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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 sold at dumping prices” as
an example of “known factors other than the dumped imports”
that are injuring the domestic industry at the same time as the dumped
imports. Article 3.5 requires that this injury not be attributed
to the dumped imports. …
A.3.24.7 EC — Tube or Pipe, para. 188
(WT/DS219/AB/R)
… Non-attribution therefore requires separation and distinguishing
of the effects of other causal factors from those of the dumped imports
so that injuries caused by the dumped imports and those caused by other
factors are not “lumped together” and made “indistinguishable”.
A.3.24.8 EC — Tube or Pipe,
para. 189
(WT/DS219/AB/R)
… Thus, provided that an investigating authority does not attribute
the injuries of other causal factors to dumped imports, it is free to
choose the methodology it will use in examining the “causal
relationship” between dumped imports and injury.
A.3.25 Article 3.5 — Examination of other
known factors back to top
A.3.25.1 EC — Tube or Pipe,
para. 175
(WT/DS219/AB/R)
… Critical to the effective operation of the
non-attribution obligation, and indeed, the entire causality analysis,
is the requirement of Article 3.5 to “examine any known factors other
than the dumped imports which at the same time are injuring the domestic
industry”, for it is the “injuries” of those “known factors”
that must not be attributed to dumped imports. In order for this
obligation to be triggered, Article 3.5 requires that the factor at
issue:
(a) be “known” to the investigating
authority;
(b) be a factor “other than dumped imports”;
and
(c) be injuring the domestic industry at the
same time as the dumped imports.
A.3.25.2 EC — Tube or Pipe,
para. 176
(WT/DS219/AB/R)
We are mindful that the Anti-Dumping
Agreement does not expressly state how such factors should become
“known” to the investigating authority, or if and in what manner
they must be raised by interested parties, in order to qualify as “known”.
We also recognize that the Anti-Dumping Agreement does not
expressly state to what degree a factor must be unrelated to the dumped
imports, or whether it must be extrinsic to the exporter and the dumped
product, in order to constitute a factor “other than the dumped
imports”. …
A.3.25.3 EC — Tube or Pipe, para. 177
(WT/DS219/AB/R)
We note that Brazil’s claim rests entirely
on the assumption that there was a marked difference in the costs of
production between the Brazilian exporter and the European Communities
producers. Brazil’s factual allegation regarding the difference in
costs of production, however, was rejected by the European Commission.
… Having rejected the Brazilian exporter’s factual premise in the
context of one phase of the investigation, the European Commission, in
our view, had no reason to undertake an analysis in a subsequent phase
of the investigation that would have been predicated upon the very
correctness of the same premise. In other words, once the European
Commission had determined that the allegation of the difference in cost
of production was unfounded, it had no obligation to examine its effects
on the domestic industry under Article 3.5.
A.3.25.4 EC — Tube or Pipe,
para. 178
(WT/DS219/AB/R)
… However, we disagree with the Panel’s
apparent understanding of the term “known” in Article 3.5. We
understand the Panel, in rejecting this aspect of Brazil’s claim under
Article 3.5, to have stated that the alleged causal factor was
“known” to the European Commission in the context of its dumping and
injury analyses, but that the factor was nevertheless not “known”
in the context of its causality analysis. In our view, a factor is
either “known” to the investigating authority, or it is not “known”;
it cannot be “known” in one stage of the investigation and unknown
in a subsequent stage. …
A.3.26 Article 3.5 — Individual vs. Collective
effects of other factors. See also Anti-Dumping Agreement,
Articles 3.1 and 3.2 (A.3.18-19)
back to top
A.3.26.1 EC — Tube or Pipe,
para. 190
(WT/DS219/AB/R)
Turning to Brazil’s arguments in this
appeal, we do not read Article 3.5 as requiring, in each and every case,
an examination of the collective effects of other causal factors in
addition to examining those factors’ individual effects. We
observed in US — Hot-Rolled Steel that the non-attribution
language of the Anti-Dumping Agreement necessarily requires that
an investigating authority separate and distinguish the effects of other
causal factors from the effects of dumped imports, because only by doing
so can an investigating authority “conclude that the injury they
ascribe to dumped imports is actually caused by those imports, rather
than by the other factors.”
A.3.26.2 EC — Tube or Pipe, para. 191
(WT/DS219/AB/R)
In contrast, we do not find that an
examination of collective effects is necessarily required by the
non-attribution language of the Anti-Dumping Agreement. In
particular, we are of the view that Article 3.5 does not compel, in
every case, an assessment of the collective effects of other
causal factors, because such an assessment is not always necessary to
conclude that injuries ascribed to dumped imports are actually caused by
those imports and not by other factors.
A.3.26.3 EC — Tube or Pipe,
para. 192
(WT/DS219/AB/R)
We believe that, depending on the facts at
issue, an investigating authority could reasonably conclude, without
further inquiry into collective effects, that “the injury …
ascribe[d] to dumped imports is actually caused by those imports, rather
than by the other factors.” At the same time, we recognize that there
may be cases where, because of the specific factual circumstances
therein, the failure to undertake an examination of the collective
impact of other causal factors would result in the investigating
authority improperly attributing the effects of other causal factors to
dumped imports. We are therefore of the view that an investigating
authority is not required to examine the collective impact of other
causal factors, provided that, under the specific factual circumstances
of the case, it fulfils its obligation not to attribute to dumped
imports the injuries caused by other causal factors.
A.3.26.4 US — Steel Safeguards,
para. 491
(WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R,
WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R,
WT/DS259/AB/R)
Lastly, it may be useful to refer to our
finding in EC — Tube or Pipe Fittings in respect of the
relevance of factors that “had effectively been found not to exist”.
In that case, the competent authority had found, contrary to the
submissions of the exporters, that the difference in costs of production
between the imported product and the domestic product was virtually
non-existent and thus did not constitute a “factor other than dumped
imports” causing injury to the domestic industry under Article 3.5 of
the Anti-Dumping Agreement. Consequently, we found that there was
no reason for the investigating authority to undertake the analysis of
whether the alleged “other factor” had any effect on the
domestic industry under Article 3.5 because the alleged “other factor”
“had effectively been found not to exist”. In other words, we
did not rule that minimal (or not significant) factors need not be
considered by the competent authorities in conducting non-attribution
analyses. Rather, we ruled that only factors that have been found to
exist need be taken into account in the non-attribution analysis.
A.3.27 Article 3.7 — Threat of material injury
back to top
A.3.27.1 Mexico — Corn Syrup (Article 21.5
— US), para. 83
(WT/DS132/AB/RW)
… Article 3.7 of the Anti-Dumping
Agreement sets forth a number of requirements that must be respected
in order to reach a valid determination of a threat of material injury.
The third sentence of Article 3.7 explicitly recognizes that it is the investigating
authorities who make a determination of threat of material injury,
and that such determination — by the investigating authorities — “must
be based on facts and not merely on allegation, conjecture or remote
possibility”. Consequently, Article 3.7 is not addressed to panels,
but to the national investigating authorities which determine the
existence of a threat of material injury.
A.3.27.2 Mexico — Corn Syrup (Article 21.5
— US), para. 85
(WT/DS132/AB/RW)
In our view, the “establishment” of facts
by investigating authorities includes both affirmative findings of
events that took place during the period of investigation as well as
assumptions relating to such events made by those authorities in the
course of their analyses. In determining the existence of a threat
of material injury, the investigating authorities will necessarily have
to make assumptions relating to “the “occurrence of future events”
since such future events “can never be definitively proven by
facts”. Notwithstanding this intrinsic uncertainty, a “proper
establishment” of facts in a determination of threat of material
injury must be based on events that, although they have not yet
occurred, must be “clearly foreseen and imminent”, in accordance
with Article 3.7 of the Anti-Dumping Agreement.
A.3.28 Article 5.4 — Motives of domestic
producers for supporting investigation back to top
A.3.28.1 US — Offset Act (Byrd Amendment),
para. 283
(WT/DS217/AB/R, WT/DS234/AB/R)
A textual examination of Article 5.4 of the Anti-Dumping
Agreement and Article 11.4 of the SCM Agreement
reveals that those provisions contain no requirement that an
investigating authority examine the motives of domestic producers that
elect to support an investigation. Nor do they contain any explicit
requirement that support be based on certain motives, rather than on
others. The use of the terms “expressing support” and “expressly
supporting” clarify that Articles 5.4 and 11.4 require only that
authorities “determine” that support has been “expressed” by a
sufficient number of domestic producers. Thus, in our view, an “examination”
of the “degree” of support, and not the “nature” of support is
required. In other words, it is the “quantity”, rather than the “quality”,
of support that is the issue.
A.3.29 Article 6 — Evidentiary rules for
anti-dumping investigations. See also Anti-Dumping Agreement,
Article 11.3 (A.3.45-52) back to top
A.3.29.1 EC — Bed Linen (Article 21.5
— India),
para. 136
(WT/DS141/AB/RW)
Article 6 is entitled “Evidence”, and
there is no indication in Article 6 — or elsewhere in the Anti-Dumping
Agreement — that Article 6 does not apply generally to matters
relating to “evidence” throughout that Agreement. Therefore, it
seems to us that the subparagraphs of Article 6 set out evidentiary
rules that apply throughout the course of an anti-dumping investigation,
and provide also for due process rights that are enjoyed by “interested
parties” throughout such an investigation.
A.3.30 Article 6.1 — “ample opportunity to
present in writing all evidence”. See also Anti-Dumping
Agreement, Article 11.4 (A.3.53)
back to top
A.3.30.1 US
— Hot-Rolled Steel,
paras. 73-75
(WT/DS184/AB/R)
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. …
… 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.
In sum, Article 6.1.1 establishes that
investigating authorities may impose time-limits for questionnaire
responses, and that in appropriate circumstances these time-limits must
be extended. …
A.3.30.2 US — Oil Country Tubular Goods Sunset
Reviews, para. 242
(WT/DS268/AB/R)
… the “ample” and “full”
opportunities guaranteed by Articles 6.1 and 6.2, respectively, cannot
extend indefinitely and must, at some point, legitimately cease to
exist. This point must be determined by reference to the right of
investigating authorities to rely on deadlines in the conduct of their
investigations and reviews. Where the continued granting of
opportunities to present evidence and attend hearings would impinge on
an investigating authority’s ability to “control the conduct” of
its inquiry and to “carry out the multiple steps” required to reach
a timely completion of the sunset review, a respondent will have reached
the limit of the “ample” and “full” opportunities provided for
in Articles 6.1 and 6.2 of the Anti-Dumping Agreement.
A.3.30.3 US — Oil Country Tubular Goods Sunset
Reviews, para. 245
(WT/DS268/AB/R)
We consider, first, whether the due process
rights of Articles 6.1 and 6.2 are denied to those respondents who file incomplete
submissions in response to the USDOC notice of initiation. We
recall that the Panel found that the USDOC considers submissions to be
incomplete, for the purposes of Section 351.218(d)(2)(iii) of the USDOC
Regulations, where all of the requested information is not
contained in the respondent’s submission. An incomplete submission
might contain relevant evidence in support of the respondent’s
position, yet fall short of the information required by the USDOC
Regulations in order to be considered “complete” by the USDOC. The
Panel assumed arguendo that, as the United States claimed, the
USDOC uses this “incomplete” information in making its order-wide
sunset determination. Nevertheless, the Panel found, and the United
States agrees on appeal, that “the USDOC is precluded from taking into
consideration, in its determination with respect to a given exporter,
the facts submitted by that exporter [in an incomplete response]”. As
the United States acknowledges, and as discussed above, the
company-specific determination is “consider[ed]” by the USDOC when
making its subsequent order-wide evaluation and is relevant to, even if
not determinative of, the outcome of the sunset review.
A.3.30.4 US — Oil Country Tubular Goods Sunset
Reviews, para. 246
(WT/DS268/AB/R)
… with respect to at least one part of the
USDOC’s analysis underlying the order-wide determination, evidence “presented”
by a respondent is disregarded and an affirmative likelihood
determination is made for that respondent. In our view, disregarding a
respondent’s evidence in this manner is incompatible with the
respondent’s right, under Article 6.1, to present evidence that it
considers relevant in respect of the sunset review. The agency is
clearly notified of a respondent’s interest in participating in the
sunset review by virtue of the respondent having filed a response — albeit an incomplete one. …
A.3.31 Article 6.2 — Opportunity for
interested parties to defend their interests back to top
A.3.31.1 EC — Tube or Pipe,
para. 149
(WT/DS219/AB/R)
The European Communities recognized during the
oral hearing that a finding of violation in this case under Article 6.4
would necessarily entail a violation of Article 6.2. We are also of the
view that, by failing to meet its legal obligation to disclose Exhibit
EC-12, the European Communities did not afford the Brazilian exporter
“a full opportunity for the defence of [its] interests” as required
under Article 6.2 of the Anti-Dumping Agreement. One of the
stated objectives of the disclosure of information required under
Article 6.4 is to allow interested parties “to prepare presentations
on the basis of this information”. The “presentations” referred to
in Article 6.4, whether written or oral, logically are the principal
mechanisms through which an exporter subject to an anti-dumping
investigation can defend its interests. Thus, by failing to disclose
Exhibit EC-12 and thereby depriving the Brazilian exporter of an
opportunity to present its defence, the European Communities did not act
consistently with Article 6.2.
A.3.31.2 US — Oil Country Tubular Goods Sunset
Reviews, para. 246
(WT/DS268/AB/R)
… the respondent will also be denied any
opportunity to confront parties with adverse interests in a hearing,
notwithstanding this respondent’s clear expression of interest in
participating in the sunset review. As a result, this respondent is
denied its rights, pursuant to Article 6.2, to the “full opportunity
for the defence of [its] interests”. The United States claims that the
USDOC “takes all record evidence into account, including evidence in
incomplete submissions, when making the order-wide determination”.
This does not alter the fact that evidence in incomplete submissions is
disregarded in the course of the USDOC’s analysis, namely, when making
company-specific determinations, thereby denying respondents their
rights under Articles 6.1 and 6.2.
A.3.31.3 US — Oil Country Tubular Goods Sunset
Reviews, para. 248
(WT/DS268/AB/R)
We now turn to evaluate whether those
respondents that do not respond at all to the USDOC notice of
initiation are also denied opportunities guaranteed by Articles 6.1 and
6.2. These respondents will also face automatic affirmative
company-specific determinations, be precluded from submitting evidence
in the remainder of the sunset proceeding, and not be allowed a hearing
with adverse parties. Unlike the case of respondents who file incomplete
submissions, however, there will be no evidence submitted by that
respondent that the USDOC would disregard. Thus, the sole basis on which
such respondents may claim a denial of rights under Articles 6.1 and 6.2
is the denial of the opportunity to participate in later stages of the
proceeding, including the right to request a hearing and submit evidence
subsequent to the filing deadline of the initial submission.
