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Article 1. See Anti-Dumping Agreement, Article VI of the GATT
1994 — Anti-Dumping duties (A.3.65) back to top
A.3.1 Article 2 — Intent and effect of dumping
back to top
A.3.1.1 US — 1916
Act, para. 107
(WT/DS136/AB/R, WT/DS162/AB/R)
… under Article VI:1 of the GATT 1994 and Article 2 of the Anti-Dumping
Agreement, neither the intent of the persons engaging in “dumping”
nor the injurious effects that “dumping” may have on a Member’s
domestic industry are constituent elements of “dumping”.
A.3.2 Article 2 — Period of investigation back to top
A.3.2.1 EC — Tube or Pipe, para. 80
(WT/DS219/AB/R)
Permitting such discretionary selection of data from a period of time
within the POI would defeat the objectives underlying investigating
authorities’ reliance on a POI for the purposes of a dumping
determination. As the Panel correctly noted, the POI “form[s] the
basis for an objective and unbiased determination by the investigating
authority.” Like the Panel and the parties to this dispute, we
understand a POI to provide data collected over a sustained period of
time, which period can allow the investigating authority to make a
dumping determination that is less likely to be subject to market
fluctuations or other vagaries that may distort a proper evaluation. We
agree with the Panel that the standardized reliance on a POI, although
not fixed in duration by the Anti-Dumping Agreement, assures the
investigating authority and exporters of “a consistent and reasonable
methodology for determining present dumping”, which anti-dumping
duties are intended to offset. In contrast to this consistency and
reliability, Brazil’s approach would introduce a significant level of
subjectivity on the part of the investigating authority to determine
when data from a subset of the POI may be a reliable indicator of an
exporter’s future pricing behaviour. …
A.3.3 Article 2.1 — “normal value … in the ordinary course of
trade” back to top
A.3.3.1 US — Hot-Rolled Steel, para. 139
(WT/DS184/AB/R)
Article 2.1 of the Anti-Dumping Agreement provides that normal
value — the price of the like product in the home market of the exporter
or producer — must be established on the basis of sales made “in the
ordinary course of trade”. Thus, sales which are not made “in
the ordinary course of trade” must be excluded, by the investigating
authorities, from the calculation of normal value. …
A.3.3.2 US — Hot-Rolled Steel, para. 140
(WT/DS184/AB/R)
In terms of the above definition, Article 2.1 requires investigating
authorities to exclude sales not made “in the ordinary course of trade”,
from the calculation of normal value, precisely to ensure that normal
value is, indeed, the “normal” price of the like product, in the
home market of the exporter. Where a sales transaction is concluded on
terms and conditions that are incompatible with “normal” commercial
practice for sales of the like product, in the market in question, at
the relevant time, the transaction is not an appropriate basis for
calculating “normal” value.
A.3.3.3 US — Hot-Rolled Steel, para. 142
(WT/DS184/AB/R)
We note that determining whether a sales price is higher or lower
than the “ordinary course” price is not simply a question of
comparing prices. Price is merely one of the terms and conditions of a
transaction. To determine whether the price is high or low, the price
must be assessed in light of the other terms and conditions of the
transaction. Thus, the volume of the sales transaction will affect
whether a price is high or low. Or, the seller may undertake additional
liability or responsibilities in some transactions, for instance for
transport or insurance. These, and a number of other factors, may be
expected to affect an assessment of the price.
A.3.3.4 US — Hot-Rolled Steel, para. 145
(WT/DS184/AB/R)
In our view, the duties of investigating authorities, under Article 2.1 of the Anti-Dumping Agreement, are precisely the same,
whether the sales price is higher or lower than the “ordinary course”
price, and irrespective of the reason why the transaction is not “in
the ordinary course of trade”. Investigating authorities must exclude,
from the calculation of normal value, all sales which are not
made “in the ordinary course of trade”. To include such sales in the
calculation, whether the price is high or low, would distort what is
defined as “normal value”.
A.3.3.5 US — Hot-Rolled Steel, para. 146
(WT/DS184/AB/R)
In view of the many different types of transaction not “in the
ordinary course of trade” — some including affiliated parties, others
not; some including high prices, others low prices; some including
prices below cost, others not — investigating authorities need not,
under the Anti-Dumping Agreement, scrutinize, according to identical
rules, each and every category of sale that is potentially not
“in the ordinary course of trade”.
A.3.4 Article 2.1 — Sales below cost back to top
A.3.4.1 US — Hot-Rolled Steel, para. 147
(WT/DS184/AB/R)
We note that Article 2.2.1 of the Anti-Dumping Agreement
itself provides for a method for determining whether sales below cost
are “in the ordinary course of trade”. However, that provision does
not purport to exhaust the range of methods for determining whether
sales are “in the ordinary course of trade”, nor even the range of
possible methods for determining whether low-priced sales are “in the
ordinary course of trade”. Article 2.2.1 sets forth a method for
determining whether sales between any two parties are “in the
ordinary course of trade”; it does not address the more
specific issue of transactions between affiliated parties. In
transactions between such parties, the affiliation itself may signal
that sales above cost, but below the usual market price, might
not be in the ordinary course of trade. Such transactions may,
therefore, be the subject of special scrutiny by the investigating
authorities.
A.3.4.2 US — Hot-Rolled Steel, para. 148
(WT/DS184/AB/R)
Although we believe that the Anti-Dumping Agreement affords
WTO Members discretion to determine how to ensure that normal value is
not distorted through the inclusion of sales that are not “in the
ordinary course of trade”, that discretion is not without limits. In
particular, the discretion must be exercised in an even-handed
way that is fair to all parties affected by an anti-dumping
investigation. If a Member elects to adopt general rules to prevent
distortion of normal value through sales between affiliates, those rules
must reflect, even-handedly, the fact that both high and low-priced
sales between affiliates might not be “in the ordinary course of trade”.
A.3.5 Article 2.1 — Calculation of normal value
back to top
A.3.5.1 US — Hot-Rolled Steel, para. 165
(WT/DS184/AB/R)
The text of Article 2.1 expressly imposes four conditions on sales
transactions in order that they may be used to calculate normal value:
first, the sale must be “in the ordinary course of trade”; second,
it must be of the “like product”; third, the product must be “destined
for consumption in the exporting country”; and, fourth, the price must
be “comparable”.
A.3.5.2 US — Hot-Rolled Steel, para. 166
(WT/DS184/AB/R)
The text of Article 2.1 is, however, silent as to who the
parties to relevant sales transactions should be. Thus, Article 2.1 does
not expressly mandate that the sale be made by the exporter for whom a
margin of dumping is being calculated. Nor does Article 2.1 expressly
preclude that relevant sales transactions might be made downstream,
between affiliates of the exporter and independent buyers. In our view,
provided that all of the explicit conditions in Article 2.1 of the Anti-Dumping
Agreement are satisfied, the identity of the seller of the
“like product” is not a ground for precluding the use of a
downstream sales transaction when calculating normal value. In short, we
see no reason to read into Article 2.1 an additional condition that is
not expressed.
