DS: Thailand — Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H Beams from Poland

This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.


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Summary of the dispute to date

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Complaint by Poland.

On 6 April 1998, Poland requested consultations with Thailand concerning the imposition of final anti-dumping duties on imports of angles, shapes and sections of iron or non-alloy steel and H-beams. Poland asserted that provisional anti-dumping duties were imposed by Thailand on 27 December 1996, and a final anti-dumping duty of 27.78% of CIF value for these products, produced or exported by any Polish producer or exporter, was imposed on 26 May 1997. Poland further asserted that Thailand refused two requests by Poland for disclosure of findings. Poland contended that these actions by Thailand violate Articles 2, 3, 5 and 6 of the Anti-Dumping Agreement.

On 13 October 1999, Poland requested the establishment of a panel. At its meeting on 27 October 1999, the DSB deferred the establishment of a panel.


Panel and Appellate Body proceedings

Further to a second request to establish a panel by Poland, the DSB established a panel at its meeting on 19 November 1999. The EC, Japan and the US reserved their third-party rights. On 20 December 1999, the Panel was composed. The report was circulated to Members on 28 September 2000. The Panel concluded that:

  1. Poland failed to establish that Thailand had acted inconsistently with its obligations under Article 2 of the Anti-Dumping Agreement or Article VI of the GATT 1994 in the calculation of the amount for profit in constructing normal value.
  2. Thailand’s imposition of the definitive anti-dumping measure on imports of H-beams from Poland was inconsistent with the requirements of Article 3 of the Anti-Dumping Agreement in that:
  • inconsistently with the second sentence of Article 3.2 and Article 3.1, the Thai authorities did not consider, on the basis of an “objective examination” of “positive evidence” in the disclosed factual basis, the price effects of dumped imports;
  • inconsistently with Articles 3.4 and 3.1, the Thai investigating authorities failed to consider certain factors listed in Article 3.4, and failed to provide an adequate explanation of how the determination of injury could be reached on the basis of an “unbiased or objective evaluation” or an “objective examination” of “positive evidence” in the disclosed factual basis; and
  • inconsistently with Articles 3.5 and 3.1, the Thai authorities made a determination of a causal relationship between dumped imports and any possible injury on the basis of (a) their findings concerning the price effects of dumped imports, which the Panel had already found to be inconsistent with the second sentence of Article 3.2 and Article 3.1; and (b) their findings concerning injury, which the Panel had already found to be inconsistent with Article 3.4 and 3.1.
  1. under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment of benefits under that agreement, and that, accordingly, to the extent Thailand has acted inconsistently with the provisions of the AD Agreement, it has nullified or impaired benefits accruing to Poland under that Agreement.

On 23 October 2000, Thailand notified the DSB of its decision to appeal certain issues of law covered in the Panel Report and legal interpretations developed by the Panel. The Appellate Body circulated its report on 12 March 2001. The Appellate Body:

  • upheld the Panel’s conclusion that with respect to the claims under Articles 2, 3 and 5 of the AD Agreement, the request for the establishment of a panel submitted by Poland in this case was sufficient to meet the requirements of Article 6.2 of the DSU;
  • reversed the finding of the Panel that the AD Agreement requires a panel reviewing the imposition of an anti-dumping duty to consider only the facts, evidence and reasoning that were disclosed to, or discernible by, Polish firms at the time of the final determination of dumping. The Appellate Body was of the view that there was no basis for the Panel’s reasoning, either in Article 3.1 of the AD Agreement, which lays down the obligations of Members with respect to the determination of injury, or in Article 17.6 of the AD Agreement, which sets out the standard of review for panels.
  • Although having reversed the reasoning of the Panel on this issue, it left undisturbed the Panel’s main findings of violation;
  • upheld the Panel’s conclusion under Article 3.4 of the AD Agreement. The Appellate Body agreed with the Panel that Article 3.4 requires a mandatory evaluation of all the factors listed in that provision,
  • concluded that the Panel did not err in its application of the burden of proof, or in the application of the standard of review under Article 17.6(i) of the AD Agreement.

At its meeting of 5 April 2001, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.


Implementation of adopted reports

Thailand informed the DSB that it was in the process of identifying the most suitable way to comply with the DSB’s recommendations in this case and that it would need a reasonable period of time for implementation. Poland reiterated its position that in order to implement the DSB’s recommendations in this case Thailand would have to revoke the duties currently in place. If not, Poland would seek recourse to Article 21.5 of the DSU. Poland was ready to enter into consultations with Thailand on a reasonable period of time for implementation. On 25 May 2001, the parties to the dispute informed the DSB that they had agreed that the reasonable period of time shall be 6 months and 15 days and therefore expired on 20 October 2001.

At the DSB meeting on 18 December 2001, Thailand announced that it had fully implemented the DSB’s recommendations. Poland said that it could not accept the way in which Thailand had implemented the DSB’s recommendations because it expected that the measures in question would be either rescinded or modified. In Poland’s view, Thailand only changed the justification for the imposition of the measures. Poland reserved its rights under Article 21.5 of the DSU.

On 18 December 2001, Thailand and Poland concluded an understanding with regard to possible proceedings under Article 21 and 22 of the DSU. Pursuant to the understanding, in the event that Poland initiates proceedings under Articles 21.5 and 22 of the DSU, Poland agrees to initiate complete proceedings under 21.5 prior to any proceedings under Article 22. On 21 January 2002, the parties informed the DSB that they have reached an agreement to the effect that the implementation of the recommendations of the DSB in this dispute should no longer remain on the agenda of the DSB.


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