without undue difficulties, (iii) supplied in a timely fashion, and, where applicable, (iv) supplied in a medium or computer language requested by the authorities. The Appellate Body concluded that, in its view, "if these conditions are met, investigating authorities are not entitled to reject information submitted, when making a determination".(384) 317. In US - Steel Plate, the Panel analysed the extent of the limitation that paragraph 3 of Annex II puts on investigating authorities to reject information submitted and instead resort to facts available. The Panel concluded that the "Members [do not] have an unlimited right to reject all information submitted in a case where some necessary information is not provided": "Paragraph 3 states that all information provided that satisfies the criteria set out in that paragraph is to be taken into account when determinations are made. We consider in this regard that the use of the final connector 'and' in the list of criteria makes it clear to us that an investigating authority, when making determinations, is only required to take into account information which satisfies all of the applicable criteria of paragraph 3.(385) In order to assess the limitations this provision puts on the right of an investigating authority to reject information submitted and instead resort to facts available,(386) we look to the ordinary meaning of the text, in its context and in light of its object and purpose. Paragraph 3 starts with the phrase 'all information'. 'All' means 'the whole amount, quantity, extent or compass of' and 'the entire number of, the individual constituents of, without exception...every'.(387) To 'take into account' is defined as 'take into consideration, notice'.(388) Thus, a straightforward reading of paragraph 3 leads to the understanding that it requires that every element of information submitted which satisfies the criteria set out therein must be considered by the investigating authority when making its determinations. If information must be considered under paragraph 3, an investigating authority may not conclude, with respect to that information, that necessary information has not been provided, in the sense of Article 6.8. Consequently, we do not accept the United States' position that 'information' in Article 6.8 means all information, such that Members have an unlimited right to reject all information submitted in a case where some necessary information is not provided.
Of course, we do not mean to suggest that the investigating authority must, in every case, scrutinize each item of information submitted in order explicitly to determine whether it satisfies the criteria of paragraph 3 of Annex II before it uses it in its determination. Clearly, if the authority is satisfied with the information submitted, and concludes that an interested party has fully complied with the requests for information, there is no need to undertake any separate analysis under paragraph 3 of Annex II. However, to the extent the authority is not satisfied with the information submitted, it must examine those elements of information with which it is not satisfied, in light of the criteria of paragraph 3."(389) 318. In US - Steel Plate, the Panel further qualified its conclusions by stating that the investigating authorities were not obliged to judge each category of information separately. The Panel however indicated that the various elements, or categories, of information necessary to an anti-dumping determination are often interconnected, and a failure to provide certain information may have ramifications beyond the category into which it falls: '... we also do not accept India's view that each category of information submitted must be judged separately. India recognizes that there may be cases where a piece of information submitted which otherwise satisfies paragraph 3 is so minor an element of the information necessary to make determinations that it cannot be used in the investigation without undue difficulties, and that it is possible that so much of the information submitted in a particular 'category' fails to satisfy the criteria of paragraph 3, for instance, cannot be verified, that the entire category of information cannot be used without undue difficulty.[footnote omitted]
We consider in addition that the various elements, or categories, of information necessary to an anti-dumping determination are often interconnected, and a failure to provide certain information may have ramifications beyond the category into which it falls. For instance, a failure to provide cost of production information would leave the investigating authority unable to determine whether sales were in the ordinary course of trade, and further unable to calculate a constructed normal value. Thus, a failure to provide cost of production information might justify resort to facts available with respect to elements of the determination beyond just the calculation of cost of production. Moreover, without considering any particular 'categories' of information, it seems clear to us that if certain information is not submitted, and facts available are used instead, this may affect the relative ease or difficulty of using the information that has been submitted and which might, in isolation, satisfy the requirements of paragraph 3 of Annex II. However, to accept that view does not necessarily require the further conclusion, espoused by the United States, that in a case in which any 'essential' element of requested information is not provided in a timely fashion, the investigating authority may disregard all the information submitted and base its determination exclusively on facts available. To conclude otherwise would fly in the face of one of the fundamental goals of the AD Agreement as a whole, that of ensuring that objective determinations are made, based to the extent possible on facts.(390)'
