DS: Ukraine — Anti-Dumping Measures on Ammonium Nitrate

The dispute concerned anti-dumping measures maintained by Ukraine on imports of ammonium nitrate from Russia. The Ukrainian authorities had originally imposed anti-dumping measures on these imports following an anti-dumping investigation, which they extended pursuant to an interim and expiry review determination. Russia made substantive and procedural claims challenging the Ukrainian authorities' review determinations, while also challenging some aspects of the determinations made in the original investigation.

With respect to the substantive claims, Russia challenged the Ukrainian authorities' dumping and likelihood-of-dumping determinations, injury-related aspects of their determination, and their decision to include a Russian producer, that allegedly had a de minimis dumping margin in the original investigation phase, within the scope of the review determination.

Regarding the dumping and likelihood-of-dumping determinations, Russia contended that the Ukrainian authorities violated Articles 2.2.1.1 and 2.2 of the Anti-Dumping Agreement by rejecting the prices paid by the investigated Russian producers for gas used to produce ammonium nitrate. Russia also challenged under the same provisions the Ukrainian authorities' decision to replace these prices with a surrogate gas price that Russia argued did not reflect the cost of gas in Russia. Ukraine argued that its authorities were justified in rejecting these producers' gas prices because they were distorted due to government control of gas prices, and that its authorities made appropriate adjustments in selecting the surrogate price of gas to ensure that it reflected costs in Russia. The Panel found that the Ukrainian authorities violated Article 2.2.1.1 in rejecting the gas prices of Russian producers as they did not provide an adequate basis to justify this decision. The Panel found that the Ukrainian authorities violated Article 2.2 because they did not make sufficient adjustments to ensure that the surrogate gas price reflected costs in Russia. The Panel also upheld a claim by Russia under Article 2.2.1 of the Anti-Dumping Agreement alleging that inconsistencies with cost calculations under Article 2.2.1.1 distorted the ordinary-course-of-trade test conducted by the Ukrainian authorities under Article 2.2.1. Further, the Panel found that by relying on dumping margins calculated inconsistently with Articles 2.2, 2.2.1 and 2.2.1.1 to make their likelihood-of-dumping determinations, the Ukrainian authorities also violated Articles 11.2 and 11.3 of the Anti-Dumping Agreement.

With respect to injury-related aspects of the Ukrainian authorities' review determination, Russia had claimed in its panel request that these authorities violated Articles 11.1, 11.2 and 11.3 of the Anti-Dumping Agreement because they determined and relied on injury not established in accordance with certain provisions of Article 3 of the Anti-Dumping Agreement. However, the Panel concluded that investigating authorities are not required by Article 11 to make any determination of injury under Article 3, and the Ukrainian authorities did not make such a determination. Therefore, the Panel rejected Russia's Article 11 claims which it found to be dependent on a finding that the Ukrainian authorities made a determination of injury under Article 3.

Further, Russia claimed that the Ukrainian authorities violated Article 5.8 of the Anti-Dumping Agreement because they failed to exclude from the scope of the original anti-dumping measures a Russian producer that was found to have a de minimis dumping margin in the original investigation phase, and imposed a 0% anti-dumping duty on it instead. Russia also claimed that these authorities violated Articles 5.8, 11.1, 11.2 and 11.3 of the Anti-Dumping Agreement by including this producer in the scope of the review determination, and then imposing anti-dumping duties against it following this determination. Ukraine disputed Russia's assertion that this producer was found to have had a de minimis dumping margin in the original investigation, contending that while the Ukrainian courts found no dumping by this exporter, the investigating authorities themselves did not calculate a de minimis dumping margin for this producer in the original investigation. The Panel concluded that, as a factual matter, this producer had a de minimis margin in the original investigation phase, and on this basis upheld Russia's claims under Article 5.8, while exercising judicial economy on those under Articles 11.1, 11.2 and 11.3.