A.3.31.4 US — Oil Country Tubular Goods Sunset
Reviews, para. 249
(WT/DS268/AB/R)
In this case, the claim under Article 6
centres on the initiation stage of the proceeding. In our view,
an investigating authority may have at the initiation stage particular
concerns about enforcing its deadline for receiving notifications of a
respondent’s interest in participating. The submissions filed by
respondents and domestic interested parties frame the scope of the
sunset review for the investigating authority. These submissions inform
the agency as to the extent of the issues and company-specific data that
may need to be investigated and adjudicated upon in the course of the
sunset review. …
A.3.31.5 US — Oil Country Tubular Goods Sunset
Reviews, para. 250
(WT/DS268/AB/R)
Respondents’ initial submissions also serve
to inform other interested parties of the critical issues in dispute in
the sunset review. Particularly where company-specific behaviour is
relevant to the final likelihood-of-dumping determination — for example,
in respect of an individual respondent’s dumping margins and volume
and value of exports — respondents’ submissions may provide factual
information necessary for other interested parties to defend their
interests adequately before the agency. … Because respondents’
initial submissions effectively contribute to establishing the
parameters of the sunset review — for the investigating authority as
well as for other interested parties — the investigating authority has a
significant interest in requiring respondents to comply with the
deadline for notification of interest in participating at the initial
stage of the proceeding.
A.3.31.6 US — Oil Country Tubular Goods Sunset
Reviews, para. 252
(WT/DS268/AB/R)
… the rights to present evidence and request
a hearing cannot be said to be “denied” to a respondent that is
given an opportunity to submit an initial response to the notice of
initiation simply because it must do so by a deadline that is conceded
to be reasonable. We do not see it as an unreasonable burden on
respondents to require them to file a timely submission in order to
preserve their rights for the remainder of the sunset review. Indeed,
even an incomplete submission will serve to preserve those rights.
Accordingly, we are of the view that, if a respondent decides not to
undertake the necessary initial steps to avail itself of the “ample”
and “full” opportunities available for the defence of its interests,
the fault lies with the respondent, and not with the deemed waiver
provision.
A.3.32 Article 6.4 — Access to information
relevant for interested parties to present their case. See also
Anti-Dumping Agreement, Article 6.2 (A.3.31); Anti-Dumping Agreement,
Article 11.4 (A.3.53) back to top
A.3.32.1 EC — Tube or Pipe,
para. 145
(WT/DS219/AB/R)
We turn first to the requirement that the
information be “relevant”. From the Panel’s reasoning, it is
apparent that it read this requirement to mean “relevant” from the
perspective of the investigating authority. We disagree. Article 6.4 refers to “provid[ing] timely opportunities for all interested
parties to see all information that is relevant to the presentation of their
cases”. (emphasis added) The possessive pronoun “their” clearly
refers to the earlier reference in that sentence to “interested
parties”. The investigating authorities are not mentioned in Article 6.4 until later in the sentence, when the provision refers to the
additional requirement that the information be “used by the
authorities”. Thus, whether or not the investigating authorities
regarded the information in Exhibit EC-12 to be relevant does not
determine whether the information would in fact have been “relevant”
for the purposes of Article 6.4.
A.3.32.2 EC — Tube or Pipe,
para. 146
(WT/DS219/AB/R)
This conclusion is supported by our reasoning
in US — Hot Rolled Steel, where we explained that “Article 3.4 lists certain factors which are deemed to be relevant in every
investigation and which must always be evaluated by the
investigating authorities.” Thus, because Exhibit EC-12 contains
information on some of the injury factors listed in Article 3.4, and the
injury factors listed in that provision “are deemed to be relevant in
every investigation”, Exhibit EC-12 must be considered to contain
information that is relevant to the investigation carried out by the
European Commission. As such, the information in Exhibit EC-12 was
necessarily relevant to the presentation of the interested parties’
cases and is, therefore, “relevant” for purposes of Article 6.4.
A.3.32.3 EC — Tube or Pipe,
para. 147
(WT/DS219/AB/R)
… In our view, however, the Panel’s
reasoning overlooks the fact that the European Commission was required
to evaluate all the injury factors listed in Article 3.4, and the
evaluation of some of these factors is set out exclusively in Exhibit
EC-12. In other words, Exhibit EC-12 relates to a required step in the
anti-dumping investigation. The European Communities relies on Exhibit
EC-12 as the sole evidence that it performed this required step.
As we see it, this necessarily leads to the conclusion that the
information in Exhibit EC-12 was in fact “used” by the European
Commission in the anti-dumping investigation and that, therefore,
Exhibit EC-12 also satisfies this criterion of Article 6.4. Thus, the
European Communities was not entitled to exclude this information on the
basis that it did not consider that it provided “value added” to the
investigation.
A.3.33 Article 6.8 and Annex II — Facts
available to investigating authorities back to top
A.3.33.1 US — Hot-Rolled Steel,
para. 77
(WT/DS184/AB/R)
Article 6.8 identifies the circumstances in
which investigating authorities may overcome a lack of information, in
the responses of the interested parties, by using “facts” which are
otherwise “available” to the investigating authorities. According to
Article 6.8, where the interested parties do not “significantly impede”
the investigation, recourse may be had to facts available only if an
interested party fails to submit necessary information “within a
reasonable period”. Thus, if information is, in fact, supplied “within
a reasonable period”, the investigating authorities cannot use
facts available, but must use the information submitted by the
interested party.
A.3.33.2 US — Hot-Rolled Steel,
para. 79
(WT/DS184/AB/R)
Although this paragraph [Annex II, para. 1] is
specifically concerned with ensuring that respondents receive proper
notice of the rights of the investigating authorities to use facts
available, it underscores that resort may be had to facts available only
“if information is not supplied within a reasonable time”. Like
Article 6.8, paragraph 1 of Annex II indicates that determinations may not
be based on facts available when information is supplied within a “reasonable
time” but should, instead, be based on the information submitted.
A.3.34 Article 6.8 and Annex II — Timeliness
of parties’ submissions back to top
A.3.34.1 US — Hot-Rolled Steel,
para. 81
(WT/DS184/AB/R)
… according to paragraph 3 of Annex II,
investigating authorities are directed to use information if three, and,
in some circumstances, four, conditions are satisfied. In our view, it
follows that if these conditions are met, investigating authorities are not
entitled to reject information submitted, when making a determination.
One of these conditions is that information must be submitted “in a timely
fashion”.
A.3.34.2 US — Hot-Rolled Steel,
para. 82
(WT/DS184/AB/R)
… In our view, “timeliness” under
paragraph 3 of Annex II must be read in light of the collective
requirements, in Articles 6.1.1 and 6.8, and in Annex II, relating to
the submission of information by interested parties. Taken together,
these provisions establish a coherent framework for the treatment, by
investigating authorities, of information submitted by interested
parties. Article 6.1.1 establishes that investigating authorities may
fix time-limits for responses to questionnaires, but indicates that, “upon
cause shown”, and if “practicable”, these time-limits are to be
extended. Article 6.8 and paragraph 1 of Annex II provide that
investigating authorities may use facts available only if information is
not submitted within a reasonable period of time, which, in turn,
indicates that information which is submitted in a reasonable
period of time should be used by the investigating authorities.
A.3.34.3 US — Hot-Rolled Steel,
para. 83
(WT/DS184/AB/R)
That being so, we consider that, under
paragraph 3 of Annex II, investigating authorities should not be
entitled to reject information as untimely if the information is
submitted within a reasonable period of time. In other words, we see,
“in a timely fashion”, in paragraph 3 of Annex II as a reference to
a “reasonable period” or a “reasonable time”. This reading of
“timely” contributes to, and becomes part of, the coherent framework
for fact-finding by investigating authorities. Investigating authorities
may reject information under paragraph 3 of Annex II only in the
same circumstances in which they are entitled to overcome the lack of
this information through recourse to facts available, under Article 6.8
and paragraph 1 of Annex II of the Anti-Dumping Agreement. The
coherence of this framework is also secured through the second sentence
of Article 6.1.1, which requires investigating authorities to extend
deadlines “upon cause shown”, if “practicable”. In short, if the
investigating authorities determine that information was submitted
within a reasonable period of time, Article 6.1.1 calls for the
extension of the time-limits for the submission of information.
A.3.35 Article 6.8 and Annex II — “reasonable
period” for submission of information back to top
A.3.35.1 US — Hot-Rolled Steel,
para. 84
(WT/DS184/AB/R)
… The word “reasonable” [in Article 6.8
and paragraph 1 of Annex II] implies a degree of flexibility that
involves consideration of all of the circumstances of a particular case.
What is “reasonable” in one set of circumstances may prove to be
less than “reasonable” in different circumstances. This suggests
that what constitutes a reasonable period or a reasonable time, under
Article 6.8 and Annex II of the Anti-Dumping Agreement, should be
defined on a case-by-case basis, in the light of the specific
circumstances of each investigation.
A.3.35.2 US — Hot-Rolled Steel,
para. 85
(WT/DS184/AB/R)
In sum, a “reasonable period” must be
interpreted consistently with the notions of flexibility and balance
that are inherent in the concept of “reasonableness”, and in a
manner that allows for account to be taken of the particular
circumstances of each case. In considering whether information is
submitted within a reasonable period of time, investigating authorities
should consider, in the context of a particular case, factors such as: (i)
the nature and quantity of the information submitted; (ii) the
difficulties encountered by an investigated exporter in obtaining the
information; (iii) the verifiability of the information and the ease
with which it can be used by the investigating authorities in making
their determination; (iv) whether other interested parties are likely to
be prejudiced if the information is used; (v) whether acceptance of the
information would compromise the ability of the investigating
authorities to conduct the investigation expeditiously; and (vi) the
numbers of days by which the investigated exporter missed the applicable
time-limit.
A.3.35.3 US — Hot-Rolled Steel,
para. 86
(WT/DS184/AB/R)
In determining whether information is
submitted within a reasonable period of time, it is proper for
investigating authorities to attach importance to the time-limit fixed
for questionnaire responses, and to the need to ensure the conduct of
the investigation in an orderly fashion. Article 6.8 and paragraph 1 of
Annex II are not a license for interested parties simply to disregard
the time-limits fixed by investigating authorities. Instead, Articles 6.1.1 and 6.8, and Annex II of the Anti-Dumping Agreement, must
be read together as striking and requiring a balance between the rights
of the investigating authorities to control and expedite the
investigating process, and the legitimate interests of the parties to
submit information and to have that information taken into account.
A.3.36 Article 6.8 and Annex II — Lack of
cooperation by investigated parties. See also Anti-Dumping
Agreement, Article 11.4 (A.3.53)
back to top
A.3.36.1 US — Hot-Rolled Steel,
paras. 99-100
(WT/DS184/AB/R)
Paragraph 7 of Annex II indicates that a lack
of “cooperation” by an interested party may, by virtue of the use
made of facts available, lead to a result that is “less favourable”
to the interested party than would have been the case had that
interested party cooperated. … [P]arties may very well “cooperate”
to a high degree, even though the requested information is, ultimately,
not obtained. This is because the fact of “cooperating” is in itself
not determinative of the end result of the cooperation. Thus,
investigating authorities should not arrive at a “less favourable”
outcome simply because an interested party fails to furnish requested
information if, in fact, the interested party has “cooperated” with
the investigating authorities, within the meaning of paragraph 7 of
Annex II of the Anti-Dumping Agreement.
Paragraph 7 of Annex II does not indicate what
degree of “cooperation” investigating authorities are
entitled to expect from an interested party in order to preclude the
possibility of such a “less favourable” outcome. To resolve this
question we scrutinize the context found in Annex II. …
A.3.36.2 US — Hot-Rolled Steel, para. 102
(WT/DS184/AB/R)
We, therefore, see paragraphs 2 and 5 of Annex
II of the Anti-Dumping Agreement as reflecting a careful balance
between the interests of investigating authorities and exporters. In
order to complete their investigations, investigating authorities are
entitled to expect a very significant degree of effort — to the “best
of their abilities” — from investigated exporters. At the same time,
however, the investigating authorities are not entitled to insist upon absolute
standards or impose unreasonable burdens upon those exporters.
A.3.36.3 US — Hot-Rolled Steel,
paras. 119-120
(WT/DS184/AB/R)
… There is, however, no requirement in
Article 6.8 that resort to facts available be limited to situations
where there is no information whatsoever which can be used to
calculate a margin. Thus, the application of Article 6.8, authorizing
the use of facts available, is not confined to cases where the entire
margin is established using only facts available. Rather, under
Article 6.8, investigating authorities are entitled to have recourse to
facts available whenever an interested party does not provide
some necessary information within a reasonable period, or significantly
impedes the investigation. Whenever such a situation exists,
investigating authorities may remedy the lack of any necessary
information by drawing appropriately from the “facts available”. As
the United States acknowledges, Article 6.8 may apply in situations
where recourse to facts available is needed to cure the lack of even a
very small amount of information.
In consequence, we are of the view that the
“circumstances referred to” in Article 6.8 are the
circumstances in which the investigating authorities properly have
recourse to “facts available” to overcome a lack of necessary
information in the record, and that these “circumstances” may, in
fact, involve only a small amount of information to be used in the
calculation of the individual margin of dumping for an exporter or
producer.
A.3.37 Article 6.10 — No individual
examination of all producers. See also Anti-Dumping Agreement,
Articles 3.1 and 3.2 — Method of calculating the “volume of the dumped
imports” (A.3.18); Anti-Dumping Agreement, Article 11.4
— Relationship
with Article 6 (A.3.53) back to top
A.3.37.1 EC — Bed Linen (Article 21.5
— India),
para. 116
(WT/DS141/AB/RW)
The issue raised in this appeal, however, does
not relate to imports from producers or exporters that were examined
individually in an investigation. Rather, it relates to the
appropriate treatment of imports from producers or exporters that were
not examined individually in such an investigation. The
appeal before us involves an investigation in which individual
margins of dumping have not been determined for each
Indian producer exporting to the European Communities. It is, of course,
not necessary under the Anti-Dumping Agreement for investigating
authorities to examine each producer and exporter. The second
sentence of Article 6.10 authorizes investigating authorities, when
determining margins of dumping, to limit their examination where
the number of producers or exporters of the product under investigation
is so large that the determination of an individual margin of
dumping for each of them would be impracticable. This
limited examination may be conducted in one of two alternative ways
identified in Article 6.10…
A.3.38 Article 6.13 — Cooperation between
interested parties and investigation authorities
back to top
A.3.38.1 US — Hot-Rolled Steel, para. 104
(WT/DS184/AB/R)
Article 6.13 thus underscores that “cooperation”
is, indeed, a two-way process involving joint effort. This provision
requires investigating authorities to make certain allowances for, or
take action to assist, interested parties in supplying information. If
the investigating authorities fail to “take due account” of genuine
“difficulties” experienced by interested parties, and made known to
the investigating authorities, they cannot, in our view, fault the
interested parties concerned for a lack of cooperation.
A.3.39 Article 9.1 — Imposition of
anti-dumping duties — Relationship with Articles 2 and 3
back to top
A.3.39.1 EC — Bed Linen (Article 21.5
— India),
para. 123
(WT/DS141/AB/RW)
… In our view, too, the use by the drafters
of the present perfect tense is significant; it indicates that the
imposition and collection of anti-dumping duties under Article 9 is a
separate and distinct phase of an anti-dumping action that necessarily
occurs after the determination of dumping, injury, and causation
under Articles 2 and 3 has been made. Members have the right to impose
and collect anti-dumping duties only after the completion of an
investigation in which it has been established that the
requirements of dumping, injury, and causation “have been fulfilled”.