A.3.6 Article 2.1 — Fair comparison back to top
A.3.6.1 US — Hot-Rolled Steel, para. 167
(WT/DS184/AB/R)
We do not mean to suggest that the identity of the seller is
irrelevant in calculating normal value under Article 2.1 of the Anti-Dumping
Agreement. However, to ensure that prices are “comparable”, the Anti-Dumping
Agreement provides a mechanism, in Article 2.4, which allows
investigating authorities to take full account of the fact, as
appropriate, that a relevant sale was not made by the exporter or
producer itself, but was made by another party. Article 2.4 requires
that a “fair comparison” be made between export price and normal
value. This comparison “shall be made at the same level of trade,
normally at the ex-factory level”. In making a “fair comparison”,
Article 2.4 mandates that due account be taken of “differences which
affect price comparability”, such as differences in the “levels of
trade” at which normal value and export price are calculated.
A.3.7 Article 2.1 — Volume of dumped imports
back to top
A.3.7.1 EC — Bed Linen (Article 21.5 — India), para. 143
(WT/DS141/AB/RW)
… We see no conflict between the provisions requiring
producer-specific determinations and the need to calculate, for purposes
of determining injury, the total volume of dumped imports from producers
or exporters originating in a particular exporting country as a whole.
This can be done, and has to be done, by adding up the volume of imports
attributable to producers or exporters that are dumping, whether on the
basis of an individual examination or on the basis of an extrapolation.
Further, we see nothing in the text of Article 2.1 that permits a
derogation from the express requirements in paragraphs 1 and 2 of
Article 3 to determine the volume of dumped imports on the basis of “positive
evidence” and an “objective examination”.
A.3.8 Article 2.1 — Relationship with Article 11.3. See also
Anti-Dumping Agreement, Article 11.3 (A.3.45-52)
back to top
A.3.8.1 US — Corrosion-Resistant Steel Sunset Review,
para. 109
(WT/DS244/AB/R)
We agree with Japan that the words “[f]or the purpose of this
Agreement” in Article 2.1 indicate that this provision describes the
circumstances in which a product is to be considered as being dumped for
purposes of the entire Anti-Dumping Agreement, including Article 11.3. This interpretation is supported by the fact that Article 11.3
does not indicate, either expressly or by implication, that “dumping”
has a different meaning in the context of sunset reviews than in the
rest of the Anti-Dumping Agreement. Therefore, Article 2.1 of the
Anti-Dumping Agreement and Article VI:1 of the GATT 1994 suggest
that the question for investigating authorities, in making a likelihood
determination in a sunset review pursuant to Article 11.3, is whether
the expiry of the duty would be likely to lead to continuation or
recurrence of dumping of the product subject to the duty (that is, to
the introduction of that product into the commerce of the importing
country at less than its normal value). …
A.3.9 Article 2.2.1 — Sales below cost and “ordinary course of
trade” back to top
A.3.9.1 US — Hot-Rolled Steel, para. 147
(WT/DS184/AB/R)
We note that Article 2.2.1 of the Anti-Dumping Agreement
itself provides for a method for determining whether sales below cost
are “in the ordinary course of trade”. However, that provision does
not purport to exhaust the range of methods for determining whether
sales are “in the ordinary course of trade”, nor even the range of
possible methods for determining whether low-priced sales are “in the
ordinary course of trade”. Article 2.2.1 sets forth a method for
determining whether sales between any two parties are “in the
ordinary course of trade”; it does not address the more
specific issue of transactions between affiliated parties. In
transactions between such parties, the affiliation itself may signal
that sales above cost, but below the usual market price, might
not be in the ordinary course of trade. Such transactions may,
therefore, be the subject of special scrutiny by the investigating
authorities.
A.3.9A Article 2.2.1.1 — “consider all available evidence on the
proper allocation of costs” back to top
A.3.9A.1 US — Softwood Lumber V, paras. 133-135
(WT/DS264/AB/R)
… The ordinary meaning of the term “consider” is, inter alia,
to “look at attentively”, “reflect on”, or to “weigh the
merits of”. In the context of the second sentence of Article 2.2.1.1,
we read the term “consider” to mean that an investigating authority
is required, when addressing the question of proper allocation of costs
for a producer or exporter, to “reflect on” and to “weigh the
merits of” “all available evidence on the proper allocation of costs”.
… the requirement to “consider” evidence would not be satisfied by
simply “receiving evidence” or merely “tak[ing] notice of evidence”.
… The word “proper”, in our view, supports our reading
of the word “consider”, because it suggests some degree of
deliberation on the part of the investigating authority in “consider[ing]
all available evidence”, so as to ensure that there is a proper
allocation of costs. The nature of this deliberative process will depend
on the facts of a particular case before the investigating authority.
We are aware that the term “comparison”, which is derived from
the verb “compare”, is used in other provisions of the Anti-Dumping
Agreement. For instance, Articles 2.4 and 2.4.2 refer to the “comparison”
of export prices and normal value, for purposes of establishing the
existence of margins of dumping. As both the word “consider” and the
word “comparison” are used in the Anti-Dumping Agreement, it
follows, in our view, that the non-inclusion, by the drafters of the Anti-Dumping
Agreement, in Article 2.2.1.1 of the word “compare” is not a
mere oversight, but rather a purposeful act of drafting. However, as we
explain below, we do not believe that this requires an interpretation
that the second sentence of Article 2.2.1.1 does not, under any
circumstances, require an investigating authority to compare
methodologies.
A.3.9A.2 US — Softwood Lumber V, paras. 137-138
(WT/DS264/AB/R)
The second sentence of Article 2.2.1.1 requires an investigating
authority to “consider” all available evidence on the proper
allocation of costs, which in certain circumstances may require the
investigating authority to consider alternative allocation
methodologies. Therefore, the issue before us is not simply whether the
word “consider”, in and of itself, entails a requirement to “compare”.
Rather, the issue before us is whether a requirement to “consider all
available evidence on the proper allocation of costs” does or does not
require an investigating authority to “compare” advantages and
disadvantages of alternative cost allocation methodologies.
In our view, the parameters of the obligation to “consider all
available evidence” will vary case-by-case. It may well be that, in
the light of the facts of a particular case, the requirement to “consider
all available evidence” may be satisfied by the investigating
authority without comparing allocation methodologies or aspects thereof.
However, in other instances — such as where there is compelling evidence
available to the investigating authority that more than one allocation
methodology potentially may be appropriate to ensure that there is a
proper allocation of costs — the investigating authority may be required
to “reflect on” and “weigh the merits of” evidence that relates
to such alternative allocation methodologies, in order to satisfy the
requirement to “consider all available evidence”. Thus, although the
second sentence of Article 2.2.1.1 does not, as a general rule, require
investigating authorities to compare allocation methodologies to assess
their respective advantages and disadvantages in each and every case,
there may be particular instances in which the investigating authority
may be required to compare them in order to satisfy the explicit
requirement of the second sentence of Article 2.2.1.1 to “consider all
available evidence on the proper allocation of costs”.
