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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(as cited in request for consultations)
|Request for Consultations received:
|Panel Report circulated:
||14 February 2015
Summary of the dispute to date back to top
The summary below was up-to-date at
Complaint by Japan. (See also DS460)
On 20 December 2012, Japan requested consultations with China concerning measures imposing anti-dumping duties on high-performance stainless steel seamless tubes (“HP-SSST”) from Japan, as set forth in Ministry of Commerce of the People's Republic of China (“MOFCOM”) Notice No. 21  and Notice No. 72 , including any and all annexes and any amendments thereof.
Japan claims that the measures are inconsistent with:
- Articles 1, 3.1, 3.2, 3.4, 3.5, 5.3, 5.8, 6.5, 6.5.1, 6.8, 6.9, 7.4, 12.2 and 12.2.2 of the Anti‑Dumping Agreement; and
- Article VI of the GATT 1994.
On 15 January 2013, the European Union requested to join the consultations. Subsequently, China informed the DSB that it had accepted the request of the European Union to join the consultations. On 11 April 2013, Japan requested the establishment of a panel. At its meeting on 24 April 2013, the DSB deferred the establishment of a panel.
Panel and Appellate Body proceedings
At its meeting on 24 May 2013, the DSB established a panel. The European Union, India, Korea, the Russian Federation, and the United States reserved their third party rights. Subsequently, Saudi Arabia and Turkey reserved their third party rights. On 17 July 2013, Japan requested the Director‑General to compose the panel. On 29 July 2013, the Director-General composed the panel.
On 13 February 2015, the panel report was circulated to Members.
Summary of key findings
These disputes concern the imposition by China of anti-dumping duties on certain high-performance stainless steel seamless tubes from Japan and the European Union. The complainants claimed that the anti-dumping duties imposed by China, and the underlying investigation conducted by the Chinese investigating authority (MOFCOM), were inconsistent with various procedural and substantive provisions of the Anti-Dumping Agreement, and Article VI of the GATT 1994. The complainants brought virtually identical claims concerning MOFCOM's injury determination, and MOFCOM's handling of certain procedural issues. The European Union also brought additional substantive claims in respect of MOFCOM's determination of dumping.
The complainants brought a series of Article 3 claims against MOFCOM's determination that dumped imports had caused injury to the domestic industry. They claimed that MOFCOM's consideration of the price effects of subject imports was inconsistent with Articles 3.1 and 3.2 of the Anti-Dumping Agreement; that MOFCOM's assessment of the impact of the dumped imports on the state of the domestic industry was inconsistent with Articles 3.1 and 3.4 of the Anti-Dumping Agreement; and that MOFCOM's determination that there is a causal link between dumped imports and material injury to the domestic industry was inconsistent with Articles 3.1 and 3.5 of the Anti-Dumping Agreement. The Panels upheld many of the claims under Articles 3.1, 3.2, 3.4 and 3.5, but did not side with the complainants on all matters. In particular, the Panels rejected the complainants' claims under Article 3.2 that MOFCOM was required — and failed — to assess whether price undercutting by the subject imports had the actual effect of placing downward pressure on domestic prices.
The complainants claimed that MOFCOM failed to fulfil the requirements of Article 6.8 and Annex II:1 in applying facts available to determine the all others rates for unknown exporters. The Panels rejected the complainants' claims. The Panels found that there was no factual basis to conclude that MOFCOM had failed to inform unknown exporters/producers of the information required of them, since MOFCOM had posted the exporter questionnaire on its website.
The complainants claimed that MOFCOM failed to comply with the Article 6.9 obligation to disclose essential facts regarding its dumping and injury determinations, and its determination of the all others rates. The Panel rejected the complainants' claims concerning MOFCOM's use of a narrative description to disclose essential facts in respect of its dumping determination. The Panel noted that MOFCOM had provided narrative descriptions of the essential facts that referred to factual information already in the exporters' possession. The Panels upheld the claims that MOFCOM failed to disclose its dumping margin calculation methodology. The Panels also upheld the bulk of the complainants' claims that MOFCOM had failed to disclose essential facts pertaining to its injury determination. The Panels rejected the complainants' claims that MOFCOM had failed to disclose essential facts regarding the all others rate.
The complainants claimed that MOFCOM failed to ensure that its public notice of the Final Determination complied with the requirements of Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement. Their claims pertained to information concerning MOFCOM's injury determination, and MOFCOM's determination of the all others rates. The Panels rejected certain aspects of the claims brought in respect of MOFCOM's injury determination, and exercised judicial economy in respect of others. The Panels upheld one aspect of the claims brought in respect of MOFCOM's dumping determination, but rejected the others.
The complainants claimed that China acted inconsistently with Article 6.5 of the Anti-Dumping Agreement because MOFCOM permitted the full text of certain reports to remain confidential without a proper showing of “good cause” for such treatment by the petitioners. The complainants also claimed that China acted inconsistently with Article 6.5.1 of the Anti-Dumping Agreement because MOFCOM failed to require sufficient non-confidential summaries or explanations as to why such summaries were not possible. The Panels upheld all of the claims brought by the complainants.
The complainants claimed that, by applying provisional measures for a period exceeding four months without meeting the requirements of Article 7.4 of the Anti-Dumping Agreement, China acted inconsistently with that provision. The Panels upheld these claims.
The European Union made a number of claims in respect of MOFCOM's dumping determination. These claims concerned (i) the use of SG&A amounts (Articles 2.2.1, 18.104.22.168 and 2.2.2 of the Anti-Dumping Agreement); (ii) the fairness of the comparison (Article 2.4 of the Anti-Dumping Agreement); and (iii) the alleged double-counting of certain administrative expenses (Article 6.7 and Annex I:7 of the Anti-Dumping Agreement). The Panels upheld the European Union's Article 2.2.2 claim concerning SG&A amounts, and exercised judicial economy in respect of the remaining claims concerning that matter. The Panels upheld the European Union's fair comparison claim under Article 2.4. The Panels upheld a procedural aspect of the European Union's claim under Article 6.7 and Annex I:7 concerning the alleged double-counting of certain administrative expenses.
Japan and the European Union claimed that, by failing to comply with the provisions of the Anti-Dumping Agreement, China had consequently acted inconsistently with Article 1 of the Anti-Dumping Agreement and Article VI of the GATT 1994. The Panels upheld those consequential claims.
On 12 March 2015, China and Japan requested the DSB to adopt a draft decision extending the 60‑day time period stipulated in Article 16.4 of the DSU to 20 May 2015. At its meeting on 23 March 2015, the DSB agreed that, it shall no later than 20 May 2015, adopt the panel report unless (i) the DSB decides by consensus not to do so or (ii) China or Japan notifies the DSB of its decision to appeal the panel report.
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