In other words, the right to impose anti-dumping duties under Article 9
is a consequence of the prior determination of the existence of
dumping margins, injury, and a causal link. The determination, by the
investigating authorities of a Member, that there is injury caused by a
certain volume of dumping necessarily precedes and gives rise to the consequential
right to impose and collect anti-dumping duties.
A.3.40 Article 9.2
— Product-specific vs.
Company-specific anti-dumping determination. See also
Anti-Dumping Agreement, Article 11.3 (A.3.45-52)
back to top
A.3.40.1 US — Corrosion-Resistant Steel Sunset
Review, para. 150 and footnote 188
(WT/DS244/AB/R)
… Article 9.2 refers to the imposition of
“an anti-dumping duty … in respect of any product”, rather than
the imposition of a duty in respect of individual exporters or
producers. We agree that this reference in Article 9.2 informs the
interpretation of Article 11.3. We also note that Article 9.2 allows
investigating authorities, in imposing a duty in respect of a product,
to “name the supplier or suppliers of the product concerned” or, in
certain circumstances, “the supplying country concerned.” This
suggests that authorities may use a single order to impose a “duty”,
even though the amount of the duty imposed on each exporter or
producer may vary. Therefore, Article 9.2 confirms our initial view that
Article 11.3 does not require investigating authorities to make their
likelihood determination on a company-specific basis.188
A.3.41 Article 9.4 — Calculation of the “all
other” anti-dumping duty rate
back to top
A.3.41.1 US — Hot-Rolled
Steel, para. 116
(WT/DS184/AB/R)
Article 9.4 does not prescribe any method that
WTO Members must use to establish the “all others” rate that is
actually applied to exporters or producers that are not investigated.
Rather, Article 9.4 simply identifies a maximum limit, or ceiling, which
investigating authorities “shall not exceed” in establishing
an “all others” rate. Sub-paragraph (i) of Article 9.4 states the
general rule that the relevant ceiling is to be established by
calculating a “weighted average margin of dumping established” with
respect to those exporters or producers who were investigated.
However, the clause beginning with “provided that”, which follows
this sub-paragraph, qualifies this general rule. This qualifying
language mandates that, “for the purpose of this paragraph”,
investigating authorities “shall disregard”, first, zero and de
minimis margins and, second, “margins established under the
circumstances referred to in paragraph 8 of Article 6.” Thus, in
determining the amount of the ceiling for the “all others” rate,
Article 9.4 establishes two prohibitions. The first prevents
investigating authorities from calculating the “all others” ceiling
using zero or de minimis margins; while the second precludes
investigating authorities from calculating that ceiling using “margins
established under the circumstances referred to” in Article 6.8.
A.3.42 Article 9.4 — Relationship with Article 2.4.2
back to top
A.3.42.1 US — Hot-Rolled
Steel, para. 118
(WT/DS184/AB/R)
… we recall that the word “margins”,
which appears in Article 2.4.2 of that Agreement, has been interpreted
in European Communities — Bed Linen. The Panel found, in that
dispute, and we agreed, that “margins” means the individual margin
of dumping determined for each of the investigated exporters and
producers of the product under investigation, for that particular
product. This margin reflects a comparison that is based upon
examination of all of the relevant home market and export market
transactions. We see no reason, in Article 9.4, to interpret the word
“margins” differently from the meaning it has in Article 2.4.2, and
the parties have not suggested one.
A.3.43 Article 9.4 — Relationship with Article 6.8
back to top
A.3.43.1 US — Hot-Rolled
Steel, para. 122
(WT/DS184/AB/R)
We have noted that Article 9.4 establishes a
prohibition, in calculating the ceiling for the all others rate, on
using “margins established under the circumstances referred to” in
Article 6.8. Nothing in the text of Article 9.4 supports the United
States’ argument that the scope of this prohibition should be narrowed
so that it would be limited to excluding only margins established “entirely”
on the basis of facts available. As noted earlier, Article 6.8 applies
even in situations where only limited use is made of facts available. To
read Article 9.4 in the way the United States does is to overlook the
many situations where Article 6.8 allows a margin to be calculated, in
part, using facts available. Yet, the text of Article 9.4 simply
refers, in an open-ended fashion, to “margins established under the
circumstances” in Article 6.8. Accordingly, we see no basis for
limiting the scope of this prohibition in Article 9.4, by reading into
it the word “entirely” as suggested by the United States. In our
view, a margin does not cease to be “established under the
circumstances referred to” in Article 6.8 simply because not every
aspect of the calculation involved the use of “facts available”.
A.3.43.2 US — Hot-Rolled
Steel, para. 123
(WT/DS184/AB/R)
Our reading of Article 9.4 is consistent with
the purpose of the provision. Article 6.8 authorizes investigating
authorities to make determinations by remedying gaps in the record which
are created, in essence, as a result of deficiencies in, or a lack of,
information supplied by the investigated exporters. Indeed, in some
circumstances, as set forth in paragraph 7 of Annex II of the Anti-Dumping
Agreement, “if an interested party does not cooperate and
thus relevant information is being withheld from the authorities, this
situation could lead to a result which is less favourable to the
party than if the party did cooperate.” (emphasis added) Article 9.4
seeks to prevent the exporters, who were not asked to cooperate
in the investigation, from being prejudiced by gaps or shortcomings in
the information supplied by the investigated exporters. This objective
would be compromised if the ceiling for the rate applied to “all
others” were, as the United States suggests, calculated — due to the
failure of investigated parties to supply certain information — using
margins “established” even in part on the basis of the facts
available.
A.3.43.3 US — Hot-Rolled
Steel, para. 126
(WT/DS184/AB/R)
This lacuna arises because, while
Article 9.4 prohibits the use of certain margins in the
calculation of the ceiling for the “all others” rate, it does not
expressly address the issue of how that ceiling should be
calculated in the event that all margins are to be excluded
from the calculation, under the prohibitions. This appeal does not raise
the issue of how that lacuna might be overcome on the basis of
the present text of the Anti-Dumping Agreement. Accordingly, it
is not necessary for us to address that question.
A.3.44 Article 9.4 — Relationship with
paragraphs 1 and 2 of Article 3
back to top
A.3.44.1 EC — Bed Linen (Article 21.5
— India),
para. 124
(WT/DS141/AB/RW)
… Similarly, in this implementation dispute,
we are of the view that Article 9.4, which specifies what action may be
taken only after certain prerequisites have been determined, is
of little relevance for interpreting Article 3, which sets out those
prerequisites. We do not see how Article 9.4, which authorizes the
imposition of a certain maximum anti-dumping duty on imports from
non-examined producers, is relevant for interpreting paragraphs 1 and 2
of Article 3, which deal with the determination of injury based on the volume
of “dumped imports”. … Likewise, Article 9.4 does not mention the
term “dumped imports” or the “volume” of such imports. In our
view, the right to impose a certain maximum amount of anti-dumping duties
on imports attributable to non-examined producers under Article 9.4 cannot be read as permitting a derogation from the express and
unambiguous requirements of paragraphs 1 and 2 of Article 3 to determine
the volume of dumped imports — including dumped import volumes
attributable to non-examined producers — on the basis of “positive
evidence” and an “objective examination”. …
A.3.44.2 EC — Bed Linen (Article 21.5
— India),
para. 125
(WT/DS141/AB/RW)
Moreover, Article 9.4, which relates to the
imposition of anti-dumping duties on imports from non-examined
producers, has, by its own terms, a limited purpose as an exception
to the rule in Article 9.3. … In such cases, as an exception to
the rule in Article 9.3, Article 9.4 permits the imposition of a certain
maximum amount of anti-dumping duties on imports attributable to
producers that were not examined individually, irrespective of
whether those producers would have been found to be dumping had they
been examined individually. …
A.3.44.3 EC — Bed Linen (Article 21.5
— India),
para. 126
(WT/DS141/AB/RW)
In sum, Article 9.4 provides no guidance for
determining the volume of dumped imports from producers that were not
individually examined on the basis of “positive evidence” and an “objective
examination” under Article 3. … we do not see why the volume of
imports that has been found to be dumped by non-examined producers, for
purposes of determining injury under paragraphs 1 and 2 of
Article 3, must be congruent with the volume of imports from
those non-examined producers that is subject to the imposition of
anti-dumping duties under Article 9.4, as contended by the European
Communities and the Panel.
A.3.45 Article 11.3 — Sunset review — conditions. See also Anti-Dumping Agreement, Article 6 (A.3.29-38); Anti-Dumping Agreement, Article 9.2
(A.3.40); Anti-Dumping
Agreement, Article 11.4 (A.3.53)
back to top
A.3.45.1 US — Corrosion-Resistant Steel Sunset
Review, para. 104
(WT/DS244/AB/R)
Article 11.3 imposes a temporal limitation on
the maintenance of anti-dumping duties. It lays down a mandatory rule
with an exception. Specifically, Members are required to terminate an
anti-dumping duty within five years of its imposition “unless”
the following conditions are satisfied: first, that a review be
initiated before the expiry of five years from the date of the
imposition of the duty; second, that in the review the authorities
determine that the expiry of the duty would be likely to lead to
continuation or recurrence of dumping; and third, that in the
review the authorities determine that the expiry of the duty would be
likely to lead to continuation or recurrence of injury. If any
one of these conditions is not satisfied, the duty must be terminated.
A.3.46 Article 11.3 — Likelihood of
continuation or recurrence of dumping
back to top
A.3.46.1 US — Corrosion-Resistant Steel Sunset
Review, para. 105
(WT/DS244/AB/R)
This appeal concerns … the particular
disciplines with which authorities must comply in determining, in
accordance with Article 11.3, “that the expiry of the duty would be
likely to lead to continuation or recurrence of dumping”. In this
Report, we refer to this determination as the “likelihood
determination”. The likelihood determination is a prospective
determination. In other words, the authorities must undertake a
forward-looking analysis and seek to resolve the issue of what would be
likely to occur if the duty were terminated.
A.3.46.2 US — Corrosion-Resistant Steel Sunset
Review, para. 107
(WT/DS244/AB/R)
… In an original anti-dumping investigation,
investigating authorities must determine whether dumping exists
during the period of investigation. In contrast, in a sunset review of
an anti-dumping duty, investigating authorities must determine whether
the expiry of the duty that was imposed at the conclusion of an original
investigation would be likely to lead to continuation or recurrence
of dumping.
A.3.46.3 US — Oil Country Tubular Goods Sunset
Reviews, para. 323
(WT/DS268/AB/R)
Under Article 11.3 of the Anti-Dumping
Agreement, a decision not to terminate an anti-dumping duty must be
based on determinations of likelihood of continuation or recurrence of
dumping and likelihood of continuation or recurrence of injury. We agree
with the United States that the “likely” standard of Article 11.3
applies to the overall determinations regarding dumping and injury; it
need not necessarily apply to each factor considered in rendering the
overall determinations on dumping and injury. …
A.3.47 Article 11.3 — Standard of review
back to top
A.3.47.1 US — Corrosion-Resistant Steel Sunset
Review, para. 111
(WT/DS244/AB/R)
This language in Article 11.3 makes clear that
it envisages a process combining both investigatory and
adjudicatory aspects. In other words, Article 11.3 assigns an active
rather than a passive decision-making role to the authorities. The words
“review” and “determine” in Article 11.3 suggest that
authorities conducting a sunset review must act with an appropriate
degree of diligence and arrive at a reasoned conclusion on the basis of
information gathered as part of a process of reconsideration and
examination. In view of the use of the word “likely” in Article 11.3, an affirmative likelihood determination may be made only if the
evidence demonstrates that dumping would be probable if the duty were
terminated — and not simply if the evidence suggests that such a result
might be possible or plausible.
A.3.47.2 US — Oil Country Tubular Goods Sunset
Reviews, para. 309
(WT/DS268/AB/R)
The Panel stated that the standard set out in
Article 11.3 is the “likely” standard; this is plain from the text
of the provision itself. Although the Panel did not elaborate with
respect to the meaning of “likely”, or expressly state that “likely”
means “probable”, we see nothing in the Panel Report to suggest that
the Panel was of the view that “likely” does not mean “probable”,
or that “likely” means “anything less than probable”.
A.3.47.3 US — Oil Country Tubular Goods Sunset
Reviews, paras. 321-322
(WT/DS268/AB/R)
In US — Corrosion-Resistant Steel Sunset
Review, the Appellate Body approved the description set out by the
panel in that case of investigating authorities’ obligations in a
sunset review:
The text of Article 11.3 contains an
obligation “to determine” likelihood of continuation or recurrence
of dumping and injury. The text of Article 11.3 does not, however,
provide explicit guidance regarding the meaning of the term “determine”.
The ordinary meaning of the word “determine” is to “find out or
establish precisely” or to “decide or settle”. The requirement to
make a “determination” concerning likelihood therefore precludes an
investigating authority from simply assuming that likelihood exists. In
order to continue the imposition of the measure after the expiry of the
five-year application period, it is clear that the investigating
authority has to determine, on the basis of positive evidence, that
termination of the duty is likely to lead to continuation or recurrence
of dumping and injury. An investigating authority must have a
sufficient factual basis to allow it to draw reasoned and adequate
conclusions concerning the likelihood of such continuation or
recurrence. (emphasis added) [Appellate Body Report, para. 114]
These obligations of investigating authorities
inform the task of a panel called upon to evaluate the consistency of an
investigating authority’s determination with Article 11.3 of the Anti-Dumping
Agreement. The task of the panel is to assess whether the
investigating authorities properly established the facts and evaluated
them in an unbiased and objective manner. We agree with the Panel that
“[its] task [was] not to perform a de novo review of the
information and evidence on the record of the underlying sunset review,
nor to substitute [its] judgment for that of the US authorities”. If
the panel is satisfied that an investigating authority’s determination
on continuation or recurrence of dumping or injury rests upon a
sufficient factual basis to allow it to draw reasoned and adequate
conclusions, it should conclude that the determination at issue is not
inconsistent with Article 11.3 of the Anti-Dumping Agreement.
A.3.47.4 US — Oil Country Tubular Goods Sunset
Reviews, paras. 340-341
(WT/DS268/AB/R)
We observe that most of the arguments put
forward by Argentina on appeal with respect to the application by the
USITC of the standard of likelihood is centred on the premise that some
of the factors presented by the USITC are speculative. In particular,
Argentina seems to assume that positive evidence requires absolute
certainty on what is likely to occur in the future. We have some
difficulty with this line of reasoning. Of course, we agree with
Argentina that the investigating authority’s likelihood determinations
under Article 11.3 must be based on “positive evidence”. …
The requirements of “positive evidence”
must, however, be seen in the context that the determinations to be made
under Article 11.3 are prospective in nature and that they involve a “forward-looking
analysis”. Such an analysis may inevitably entail assumptions about or
projections into the future. Unavoidably, therefore, the inferences
drawn from the evidence in the record will be, to a certain extent,
speculative. In our view, that some of the inferences drawn from the
evidence on record are projections into the future does not necessarily
suggest that such inferences are not based on “positive evidence”.
The Panel considered that the five factors addressed by the USITC were
supported by positive evidence in the USITC’s record and, as we have
explained, we see no reason to disagree with the Panel.