A.3.9B Article 2.2.1.1 — “reasonably reflect” the cost of
production back to top
A.3.9B.1 US — Softwood Lumber V, para. 165
(WT/DS264/AB/R)
Canada argues that USDOC, in evaluating whether Tembec’s records
“reasonably reflect” the cost of production of the product under
consideration (that is, softwood lumber), failed to exercise its
discretion in an even-handed manner. …
A.3.9B.2 US — Softwood Lumber V, para. 163
(WT/DS264/AB/R)
… Whether a particular approach of an investigating authority is,
or is not, even-handed is, ultimately, a matter of the “legal
characterization” of facts and, as such, a matter of law. We are thus
unable to agree with the United States that the issue raised by Canada
with respect to the lack of even-handed treatment on the part of USDOC
is beyond the scope of appellate review.
A.3.10 Article 2.2.2 — Low volume sales and “ordinary course of
trade” back to top
A.3.10.1 EC — Tube or Pipe, para. 98
(WT/DS219/AB/R)
As the Panel correctly observed, it is meaningful for the
interpretation of Article 2.2.2 that Article 2.2 specifically identifies
low-volume sales in addition to sales outside the ordinary course
of trade. In contrast to Article 2.2, the chapeau of Article 2.2.2
explicitly excludes only sales outside the ordinary course of trade. The
absence of any qualifying language related to low volumes in Article 2.2.2 implies that an exception for low-volume sales should not be read
into Article 2.2.2. …
A.3.10.2 EC — Tube or Pipe, para. 101
(WT/DS219/AB/R)
… In our view, where, as in this investigation, low-volume sales
are in the ordinary course of trade, an investigating authority does not
act inconsistently with the chapeau of Article 2.2.2 by including actual
data from those sales to derive SG&A and profits for the
construction of normal value.
A.3.11 Article 2.2.2(ii) — Calculation of “weighted average”
back to top
A.3.11.1 EC — Bed Linen, para. 76
(WT/DS141/AB/R)
… the use of the phrase “weighted average”, combined with the
use of the words “amounts” and “exporters or producers” in the
plural in the text of Article 2.2.2(ii), clearly anticipates the use of
data from more than one exporter or producer. We conclude that
the method for calculating amounts for SG&A and profits set out in
this provision can only be used if data relating to more than one other
exporter or producer is available.
A.3.11.2 EC — Bed Linen,
para. 80
(WT/DS141/AB/R)
… in the calculation of the “weighted average”, all of
“the actual amounts incurred and realized” by other exporters or
producers must be included, regardless of whether those amounts
are incurred and realized on production and sales made in the ordinary
course of trade or not. Thus, in our view, a Member is not allowed to
exclude those sales that are not made in the ordinary course of trade
from the calculation of the “weighted average” under Article 2.2.2(ii).
A.3.12 Article 2.4 — Identity of seller and “fair comparison”
back to top
A.3.12.1 US — Hot-Rolled Steel, para. 167
(WT/DS184/AB/R)
We do not mean to suggest that the identity of the seller is
irrelevant in calculating normal value under Article 2.1 of the Anti-Dumping
Agreement. However, to ensure that prices are “comparable”, the Anti-Dumping
Agreement provides a mechanism, in Article 2.4, which allows
investigating authorities to take full account of the fact, as
appropriate, that a relevant sale was not made by the exporter or
producer itself, but was made by another party. Article 2.4 requires
that a “fair comparison” be made between export price and normal
value. This comparison “shall be made at the same level of trade,
normally at the ex-factory level”. In making a “fair comparison”,
Article 2.4 mandates that due account be taken of “differences which
affect price comparability”, such as differences in the “levels of
trade” at which normal value and export price are calculated.
A.3.13 Article 2.4 — Calculation of dumping margins
— Relationship
with Article 11.3. See also Anti-Dumping Agreement, Article 11.3
(A.3.45-52) back to top
A.3.13.1 US — Corrosion-Resistant Steel Sunset Review,
paras. 127-128
(WT/DS244/AB/R)
Article 2 sets out the agreed disciplines in the Anti-Dumping
Agreement for calculating dumping margins. As observed earlier, we
see no obligation under Article 11.3 for investigating authorities to
calculate or rely on dumping margins in determining the likelihood of
continuation or recurrence of dumping. However, should investigating
authorities choose to rely upon dumping margins in making their
likelihood determination, the calculation of these margins must conform
to the disciplines of Article 2.4. … USDOC chose to base its
affirmative likelihood determination on positive dumping margins that
had been previously calculated in two particular administrative reviews.
If these margins were legally flawed because they were calculated in a
manner inconsistent with Article 2.4, this could give rise to an
inconsistency not only with Article 2.4, but also with Article 11.3 of
the Anti-Dumping Agreement.
It follows that we disagree with the Panel’s view that the
disciplines in Article 2 regarding the calculation of dumping margins do
not apply to the likelihood determination to be made in a sunset review
under Article 11.3. …
A.3.14 Article 2.4.2 — Calculation of dumping margins
— “zeroing”.
See also Anti-Dumping Agreement, Article 2.2.1.1 — “consider
all available evidence on the proper allocation of costs” (A.3.9A);
Anti-Dumping Agreement, Article VI of the GATT 1994 (A.3.65)
back to top
A.3.14.1 EC — Bed Linen,
para. 53
(WT/DS141/AB/R)
… We see nothing in Article 2.4.2 or in any other provision of the Anti-Dumping
Agreement that provides for the establishment of “the existence of
margins of dumping” for types or models of the product under
investigation; to the contrary, all references to the establishment of
“the existence of margins of dumping” are references to the product
that is subject of the investigation. … Whatever the method used to
calculate the margins of dumping, in our view, these margins must be,
and can only be, established for the product under investigation
as a whole. …
A.3.14.2 EC — Bed Linen, para. 55
(WT/DS141/AB/R)
… the investigating authorities are required to compare the
weighted average normal value with the weighted average of prices of all
comparable export transactions. Here, we emphasize that Article 2.4.2
speaks of “all” comparable export transactions. As explained above,
when “zeroing”, the European Communities counted as zero the “dumping
margins” for those models where the “dumping margin” was “negative”.
As the Panel correctly noted, for those models, the European Communities
counted “the weighted average export price to be equal to the weighted
average normal value … despite the fact that it was, in reality,
higher than the weighted average normal value.” By “zeroing” the
“negative dumping margins”, the European Communities, therefore, did
not take fully into account the entirety of the prices of some
export transactions, namely, those export transactions involving models
of cotton-type bed linen where “negative dumping margins” were
found. … Thus, the European Communities did not establish “the
existence of margins of dumping” for cotton-type bed linen on the
basis of a comparison of the weighted average normal value with the
weighted average of prices of all comparable export transactions…
A.3.14.3 EC — Bed Linen, para. 58
(WT/DS141/AB/R)
Having defined the product at issue and the “like product” on the
Community market as it did, the European Communities could not, at a
subsequent stage of the proceeding, take the position that some types or
models of that product had physical characteristics that were so
different from each other that these types or models were not “comparable”.
All types or models falling within the scope of a “like” product
must necessarily be “comparable”, and export transactions involving
those types or models must therefore be considered “comparable export
transactions” within the meaning of Article 2.4.2.
