DS: United States — Anti-Dumping and Countervailing Duties on Certain Products and the Use of Facts Available

This dispute concerns anti-dumping (AD) and countervailing measures imposed by the United States on imports of certain corrosion‑resistant steel products, cold‑rolled steel flat products, hot‑rolled steel flat products, and large power transformers (LPTs) from Korea. Korea also challenged “as such” an alleged unwritten measure concerning the use of “adverse facts available” in AD and countervailing duty (CVD) investigations by the United States Department of Commerce (USDOC).

Korea's “as applied” claims under Article 6.8, Article 9.4, and Annex II of the Anti-Dumping Agreement and Article 12.7 of the SCM Agreement

Korea challenged several instances of the use of “facts available” by the USDOC in four AD and two CVD investigations, claiming that the USDOC erred both in resorting to the use of “facts available” and in its subsequent selection of the replacement facts for the missing information. For all but two instances of the USDOC's use of “facts available” challenged by Korea, the Panel concluded that the conditions for the USDOC's valid resort to “facts available” were not met. Specifically, for the four AD investigations, the Panel found that the USDOC resorted to “facts available” inconsistently with Article 6.8 because: it did not specify in detail the information required from the interested party and the manner in which that information should be structured as soon as possible after the initiation of the investigation, pursuant to paragraph 1 of Annex II; or it failed to take into account verifiable information, which was submitted appropriately and in a timely fashion, pursuant to paragraph 3 of Annex II; or it did not inform forthwith the interested party of the reasons for not accepting certain information submitted by such a party, and did not provide an opportunity to this party for furnishing further explanations within a reasonable period, pursuant to paragraph 6 of Annex II. For one AD investigation concerning imports of LPTs from Korea, the Panel also upheld Korea's claim that the USDOC acted inconsistently with Article 9.4 of the Anti-Dumping Agreement by determining the ceiling for an "all others" rate based on margins established under the circumstances referred to in Article 6.8. With respect to the two CVD investigations at issue, the Panel found that the USDOC resorted to “facts available” inconsistently with Article 12.7 because: it failed to take into account information which was submitted by the interested parties and was part of the record; or it rejected certain information solely on the basis that it was provided after the time limit imposed by the USDOC, without considering whether, in light of the specific facts and circumstances, such information was nonetheless submitted within a reasonable period. In the two instances where the Panel rejected Korea's claims that the USDOC erred in resorting to “facts available”, the Panel found that the USDOC nonetheless acted WTO-inconsistently in selecting the replacement facts because it failed to take into account all the information that was properly before it. In light of these findings of WTO-inconsistency, the Panel did not consider it necessary to rule upon Korea's claims under Articles 1, 9.3, and 18.1 of the Anti‑Dumping Agreement and Articles 10, 19.4, and 32.1 of the SCM Agreement.

Korea's “as such” claim under Article 6.8 and Annex II of the Anti-Dumping Agreement and Article 12.7 of the SCM Agreement

Korea challenged an alleged unwritten measure by the United States concerning the use of “adverse facts available” by the USDOC in AD and CVD investigations. Korea claimed that this measure was “as such” WTO-inconsistent because the USDOC selected replacement facts for the missing information based solely upon its finding of non-cooperation by the interested parties. Korea characterized this measure as a “rule or a norm” of general and prospective application or, in the alternative, as a form of “ongoing conduct”. Noting the “as such” nature of Korea's claim and its description of the alleged unwritten measure, the Panel found that the impugned measure is properly characterized as a “rule or a norm” and not as a form of “ongoing conduct”. Having examined the arguments and evidence presented by Korea — which were the same for both kinds of measures — the Panel found that Korea had failed to establish the existence of the unwritten measure with the precise content alleged by it.