A.3.47A Article 11.3 — Nature of sunset review
investigation
back to top
A.3.47A.1 US — Corrosion-Resistant Steel
Sunset Review, para. 112
(WT/DS244/AB/R)
… Thus, even though the rules applicable to
sunset reviews may not be identical in all respects to those applicable
to original investigations, it is clear that the drafters of the Anti-Dumping
Agreement intended a sunset review to include both full opportunity
for all interested parties to defend their interests, and the right to
receive notice of the process and reasons for the determination.
A.3.47A.2 US — Corrosion-Resistant Steel
Sunset Review, para. 113
(WT/DS244/AB/R)
… the mandatory rule in Article 11.3 applies
in addition to, and irrespective of, the obligations set out in the
first two paragraphs of Article 11. This also suggests to us that
authorities must conduct a rigorous examination in a sunset review
before the exception (namely, the continuation of the duty) can apply.
In addition, our view of the exacting nature of the obligations imposed
on authorities under Article 11.3 is supported by a consideration of the
implications of initiating a sunset review. The last sentence of Article 11.3 allows the relevant duty to continue while the review is underway,
and Article 11.4 contemplates that the review process may take up to one
year. These provisions create an additional exception to the requirement
that anti-dumping duties will be terminated after five years, permitting
a Member to maintain the duty for the period during which the review is
ongoing, regardless of the outcome of that review. This, too, suggests
that the drafters of the Anti-Dumping Agreement saw the sunset
review as a rigorous process that can take up to one year, involving a
number of procedural steps, and requiring an appropriate degree of
diligence on the part of the national authorities.
A.3.48 Article 11.3 — Methodology for sunset
review investigations
back to top
A.3.48.1 US — Corrosion-Resistant Steel Sunset
Review, para. 123
(WT/DS244/AB/R)
In making its findings on this issue, the
Panel correctly noted that Article 11.3 does not expressly prescribe any
specific methodology for investigating authorities to use in making a
likelihood determination in a sunset review. Nor does Article 11.3
identify any particular factors that authorities must take into account
in making such a determination. Thus, Article 11.3 neither explicitly
requires authorities in a sunset review to calculate fresh dumping
margins, nor explicitly prohibits them from relying on dumping margins
calculated in the past. This silence in the text of Article 11.3
suggests that no obligation is imposed on investigating authorities to
calculate or rely on dumping margins in a sunset review.
A.3.48.2 US — Corrosion-Resistant Steel Sunset
Review, para. 124
(WT/DS244/AB/R)
We consider that it is consistent with the
different nature and purpose of original investigations, on the one
hand, and sunset reviews, on the other hand, to interpret the Anti-Dumping
Agreement as requiring investigating authorities to calculate
dumping margins in an original investigation, but not in a sunset
review. In an original investigation, if investigating authorities of a
Member do not determine a positive dumping margin, the Member may not
impose anti-dumping measures based on that investigation. In a sunset
review, dumping margins may well be relevant to, but they will not
necessarily be conclusive of, whether the expiry of the duty would be
likely to lead to continuation or recurrence of dumping.
A.3.48A Article 11.3 — Cumulation in sunset
reviews. See also Anti-Dumping Agreement, Article 3.3 — Cumulative assessment of dumped imports (A.3.21)
back to top
A.3.48A.1 US — Oil Country Tubular Goods
Sunset Reviews, paras. 296-297
(WT/DS268/AB/R)
Although EC — Tube or Pipe Fittings
concerned an original investigation, we are of the view that [the
rationale behind the practice of cumulation] is equally applicable to
likelihood-of-injury determinations in sunset reviews. Both an original
investigation and a sunset review must consider possible sources of
injury: in an original investigation, to determine whether to impose
anti-dumping duties on products from those sources, and in a sunset
review, to determine whether anti-dumping duties should continue
to be imposed on products from those sources. Injury to the domestic
industry — whether existing injury or likely future injury
— might come from several sources simultaneously, and the cumulative
impact of those imports would need to be analyzed for an injury
determination.
Therefore, notwithstanding the differences
between original investigations and sunset reviews, cumulation remains a
useful tool for investigating authorities in both inquiries to ensure
that all sources of injury and their cumulative impact on the domestic
industry are taken into account in an investigating authority’s
determination as to whether to impose — or continue to impose — anti-dumping duties on products from those sources. Given the rationale
for cumulation — a rationale that we consider applies to original
investigations as well as to sunset reviews — we are of the view that it
would be anomalous for Members to have limited authorization for
cumulation in the Anti-Dumping Agreement to original
investigations.
A.3.48A.2 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.3.48A.3 US — Oil Country Tubular Goods
Sunset Reviews, para. 302
(WT/DS268/AB/R)
… As the Appellate Body has observed, a
sunset review determination under Article 11.3 must be based on a “rigorous
examination” leading to a “reasoned conclusion”. Such a
determination must be supported by “positive evidence” and a “sufficient
factual basis”. These requirements govern all aspects of an
investigating authority’s likelihood determination, including the
decision to resort to cumulation of the effects of likely dumped
imports. As a result, Argentina’s concerns that investigating
authorities will be given “carte blanche” to resort to
cumulation when making likelihood-of-injury determinations is unfounded.
We, therefore, conclude that the conditions of Article 3.3 do not apply
to likelihood-of-injury determinations in sunset reviews.
A.3.48A.4 US — Oil Country Tubular Goods
Sunset Reviews, para. 328
(WT/DS268/AB/R)
We disagree with Argentina that the USITC’s
references to information gleaned in the original investigation rendered
WTO-inconsistent its decision to cumulate the effects of dumped imports.
In US — Carbon Steel, the Appellate Body clarified that, in a
sunset review, a “fresh determination” on the likelihood of
future injury is necessary because “[t]he nature of the determination
to be made in a sunset review differs in certain essential respects from
the nature of the determination to be made in an original investigation.”
Therefore, “[m]ere reliance by the authorities on the injury
determination made in the original investigation will not be sufficient.”
US — Carbon Steel does not, however, establish a prohibition on
investigating authorities from referring in a sunset review to
information related to the original investigation. In this case, it
seems to us that the information to which the USITC referred was
relevant to the decision to cumulate imports and, ultimately, to the
task of assessing the likelihood of continuation or recurrence of
injury. Moreover, the USITC referred to this information in the context
of a fresh determination as to whether the expiry of the orders would be
likely to lead to continuation or recurrence of injury.
A.3.49 Article 11.3 — Relationship with
Article 2. See also Anti-Dumping Agreement, Article 2.1 (A.3.3-8)
back to top
A.3.49.0 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.3.49.1 US — Corrosion-Resistant Steel Sunset
Review, paras. 126-128
(WT/DS244/AB/R)
… the opening words of Article 2.1 (“[f]or
the purpose of this Agreement”) go beyond a cross-reference and
indicate that Article 2.1 applies to the entire Anti-Dumping
Agreement. By virtue of these words, the word “dumping” as used
in Article 11.3 has the meaning described in Article 2.1. …
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.3.49.2 US — Corrosion-Resistant Steel Sunset
Review, para. 130
(WT/DS244/AB/R)
… if a likelihood determination is based on
a dumping margin calculated using a methodology inconsistent with
Article 2.4, then this defect taints the likelihood determination too.
Thus, the consistency with Article 2.4 of the methodology that USDOC
used to calculate the dumping margins in the administrative reviews
bears on the consistency with Article 11.3 of USDOC’s likelihood
determination in the CRS sunset review. In the CRS sunset review, USDOC
based its determination that “dumping is likely to continue if the
[CRS] order were revoked” on the “existence of dumping margins”
calculated in the administrative reviews. If these margins were indeed
calculated using a methodology that is inconsistent with Article 2.4 —
an issue that we examine below — then USDOC’s likelihood determination
could not constitute a proper foundation for the continuation of
anti-dumping duties under Article 11.3. Moreover, a legal defect of this
kind cannot be cured by NSC’s failure to take issue with it in the CRS
sunset review or the administrative reviews. …
A.3.50 Article 11.3 — No duty to investigate
each known producer and exporter individually. See also
Anti-Dumping Agreement, Article 11.4 (A.3.53)
back to top
A.3.50.1 US — Corrosion-Resistant Steel Sunset
Review, para. 149
(WT/DS244/AB/R)
… Article 11.3 does not prescribe any
particular methodology to be used by investigating authorities in making
a likelihood determination in a sunset review. In particular, Article 11.3 does not expressly state that investigating authorities must
determine that the expiry of the duty would be likely to lead to dumping
by each known exporter or producer concerned. In fact, Article 11.3 contains no express reference to individual exporters, producers,
or interested parties. This contrasts with Article 11.2, which does
refer to “any interested party” and “[i]nterested parties”. We
also note that Article 11.3 does not contain the word “margins”,
which might implicitly refer to individual exporters or producers. On
its face, Article 11.3 therefore does not oblige investigating
authorities in a sunset review to make “company-specific” likelihood
determinations in the manner suggested by Japan.
A.3.50.2 US — Oil Country Tubular Goods Sunset
Reviews, para. 231
(WT/DS268/AB/R)
… because the United States has chosen to
make order-wide determinations in sunset reviews, an allegation that a
measure prevents the United States from making a likelihood
determination consistent with Article 11.3 must be evaluated by
reference to the relevance of that measure for the order-wide
determination.
A.3.50.3 US — Oil Country Tubular Goods Sunset
Reviews, paras. 232-233
(WT/DS268/AB/R)
… As we have observed, the relevant inquiry
in this dispute is whether the order-wide likelihood
determination would be rendered inconsistent with Article 11.3 by virtue
of the operation of the waiver provisions. It appears to us, therefore,
that the Panel could not have properly arrived at a finding of
consistency or inconsistency with Article 11.3 until it had
examined how the operation of the waiver provisions could affect the
order-wide determination. Had the Panel ceased its inquiry with the
finding that the company-specific determinations are not “supported by
reasoned and adequate conclusions based on the facts before an
investigating authority”, the Panel would not have had a basis to
conclude that the waiver provisions are inconsistent, as such, with
Article 11.3.
The Panel, however, did not base its ultimate
conclusion of inconsistency with Article 11.3 on its assessment of only
the company-specific determinations made pursuant to the waiver
provisions. Instead, the Panel correctly continued its analysis and
examined the impact of the company-specific determinations on the order-wide
determination. …
A.3.50.4 US — Oil Country Tubular Goods Sunset
Reviews, para. 234
(WT/DS268/AB/R)
… even assuming that the USDOC takes into
account the totality of record evidence in making its order-wide
determination, it is clear that, as a result of the operation of the
waiver provisions, certain order-wide likelihood determinations
made by the USDOC will be based, at least in part, on
statutorily-mandated assumptions about a company’s likelihood
of dumping. In our view, this result is inconsistent with the obligation
of an investigating authority under Article 11.3 to “arrive at a
reasoned conclusion” on the basis of “positive evidence”.
A.3.51 Article 11.3 — Determination of dumping
margins and import volumes
back to top
A.3.51.1 US — Corrosion-Resistant Steel Sunset
Review, para. 158
(WT/DS244/AB/R)
Our conclusions regarding the consistency of
this aspect of the Sunset Policy Bulletin “as such” with Article 11.3 do not imply that Article 11.3 precludes authorities from making
separate likelihood determinations for individual exporters or producers
in a sunset review and then continuing or terminating the relevant duty
for each company according to the determination for that company. WTO
Members are free to structure their anti-dumping systems as they choose,
provided that those systems do not conflict with the provisions of the Anti-Dumping
Agreement. …
A.3.51.2 US — Corrosion-Resistant Steel Sunset
Review, paras. 175-176
(WT/DS244/AB/R)
… We see no problem, in principle, with the
United States instructing its investigating authorities to examine, in
every sunset review, dumping margins and import volumes. These two
factors will often be pertinent to the likelihood determination, and
Japan itself does not dispute the relevance of at least one of them,
namely dumping margins.
At issue, however, is whether Section II. A.3
goes further and instructs USDOC to attach decisive or preponderant
weight to these two factors in every case. To us, the significance and
probative value of the two factors for a likelihood determination in a
sunset review will necessarily vary from case to case. The degree
to which import volumes or dumping margins have decreased will be
relevant in making an inference that dumping is likely to continue or
recur. Whether the historical data is recent or not may affect its
probative value, and trends in data over time may be significant
for an assessment of likely future behaviour. Similarly, it is possible
that in a particular case one of these factors may support an inference
of likely future dumping, while the other factor supports a contrary
inference.
A.3.51.3 US — Corrosion-Resistant Steel Sunset
Review, para. 186
(WT/DS244/AB/R)
… a broad range of factors other than import
volumes and dumping margins is potentially relevant to the authorities’
likelihood determination. …
A.3.51.4 A.3.51.4 US
— Oil Country Tubular
Goods Sunset Reviews, para. 208
(WT/DS268/AB/R)
In our view, “volume of dumped imports”
and “dumping margins”, before and after the issuance of anti-dumping
duty orders, are highly important factors for any determination of
likelihood of continuation or recurrence of dumping in sunset reviews,
although other factors may also be as important, depending on the
circumstances of the case. The three factual scenarios in Section II.A.3
of the SPB, which describe how these two factors will be considered in
individual determinations, thus have certain probative value, the degree
of which may vary from case to case. For example, if, under scenario (a)
of Section II.A.3 of the SPB, dumping continued with substantial
margins despite the existence of the anti-dumping duty order, this would
be highly probative of the likelihood that dumping would continue if the
anti-dumping order were revoked. Conversely, if, under scenarios (b) and
(c) of Section II.A.3 of the SPB, imports ceased after issuance of the
anti-dumping duty order, or imports continued but without dumping
margins, the probative value of the scenarios may be much less, and
other relevant factors may have to be examined to determine whether
imports with dumping margins would “recur” if the
anti-dumping duty order were revoked. The importance of the two
underlying factors (import volumes and dumping margins) for a
likelihood-of-dumping determination cannot be questioned; however, our
concern here is with the possible mechanistic application of the three
scenarios based on these factors, such that other factors that may be of
equal importance are disregarded.
A.3.52 Article 11.3 — Likelihood determination
based on evidence vs. presumptions
back to top
A.3.52.0 US — Corrosion-Resistant Steel Sunset
Review, para. 97
(WT/DS244/AB/R)
Japan argued before the Panel that the
repeated practice of USDOC, as demonstrated in its conduct of a large
number of sunset reviews, serves to establish that the relevant
provisions of the Sunset Policy Bulletin have the meaning and effect
alleged by Japan, namely, that they unduly limit the factors that USDOC
will take into account in making its determination. The Panel, however,
did not make any factual findings as to the relevance or cogency of this
evidence. Rather, the Panel opined that the Sunset Policy Bulletin, by
itself, could not constitute “practice” because it was issued before
any sunset review had occurred. The Panel also took the view that a
repeated response to a particular set of circumstances could not “transform”
the Bulletin into an “administrative procedure”, or indicate that,
“merely by repetition, the DOC would somehow become compelled to
follow the Bulletin.” In so doing, the Panel does not seem to have
allowed for the possibility that Japan was not challenging the Sunset
Policy Bulletin as practice, but was, rather, relying on the
evidence of the consistent application of the Sunset Policy Bulletin in
all sunset reviews so far conducted by USDOC to support its arguments
that USDOC treats the “rules” in the Sunset Policy Bulletin as
binding.