A.3.14.4 US — Corrosion-Resistant Steel Sunset Review,
paras. 135-136
(WT/DS244/AB/R)
When investigating authorities use a zeroing methodology such as that
examined in EC — Bed Linen to calculate a dumping margin,
whether in an original investigation or otherwise, that methodology will
tend to inflate the margins calculated. Apart from inflating the
margins, such a methodology could, in some instances, turn a negative
margin of dumping into a positive margin of dumping. As the Panel itself
recognized in the present dispute, “zeroing … may lead to an
affirmative determination that dumping exists where no dumping would
have been established in the absence of zeroing.” Thus, the inherent
bias in a zeroing methodology of this kind may distort not only the
magnitude of a dumping margin, but also a finding of the very existence
of dumping.
… we note that the United States seemed to accept that USDOC’s
methodology in the administrative reviews was “a methodology in which
no offset is granted to the respondent for negative differences between
the normal value and export price (or constructed export price) of
individual transactions”. …
A.3.14.5 EC — Tube or Pipe, para. 76
(WT/DS219/AB/R)
… We fail to see how Article VI:2, by stating that the purpose of
anti-dumping duties is “to offset or prevent dumping”, imposes upon
investigating authorities an obligation to select any particular
methodology for comparing normal value and export prices under Article 2.4.2 of the Anti-Dumping Agreement when calculating a dumping
margin. …
A.3.14.6 US — Softwood Lumber V, paras. 80-81
(WT/DS264/AB/R)
We note that there is no disagreement among the participants in this
dispute as to the permissibility of “multiple averaging” under
Article 2.4.2. All participants agree that an investigating authority
may choose to divide the product under investigation into product types
or models for purposes of calculating a weighted average normal value
and a weighted average export price for the transactions involving each
product type or model or sub-group of “comparable” transactions. …
We agree with the participants in this dispute that multiple
averaging is permitted under Article 2.4.2 to establish the existence of
margins of dumping for the product under investigation. We disagree with
those who suggest that the Appellate Body Report in EC — Bed Linen
is premised on an assumption that multiple averaging is prohibited. The
issue of multiple averaging was not before the Appellate Body in EC
— Bed Linen and the reasoning of the Appellate Body in that case
should therefore not be read as prohibiting that practice. …
A.3.14.7 US — Softwood Lumber V, para. 86
(WT/DS264/AB/R)
Article 2.4.2 requires that the existence of margins of dumping “shall
normally be established on the basis of a comparison of a weighted
average normal value with a weighted average of prices of all
comparable export transactions”. (emphasis added) It is clear from
the language of Article 2.4.2 that a weighted average normal value is to
be compared with a weighted average of the prices of “comparable”
export transactions, and not with prices of “non-comparable” export
transactions. At the same time, the word “all” in “all comparable
export transactions” makes it clear that Members cannot exclude from a
comparison any transaction that is “comparable”. Thus, we agree with
the Panel that the term “all comparable export transactions” means
that a Member “may only compare those export transactions which are
comparable, but [] it must compare all such transactions.”
A.3.14.8 US — Softwood Lumber V, para. 93
(WT/DS264/AB/R)
It is clear from the texts of [Article VI:1 of the GATT 1994 and
Article 2.1 of the Anti-Dumping Agreement] that dumping is
defined in relation to a product as a whole as defined by the
investigating authority. Moreover, we note that the opening phrase of
Article 2.1 — “[f]or the purpose of this Agreement” — indicates that
the definition of “dumping” as contained in Article 2.1 applies to
the entire Agreement, which includes, of course, Article 2.4.2. “Dumping”,
within the meaning of the Anti-Dumping Agreement, can therefore
be found to exist only for the product under investigation as a whole,
and cannot be found to exist only for a type, model, or category of that
product.
A.3.14.9 US — Softwood Lumber V,
paras. 96-98
(WT/DS264/AB/R)
The Appellate Body found in EC — Bed Linen that “[w]hatever
the method used to calculate the margins of dumping … these margins
must be, and can only be, established for the product under
investigation as a whole.” While “dumping” refers to the
introduction of a product into the commerce of another country at less
than its normal value, the term “margin of dumping” refers to the
magnitude of dumping. As with dumping, “margins of dumping” can be
found only for the product under investigation as a whole, and cannot be
found to exist for a product type, model, or category of that product.
It is clear that an investigating authority may undertake multiple
averaging to establish margins of dumping for a product under
investigation. In our view, the results of the multiple comparisons at
the sub-group level are, however, not “margins of dumping” within
the meaning of Article 2.4.2. Rather, those results reflect only
intermediate calculations made by an investigating authority in the
context of establishing margins of dumping for the product under
investigation. Thus, it is only on the basis of aggregating all
these “intermediate values” that an investigating authority can
establish margins of dumping for the product under investigation as a
whole.
We fail to see how an investigating authority could properly
establish margins of dumping for the product under investigation as a
whole without aggregating all of the “results” of the
multiple comparisons for all product types. There is no textual
basis under Article 2.4.2 that would justify taking into account the “results”
of only some multiple comparisons in the process of calculating margins
of dumping, while disregarding other “results”. If an investigating
authority has chosen to undertake multiple comparisons, the
investigating authority necessarily has to take into account the results
of all those comparisons in order to establish margins of dumping
for the product as a whole under Article 2.4.2. …
A.3.14.10 US — Softwood Lumber V, para. 100
(WT/DS264/AB/R)
… Article 2.4.2 contains no express language that permits an
investigating authority to disregard the results of multiple comparisons
at the aggregation stage. Other provisions of the Anti-Dumping
Agreement are explicit regarding the permissibility of disregarding
certain matters. For example, Article 2.2.1 of the Anti-Dumping
Agreement, which deals with the calculation of normal value, sets
forth the only circumstances under which sales of the like
product may be disregarded. Similarly, Article 9.4 of the Anti-Dumping
Agreement expressly directs investigating authorities to “disregard”
zero and de minimis margins of dumping, under certain
circumstances, when calculating the weighted average margin of dumping
to be applied to exporters or producers that have not been individually
investigated. Thus, when the negotiators sought to permit investigating
authorities to disregard certain matters, they did so explicitly.
A.3.14.11 US — Softwood Lumber V,
paras. 101-104
(WT/DS264/AB/R)
We now turn to the implications of zeroing as applied in this case.
Zeroing means, in effect, that at least in the case of some
export transactions, the export prices are treated as if they were less
than what they actually are. Zeroing, therefore, does not take into
account the entirety of the prices of some export
transactions, namely, the prices of export transactions in those
sub-groups in which the weighted average normal value is less than the
weighted average export price. Zeroing thus inflates the margin of
dumping for the product as a whole.
We understand the United States to argue that a prohibition of
zeroing would amount to a requirement to compare “dumped” and “non-dumped”
transactions at the aggregation stage. The United States contends that
results of multiple comparisons in which the weighted average normal
value exceeds the weighted average export price may be excluded because
they do not involve “dumping”. As we have stated earlier, the terms
“dumping” and “margins of dumping” in Article VI of the GATT
1994 and the Anti-Dumping Agreement apply to the product under
investigation as a whole and do not apply to sub-group levels. The
treatment of comparisons for which the weighted average normal value is
less than the weighted average export price as “non-dumped”
comparisons is therefore not in accordance with the requirements of
Article 2.4.2 of the Anti-Dumping Agreement.
For all these reasons, we do not agree with the United States that
the results of comparisons at the sub-group level constitute margins of
dumping. Nor do we agree with the United States that the results of the
comparisons in which the weighted average normal value is less than the
weighted average export price could be excluded in calculating a margin
of dumping for the product under investigation as a whole.