Russia also raised procedural claims under Articles 6.2 and 6.9, Article 6.8 and paragraphs 3, 5 and 6 of Annex II, and Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement. The Panel upheld most of Russia's claims under Article 6.9 while rejecting one set of claims under Articles 6.2 and 6.9. The Panel rejected Russia's claims under Article 6.8 and paragraphs 3, 5 and 6 of Annex II, and found the claims under Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement to be outside its terms of reference.

The Panel also rejected Russia's claims under Articles 2.1 of the Anti-Dumping Agreement and Article VI of the GATT 1994, while exercising judicial economy on a number of other claims.

Articles 6.2, 7.1, and 11 of the DSU: the panel's terms of reference

The Appellate Body found that the Panel did not err under Article 6.2 of the DSU in finding that certain decisions by Ukrainian investigating authorities relating to the original investigation phase (2008 amended decision and 2010 amendment) were identified as specific measures at issue in Russia's panel request, and thus fell within the Panel's terms of reference. The language in Russia's panel request, including express references in footnotes, referred to the 2008 amended decision and the 2010 amendment and sufficiently linked those measures to Russia's claim under Article 5.8 of the Anti-Dumping Agreement.

Further, the Appellate Body found that the Panel did not err under Articles 7.1 and 11 of the DSU by ruling on Russia's claim under Article 5.8 of the Anti-Dumping Agreement as it relates to the 2008 amended decision and the 2010 amendment. The Appellate Body noted that: (i) it had upheld the Panel's finding that the 2008 amended decision and the 2010 amendment were identified as specific measures at issue in Russia's panel request; (ii) Ukraine had not appealed the Panel's finding that Russia had provided a brief summary of the legal basis for its claim under Article 5.8 of the Anti-Dumping Agreement as it relates to those measures; and (iii) Ukraine had not advanced other grounds in support of its challenge under Articles 7.1 and 11 of the DSU.

Article 11 of the DSU: objective assessment of the matter

The Appellate Body found that the Panel had objectively assessed the matter before it in accordance with Article 11 of the DSU. It therefore upheld the Panel's findings that Ukraine acted inconsistently with Article 5.8 of the Anti-Dumping Agreement in relation to the 2008 amended decision, the 2010 amendment, and the decision following subsequent interim and expiry reviews (2014 extension decision). The Appellate Body considered that the Panel had provided a reasoned and coherent explanation in concluding that the combined effect of Ukrainian court judgments and their implementation by the 2010 amendment was that the dumping margin for EuroChem in the original investigation phase was de minimis. This in turn triggered Ukraine's obligation under Article 5.8 to exclude EuroChem from the scope of the anti-dumping investigation. Notwithstanding Ukraine's arguments about the authority of Ukrainian courts and investigating authorities to calculate dumping margins under Ukrainian law, the effect of the Panel's reasoning was that the Ukrainian court judgments, as implemented by Ukrainian investigating authorities, invalidated the basis at that point for imposing a dumping margin on EuroChem.

Article 2.2.1.1 of the Anti-Dumping Agreement: whether records reasonably reflect the costs associated with the production and sale of the product under consideration

The first sentence of Article 2.2.1.1 directs the investigating authority normally to base its calculations of costs on the records of the exporter or producer under investigation, provided that such records are in accordance with the generally accepted accounting principles of the exporting country (first condition), and that they “reasonably reflect the costs associated with the production and sale of the product under consideration” (second condition). Given the reference to “normally”, the Appellate Body did not exclude that there might be circumstances other than those in these two conditions in which the obligation to base the calculation of costs on the records does not apply. However, the Appellate Body did not consider it necessary to resolve the dispute to consider further whether such circumstances existed and what they might be. With respect to the second condition, the Appellate Body considered that it is the “records” of the individual exporter or producer under investigation that are subject to the condition to “reasonably reflect” the “costs associated with the production and sale of the product under consideration”. There is no standard of reasonableness that governs the meaning of “costs” itself, which would allow investigating authorities to disregard domestic input prices when such prices are lower than other prices internationally.