A.3.52.1 US — Corrosion-Resistant Steel Sunset
Review, para. 178
(WT/DS244/AB/R)
We believe that a firm evidentiary foundation
is required in each case for a proper determination under Article 11.3
of the likelihood of continuation or recurrence of dumping. Such a
determination cannot be based solely on the mechanistic application of
presumptions. …
A.3.52.2 US — Corrosion-Resistant Steel Sunset
Review, para. 191
(WT/DS244/AB/R)
We acknowledge that these types of
instructions to an executive agency may well serve as a useful tool to
the agency as well as for all participants in administrative
proceedings. They tend to promote transparency and consistency in
decision-making, and can help authorities and participants to focus on
the relevant issues and evidence. However, these considerations cannot
override the obligation of investigating authorities, in a sunset
review, to determine, on the basis of all relevant evidence, whether the
expiry of the duty would be likely to lead to continuation or recurrence
of dumping. As we have found in other situations, the use of
presumptions may be inconsistent with an obligation to make a particular
determination in each case using positive evidence. Provisions that
create “irrebuttable” presumptions, or “predetermine” a
particular result, run the risk of being found inconsistent with this
type of obligation.
A.3.52.3 US — Corrosion-Resistant Steel Sunset
Review, para. 199 and footnote 243
(WT/DS244/AB/R)
… Article 11.3 makes clear that the role of
the authorities in a sunset review includes both investigatory and
adjudicatory aspects. These authorities have a duty to seek out relevant
information and to evaluate it in an objective manner.243
At the same
time, the Anti-Dumping Agreement assigns a prominent role to
interested parties as well and contemplates that they will be a primary
source of information in all proceedings conducted under that agreement.
Company-specific data relevant to a likelihood determination under
Article 11.3 can often be provided only by the companies themselves. For
example, as the United States points out, it is the exporters or
producers themselves who often possess the best evidence of their likely
future pricing behaviour — a key element in the likelihood of future
dumping.
A.3.52.4 US — Oil Country Tubular Goods Sunset
Reviews, para. 180
(WT/DS268/AB/R)
The plain meaning of the terms “review”
and “determine” in Article 11.3, therefore, compel an investigating
authority in a sunset review to undertake an examination, on the basis
of positive evidence, of the likelihood of continuation or recurrence of
dumping and injury. In drawing conclusions from that examination, the
investigating authority must arrive at a reasoned determination resting
on a sufficient factual basis; it may not rely on assumptions or
conjecture.
A.3.52.5 US — Oil Country Tubular Goods Sunset
Reviews, paras. 209-210
(WT/DS268/AB/R)
In our view, therefore, in order to
objectively assess, as required by Article 11 of the DSU, whether the
three factual scenarios of Section II.A.3 of the SPB are regarded as
determinative/conclusive, it is essential to examine concrete examples
of cases where the likelihood determination of continuation or
recurrence of dumping was based solely on one of the scenarios of
Section II.A.3 of the SPB, even though the probative value of other
factors might have outweighed that of the identified scenario. Such an
examination requires a qualitative assessment of the likelihood
determinations in individual cases.
We find that, in reaching its conclusion on
the USDOC’s consistent application of the SPB, the Panel relied solely
on the overall statistics or aggregate results. The Panel did not
undertake a qualitative analysis of at least some of the individual
cases in Exhibit ARG-63 in order to see whether the USDOC’s
determinations in those cases were objective and rested on a sufficient
factual basis.
A.3.52.6 US — Oil Country Tubular Goods Sunset
Reviews, para. 211
(WT/DS268/AB/R)
A qualitative analysis of individual cases in
all likelihood would have revealed a variety of circumstances. There
could well have been cases where affirmative determinations were made
objectively, based on one of the three scenarios. There could have been
other cases where the affirmative determinations were flawed because the
USDOC made its decisions relying solely on one of the scenarios of the
SPB, even though the probative value of other factors outweighed it.
There could have been yet other cases where the USDOC summarily rejected
or ignored other factors introduced by foreign respondent parties,
regardless of their probative value.
A.3.52.7 US — Oil Country Tubular Goods Sunset
Reviews, para. 215
(WT/DS268/AB/R)
… we reverse the Panel’s findings
… that Section II.A.3 of the SPB is inconsistent, as such, with
Article 11.3 of the Anti-Dumping Agreement. We wish to emphasize
that we have not thereby concluded that Section II.A.3 of the SPB is
consistent, as such, with Article 11.3 of the Anti-Dumping Agreement.
Rather, we have found that the Panel’s conclusion to the contrary must
be reversed due to its failure to comply with Article 11 of the DSU.
Thus, our reasoning here does not exclude the possibility that, in
another case, it could be properly concluded that the three scenarios in
Section II.A.3 of the SPB are regarded as determinative/conclusive of
the likelihood of continuation or recurrence of dumping. However, such a
conclusion would need to be supported by a rigorous analysis of the
evidence regarding the manner in which Section II.A.3 of the SPB is
applied by the USDOC.
A.3.52.8 US — Oil Country Tubular Goods Sunset
Reviews, para. 234
(WT/DS268/AB/R)
We agree with the Panel’s analysis of the
impact of the waiver provisions on order-wide determinations. Because
the waiver provisions require the USDOC to arrive at affirmative
company-specific determinations without regard to any evidence on
record, these determinations are merely assumptions made by the
agency, rather than findings supported by evidence. The United States
contends that respondents waiving the right to participate in a sunset
review do so “intentionally”, with full knowledge that, as a result
of their failure to submit evidence, the evidence placed on the record
by the domestic industry is likely to result in an unfavourable
determination on an order-wide basis. In these circumstances, we see no
fault in making an unfavourable order-wide determination by taking into
account evidence provided by the domestic industry in support thereof.
However, the USDOC also takes into account, in such circumstances,
statutorily-mandated assumptions. Thus, even assuming that the
USDOC takes into account the totality of record evidence in making its
order-wide determination, it is clear that, as a result of the operation
of the waiver provisions, certain order-wide likelihood
determinations made by the USDOC will be based, at least in part, on
statutorily-mandated assumptions about a company’s likelihood
of dumping. In our view, this result is inconsistent with the obligation
of an investigating authority under Article 11.3 to “arrive at a
reasoned conclusion” on the basis of “positive evidence”.
A.3.52A Article 11.3 — Likelihood of
continuation or recurrence of injury
back to top
A.3.52A.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.3.52A.2 US — Oil Country Tubular Goods
Sunset Reviews, para. 281
(WT/DS268/AB/R)
… we recall the following statement of the
Appellate Body in US — Corrosion-Resistant Steel Sunset Review:
Article 11.3 does not expressly prescribe any
specific methodology for investigating authorities to use in making a
likelihood determination in a sunset review. Nor does Article 11.3
identify any particular factors that authorities must take into account
in making such a determination. [Appellate Body Report, para. 123]
Although the Appellate Body made this
statement in the context of a likelihood-of-dumping determination, it
applies equally with respect to a likelihood-of-injury determination.
A.3.52A.3 US — Oil Country Tubular Goods
Sunset Reviews, para. 323
(WT/DS268/AB/R)
Under Article 11.3 of the Anti-Dumping
Agreement, a decision not to terminate an anti-dumping duty must be
based on determinations of likelihood of continuation or recurrence of
dumping and likelihood of continuation or recurrence of injury. We agree
with the United States that the “likely” standard of Article 11.3
applies to the overall determinations regarding dumping and injury; it
need not necessarily apply to each factor considered in rendering the
overall determinations on dumping and injury. …
A.3.52A.4 US — Oil Country Tubular Goods
Sunset Reviews, para. 333
(WT/DS268/AB/R)
… the “likelihood” standard set out in
Article 11.3 applies to a likelihood-of-injury determination as a whole,
not to each and every factor that the investigating authority considers
in the course of its analysis.
A.3.52B Article 11.3 — Relationship with
Article 3
back to top
A.3.52B.1 US — Oil Country Tubular Goods
Sunset Reviews, paras. 278-280
(WT/DS268/AB/R)
… In our view, however, the Anti-Dumping
Agreement distinguishes between “determination[s] of injury”,
addressed in Article 3, and determinations of likelihood of “continuation
or recurrence … of injury”, addressed in Article 11.3. In addition,
Article 11.3 does not contain any cross-reference to Article 3 to the
effect that, in making the likelihood-of-injury determination, all the
provisions of Article 3 — or any particular provisions of Article 3
— must
be followed by investigating authorities. Nor does any provision of
Article 3 indicate that, wherever the term “injury” appears in the Anti-Dumping
Agreement, a determination of injury must be made following the
provisions of Article 3.
The lack of a sufficient textual basis to
apply Article 3 to likelihood-of-injury determinations is not surprising
given “the different nature and purpose of original investigations, on
the one hand, and sunset reviews, on the other hand”, which the
Appellate Body emphasized in US — Corrosion-Resistant Steel Sunset
Review. Original investigations require an investigating authority,
in order to impose an anti-dumping duty, to make a determination
of the existence of dumping in accordance with Article 2, and
subsequently to determine, in accordance with Article 3, whether the
domestic industry is facing injury or a threat thereof at the time of
the original investigation. In contrast, Article 11.3 requires an
investigating authority, in order to maintain an anti-dumping
duty, to review an anti-dumping duty order that has already been
established — following the prerequisite determinations of dumping and
injury — so as to determine whether that order should be continued or
revoked.
Given the absence of textual cross-references,
and given the different nature and purpose of these two determinations,
we are of the view that, for the “review” of a determination of
injury that has already been established in accordance with Article 3,
Article 11.3 does not require that injury again be determined in
accordance with Article 3. We therefore conclude that investigating
authorities are not mandated to follow the provisions of Article 3 when making a likelihood-of-injury determination.
A.3.52B.2 US — Oil Country Tubular Goods
Sunset Reviews, paras. 283-284
(WT/DS268/AB/R)
… We are not persuaded by the argument of
Argentina that a likelihood-of-injury determination can rest on a “sufficient
factual basis” and can be regarded as a “reasoned conclusion” only
after undertaking all the analyses detailed in the paragraphs of Article 3.
This is not to say, however, that in a sunset
review determination, an investigating authority is never required to
examine any of the factors listed in the paragraphs of Article 3.
Certain of the analyses mandated by Article 3 and necessarily relevant
in an original investigation may prove to be probative, or possibly even
required, in order for an investigating authority in a sunset review to
arrive at a “reasoned conclusion”. In this respect, we are of the
view that the fundamental requirement of Article 3.1 that an injury
determination be based on “positive evidence” and an “objective
examination” would be equally relevant to likelihood determinations
under Article 11.3. It seems to us that factors such as the volume,
price effects, and the impact on the domestic industry of dumped
imports, taking into account the conditions of competition, may be
relevant to varying degrees in a given likelihood-of-injury
determination. An investigating authority may also, in its own judgement,
consider other factors contained in Article 3 when making a
likelihood-of-injury determination. But the necessity of conducting such
an analysis in a given case results from the requirement imposed by Article 11.3 — not Article 3 — that a likelihood-of-injury determination
rest on a “sufficient factual basis” that allows the agency to draw
“reasoned and adequate conclusions”.
A.3.52C Article 11.3 — Timeframe for
likelihood of continuation or recurrence of injury
back to top
A.3.52C.1 US — Oil Country Tubular Goods
Sunset Reviews, para. 356
(WT/DS268/AB/R)
The Panel noted that Article 11.3 of the Anti-Dumping
Agreement does not prescribe any timeframe for likelihood of
continuation or recurrence of injury; nor does it require investigating
authorities to specify the timeframe on which their likelihood
determination is based. The Panel consequently concluded that the
standard of the “reasonably foreseeable time”, set out in Sections
752(a)(1) and 752(a)(5), does not conflict with Article 11.3 of the Anti-Dumping
Agreement.
A.3.52C.2 US — Oil Country Tubular Goods
Sunset Reviews, paras. 359-360
(WT/DS268/AB/R)
As to the “impermissible gap” alluded to
by Argentina, in our view, this argument is nothing more than a
theoretical possibility, which Argentina builds from an abstract
comparison between, on the one hand, the “imminent” manifestation of
injury in the context of an original anti-dumping investigation and, on
the other hand, the manifestation of injury within a “reasonably
foreseeable time” in the context of a sunset review. The theoretical
possibility of a “gap” would necessarily apply only to the situation
of likelihood of “recurrence” of injury in the future, and not to
the situation of “continuation” of injury. This mere theoretical
possibility cannot justify the importation into Article 11.3 of an “imminent”
standard for likelihood of recurrence of injury. Moreover, as the
Appellate Body indicated in US — Corrosion-Resistant Steel Sunset
Review, original investigations and sunset reviews are distinct
processes with different purposes. The disciplines applicable to
original investigations cannot, therefore, be automatically imported
into review processes.
In our view, the Panel correctly analyzed the
timeframe issue. We agree with the Panel that an assessment regarding
whether injury is likely to recur that focuses “too far in the future
would be highly speculative”, and that it might be very difficult to
justify such an assessment. However, like the Panel, we have no reason
to believe that the standard of a “reasonably foreseeable time” set
out in the United States statute is inconsistent with the requirements
of Article 11.3.
A.3.53 Article 11.4 — Relationship with
Article 6. See also Anti-Dumping Agreement — Article 6 (A.3.29-38)
back to top
A.3.53.1 US — Corrosion-Resistant Steel Sunset
Review, para. 152
(WT/DS244/AB/R)
… several provisions of Article 6 refer
expressly or by implication to individual exporters or producers. …
[Article 6 and the particular provisions in Articles 6.1, 6.2, 6.4, and
6.9] suggest that, when the drafters of the Anti-Dumping Agreement
intended to impose obligations on authorities regarding individual
exporters or producers, they did so explicitly. These provisions of
Article 6 apply to Article 11.3 by virtue of Article 11.4. They
therefore confirm that investigating authorities have certain specific
obligations towards each exporter or producer in a sunset review.
However, these provisions of Article 6 are silent on whether the
authorities must make a separate likelihood determination for each
exporter or producer.
A.3.53.2 US — Corrosion-Resistant Steel Sunset
Review, para. 155
(WT/DS244/AB/R)
We have already concluded that investigating
authorities are not required to calculate or rely on dumping
margins in making a likelihood determination in a sunset review
under Article 11.3. This means that the requirement in Article 6.10 that
dumping margins, “as a rule”, be calculated “for each known
exporter or producer concerned” is not, in principle, relevant to
sunset reviews. Therefore, the reference in Article 11.4 to “[t]he
provisions of Article 6 regarding evidence and procedure” does not
import into Article 11.3 an obligation for investigating authorities to
calculate dumping margins (on a company-specific basis or otherwise) in
a sunset review. Nor does Article 11.4 import into Article 11.3 an
obligation for investigating authorities to make their likelihood
determination on a company-specific basis. We therefore agree with the
Panel that “[t]he provisions of Article 6.10 concerning the
calculation of individual margins of dumping in investigations do not
require that the determination of likelihood of continuation or
recurrence of dumping under Article 11.3 be made on a company-specific
basis.”