We recall that the issue of whether zeroing is permitted under the
transaction-to-transaction methodology or the average-to-individual
methodology is not before us in this appeal. …
A.3.15 Article 3.1 — general
back to top
A.3.15.1 Thailand
— H-Beams,
para. 106
(WT/DS122/AB/R)
Article 3 as a whole deals with obligations of Members with respect
to the determination of injury. Article 3.1 is an overarching provision
that sets forth a Member’s fundamental, substantive obligation in this
respect. Article 3.1 informs the more detailed obligations in succeeding
paragraphs. These obligations concern the determination of the volume of
dumped imports, and their effect on prices (Article 3.2), investigations
of imports from more than one country (Article 3.3), the impact of
dumped imports on the domestic industry (Article 3.4), causality between
dumped imports and injury (Article 3.5), the assessment of the domestic
production of the like product (Article 3.6), and the determination of
the threat of material injury (Articles 3.7 and 3.8). The focus of
Article 3 is thus on substantive obligations that a Member must
fulfill in making an injury determination.
A.3.15A Footnote 9 to Article 3
back to top
A.3.15A.1 US — Oil Country Tubular Goods Sunset Reviews,
para. 276
(WT/DS268/AB/R)
… we would agree with Argentina that, by virtue of its opening
phrase, footnote 9 defines “injury” for the whole of the Anti-Dumping
Agreement. … Therefore, when Article 11.3 requires a determination
as to the likelihood of continuation or recurrence of “injury”, the
investigating authority must consider the continuation or recurrence of
“injury” as defined in footnote 9.
A.3.16 Article 3.1 — “positive evidence”
back to top
A.3.16.1 Thailand
— H-Beams,
para. 107
(WT/DS122/AB/R)
… the ordinary meaning of [the terms of Article 3.1] does not
suggest that an investigating authority is required to base an injury
determination only upon evidence disclosed to, or discernible by, the
parties to the investigation. An anti-dumping investigation involves the
commercial behaviour of firms, and, under the provisions of the Anti-Dumping
Agreement, involves the collection and assessment of both
confidential and non-confidential information. An injury determination
conducted pursuant to the provisions of Article 3 of the Anti-Dumping
Agreement must be based on the totality of that evidence. We
see nothing in Article 3.1 which limits an investigating authority to
base an injury determination only upon non-confidential information.
A.3.16.2 Thailand
— H-Beams,
para. 111
(WT/DS122/AB/R)
We consider, therefore, that the requirement in Article 3.1 that an
injury determination be based on “positive” evidence and involve an
“objective” examination of the required elements of injury does not
imply that the determination must be based only on reasoning or facts
that were disclosed to, or discernible by, the parties to an
anti-dumping investigation. Article 3.1, on the contrary, permits an
investigating authority making an injury determination to base its
determination on all relevant reasoning and facts before it.
A.3.16.3 US — Hot-Rolled Steel,
para. 192
(WT/DS184/AB/R)
… The thrust of the investigating authorities’ obligation, in
Article 3.1, lies in the requirement that they base their determination
on “positive evidence” and conduct an “objective examination”.
The term “positive evidence” relates, in our view, to the quality of
the evidence that authorities may rely upon in making a determination.
The word “positive” means, to us, that the evidence must be of an
affirmative, objective and verifiable character, and that it must be
credible.
A.3.17 Article 3.1 — “objective examination”
back to top
A.3.17.1 US — Hot-Rolled Steel,
para. 193
(WT/DS184/AB/R)
The term “objective examination” aims at a different aspect of
the investigating authorities’ determination. While the term “positive
evidence” focuses on the facts underpinning and justifying the injury
determination, the term “objective examination” is concerned with
the investigative process itself. The word “examination” relates, in
our view, to the way in which the evidence is gathered, inquired into
and, subsequently, evaluated; that is, it relates to the conduct of the
investigation generally. The word “objective”, which qualifies the
word “examination”, indicates essentially that the “examination”
process must conform to the dictates of the basic principles of good
faith and fundamental fairness. In short, an “objective examination”
requires that the domestic industry, and the effects of dumped imports,
be investigated in an unbiased manner, without favouring the interests
of any interested party, or group of interested parties, in the
investigation. The duty of the investigating authorities to conduct an
“objective examination” recognizes that the determination will be
influenced by the objectivity, or any lack thereof, of the investigative
process.
A.3.17.2 US — Hot-Rolled Steel,
para. 196
(WT/DS184/AB/R)
However, the investigating authorities’ evaluation of the relevant
factors must respect the fundamental obligation, in Article 3.1, of
those authorities to conduct an “objective examination”. If an
examination is to be “objective”, the identification, investigation
and evaluation of the relevant factors must be even-handed. Thus,
investigating authorities are not entitled to conduct their
investigation in such a way that it becomes more likely that, as a
result of the fact-finding or evaluation process, they will determine
that the domestic industry is injured.
A.3.17.3 US — Hot-Rolled Steel,
paras. 204-205
(WT/DS184/AB/R)
We have already stated that it may be highly pertinent for
investigating authorities to examine a domestic industry by part, sector
or segment. However, as with all other aspects of the evaluation of the
domestic industry, Article 3.1 of the Anti-Dumping Agreement
requires that such a sectoral examination be conducted in an “objective”
manner. In our view, this requirement means that, where investigating
authorities undertake an examination of one part of a domestic industry,
they should, in principle, examine, in like manner, all of the other
parts that make up the industry, as well as examine the industry as a
whole. Or, in the alternative, the investigating authorities should
provide a satisfactory explanation as to why it is not necessary to
examine directly or specifically the other parts of the domestic
industry. Different parts of an industry may exhibit quite different
economic performance during any given period. …
Moreover, by examining only one part of an industry, the
investigating authorities may fail properly to appreciate the economic
relationship between that part of the industry and the other parts of
the industry, or between one or more of those parts and the whole
industry. …
A.3.17.4 US — Hot-Rolled Steel, para. 206
(WT/DS184/AB/R)
Accordingly, an examination of only certain parts of a domestic
industry does not ensure a proper evaluation of the state of the
domestic industry as a whole, and does not, therefore, satisfy the
requirements of “objectiv[ity]” in Article 3.1 of the Anti-Dumping
Agreement.
A.3.18 Articles 3.1 and 3.2 — Method of calculating the “volume of
the dumped imports” back to top
A.3.18.1 EC — Bed Linen (Article 21.5
— India),
para. 113
(WT/DS141/AB/RW)
Although paragraphs 1 and 2 of Article 3 do not set out a specific
methodology that investigating authorities are required to follow when
calculating the volume of “dumped imports”, this does not mean that
paragraphs 1 and 2 of Article 3 confer unfettered discretion on
investigating authorities to pick and choose whatever methodology they
see fit for determining the volume and effects of the dumped imports.
Paragraphs 1 and 2 of Article 3 require investigating authorities to
make a determination of injury on the basis of “positive evidence”
and to ensure that the injury determination results from an “objective
examination” of the volume of dumped imports, the effects of the
dumped imports on prices, and, ultimately, the state of the domestic
industry. Thus, whatever methodology investigating authorities choose
for determining the volume of dumped imports, if that methodology fails
to ensure that a determination of injury is made on the basis of “positive
evidence” and involves an “objective examination” of dumped
imports — rather than imports that are found not to be dumped
— it is not consistent with paragraphs 1 and 2 of Article 3.
