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:||20 July 2018|
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Summary of the dispute to date
The summary below was up-to-date at
Complaint by the Russian Federation.
On 7 May 2015, the Russian Federation requested consultations with Ukraine regarding anti-dumping measures imposed by Ukraine on imports of ammonium nitrate originating from the Russian Federation.
The Russian Federation claims that the measures are inconsistent with:
- Articles 1, 2.1, 2.2, 2.2.1, 184.108.40.206, 2.4, 5.8, 6.1, 6.2, 6.4, 6.5.1, 6.6, 6.8, 6.9, 9.2, 9.3, 11.1, 11.2, 11.3, and 18.1, and Annex II, of the Anti‑Dumping Agreement; and
- Article VI of the GATT 1994.
Panel and Appellate Body proceedings
On 29 February 2016, the Russian Federation requested the establishment of a panel. At its meeting on 23 March 2016, the DSB deferred the establishment of the panel.
At its meeting on 22 April 2016, the DSB established a Panel. Argentina, Australia, Brazil, Canada, China, Colombia, the European Union, Japan, Kazakhstan, Mexico, Norway, Qatar and the United States reserved their third-party rights.
On 23 January 2017, the Russian Federation requested the Director-General to compose the panel. On 2 February 2017, the Director-General composed the panel.
On 14 June 2017 the Chair of the panel informed the DSB that the panel expected to issue its final report to the parties not before the first quarter of 2018, in light of the amount and complexity of the work involved. On 24 January 2018, the Chair of the panel informed the DSB that the panel expected to issue its final report to the parties by June 2018.
The dispute concerned anti-dumping measures maintained by Ukraine on imports of ammonium nitrate from Russia. The Ukrainian authorities had originally imposed anti-dumping measures on these imports following an anti-dumping investigation, which they extended pursuant to an interim and expiry review determination. Russia made substantive and procedural claims challenging the Ukrainian authorities' review determinations, while also challenging some aspects of the determinations made in the original investigation.
With respect to the substantive claims, Russia challenged the Ukrainian authorities' dumping and likelihood-of-dumping determinations, injury-related aspects of their determination, and their decision to include a Russian producer, that allegedly had a de minimis dumping margin in the original investigation phase, within the scope of the review determination.
Regarding the dumping and likelihood-of-dumping determinations, Russia contended that the Ukrainian authorities violated Articles 220.127.116.11 and 2.2 of the Anti-Dumping Agreement by rejecting the prices paid by the investigated Russian producers for gas used to produce ammonium nitrate. Russia also challenged under the same provisions the Ukrainian authorities' decision to replace these prices with a surrogate gas price that Russia argued did not reflect the cost of gas in Russia. Ukraine argued that its authorities were justified in rejecting these producers' gas prices because they were distorted due to government control of gas prices, and that its authorities made appropriate adjustments in selecting the surrogate price of gas to ensure that it reflected costs in Russia. The Panel found that the Ukrainian authorities violated Article 18.104.22.168 in rejecting the gas prices of Russian producers as they did not provide an adequate basis to justify this decision. The Panel found that the Ukrainian authorities violated Article 2.2 because they did not make sufficient adjustments to ensure that the surrogate gas price reflected costs in Russia. The Panel also upheld a claim by Russia under Article 2.2.1 of the Anti-Dumping Agreement alleging that inconsistencies with cost calculations under Article 22.214.171.124 distorted the ordinary-course-of-trade test conducted by the Ukrainian authorities under Article 2.2.1. Further, the Panel found that by relying on dumping margins calculated inconsistently with Articles 2.2, 2.2.1 and 126.96.36.199 to make their likelihood-of-dumping determinations, the Ukrainian authorities also violated Articles 11.2 and 11.3 of the Anti-Dumping Agreement.
With respect to injury-related aspects of the Ukrainian authorities' review determination, Russia had claimed in its panel request that these authorities violated Articles 11.1, 11.2 and 11.3 of the Anti-Dumping Agreement because they determined and relied on injury not established in accordance with certain provisions of Article 3 of the Anti-Dumping Agreement. However, the Panel concluded that investigating authorities are not required by Article 11 to make any determination of injury under Article 3, and the Ukrainian authorities did not make such a determination. Therefore, the Panel rejected Russia's Article 11 claims which it found to be dependent on a finding that the Ukrainian authorities made a determination of injury under Article 3.
Further, Russia claimed that the Ukrainian authorities violated Article 5.8 of the Anti-Dumping Agreement because they failed to exclude from the scope of the original anti-dumping measures a Russian producer that was found to have a de minimis dumping margin in the original investigation phase, and imposed a 0% anti-dumping duty on it instead. Russia also claimed that these authorities violated Articles 5.8, 11.1, 11.2 and 11.3 of the Anti-Dumping Agreement by including this producer in the scope of the review determination, and then imposing anti-dumping duties against it following this determination. Ukraine disputed Russia's assertion that this producer was found to have had a de minimis dumping margin in the original investigation, contending that while the Ukrainian courts found no dumping by this exporter, the investigating authorities themselves did not calculate a de minimis dumping margin for this producer in the original investigation. The Panel concluded that, as a factual matter, this producer had a de minimis margin in the original investigation phase, and on this basis upheld Russia's claims under Article 5.8, while exercising judicial economy on those under Articles 11.1, 11.2 and 11.3.
Russia also raised procedural claims under Articles 6.2 and 6.9, Article 6.8 and paragraphs 3, 5 and 6 of Annex II, and Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement. The Panel upheld most of Russia's claims under Article 6.9 while rejecting one set of claims under Articles 6.2 and 6.9. The Panel rejected Russia's claims under Article 6.8 and paragraphs 3, 5 and 6 of Annex II, and found the claims under Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement to be outside its terms of reference.
The Panel also rejected Russia's claims under Articles 2.1 of the Anti-Dumping Agreement and Article VI of the GATT 1994, while exercising judicial economy on a number of other claims.
On 23 August 2018, Ukraine notified the DSB of its decision to appeal to the Appellate Body certain issues of law and legal interpretations in the panel report.
On 22 October 2018, upon expiry of the 60-day period provided for in Article 17.5 of the DSU, the Appellate Body informed the DSB that it would not be able to circulate the Appellate Body report in this appeal by the end of the 60-day period, nor within the 90-day time-frame provided for in Article 17.5 of the DSU. The Appellate Body referred to the size of the panel record and the complexity of issued that had been appealed. The Appellate Body also noted the backlog of appeals pending with the Appellate Body at present, and the overlap in the composition of all divisions resulting in part from the reduced number of Appellate Body members. In its communication the Appellate Body indicated that Division members could currently spend only very little time preparing for this appeal and that it would not be possible for the Division to focus on the consideration of this appeal and be fully staffed for some time. The Appellate Body informed the DSB that the Appellate Body would communicate appropriately with participants and DSB Members as soon as it knew more precisely when the Division can schedule the hearing in this appeal.
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