A.3.54 Article 17 — Dispute settlement. See
also Special or Additional Rules and Procedures for Dispute
Settlement (S.5)
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A.3.54.1 US — 1916 Act, para. 62
(WT/DS136/AB/R, WT/DS162/AB/R)
Turning to the issue of the legal basis for
claims brought under the Anti-Dumping Agreement, we note that
Article 17 of the Anti-Dumping Agreement addresses dispute
settlement under that Agreement. Just as Articles XXII and XXIII of the
GATT 1994 create a legal basis for claims in disputes relating to
provisions of the GATT 1994, so also Article 17 establishes the basis
for dispute settlement claims relating to provisions of the Anti-Dumping
Agreement. In the same way that Article XXIII of the GATT 1994
allows a WTO Member to challenge legislation as such, Article 17
of the Anti-Dumping Agreement is properly to be regarded as
allowing a challenge to legislation as such, unless this possibility is
excluded. No such express exclusion is found in Article 17 or
elsewhere in the Anti-Dumping Agreement.
A.3.55 Article 17.3 — Consultations. See
also Consultations (C.7); Legislation as such vs. Specific
Application (L.1); Terms of Reference of Panels, specific measure at
issue (T.6.3)
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A.3.55.1 Guatemala
— Cement I, para. 64
(WT/DS60/AB/R)
… Article 17.3 of the Anti-Dumping
Agreement is not listed in Appendix 2 of the DSU as a special or
additional rule and procedure. It is not listed precisely because it
provides the legal basis for consultations to be requested by a
complaining Member under the Anti-Dumping Agreement. Indeed, it
is the equivalent provision in the Anti-Dumping Agreement to
Articles XXII and XXIII of the GATT 1994, which serve as the basis for
consultations and dispute settlement under the GATT 1994, under most of
the other agreements in Annex 1A of the Marrakesh Agreement
Establishing the World Trade Organization (the “WTO Agreement”),
and under the Agreement on Trade-Related Aspects of Intellectual
Property Rights (the “TRIPS Agreement”).
A.3.55.2 US — 1916 Act, para. 68
(WT/DS136/AB/R, WT/DS162/AB/R)
Article 17.3 does not explicitly address
challenges to legislation as such. As we have seen above, Articles XXII
and XXIII allow challenges to be brought under the GATT 1994 against
legislation as such. Since Article 17.3 is the “equivalent provision”
to Articles XXII and XXIII of the GATT 1994, Article 17.3 provides
further support for our view that challenges may be brought under the Anti-Dumping
Agreement against legislation as such, unless such challenges are
otherwise excluded.
A.3.55.3 US — Corrosion-Resistant Steel Sunset
Review, para. 84
(WT/DS244/AB/R)
Our reasoning for concluding that the panel in
US — 1916 Act had jurisdiction to consider legislation,
as such, also applies in this case, where the relevant measures are
specific provisions of an administrative instrument issued by an
executive agency pursuant to statutory and regulatory provisions. That
reasoning was based on the GATT acquis and the language of the Anti-Dumping
Agreement, in particular Articles 17.3 and 18.4.
A.3.55.4 US — Corrosion-Resistant Steel Sunset
Review, para. 86
(WT/DS244/AB/R)
The provisions of the Anti-Dumping
Agreement setting forth a legal basis for matters to be referred to
consultations and thus to dispute settlement, are also cast broadly.
Article 17.3 establishes the principle that when a complaining Member
“considers” that its benefits are being nullified or impaired “by
another Member or Members”, it may request consultations. This
language underlines that a measure attributable to a Member may be
submitted to dispute settlement provided only that another Member has
taken the view, in good faith, that the measure nullifies or impairs
benefits accruing to it under the Anti-Dumping Agreement. There
is no threshold requirement, in Article 17.3, that the measure in
question be of a certain type.
A.3.56 Article 17.4 — “matter referred to
the DSB”. See also Legislation as such vs. Specific Application
(L.1); Terms of Reference of Panels (T.6)
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A.3.56.1 Guatemala
— Cement I, para. 72
(WT/DS60/AB/R)
… Thus, “the matter referred to the DSB”
for the purposes of Article 7 of the DSU and Article 17.4 of the Anti-Dumping
Agreement must be the “matter” identified in the request for the
establishment of a panel under Article 6.2 of the DSU. …
A.3.56.2 Guatemala
— Cement I, para. 79
(WT/DS60/AB/R)
Furthermore, Article 17.4 of the Anti-Dumping
Agreement specifies the types of “measure” which may be referred
as part of a “matter” to the DSB. Three types of anti-dumping
measure are specified in Article 17.4: definitive anti-dumping duties,
the acceptance of price undertakings, and provisional measures.
According to Article 17.4, a “matter” may be referred to the DSB only
if one of the relevant three anti-dumping measures is in place. This
provision, when read together with Article 6.2 of the DSU, requires a
panel request in a dispute brought under the Anti-Dumping Agreement
to identify, as the specific measure at issue, either a definitive
anti-dumping duty, the acceptance of a price undertaking, or a
provisional measure. This requirement to identify a specific
anti-dumping measure at issue in a panel request in no way limits the
nature of the claims that may be brought concerning alleged
nullification or impairment of benefits or the impeding of the
achievement of any objective in a dispute under the Anti-Dumping
Agreement. As we have observed earlier, there is a difference
between the specific measures at issue — in the case of the Anti-Dumping
Agreement, one of the three types of anti-dumping measure described
in Article 17.4 — and the claims or the legal basis of the complaint
referred to the DSB relating to those specific measures. In coming to
this conclusion, we note that the language of Article 17.4 of the Anti-Dumping
Agreement is unique to that Agreement.
A.3.56.3 Guatemala
— Cement I, para. 80
(WT/DS60/AB/R)
For all of these reasons, we conclude that the
Panel erred in finding that Mexico did not need to identify “specific
measures at issue” in this dispute. We find that in disputes under the
Anti-Dumping Agreement relating to the initiation and conduct of
anti-dumping investigations, a definitive anti-dumping duty, the
acceptance of a price undertaking or a provisional measure must be
identified as part of the matter referred to the DSB pursuant to the
provisions of Article 17.4 of the Anti-Dumping Agreement and
Article 6.2 of the DSU.
A.3.56.4 US — 1916 Act, para. 72
(WT/DS136/AB/R, WT/DS162/AB/R)
Nothing in our Report in Guatemala — Cement
suggests that Article 17.4 precludes review of anti-dumping legislation
as such. Rather, in that case, we simply found that, for Mexico to
challenge Guatemala’s initiation and conduct of the anti-dumping
investigation, Mexico was required to identify one of the three
anti-dumping measures listed in Article 17.4 in its request for
establishment of a panel. Since it did not do so, the panel in that case
did not have jurisdiction.
A.3.56.5 US — 1916 Act, para. 73
(WT/DS136/AB/R, WT/DS162/AB/R)
Important considerations underlie the
restriction contained in Article 17.4. In the context of dispute
settlement proceedings regarding an anti-dumping investigation, there is
tension between, on the one hand, a complaining Member’s right to seek
redress when illegal action affects its economic operators and, on the
other hand, the risk that a responding Member may be harassed or its
resources squandered if dispute settlement proceedings could be
initiated against it in respect of each step, however small, taken in
the course of an anti-dumping investigation, even before any concrete
measure had been adopted. In our view, by limiting the availability of
dispute settlement proceedings related to an anti-dumping investigation
to cases in which a Member’s request for establishment of a panel
identifies a definitive anti-dumping duty, a price undertaking or a
provisional measure, Article 17.4 strikes a balance between these
competing considerations.
A.3.56.6 US — 1916 Act, para. 74
(WT/DS136/AB/R, WT/DS162/AB/R)
Therefore, Article 17.4 sets out certain
conditions that must exist before a Member can challenge action taken by
a national investigating authority in the context of an anti-dumping
investigation. However, Article 17.4 does not address or affect a Member’s
right to bring a claim of inconsistency with the Anti-Dumping
Agreement against anti-dumping legislation as such.
A.3.56.7 US — 1916 Act, para. 75
(WT/DS136/AB/R, WT/DS162/AB/R)
Moreover, as we have seen above, the GATT and
WTO case law firmly establishes that dispute settlement proceedings may
be brought based on the alleged inconsistency of a Member’s
legislation as such with that Member’s obligations. We find nothing,
and the United States has identified nothing, inherent in the nature of
anti-dumping legislation that would rationally distinguish such
legislation from other types of legislation for purposes of dispute
settlement, or that would remove anti-dumping legislation from the ambit
of the generally-accepted practice that a panel may examine legislation
as such.
A.3.56.8 US — Corrosion-Resistant Steel Sunset
Review, para. 83
(WT/DS244/AB/R)
… we have explained that Article 17.4
precludes a panel from addressing individual acts (as opposed to
measures “as such”) committed by an investigating authority in the
context of the initiation and conduct of anti-dumping investigations unless
one of the three types of measure listed in Article 17.4 is identified
in the request for establishment of a panel. These measures are a
definitive anti-dumping duty, the acceptance of a price undertaking, and
a provisional measure. We have also found, in US — 1916 Act,
that Article 17.4 does not place such a limit on a panel’s
jurisdiction to entertain claims against legislation as such.
Indeed, we stated in that appeal that no provision of the Anti-Dumping
Agreement precludes a panel from considering claims against
legislation as such.
A.3.57 Article 17.5 — Facts made available to
the investigating authority. See also Request for the
Establishment of a Panel (R.2)
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A.3.57.1 Guatemala
— Cement I, para. 75
(WT/DS60/AB/R)
… In our view, there is no inconsistency
between Article 17.5 of the Anti-Dumping Agreement and the
provisions of Article 6.2 of the DSU. On the contrary, they are
complementary and should be applied together. …
A.3.57.2 Thailand
— H-Beams, para. 114
(WT/DS122/AB/R)
Articles 17.5 and 17.6 clarify the powers of
review of a panel established under the Anti-Dumping Agreement.
These provisions place limiting obligations on a panel, with respect to
the review of the establishment and evaluation of facts by the
investigating authority. Unlike Article 3.1, these provisions do not
place obligations on WTO Members. Further, while the obligations in
Article 3.1 apply to all injury determinations undertaken by
Members, those in Articles 17.5 and 17.6 apply only when an injury
determination is examined by a WTO panel. The obligations in Articles 17.5 and 17.6 are distinct from those in Article 3.1.
A.3.57.3 Thailand
— H-Beams, para. 115
(WT/DS122/AB/R)
Article 17.5 specifies that a panel’s
examination must be based upon the “facts made available” to the
domestic authorities. Anti-dumping investigations frequently involve
both confidential and non-confidential information. The wording of
Article 17.5 does not specifically exclude from panel examination facts
made available to domestic authorities, but not disclosed or discernible
to interested parties by the time of the final determination. Based on
the wording of Article 17.5, we can conclude that a panel must examine
the facts before it, whether in confidential documents or
non-confidential documents.
A.3.57.4 Thailand
— H-Beams, para. 118
(WT/DS122/AB/R)
Articles 17.5 and 17.6(i) require a panel to
examine the facts made available to the investigating authority of the
importing Member. These provisions do not prevent a panel from examining
facts that were not disclosed to, or discernible by, the interested
parties at the time of the final determination.
A.3.58 Article 17.6 — Standard of Review under
the Anti-Dumping Agreement. See also Standard of Review, Article 11 of the DSU (S.7.2-7)
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A.3.58.1 US — Lead and Bismuth II, para. 50
(WT/DS138/AB/R)
… [the Decision on Review of Article 17.6
of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (the “Decision”)]
provides for review of the standard of review in Article 17.6 of the Anti-Dumping
Agreement to determine if it is “capable of general application”
to other covered agreements, including the SCM Agreement.
By implication, this Decision supports our conclusion that the
Article 17.6 standard applies only to disputes arising under the Anti-Dumping
Agreement, and not to disputes arising under other covered
agreements, such as the SCM Agreement. To date, the DSB
has not conducted the review contemplated in this Decision.
A.3.58.2 Thailand
— H-Beams, para. 114
(WT/DS122/AB/R)
Articles 17.5 and 17.6 clarify the powers of
review of a panel established under the Anti-Dumping Agreement.
These provisions place limiting obligations on a panel, with respect to
the review of the establishment and evaluation of facts by the
investigating authority. Unlike Article 3.1, these provisions do not
place obligations on WTO Members. Further, while the obligations in
Article 3.1 apply to all injury determinations undertaken by
Members, those in Articles 17.5 and 17.6 apply only when an injury
determination is examined by a WTO panel. The obligations in Articles 17.5 and 17.6 are distinct from those in Article 3.1.
A.3.58.3 US — Hot-Rolled Steel, para. 54
(WT/DS184/AB/R)
… Article 17.6 is divided into two separate
sub-paragraphs, each applying to different aspects of the panel’s
examination of the matter. The first sub-paragraph covers the panel’s
“assessment of the facts of the matter”, whereas the
second covers its “interpret[ation of] the relevant
provisions”. (emphasis added) The structure of Article 17.6,
therefore, involves a clear distinction between a panel’s assessment
of the facts and its legal interpretation of the Anti-Dumping
Agreement.
A.3.58.4 Mexico — Corn Syrup (Article 21.5
— US), para. 130
(WT/DS132/AB/RW)
… The requirements of the standard of review
provided for in Article 17.6(i) and 17.6(ii) are cumulative. In other
words, a panel must find a determination made by the investigating
authorities to be consistent with relevant provisions of the Anti-Dumping
Agreement if it finds that those investigating authorities have
properly established the facts and evaluated those facts in an unbiased
and objective manner, and that the determination rests upon a “permissible”
interpretation of the relevant provisions.
A.3.58.5 EC — Bed Linen (Article 21.5
— India), para. 108
(WT/DS141/AB/RW)
… It is useful also to recall the specific
standard of review under the Anti-Dumping Agreement that the
Panel was required to follow in this dispute. This standard of review is
set out in Article 17.6 of the Anti-Dumping Agreement. As to the
facts, under Article 17.6(i), a panel “shall” determine whether the
establishment of the facts by the investigating authorities was “proper”
and whether the evaluation of those facts was “unbiased and objective”.
If the establishment of the facts was proper and the evaluation was
unbiased and objective, then a panel “shall not” overturn that
evaluation, even though it might have reached a different conclusion. As
to the law, under Article 17.6(ii), first sentence, a panel “shall
interpret the relevant provisions of the Agreement in accordance with
customary rules of interpretation of public international law.” Under
Article 17.6(ii), second sentence, where a panel finds from such an
interpretation that a relevant provision of the Anti-Dumping
Agreement “admits of more than one permissible interpretation”,
the panel “shall find the [investigating] authorities’ measure to be
in conformity with the Agreement if it rests upon one of those
permissible interpretations.”…
A.3.59 Article 17.6(i) — “assessment of the
facts”. See also Seek Information and Technical Advice (S.4);
Standard of Review, Article 11 of the DSU — Objective assessment of the
facts (S.7.3)
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A.3.59.1 Thailand
— H-Beams, para. 116
(WT/DS122/AB/R)
Article 17.6(i) requires a panel, in its
assessment of the facts of the matter, to determine whether the
authorities’ “establishment of the facts” was “proper”. The
ordinary meaning of “establishment” suggests an action to “place
beyond dispute; ascertain, demonstrate, prove”; the ordinary meaning
of “proper” suggests “accurate” or “correct”. Based on the
ordinary meaning of these words, the proper establishment of the facts
appears to have no logical link to whether those facts are disclosed to,
or discernible by, the parties to an anti-dumping investigation prior to
the final determination. Article 17.6(i) requires a panel also to
examine whether the evaluation of those facts was “unbiased and
objective”. The ordinary meaning of the words “unbiased” and “objective”
also appears to have no logical link to whether those facts are
disclosed to, or discernible by, the parties to an anti-dumping
investigation at the time of the final determination.