A.3.18.2 EC — Bed Linen (Article 21.5
— India),
para. 117
(WT/DS141/AB/RW)
Thus, there is a right to conduct a limited examination in the
circumstances described in the second sentence of Article 6.10.
Paragraphs 1 and 2 of Article 3 must, accordingly, be interpreted in a
way that permits investigating authorities to satisfy the requirements
of “positive evidence” and an “objective examination” without
having to investigate each producer or exporter individually. This does
not, however, in any way, absolve investigating authorities from the
absolute requirements in paragraphs 1 and 2 of Article 3 that the volume
of dumped imports be determined on the basis of “positive evidence”
and an “objective examination”.
A.3.18.3 EC — Bed Linen (Article 21.5
— India),
para. 118
(WT/DS141/AB/RW)
… Still, whatever methodology investigating authorities choose for
calculating the volume of “dumped imports”, that calculation and,
ultimately, the determination of injury under Article 3, clearly must be
made on the basis of “positive evidence” and involve an “objective
examination”. …
A.3.19 Articles 3.1 and 3.2 — Calculation of the “volume of the
dumped imports” without examining each producer or exporter
individually. See also Anti-Dumping Agreement, Article 2.1
(A.3.3-8); Anti-Dumping Agreement, Article 3.3 (A.3.21); Anti-Dumping
Agreement, Article 6.10 (A.3.37); Anti-Dumping Agreement, Article 9.4
(A.3.41-44) back to top
A.3.19.1 EC — Bed Linen (Article 21.5
— India),
para. 130
(WT/DS141/AB/RW)
In this dispute, we agree with the participants that the evidence on
dumping margins established for the producers that were examined
individually is “positive” in the sense that we defined it in US
— Hot-Rolled Steel,… We also agree … that evidence on dumping
margins of more than de minimis for examined producers is
relevant as “positive evidence” in this investigation for
determining which import volumes may be attributed to non-examined
producers that are dumping. In our view, both these qualities of
evidence are probative of the existence of dumping in the circumstances
of this investigation. Therefore, we conclude that the European
Communities met the first requirement of paragraphs 1 and 2 of Article 3
by basing its determination on that “positive evidence”.
A.3.19.2 EC — Bed Linen (Article 21.5
— India),
para. 132
(WT/DS141/AB/RW)
… The approach taken by the European Communities in determining the
volume of dumped imports was not based on an “objective examination”.
The examination was not “objective” because its result is
predetermined by the methodology itself. Under the approach used by the
European Communities, whenever the investigating authorities decide to limit
the examination to some, but not all, producers — as they are entitled
to do under Article 6.10 — all imports from all non-examined
producers will necessarily always be included in the
volume of dumped imports under Article 3, as long as any of the
producers examined individually were found to be dumping. … Moreover,
such an approach tends to favour methodologies where small numbers
of producers are examined individually. …
A.3.19.3 EC — Bed Linen (Article 21.5
— India),
para. 133
(WT/DS141/AB/RW)
For these reasons, we conclude that the European Communities’
determination that all imports attributable to non-examined
producers were dumped — even though the evidence from examined
producers showed that producers accounting for 53 percent of imports
attributed to examined producers were not dumping — did not lead
to a result that was unbiased, even-handed, and fair.
Therefore, the European Communities did not satisfy the requirements of
paragraphs 1 and 2 of Article 3…
A.3.19.4 EC — Bed Linen (Article 21.5
— India),
para. 137
(WT/DS141/AB/RW)
… Article 6.10 … does not stipulate that investigating
authorities must follow a specific methodology when determining
the volume of dumped imports under paragraphs 1 and 2 of Article 3. However, this does not mean that evidence emerging from the
determination of margins of dumping for individual producers or
exporters pursuant to Article 6.10 is irrelevant for the determination
of the volume of dumped imports in paragraphs 1 and 2 of Article 3. To
the contrary, such evidence may well form part of the “positive
evidence” on which an “objective examination” of the volume of
dumped imports for purposes of determining injury may be based. Indeed,
in cases where the examination has been limited to a select number of
producers under the authority of the second sentence of Article 6.10, it
is difficult to conceive of a determination based on “positive
evidence” and an “objective examination” that is made other than
through some form of extrapolation of the evidence. …
A.3.19.5 EC — Bed Linen (Article 21.5
— India),
para. 138
(WT/DS141/AB/RW)
India’s suggestion that the investigating authorities should
consider the same proportion of import volumes attributable to non-examined
producers as dumped, as the proportion of import volumes
attributed to examined producers that were found to be dumping,
may be one way of adducing “positive evidence” from the record of an
investigation and of conducting an “objective examination”,
especially if producers selected for individual examination constitute a
statistically valid sample representative of all producers. Even if the
producers selected for individual examination account, instead, for the largest
percentage of exports that could reasonably be investigated, we do
not exclude the possibility that the evidence from those examined
producers could, nonetheless, qualify as part of the “positive
evidence” that might serve as a basis for an “objective examination”
of import volumes that can be attributed to the remaining non-examined
producers. There may, indeed, be other ways of making these calculations
that satisfy the requirements of paragraphs 1 and 2 of Article 3.
A.3.19.6 EC — Bed Linen (Article 21.5
— India),
para. 146
(WT/DS141/AB/RW)
… we agree with the Panel “that the [Anti-Dumping] Agreement does
not require an investigating authority to determine the volume of
imports from producers outside the sample that is properly considered
‘dumped imports’ for purposes of injury analysis on the basis of the
proportion of imports from sampled producers that is found to be dumped”
according to the specific methodology suggested by India in this
appeal. …
A.3.20 Article 3.2 — No country-specific analysis of volume and
prices of dumped imports back to top
A.3.20.1 EC — Tube or Pipe,
para. 111 and footnote 114
(WT/DS219/AB/R)
… There is no indication in the text of Article 3.2 that the
analyses of volume and prices must be performed on a country-by-country
basis where an investigation involves imports from several countries.114
A.3.20.2 EC — Tube or Pipe,
para. 113
(WT/DS219/AB/R)
We also believe that cumulation without a country-specific analysis
does not result in a “derog[ation]” of Article 3.2, as Brazil has
asserted. We wish to emphasize that Article 3.2 plays a central role in
the determination of injury and is a necessary step in any anti-dumping
investigation. As the Panel correctly observed, it is possible for the
analyses of volume and prices envisaged under Article 3.2 to be done on
a cumulative basis, as opposed to an individual country basis, when
dumped imports originate from more than one country.
A.3.21 Article 3.3 — Cumulative assessment of dumped imports. See
also Anti-Dumping Agreement, Article 3.2 (A.3.20)
back to top
A.3.21.1 EC — Bed Linen (Article 21.5
— India),
para. 145
(WT/DS141/AB/RW)
… The provisions regarding the cumulative assessment of imports
pursuant to Article 3.3 must be interpreted consistently with the
provisions of the Anti-Dumping Agreement that deal with the
determinations of dumping margins or the application of anti-dumping
duties with respect to specific producers or groups thereof. Similarly,
the right under Article 3.3 to conduct anti-dumping investigations with
respect to imports from different exporting countries does not absolve
investigating authorities from the requirements of paragraphs 1 and 2 of
Article 3 to determine the volume of dumped imports on the basis of “positive
evidence” and an “objective examination”.