... In a case in which some information is rejected and facts available used instead, the ... question may arise whether the fact that some information submitted was rejected has consequences for the remainder of the information submitted. In particular, the investigating authority may need to consider whether the fact that some information is rejected results in other information failing to satisfy the criteria of paragraph 3. In this context, we consider to be critical the question of whether information which itself may satisfy the criteria of paragraph 3 can be used without undue difficulties in light of its relationship to rejected information.(391)"(392) 319. In US - Steel Plate, the Panel faced the question of whether a conclusion that some information submitted fails to satisfy the criteria of paragraph 3 of Annex II, and thus may be rejected, can in any case justify a decision to reject other information submitted which, in isolation, satisfies that criteria: "... The more difficult question, presented in this dispute, is whether a conclusion that some information submitted fails to satisfy the criteria of paragraph 3, and thus may be rejected, can in any case justify a decision to reject other information submitted which, if considered in isolation, would satisfy the criteria of paragraph 3. We consider that the answer to this question is yes, in some cases, but that the result in any given case will depend on the specific facts and circumstances of the investigation at hand."(393) (e) Information which is "verifiable" 320. In Guatemala - Cement II , the Panel indicated that recourse to "best information available" should not be had when information is "verifiable", and when "it can be used in the investigation without undue difficulties": "Furthermore, Annex II(3) provides that all information which is 'verifiable', and 'appropriately submitted so that it can be used in the investigation without undue difficulties', should be taken into account by the investigating authority when determinations are made. In other words, 'best information available' should not be used when information is 'verifiable', and when 'it can be used in the investigation without undue difficulties'. In our view, the information submitted by Cruz Azul was 'verifiable'. The fact that it was not actually verified as a result of the Ministry's response to reasonable concerns raised by Cruz Azul does not change this. In addition, there is nothing in the Ministry's final determination to suggest that the information submitted by Cruz Azul could not be used in the investigation 'without undue difficulties'. Since the information was 'verifiable', and since the Ministry did not demonstrate that it could not be used 'without undue difficulties', Annex II(3) provides strong contextual support for the above conclusion that the Ministry violated Article 6.8 in using the 'best information available' as a result of the cancelled verification visit." (ii) When is information verifiable? 321. In US - Steel Plate, the Panel considered that the information is "verifiable" when "the accuracy and reliability of the information can be assessed by an objective process of examination" and that this process does not require an on-the-spot verification. In a footnote to its report, the Panel stated: "While the parties have addressed this concept in terms of the 'on the spot' verification process provided for in Article 6.7 and Annex I of the Agreement, we note that such verification is not in fact required by the AD Agreement. Thus, the use of the term in paragraph 3 of Annex II is somewhat unclear. However, Article 6.6 establishes a general requirement that, unless they are proceeding under Article 6.8 by relying on facts available, the authorities shall 'satisfy themselves as to the accuracy supplied by interested parties upon which their findings are based'. 'Verify' is defined as 'ascertain or test the accuracy or correctness of, esp. by examination of by comparison of data etc; check or establish by investigation'. New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993. Thus, even in the absence of on-the-spot verification, the authorities are, in a more general sense of assessing the accuracy of information relied upon, required to base their decisions on information which is 'verified'."(394) (iii) Relevance of good faith cooperation 322. In Egypt - Steel Rebar, the Panel considered that, pursuant to paragraphs 3 and 5 of Annex II, if read together(395), "information that is of a very high quality, although not perfect, must not be considered unverifiable solely because of its minor flaws, so long as the submitter has acted to the best of its ability. That is, so long as the level of good faith cooperation by the interested party is high, slightly imperfect information should not be dismissed as unverifiable."(396) (f) Information "appropriately submitted so that it can be used in the investigation without undue difficulties" 323. In US - Steel Plate, the Panel considered that the question of whether information submitted can be used in the investigation "without undue difficulties" is a highly fact-specific issue. It thus concluded that the investigating authority must explain, as required by paragraph 6 of Annex II, the basis of a conclusion that information which is verifiable and timely submitted cannot be used in the investigation without undue difficulties: "The second criterion of paragraph 3 requires that the information be 'appropriately submitted so that it can be used in the investigation without undue difficulties.' In our view, 'appropriately' in this context has the sense of 'suitable for, proper, fitting'.(397) That is, the information is suitable for the use of the investigating authority in terms of its fo |