A.3.59.2 Thailand
— H-Beams, para. 118
(WT/DS122/AB/R)
Articles 17.5 and 17.6(i) require a panel to
examine the facts made available to the investigating authority of the
importing Member. These provisions do not prevent a panel from examining
facts that were not disclosed to, or discernible by, the interested
parties at the time of the final determination.
A.3.59.3 Thailand
— H-Beams, para. 137
(WT/DS122/AB/R)
… Article 17.6(i) requires a panel, in its
assessment of the facts, to determine “whether the authorities’
establishment of the facts was proper” and to determine “whether
their evaluation of those facts was unbiased and objective”. Article 17.6(i) does not prevent a panel from examining whether a Member
has complied with its obligations under Article 3.1. In evaluating
whether a Member has complied with this obligation, a panel must examine
whether the injury determination was based on positive evidence, and
whether the injury determination involved an objective evaluation. Thus,
to the extent that the Panel examined the facts in assessing whether
Thailand’s injury determination was consistent with Article 3.1, we
are of the view that the Panel correctly conducted its examination
consistently with the applicable standard of review under Article 17.6(i) of the Anti-Dumping Agreement.
A.3.59.4 US — Hot-Rolled Steel, para. 55
(WT/DS184/AB/R)
In considering Article 17.6(i) of the Anti-Dumping
Agreement, it is important to bear in mind the different roles of
panels and investigating authorities. Investigating authorities are
charged, under the Anti-Dumping Agreement, with making factual
determinations relevant to their overall determination of dumping and
injury. Under Article 17.6(i), the task of panels is simply to review
the investigating authorities’ “establishment” and “evaluation”
of the facts. To that end, Article 17.6(i) requires panels to make an
“assessment of the facts”. The language of this phrase
reflects closely the obligation imposed on panels under Article 11 of
the DSU to make an “objective assessment of the facts”.
Thus the text of both provisions requires panels to “assess” the
facts and this, in our view, clearly necessitates an active review or
examination of the pertinent facts. Article 17.6(i) of the Anti-Dumping
Agreement does not expressly state that panels are obliged to make
an assessment of the facts which is “objective”. However, it
is inconceivable that Article 17.6(i) should require anything other than
that panels make an objective “assessment of the facts of the
matter”. In this respect, we see no “conflict” between Article 17.6(i) of the Anti-Dumping Agreement and Article 11 of the DSU.
A.3.59.5 US — Hot-Rolled Steel, para. 56
(WT/DS184/AB/R)
Article 17.6(i) of the Anti-Dumping
Agreement also states that the panel is to determine, first, whether
the investigating authorities’ “establishment of the facts
was proper” and, second, whether the authorities’ “evaluation
of those facts was unbiased and objective” (emphasis added)
Although the text of Article 17.6(i) is couched in terms of an
obligation on panels — panels “shall” make these
determinations — the provision, at the same time, in effect defines when
investigating authorities can be considered to have acted
inconsistently with the Anti-Dumping Agreement in the course of
their “establishment” and “evaluation” of the relevant facts. In
other words, Article 17.6(i) sets forth the appropriate standard to be
applied by panels in examining the WTO-consistency of the investigating
authorities’ establishment and evaluation of the facts under other
provisions of the Anti-Dumping Agreement. Thus, panels must
assess if the establishment of the facts by the investigating
authorities was proper and if the evaluation of those facts by
those authorities was unbiased and objective. If these broad
standards have not been met, a panel must hold the investigating
authorities’ establishment or evaluation of the facts to be
inconsistent with the Anti-Dumping Agreement.
A.3.59.6 Mexico — Corn Syrup (Article 21.5
— US), para. 84
(WT/DS132/AB/RW)
The Anti-Dumping Agreement imposes a
specific standard of review on panels. With respect to facts,
Articles 17.5 and 17.6(i) of the Anti-Dumping Agreement, together
with Article 11 of the DSU, set out the standard to be applied by panels
when assessing whether a Member’s investigating authorities have “established”
and “evaluated” the facts consistently with that Member’s
obligations under the covered agreements. These provisions do not
authorize panels to engage in a new and independent fact-finding
exercise. Rather, in assessing the measure, panels must consider, in the
light of the claims and arguments of the parties, whether, inter alia,
the “establishment” of the facts by the investigating authorities
was “proper”, in accordance with the obligations imposed on such
investigating authorities under the Anti-Dumping Agreement.
A.3.59.7 Mexico — Corn Syrup (Article 21.5
— US), para. 90
(WT/DS132/AB/RW)
… [the investigating authority] chose
to assume the existence and effectiveness of the alleged restraint
agreement for purposes of its analysis of the likelihood of increased
imports. We further note that none of the parties to this dispute
challenged, before the Panel, SECOFI’s decision to make such
assumptions. In these circumstances, it was logical for the Panel to
examine SECOFI’s conclusions using the same premises. Indeed, we
consider that it would have been improper for the Panel to have sought,
on its own initiative, to go behind the assumptions made by SECOFI.
A.3.59.8 EC — Bed Linen (Article 21.5
— India), para. 167
(WT/DS141/AB/RW)
… The mere fact that the Panel did not
consider it necessary to seek information does not, by itself, imply
that the Panel’s exercise of its discretion was not “due”. We,
therefore, reject India’s allegation that the Panel failed to comply
with the requirements of Article 17.6 of the Anti-Dumping Agreement
by not seeking information from the European Communities pursuant to
Article 13 of the DSU.
A.3.59.9 EC — Bed Linen (Article 21.5
— India), para. 169
(WT/DS141/AB/RW)
… in our view, the discretion that panels
enjoy as triers of facts under Article 11 of the DSU is equally relevant
to cases governed also by Article 17.6(i) of the Anti-Dumping
Agreement. Thus, as under Article 11 of the DSU, we “will not
interfere lightly with [a] panel’s exercise of its discretion” under
Article 17.6(i) of the Anti-Dumping Agreement.
A.3.59.10 EC — Tube or Pipe, para. 128
(WT/DS219/AB/R)
… In making such a claim under Article 17.6(i), it is not sufficient for Brazil simply to disagree with the
Panel’s weighing of the evidence, without substantiating its claim of
error by the Panel. …
A.3.60 Article 17.6(ii) — “permissible
interpretations”. See also Interpretation, General rules of
treaty interpretation — Article 31 of the Vienna Convention (I.3.1);
Standard of Review, Article 11 of the DSU — Objective assessment of the
facts (S.7.3)
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A.3.60.1 EC — Bed Linen, para. 65
(WT/DS141/AB/R)
It appears clear to us from the emphatic and
unqualified nature of this finding of inconsistency that the Panel did
not view the interpretation given by the European Communities of Article 2.4.2 of the Anti-Dumping Agreement as a “permissible
interpretation” within the meaning of Article 17.6(ii) of the Anti-Dumping
Agreement. Thus, the Panel was not faced with a choice among
multiple “permissible” interpretations which would have required it,
under Article 17.6(ii), to give deference to the interpretation relied
upon by the European Communities. Rather, the Panel was faced with a
situation in which the interpretation relied upon by the European
Communities was, to borrow a word from the European Communities, “impermissible”.
We do not share the view of the European Communities that the Panel
failed to apply the standard of review set out in Article 17.6(ii) of
the Anti-Dumping Agreement.
A.3.60.2 US — Hot-Rolled Steel, paras. 57,
59-60
(WT/DS184/AB/R)
… The first sentence of Article 17.6(ii), echoing closely Article 3.2 of the DSU, states that panels
“shall” interpret the provisions of the Anti-Dumping Agreement
“in accordance with customary rules of interpretation of public
international law.” Such customary rules are embodied in Articles 31
and 32 of the Vienna Convention on the Law of Treaties (“Vienna
Convention”). Clearly, this aspect of Article 17.6(ii) involves no
“conflict” with the DSU but, rather, confirms that the usual rules
of treaty interpretation under the DSU also apply to the Anti-Dumping
Agreement.
…
The second sentence of Article 17.6(ii)
presupposes that application of the rules of treaty
interpretation in Articles 31 and 32 of the Vienna Convention
could give rise to, at least, two interpretations of some provisions of
the Anti-Dumping Agreement, which, under that Convention, would
both be “permissible interpretations”. In that event, a
measure is deemed to be in conformity with the Anti-Dumping Agreement
“if it rests upon one of those permissible interpretations.”
It follows that, under Article 17.6(ii) of the
Anti-Dumping Agreement, panels are obliged to determine whether a
measure rests upon an interpretation of the relevant provisions of the Anti-Dumping
Agreement which is permissible under the rules of treaty
interpretation in Articles 31 and 32 of the Vienna Convention.
In other words, a permissible interpretation is one which is found to be
appropriate after application of the pertinent rules of the Vienna
Convention. We observe that the rules of treaty interpretation in
Articles 31 and 32 of the Vienna Convention apply to any
treaty, in any field of public international law, and not just to
the WTO agreements. These rules of treaty interpretation impose certain
common disciplines upon treaty interpreters, irrespective of the content
of the treaty provision being examined and irrespective of the field of
international law concerned.
A.3.60.3 US — Hot-Rolled Steel, para. 62
(WT/DS184/AB/R)
… although the second sentence of Article 17.6(ii) of the Anti-Dumping Agreement imposes obligations on
panels which are not found in the DSU, we see Article 17.6(ii) as
supplementing, rather than replacing, the DSU, and Article 11 in
particular. Article 11 requires panels to make an “objective
assessment of the matter” as a whole. Thus, under the DSU, in
examining claims, panels must make an “objective assessment” of the
legal provisions at issue, their “applicability” to the dispute, and
the “conformity” of the measures at issue with the covered
agreements. Nothing in Article 17.6(ii) of the Anti-Dumping Agreement
suggests that panels examining claims under that Agreement should not
conduct an “objective assessment” of the legal provisions of the
Agreement, their applicability to the dispute, and the conformity of the
measures at issue with the Agreement. Article 17.6(ii) simply adds that
a panel shall find that a measure is in conformity with the Anti-Dumping
Agreement if it rests upon one permissible interpretation of that
Agreement.
A.3.60.4 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”. These requirements are not
ambiguous, and they do not “admit of more than one permissible
interpretation” within the meaning of the second sentence of Article 17.6(ii). Therefore, as in US — Hot-Rolled Steel, our
interpretation of these requirements is based on customary rules of
interpretation of public international law, as required by the first
sentence of Article 17.6(ii). This leaves no room, in this appeal, for
recourse to the second sentence of Article 17.6(ii) in interpreting
paragraphs 1 and 2 of Article 3.
A.3.60.5 US — Softwood Lumber V, para. 116
(WT/DS264/AB/R)
The United States also claims that its
interpretation of Article 2.4.2 is “permissible”, inter alia,
on the ground that “margins of dumping” within the meaning of
Article 2.4.2 can be established for product types. In our view, the Anti-Dumping
Agreement, when interpreted in accordance with customary rules of
interpretation of public international law, as required by Article 17.6(ii), does not permit establishing margins of dumping for product
types when the product as a whole is under investigation. The United
States’ interpretation of Article 2.4.2 is, therefore, not a
“permissible interpretation” of that provision within the meaning of
Article 17.6(ii). Hence, we see no error on the part of the Panel with
respect to the Panel’s obligations under Article 17.6(ii) of the Anti-Dumping
Agreement.
A.3.61 Article 18.1 — Specific action against
dumping. See also Anti-Dumping Agreement, Article VI of the GATT
1994 (A.3.65); SCM Agreement, Article 32.1 — Specific action against a
subsidy (S.2.36)
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A.3.61.1 US — 1916 Act, para. 122
(WT/DS136/AB/R, WT/DS162/AB/R)
In our view, the ordinary meaning of the
phrase “specific action against dumping” of exports within the
meaning of Article 18.1 is action that is taken in response to
situations presenting the constituent elements of “dumping”. “Specific
action against dumping” of exports must, at a minimum, encompass
action that may be taken only when the constituent elements of
“dumping” are present. Since intent is not a constituent element of
“dumping”, the intent with which action against dumping is
taken is not relevant to the determination of whether such action is “specific
action against dumping” of exports within the meaning of Article 18.1
of the Anti-Dumping Agreement.
A.3.61.2 US — 1916 Act, para. 123
(WT/DS136/AB/R, WT/DS162/AB/R)
Footnote 24 to Article 18.1 of the Anti-Dumping
Agreement states:
This is not intended to preclude action under
other relevant provisions of GATT 1994, as appropriate.
We note that footnote 24 refers generally to
“action” and not, as does Article 18.1, to “specific action
against dumping” of exports. “Action” within the meaning of
footnote 24 is to be distinguished from “specific action against
dumping” of exports, which is governed by Article 18.1 itself.
A.3.61.3 US — 1916 Act, para. 124
(WT/DS136/AB/R, WT/DS162/AB/R)
Article 18.1 of the Anti-Dumping Agreement
contains a prohibition on the taking of any “specific action against
dumping” of exports when such specific action is not “in accordance
with the provisions of GATT 1994, as interpreted by this Agreement”.
Since the only provisions of the GATT 1994 “interpreted” by the Anti-Dumping
Agreement are those provisions of Article VI concerning dumping,
Article 18.1 should be read as requiring that any “specific action
against dumping” of exports from another Member be in accordance with
the relevant provisions of Article VI of the GATT 1994, as
interpreted by the Anti-Dumping Agreement.
A.3.61.4 US — 1916 Act, para. 125
(WT/DS136/AB/R, WT/DS162/AB/R)
We recall that footnote 24 to Article 18.1
refers to “other relevant provisions of GATT 1994” (emphasis
added). These terms can only refer to provisions other than the
provisions of Article VI concerning dumping. Footnote 24 thus confirms
that the “provisions of GATT 1994” referred to in Article 18.1 are
in fact the provisions of Article VI of the GATT 1994 concerning
dumping.
A.3.61.5 US — Offset Act (Byrd Amendment), para. 236
(WT/DS217/AB/R, WT/DS234/AB/R)
Looking to the ordinary meaning of the words
used in these provisions, we read them as establishing two conditions
precedent that must be met in order for a measure to be governed by
them. The first is that a measure must be “specific” to dumping or
subsidization. The second is that a measure must be “against”
dumping or subsidization. These two conditions operate together and
complement each other. If they are not met, the measure will not be
governed by Article 18.1 of the Anti-Dumping Agreement or by
Article 32.1 of the SCM Agreement. If, however, it is
established that a measure meets these two conditions, and thus falls
within the scope of the prohibitions in those provisions, it would then
be necessary to move to a further step in the analysis and to determine
whether the measure has been “taken in accordance with the provisions
of GATT 1994”, as interpreted by the Anti-Dumping Agreement or
the SCM Agreement. If it is determined that this is not
the case, the measure would be inconsistent with Article 18.1 of the Anti-Dumping
Agreement or Article 32.1 of the SCM Agreement.