A.3.21.2 EC — Tube or Pipe,
para. 110
(WT/DS219/AB/R)
We find no basis in the text of Article 3.3 for Brazil’s assertion
that a country-specific analysis of the potential negative effects of
volumes and prices of dumped imports is a pre-condition for a cumulative
assessment of the effects of all dumped imports. Article 3.3 sets out
expressly the conditions that must be fulfilled before the investigating
authorities may cumulatively assess the effects of dumped imports from
more than one country. There is no reference to the country-by-country
volume and price analyses that Brazil contends are pre-conditions to
cumulation. In fact, Article 3.3 expressly requires an investigating
authority to examine country-specific volumes, not in the manner
suggested by Brazil, but for purposes of determining whether the “volume
of imports from each country is not negligible”.
A.3.21.3 EC — Tube or Pipe,
para. 115
(WT/DS219/AB/R)
… Therefore, the text of Article 3 does not support Brazil’s
contention that volume and prices are deemed exclusively to be “factors”,
and not “effects”, for the purposes of Article 3.3 of the Anti-Dumping
Agreement.
A.3.21.4 EC — Tube or Pipe,
para. 116
(WT/DS219/AB/R)
The apparent rationale behind the practice of cumulation confirms our
interpretation that both volume and prices qualify as “effects” that
may be cumulatively assessed under Article 3.3. A cumulative analysis
logically is premised on a recognition that the domestic industry faces
the impact of the “dumped imports” as a whole and that it may be
injured by the total impact of the dumped imports, even though those
imports originate from various countries. If, for example, the dumped
imports from some countries are low in volume or are declining, an
exclusively country-specific analysis may not identify the causal
relationship between the dumped imports from those countries and the
injury suffered by the domestic industry. The outcome may then be that,
because imports from such countries could not individually be
identified as causing injury, the dumped imports from these countries
would not be subject to anti-dumping duties, even though they are in
fact causing injury. In our view, therefore, by expressly providing for
cumulation in Article 3.3 of the Anti-Dumping Agreement, the
negotiators appear to have recognized that a domestic industry
confronted with dumped imports originating from several countries may be
injured by the cumulated effects of those imports, and that those
effects may not be adequately taken into account in a country-specific
analysis of the injurious effects of dumped imports. Consistent with the
rationale behind cumulation, we consider that changes in import volumes
from individual countries, and the effect of those country-specific
volumes on prices in the importing country’s market, are of little
significance in determining whether injury is being caused to the
domestic industry by the dumped imports as a whole.
A.3.21.5 US — Oil Country Tubular Goods Sunset Reviews,
para. 300
(WT/DS268/AB/R)
Given the express intention of Members to permit cumulation in injury
determinations in original investigations, and given the rationale
behind cumulation in injury determinations, we do not read the Anti-Dumping
Agreement as prohibiting cumulation in sunset reviews.
A.3.22 Article 3.4 — Evaluation of injury factors
back to top
A.3.22.1 Thailand
— H-Beams,
para. 125
(WT/DS122/AB/R)
… The Panel also examined, with respect to this issue, the
interpretation by a previous panel of Article 3.4, and an earlier
interpretation given by us of an analogous provision, Article 4.2(a) of
the Agreement on Safeguards. The Panel concluded its
comprehensive analysis by stating that “each of the fifteen individual
factors listed in the mandatory list of factors in Article 3.4 must be
evaluated by the investigating authorities…”. We agree with the
Panel’s analysis in its entirety, and with the Panel’s
interpretation of the mandatory nature of the factors mentioned in
Article 3.4 of the Anti-Dumping Agreement.
A.3.22.2 Thailand
— H-Beams,
paras. 127-128
(WT/DS122/AB/R)
… Further, the Panel’s interpretation that Article 3.4 requires a
mandatory evaluation of all the individual factors listed in that
Article clearly left no room for a “permissible” interpretation that
all individual factors need not be considered.
We conclude that the Panel was correct in its interpretation that
Article 3.4 requires a mandatory evaluation of all of the factors listed
in that provision, and that, therefore, the Panel did not err in its
application of the standard of review under Article 17.6(ii) of the Anti-Dumping
Agreement.
A.3.22.3 US — Hot-Rolled Steel,
para. 195
(WT/DS184/AB/R)
We see nothing in the Anti-Dumping Agreement which prevents a
Member from requiring that its investigating authorities examine, in
every investigation, the potential relevance of a particular “other
factor”, not listed in Article 3.4, as part of its overall “examination”
of the state of the domestic industry. Similarly, it seems to us
perfectly compatible with Article 3.4 for investigating authorities to
undertake, or for a Member to require its investigating authorities to
undertake, an evaluation of particular parts, sectors or segments within
a domestic industry. Such a sectoral analysis may be highly pertinent,
from an economic perspective, in assessing the state of an industry as a
whole.
A.3.22.4 US — Hot-Rolled Steel,
para. 196
(WT/DS184/AB/R)
However, the investigating authorities’ evaluation of the relevant
factors must respect the fundamental obligation, in Article 3.1, of
those authorities to conduct an “objective examination”. If an
examination is to be “objective”, the identification, investigation
and evaluation of the relevant factors must be even-handed. Thus,
investigating authorities are not entitled to conduct their
investigation in such a way that it becomes more likely that, as a
result of the fact-finding or evaluation process, they will determine
that the domestic industry is injured.
A.3.22.5 US — Hot-Rolled Steel,
para. 198
(WT/DS184/AB/R)
… In our opinion, nothing in the Anti-Dumping Agreement
prevents the United States from directing its investigating authorities
to evaluate the potential relevance of the structure of a domestic
industry, and, in particular, the importance to that industry, as a
whole, of the fact that the production of certain domestic producers is
captively consumed, while the production of other domestic producers
competes directly with imports in the merchant market. …
A.3.22.6 US — Hot-Rolled Steel, para. 206
(WT/DS184/AB/R)
Accordingly, an examination of only certain parts of a domestic
industry does not ensure a proper evaluation of the state of the
domestic industry as a whole, and does not, therefore, satisfy the
requirements of “objectiv[ity]” in Article 3.1 of the Anti-Dumping
Agreement.
A.3.22.7 EC — Tube or Pipe,
para. 131
(WT/DS219/AB/R)
[Article 3.4 of the Anti-Dumping Agreement] requires an
investigating authority to evaluate all relevant economic factors in its
examination of the impact of the dumped imports. By its terms, it does
not address the manner in which the results of this evaluation are to be
set out, nor the type of evidence that may be produced before a panel
for the purpose of demonstrating that this evaluation was indeed
conducted. The provision simply requires Members to include an
evaluation of all relevant economic factors in its examination of the
impact of the dumped imports. …
A.3.22.8 EC — Tube or Pipe, para. 156
(WT/DS219/AB/R)
The participants in this appeal do not dispute that it is mandatory
for investigating authorities to evaluate all of the fifteen injury
factors listed in Article 3.4 of the Anti-Dumping Agreement. One
of the fifteen factors expressly listed in Article 3.4 is the “actual
and potential negative effects on … growth”. The issue raised by
Brazil in this appeal is whether the requirements of Article 3.4 were
satisfied in this case, even though the factor “growth” was
evaluated only “implicitly” and no separate record of its evaluation
was made.