The Appellate Body upheld the Panel's finding that Ukraine acted inconsistently with Article 2.2.1.1 because Ukrainian investigating authorities did not provide an adequate basis under the second condition in the first sentence of that provision to reject the price of gas that the Russian producers under investigation paid and reported in their records (reported gas cost). Ukrainian investigating authorities had examined whether, due to government regulation, the gas costs incurred by the investigated Russian producers were lower compared with prices in other countries or other export prices of gas from Russia. The Appellate Body agreed with the Panel that this examination pertained to whether the cost of gas incurred by these producers was reasonable and was thus not an adequate reason to reject the reported gas cost. Ukrainian investigating authorities had also taken the view that Gazprom sells gas in the domestic Russian market below cost, but made no determination that Gazprom was the gas supplier of the investigated Russian producers or that Gazprom's prices affected these suppliers' prices. The Appellate Body therefore agreed with the Panel that Gazprom's below‑cost prices did not constitute a sufficient factual basis to conclude that the records of the investigated Russian producers did not reasonably reflect the costs associated with the production and sale of ammonium nitrate.

Article 2.2.1 of the Anti-Dumping Agreement: ordinary-course-of-trade test

The Appellate Body observed that Article 2.2.1 sets out when sales of the like product in the domestic market or to a third country may be treated as not being in the ordinary course of trade and disregarded in determining normal value. The Appellate Body noted that Ukraine's claim under Article 2.2.1 was consequential to its claim under Article 2.2.1.1. Having upheld the Panel's finding under Article 2.2.1.1 of the Anti-Dumping Agreement, the Appellate Body also upheld the Panel's finding that Ukraine acted inconsistently with Article 2.2.1 because, in conducting its ordinary-course-of-trade test, Ukrainian investigating authorities relied on costs calculated inconsistently with Article 2.2.1.1.

Article 2.2 of the Anti-Dumping Agreement: cost of production “in the country of origin”

The Appellate Body upheld the Panel's finding under Article 2.2 that, by using the export price of gas from Russia at the German border adapted for transportation expenses for the purpose of constructing normal value, Ukrainian investigating authorities failed to calculate the cost of production “in the country of origin”, i.e. Russia. The Appellate Body recalled that Article 2.2 identifies circumstances in which an investigating authority need not determine normal value on the basis of domestic sales and may instead construct normal value on the basis of “the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits”. When constructing normal value, an investigating authority must ensure that the information collected is used to arrive at the cost of production in the country of origin. An investigating authority may thus be required to adapt the information it collects.

Ukraine had first argued that it would be circular and void of economic logic to calculate the cost of production under Article 2.2 on the basis of costs adequately rejected under the second condition in the first sentence of Article 2.2.1.1. The Appellate Body considered this argument to be premised on finding error with the Panel under Article 2.2.1.1 and recalled that it had upheld the Panel's finding under that provision. Moreover, the Appellate Body considered that the Panel did not err in considering that certain Appellate Body interpretations with respect to Article 14(d) of the SCM Agreement were not relevant to its interpretative exercise under Article 2.2 of the Anti-Dumping Agreement.Finally, the Appellate Body saw no reason to question the Panel's conclusion that adjusting for transportation expenses was not sufficient to adapt the export price of gas from Russia to reflect the cost of production in Russia. As the Appellate Body stressed, the Panel found that Ukrainian investigating authorities had not explained why such an adjustment was adequate to adapt the export price of gas to reflect the cost in the country of origin. The Appellate Body and the Panel also recalled that Ukrainian investigating authorities did not provide an adequate basis under the second condition in the first sentence of Article 2.2.1.1 to reject the reported gas cost. The Appellate Body further noted that, other than pointing to the deduction of transportation expenses, Ukraine had not asserted that Ukrainian investigating authorities otherwise adapted the export price of gas used in its calculations in order to ensure that it reflected the cost of production in Russia.