A.3.61.6 US — Offset Act (Byrd Amendment),
para. 237
(WT/DS217/AB/R, WT/DS234/AB/R)
… The Panel analyzed the terms “specific”
and “against” in Article 18.1 in the same manner as it did with
respect to their use in Article 32.1. We agree with the Panel’s
approach. …
A.3.61.7 US — Offset Act (Byrd Amendment), para. 239
(WT/DS217/AB/R, WT/DS234/AB/R)
… a measure that may be taken only when the
constituent elements of dumping or a subsidy are present, is a “specific
action” in response to dumping within the meaning of Article 18.1 of
the Anti-Dumping Agreement or a “specific action” in response
to subsidization within the meaning of Article 32.1 of the SCM Agreement.
In other words, the measure must be inextricably linked to, or have a
strong correlation with, the constituent elements of dumping or of a
subsidy. Such link or correlation may, as in the 1916 Act, be derived
from the text of the measure itself.
A.3.61.8 US — Offset Act (Byrd Amendment), para. 240
(WT/DS217/AB/R, WT/DS234/AB/R)
… We recall that, in US — 1916 Act,
we said the constituent elements of dumping are found in the definition
of dumping in Article VI:1 of the GATT 1994, as elaborated in Article 2
of the Anti-Dumping Agreement. As regards the constituent
elements of a subsidy, we are of the view that they are set out in the
definition of a subsidy found in Article 1 of the SCM Agreement.
A.3.61.9 US — Offset Act (Byrd Amendment), para. 244
(WT/DS217/AB/R, WT/DS234/AB/R)
… the “test” established in US — 1916 Act “is met not only when the constituent elements of dumping
are ‘explicitly built into’ the action at issue, but also where…
they are implicit in the express conditions for taking such action.”…
A.3.61.10 US — Offset Act (Byrd Amendment), para. 253
(WT/DS217/AB/R, WT/DS234/AB/R)
… in Article 18.1 of the Anti-Dumping
Agreement and Article 32.1 of the SCM Agreement, there
is no requirement that the measure must come into direct contact with
the imported product, or entities connected to, or responsible for, the
imported good such as the importer, exporter, or foreign producer. …
A.3.61.11 US — Offset Act (Byrd Amendment), para. 254
(WT/DS217/AB/R, WT/DS234/AB/R)
… to determine whether a measure is “against”
dumping or a subsidy, we believe it is necessary to assess whether the
design and structure of a measure is such that the measure is “opposed
to”, has an adverse bearing on, or, more specifically, has the effect
of dissuading the practice of dumping or the practice of subsidization,
or creates an incentive to terminate such practices. In our view, the
CDSOA has exactly those effects because of its design and structure.
A.3.61.12 US — Offset Act (Byrd Amendment), para. 257
(WT/DS217/AB/R, WT/DS234/AB/R)
… in order to determine whether the CDSOA is
“against” dumping or subsidization, it was not necessary, nor
relevant, for the Panel to examine the conditions of competition under
which domestic products and dumped/subsidized imports compete, and to
assess the impact of the measure on the competitive relationship between
them. An analysis of the term “against”, in our view, is more
appropriately centred on the design and structure of the measure; such
an analysis does not mandate an economic assessment of the implications
of the measure on the conditions of competition under which domestic
product and dumped/subsidized imports compete.
A.3.61.13 US — Offset Act (Byrd Amendment), para. 258
(WT/DS217/AB/R, WT/DS234/AB/R)
… a measure cannot be against dumping or a
subsidy simply because it facilitates or induces the exercise of rights
that are WTO-consistent. …
A.3.61.14 US — Offset Act (Byrd Amendment), para. 262
(WT/DS217/AB/R, WT/DS234/AB/R)
… Footnotes 24 and 56 are clarifications of
the main provisions, added to avoid ambiguity; they confirm what is
implicit in Article 18.1 of the Anti-Dumping Agreement and in
Article 32.1 of the SCM Agreement, namely, that an action
that is not “specific” within the meaning of Article 18.1 of
the Anti-Dumping Agreement and of Article 32.1 of the SCM Agreement,
but is nevertheless related to dumping or subsidization, is not
prohibited by Article 18.1 of the Anti-Dumping Agreement or
Article 32.1 of the SCM Agreement.
A.3.62 Article 18.4 — Ensure conformity of
domestic anti-dumping laws, regulations and procedures. See also
WTO Agreement, Article XVI:4 — WTO-conformity of laws, regulations and
administrative procedures (W.4.3)
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A.3.62.1 US — 1916 Act, para. 78
(WT/DS136/AB/R, WT/DS162/AB/R)
Article 18.4 imposes an affirmative obligation
on each Member to bring its legislation into conformity with the
provisions of the Anti-Dumping Agreement not later than the date
of entry into force of the WTO Agreement for that Member.
Nothing in Article 18.4 or elsewhere in the Anti-Dumping Agreement
excludes the obligation set out in Article 18.4 from the scope of
matters that may be submitted to dispute settlement.
A.3.62.2 US — Corrosion-Resistant Steel Sunset
Review, para. 84
(WT/DS244/AB/R)
Our reasoning for concluding that the panel in
US — 1916 Act had jurisdiction to consider legislation,
as such, also applies in this case, where the relevant measures are
specific provisions of an administrative instrument issued by an
executive agency pursuant to statutory and regulatory provisions. That
reasoning was based on the GATT acquis and the language of the Anti-Dumping
Agreement, in particular Articles 17.3 and 18.4.
A.3.62.3 US — Corrosion-Resistant Steel Sunset
Review, para. 87 and footnote 87
(WT/DS244/AB/R)
We also believe that the provisions of Article 18.4 of the Anti-Dumping Agreement are relevant to the question
of the type of measures that may, as such, be submitted to dispute
settlement under that Agreement. Article 18.4 contains an explicit
obligation for Members to “take all necessary steps, of a general or
particular character” to ensure that their “laws, regulations and
administrative procedures” are in conformity with the obligations set
forth in the Anti-Dumping Agreement. Taken as a whole, the phrase
“laws, regulations and administrative procedures” seems to us to
encompass the entire body of generally applicable rules, norms and
standards adopted by Members in connection with the conduct of
anti-dumping proceedings.87
If some of these types of measure could not,
as such, be subject to dispute settlement under the Anti-Dumping
Agreement, it would frustrate the obligation of “conformity” set
forth in Article 18.4.
A.3.62.4 US — Corrosion-Resistant Steel Sunset
Review, para. 98
(WT/DS244/AB/R)
… the Panel did not consider the normative
nature of the provisions of the Sunset Policy Bulletin, nor compare the
type of norms that USDOC is required to publish in formal regulations
with the type of norms it may set out in policy statements. These
inquiries would have assisted the Panel in determining whether the
Sunset Policy Bulletin is, in fact, an “administrative procedure”
within the meaning of Article 18.4 of the Anti-Dumping Agreement.
Aggregate Investigations. See SCM
Agreement, Article 19 (S.2.26-28)
A.3.63 Relationship between the Anti-Dumping
Agreement and the SCM Agreement
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A.3.63.1 US — Lead and Bismuth II, para. 49
(WT/DS138/AB/R)
… [the Declaration on Dispute
Settlement Pursuant to the Agreement on Implementation of Article VI of
the General Agreement on Tariffs and Trade 1994 or Part V of the
Agreement on Subsidies and Countervailing Measures (the “Declaration”)]
does not impose an obligation to apply the standard of review contained
in Article 17.6 of the Anti-Dumping Agreement to disputes
involving countervailing duty measures under Part V of the SCM Agreement.
The Declaration is couched in hortatory language; it uses the
words “Ministers recognize”. Furthermore, the Declaration
merely acknowledges “the need for the consistent resolution of
disputes arising from anti-dumping and countervailing duty measures.”
It does not specify any specific action to be taken. In particular, it
does not prescribe a standard of review to be applied.
A.3.63.2 US — Lead and Bismuth II, para. 50
(WT/DS138/AB/R)
… [the Decision on Review of Article 17.6
of the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994 (the “Decision”)]
provides for review of the standard of review in Article 17.6 of the Anti-Dumping
Agreement to determine if it is “capable of general application”
to other covered agreements, including the SCM Agreement.
By implication, this Decision supports our conclusion that the
Article 17.6 standard applies only to disputes arising under the Anti-Dumping
Agreement, and not to disputes arising under other covered
agreements, such as the SCM Agreement. To date, the DSB
has not conducted the review contemplated in this Decision.
A.3.63.3 US — Corrosion-Resistant Steel Sunset
Review, footnote 114 to para. 104
(WT/DS244/AB/R)
We note that Article 11.3 is textually
identical to Article 21.3 of the SCM Agreement, except
that, in Article 21.3, the word “countervailing” is used in place of
the word “anti-dumping” and the word “subsidization” is used in
place of the word “dumping”. Given the parallel wording of these two
Articles , we believe that the explanation, in our Report in US — Carbon Steel, of the nature of the sunset review provision in the SCM
Agreement also serves, mutatis mutandis, as an apt
description of Article 11.3 of the Anti-Dumping Agreement. …
Relationship between the Anti-Dumping
Agreement and the Safeguards Agreement. See Safeguards Agreement,
Relationship between the Safeguards Agreement and the Anti-Dumping
Agreement (S.1.43)
A.3.64 Relationship between the Anti-Dumping
Agreement and the GATT 1994
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A.3.64.1 US — 1916 Act, para. 114
(WT/DS136/AB/R, WT/DS162/AB/R)
… Article VI of the GATT 1994 and the Anti-Dumping
Agreement are part of the same treaty, the WTO Agreement.
As its full title indicates, the Anti-Dumping Agreement is an “Agreement
on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994”. Accordingly, Article VI must be read in conjunction with
the provisions of the Anti-Dumping Agreement, including Article 9.
A.3.64.2 US — 1916 Act, para. 133
(WT/DS136/AB/R, WT/DS162/AB/R)
… We also agree with the Panel that, having
regard to the relationship between Article VI and the Anti-Dumping
Agreement, “the applicability of Article VI to the 1916 Act also
implies the applicability of the Anti-Dumping Agreement” to the 1916
Act.
A.3.65 Article VI of the GATT 1994 — Anti-dumping duties. See also Anti-Dumping Agreement, Article 18.1 (A.3.61)
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A.3.65.1 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.3.65.2 US — 1916 Act, para. 116
(WT/DS136/AB/R, WT/DS162/AB/R)
… the verb “may” in Article VI:2 of the
GATT 1994 is, in our opinion, properly understood as giving Members a
choice between imposing an anti-dumping duty or not, as well as a
choice between imposing an anti-dumping duty equal to the dumping margin
or imposing a lower duty. We find no support in Article VI:2, read in
conjunction with Article 9 of the Anti-Dumping Agreement, for the
United States’ argument that the verb “may” indicates that
Members, to counteract dumping, are permitted to take measures other
than the imposition of anti-dumping duties.
A.3.65.3 US — 1916 Act, para. 117
(WT/DS136/AB/R, WT/DS162/AB/R)
… it appears to us that the text of Article VI is inconclusive as to whether Article VI regulates all possible
measures which Members may take to counteract dumping, or whether it
regulates only the imposition of anti-dumping duties.
A.3.65.4 US — 1916 Act, para. 121
(WT/DS136/AB/R, WT/DS162/AB/R)
We consider that the scope of application of
Article VI is clarified, in particular, by Article 18.1 of the Anti-Dumping
Agreement. …
A.3.65.5 US — 1916 Act, para. 126
(WT/DS136/AB/R, WT/DS162/AB/R)
We have found that Article 18.1 of the Anti-Dumping
Agreement requires that any “specific action against dumping” be
in accordance with the provisions of Article VI of the GATT 1994
concerning dumping, as those provisions are interpreted by the Anti-Dumping
Agreement. It follows that Article VI is applicable to any “specific
action against dumping” of exports, i.e., action that is taken in
response to situations presenting the constituent elements of “dumping”.
A.3.65.6 US — 1916 Act, para. 130
(WT/DS136/AB/R, WT/DS162/AB/R)
… The constituent elements of “dumping”
are built into the essential elements of civil and criminal liability
under the 1916 Act. The wording of the 1916 Act also makes clear that
these actions can be taken only with respect to conduct which
presents the constituent elements of “dumping”. It follows that the
civil and criminal proceedings and penalties provided for in the 1916
Act are “specific action against dumping”. We find, therefore, that
Article VI of the GATT 1994 applies to the 1916 Act.
A.3.65.7 US — 1916 Act, para. 137
(WT/DS136/AB/R, WT/DS162/AB/R)
… Article VI, and, in particular, Article VI:2, read in conjunction with the Anti-Dumping Agreement, limit
the permissible responses to dumping to definitive anti-dumping duties,
provisional measures and price undertakings. Therefore, the 1916 Act is
inconsistent with Article VI:2 and the Anti-Dumping Agreement to
the extent that it provides for “specific action against dumping” in
the form of civil and criminal proceedings and penalties.
A.3.65.8 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. As we see it, the obligation that
flows from the purpose of “offset[ing] or prevent[ing] dumping” is
clear from the text of Article VI:2 itself, namely, that an anti-dumping
duty shall “not [be] greater in amount than the margin of dumping in
respect of [the dumped] product”. This limitation of anti-dumping
duties to the margin of dumping is the only requirement imposed on
investigating authorities by the first sentence of Article VI:2. The
precise rules relating to the determination as to whether there is
dumping and, if dumping exists, how the dumping margin is to be
calculated, are set out, not in Article VI:2 of the GATT 1994, but
rather in Article 2 of the Anti-Dumping Agreement, which is the
agreement on the implementation of Article VI of the GATT 1994. …
114. Brazil’s thesis is further predicated on the
assumption that if no significant increase in dumped imports (either in absolute
terms or relative to production and consumption in the importing Member) were
found originating from a specific country under Article 3.2, then those imports
would have to be excluded from cumulative assessment under Article 3.3. (Brazil’s
response to questioning at the oral hearing) However, we find no support for
this argument in the text of Article 3.2 itself: significant increases in
imports have to be “consider[ed]” by investigating authorities under Article 3.2, but the text does not indicate that in the absence of such a significant
increase, these imports could not be found to be causing injury.
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188. We have previously held that Article 9.4 is of little relevance
for interpreting Articles 2 and 3 of the Anti-Dumping Agreement
because “the right to impose anti-dumping duties under Article 9 is a consequence
of the prior determination of the existence of dumping margins, injury,
and a causal link.” (Appellate Body Report, EC — Bed Linen
(Article 21.5 — India), paras. 123-124 (original emphasis),
referring to Appellate Body Report, EC — Bed Linen,
footnote 30 to para. 62) In contrast, the requirement to terminate an
anti-dumping duty under Article 11.3 unless investigating authorities
make an affirmative likelihood determination in a sunset review is a consequence
of the prior imposition of that duty under Article 9.
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243. We have found a similar duty in the context of an investigation
conducted in accordance with the Agreement on Safeguards:
Appellate Body Report, US — Wheat Gluten, paras. 53-55.
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87. We observe that the scope of each element in the phrase “laws,
regulations and administrative procedures” must be determined for
purposes of WTO law and not simply by reference to the label given to
various instruments under the domestic law of each WTO Member. This
determination must be based on the content and substance of the
instrument, and not merely on its form or nomenclature. Otherwise, the
obligations set forth in Article 18.4 would vary from Member to Member
depending on each Member’s domestic law and practice.
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