A.3.22.9 EC — Tube or Pipe,
para. 157
(WT/DS219/AB/R)
Looking first to the text of Article 3.4, we find that it calls for
“an evaluation of all relevant economic factors and indices having a
bearing on the state of the industry”. The text, however, does not
address the manner in which the results of the investigating
authority’s analysis of each injury factor are to be set out in the
published documents.
A.3.23 Article 3.4 — Manner of evaluating injury factors
back to top
A.3.23.1 EC — Tube or Pipe,
para. 160
(WT/DS219/AB/R)
… The obligation to evaluate all fifteen factors is distinct from
the manner in which the evaluation is to be set out in the
published documents. As the European Communities contends, that the
analysis of a factor is implicit in the analyses of other factors does
not necessarily lead to the conclusion that such a factor was not
evaluated.
A.3.23.2 EC — Tube or Pipe,
para. 161
(WT/DS219/AB/R)
Accordingly, because Articles 3.1 and 3.4 do not regulate the manner
in which the results of the analysis of each injury factor are to be set
out in the published documents, we share the Panel’s conclusion that
it is not required that in every anti-dumping investigation a separate
record be made of the evaluation of each of the injury factors listed in
Article 3.4. Whether a panel conducting an assessment of an anti-dumping
measure is able to find in the record sufficient and credible evidence
to satisfy itself that a factor has been evaluated, even though a
separate record of the evaluation of that factor has not been made, will
depend on the particular facts of each case. …
A.3.23.3 EC — Tube or Pipe, para. 162
(WT/DS219/AB/R)
Having regard to the nature of the factor “growth”, we believe
that an evaluation of that factor necessarily entails an analysis of
certain other factors listed in Article 3.4. Consequently, the
evaluation of those factors could cover also the evaluation of the
factor “growth”. …
A.3.23.4 EC — Tube or Pipe, para. 165
(WT/DS219/AB/R)
… From our perspective, the “declines” and “losses”
observed with respect to several of the factors examined in this
particular case necessarily relate to the issue of “growth” as well.
To put it more precisely, the negative trends in these factors point to
a lack of “growth”. This, in turn, supports the conclusion that the
European Commission evaluated this injury factor.
A.3.24 Article 3.5 — Non-attribution of injury caused by other known
factors back to top
A.3.24.1 US — Hot-Rolled Steel,
para. 223
(WT/DS184/AB/R)
The non-attribution language in Article 3.5 of the Anti-Dumping
Agreement applies solely in situations where dumped imports and
other known factors are causing injury to the domestic industry at
the same time. In order that investigating authorities, applying
Article 3.5, are able to ensure that the injurious effects of the other
known factors are not “attributed” to dumped imports, they must
appropriately assess the injurious effects of those other factors.
Logically, such an assessment must involve separating and distinguishing
the injurious effects of the other factors from the injurious effects of
the dumped imports. If the injurious effects of the dumped imports are
not appropriately separated and distinguished from the injurious effects
of the other factors, the authorities will be unable to conclude that
the injury they ascribe to dumped imports is actually caused by those
imports, rather than by the other factors. Thus, in the absence of such
separation and distinction of the different injurious effects, the
investigating authorities would have no rational basis to conclude that
the dumped imports are indeed causing the injury which, under the Anti-Dumping
Agreement, justifies the imposition of anti-dumping duties.
A.3.24.2 US — Hot-Rolled Steel,
para. 224
(WT/DS184/AB/R)
We emphasize that the particular methods and approaches by which WTO
Members choose to carry out the process of separating and distinguishing
the injurious effects of dumped imports from the injurious effects of
the other known causal factors are not prescribed by the Anti-Dumping
Agreement. What the Agreement requires is simply that the
obligations in Article 3.5 be respected when a determination of injury
is made.
A.3.24.3 US — Hot-Rolled Steel,
para. 226
(WT/DS184/AB/R)
It is clear to us that the interpretive approach adopted by the panel
in United States — Atlantic Salmon Anti-Dumping Duties is at odds
with the interpretive approach for Article 3.5 of the Anti-Dumping
Agreement that we have just set forth. As we said, in order to
comply with the non-attribution language in that provision,
investigating authorities must make an appropriate assessment of the
injury caused to the domestic industry by the other known factors, and
they must separate and distinguish the injurious effects of the dumped
imports from the injurious effects of those other factors. This requires
a satisfactory explanation of the nature and extent of the injurious
effects of the other factors, as distinguished from the injurious
effects of the dumped imports. However, the panel in United States
— Atlantic Salmon Anti-Dumping Duties, expressly disavowed any need to
“identify” the injury caused by the other factors. According to that
panel, such separate identification of the injurious effects of the
other causal factors is not required.
A.3.24.4 US — Hot-Rolled Steel,
para. 227
(WT/DS184/AB/R)
By following the panel in United States —
Atlantic Salmon
Anti-Dumping Duties, the Panel, in effect, took the view that the
USITC was not required to separate and distinguish the injurious effects
of the other factors from the injurious effects of dumped imports, and
that the nature and extent of the injurious effects of the other known
factors need not be identified at all. However, in our view, this is
precisely what the non-attribution language in Article 3.5 of the Anti-Dumping
Agreement requires, in order to ensure that determinations regarding
dumped imports are not based on mere assumptions about the effects of
those imports, as distinguished from the effects of the other factors.
A.3.24.5 US — Hot-Rolled Steel,
para. 228
(WT/DS184/AB/R)
The United States contends that the panel in United States
— Atlantic Salmon Anti-Dumping Duties correctly stated that there is
no need to “isolate” the injurious effects of the other factors from
the injurious effects of the dumped imports. We are not certain what the
panel, in that dispute, intended to imply through the use of the word
“isolation”. Nevertheless, we agree with the United States that the
different causal factors operating on a domestic industry may interact,
and their effects may well be inter-related, such that they produce a combined
effect on the domestic industry. We recognize, therefore, that it may
not be easy, as a practical matter, to separate and distinguish the
injurious effects of different causal factors. However, although this
process may not be easy, this is precisely what is envisaged by the
non-attribution language. If the injurious effects of the dumped imports
and the other known factors remain lumped together and
indistinguishable, there is simply no means of knowing whether injury
ascribed to dumped imports was, in reality, caused by other factors.
Article 3.5, therefore, requires investigating authorities to undertake
the process of assessing appropriately, and separating and
distinguishing, the injurious effects of dumped imports from those of
other known causal factors.
A.3.24.6 EC — Bed Linen (Article 21.5
— India),
para. 112
(WT/DS141/AB/RW)
Article 3.5 continues in the same vein as the initial paragraphs of
Article 3 by requiring a demonstration that dumped imports are causing
injury to the domestic industry “through the effects of dumping”,
which, of course, depends upon there being imports from producers or
exporters that are dumped. In addition, Article 3.5 lists
“volume and prices of imports not< | 
