DS: Morocco — Anti-Dumping Measures on Certain Hot-Rolled Steel from Turkey

DS513 concerns a dispute between Turkey and Morocco. It relates to anti-dumping measures imposed by Morocco on certain hot-rolled steel products from Turkey.

“Material retardation”

The dispute raised novel questions regarding the issue of “material retardation of the establishment of the domestic industry”. Footnote 9 to Article 3 of the Anti-Dumping Agreement defines that “injury” of the domestic industry may take the form of “material retardation of the establishment of the domestic industry”; Article VI:6(a) of the GATT 1994 contains a similar reference. Turkey brought a number of claims in respect of Morocco's determination that the establishment of the domestic industry producing certain hot-rolled steel products in Morocco had been materially retarded as a result of dumped imports from Turkey. For jurisdictional and procedural grounds, the Panel denied making findings on Turkey's claims under footnote 9 and Article VI:6(a). It found, however, that Morocco had acted inconsistently with Article 3.1 of the Anti-Dumping Agreement in determining that the domestic industry was “unestablished” and with Articles 3.1 and 3.4 of the Anti-Dumping Agreement in evaluating whether Turkish imports had “materially retarded” that industry's establishment.

Procedural claims

As regards a number of Turkey's procedural claims under Articles 6.5, 6.5.1 and 6.9 of the Anti-Dumping Agreement, the Panel declined to rule for jurisdictional or procedural reasons, or it found that Turkey had not established its claim. The Panel, however, found that Morocco had acted inconsistently with Article 5.10 of the Anti-Dumping Agreement by failing to conclude the investigation within the 18-month maximum time-limit set out in that provision. It also found that Morocco had acted inconsistently with Article 6.9 by failing to inform all interested parties of certain “essential facts”.

The Panel also found that Morocco had acted inconsistently with Article 6.8 of the Anti-Dumping Agreement by rejecting the reported information and establishing the margins of dumping for the two investigated Turkish producers based on facts available. The Panel did not find it necessary to address Turkey's additional claims in this regard under paragraphs 1, 3, 5, 6, and 7 of Annex II.

The Panel declined Turkey's request that the Panel exercise its discretion under the second sentence of Article 19.1 of the DSU and suggest that Morocco immediately revoke the measures at issue.

In its letter of 4 December 2019, Morocco informed the Appellate Body of its decision to withdraw the appeal, and requested the Appellate Body to inform the DSB of this decision, pursuant to Rule 30(1) of the Working Procedures for Appellate Review. Morocco further requested the Appellate Body to reflect the reasons for Morocco's decision in the event the Appellate Body issued a report. Specifically, Morocco stated that the anti-dumping measure underlying the dispute had expired on 26 September 2019. Morocco further stated that, although Morocco continued to believe that the Panel's findings suffer from serious flaws, those findings had become moot with the expiration of the underlying measure. Consequently, and in light of the heavy workload of the Appellate Body, Morocco stated that it had decided to withdraw the appeal.

Upon receipt of the letter, the Appellate Body informed the Chair of the DSB of Morocco's decision to withdraw the appeal.

On 4 December 2019, Turkey submitted a letter to the Appellate Body, in which it noted Morocco's decision to withdraw the appeal and joined Morocco in requesting the Appellate Body to notify the DSB of Morocco's decision. In addition, Turkey noted that, on the previous occasion in which an appeal was withdrawn, i.e., in India – Autos (DS146 and DS175), the Appellate Body issued a short report noting the withdrawal of the appeal. In that dispute, the Appellate Body Report, together with the Panel Report, was subsequently adopted by the DSB. Turkey considered that the Appellate Body should follow the same practice in the present dispute.

The Appellate Body issued its Report in this dispute on 10 December 2019. The Report describes the Panel's findings and summarizes the procedural history of the case. The Report does not address the substantive legal issues raised by Morocco in its appeal. The Report recalls the requirements of Articles 16.4 and 17.14 of the DSU regarding the adoption of panel and Appellate Body reports. The Report states that, in view of Morocco's withdrawal of the appeal by its letter of 4 December 2019, the Appellate Body has completed its work in the appeal. The Report further states that the 30-day period specified in Article 17.14 of the DSU for adopting the Appellate Body Report, together with the Panel Report, begins from the circulation of the Report.