IN THE MATTER OF:

Antidumping Investigation of Mexico into Imports of Flat Coated Steel Products from the United States of America
(Continued)

C. THE LEGAL DUTIES AND INTERESTS OF THE U.S. EXPORTERS

80. To analyze the legal significance of the incompetent acts of DCC in terms of this Panel’s limited jurisdiction, we next consider (1) determinations incorporated in the Final Determination that will not be affected if acts of DCC are declared illegal; (2) legal duties of U.S. exporters and how they relate to the full antidumping proceeding; and (3) legal interests of U.S. exporters that are not affected by incompetent acts of DCC.

81. 1. As noted, on February 8, 1993 an official of an incompetent entity, DGPCI or DCC, sent notifications and questionnaires to 26 U.S. exporters.³⁸ The Final Determination indicates that of these 26 exporters, only three U.S. exporters responded in a timely and complete manner to the questionnaires (Bethlehem, LTV and USX) and that another four U.S. exporters responded in an untimely or incomplete manner (Inland, New Process, Mitsui & Company, Inc. and World Metals Inc.). This means that the remaining 19 U.S. exporters did not respond at all.³⁹ 82. The 19 U.S. exporters who did not respond to the notifications and questionnaires from DCC were placed in the category of "all other exporters." In the Final Determination, "all other exporters" were subjected to an anti-dumping margin and duty rate of 38.21%.⁴⁰

83. These 19 U.S. exporters, in essence, treated the notifications and questionnaires as voluntary, in that they did not believe themselves obligated to respond and did not in fact respond. The legal consequence of disregarding the notifications and questionnaires was to be grouped with "all other exporters" and to have one’s exports subjected to a 38.21% rate of duty.

84. No U.S. exporter who was among the "all other exporters" has presented a Complaint to this Panel challenging the treatment of "all other exporters." Under Rule 7 of the NAFTA Panel Rules, this Panel has no jurisdiction to review the treatment of "all other exporters." Whatever we decide with respect to Bethlehem, Inland, LTV and USX, it will not affect the category of "all other exporters" or their 38.21% rate of duty.⁴¹

85. USX, Bethlehem, LTV and Inland are now asking this Panel (1) to declare the Final Determination illegal under Article 238/I of the Federal Fiscal Code, because the notifications and questionnaires sent to them were sent by an incompetent official, and (2) to direct SECOFI to terminate the effects of the anti-dumping duty order as it affects them.

86. However, this Panel believes that the consequence of acts by an incompetent official is not to declare illegal all portions of the Final Determination that mention Bethlehem, Inland, LTV or USX. The reason for our conclusion involves an analysis of the legal duties and interests of a foreign exporter in an anti-dumping proceeding.

87. 2. There is no legal duty or requirement that any foreign exporter participate in an anti-dumping proceeding, as evidenced in this case by the fact that 19 of 26 potential respondents did not in fact participate. An anti-dumping proceeding can occur without the participation of any foreign exporters. By its nature, an anti-dumping proceeding is not a governmental action against the U.S. exporters or any other person. Instead, it is a general investigation to determine facts regarding the possible existence of unfair trade practices. Article 11 of the Foreign Trade Regulatory Act Implementing Article 131 of the Constitution of the United Mexican States requires SECOFI to "proceed with its administrative investigation of the unfair international trade practices . . . ." ("continuará la investigación administrativa sobre la práctica desleal de comercio internacional"). Article 13 of the Regulation Against Unfair International Trade Practices states that it is the "responsibility" of SECOFI to carry out "an investigation into the possible presence of unfair international trade practices . . . ." ("La investigación sobre prácticas desleales de comercio internacional, que estará a cargo de la Secretaría"). This viewpoint is also supported by the following precedent:⁴²

SECRETARIA DE COMERCIO Y FOMENTO INDUSTRIAL. AMPARO IMPROCEDENTE CONTRA LAS RESOLUCIONES DEFINITIVAS EN MATERIA DE DUMPING, PRONUNCIADAS POR LA APLICACION DE LA FRACCION V, DEL ARTICULO 73 DE LA LEY DE AMPARO,

SECRETARIAT OF TRADE AND INDUSTRIAL DEVELOPMENT. AND AMPARO SUIT CANNOT BE BROUGHT AGAINST FINAL DETERMINATIONS IN DUMPING MATTERS ISSUED BY THE, APPLICATION OF SECTION V OF ARTICLE 7-3 OF AMPARO.

Cuando se reclame a través del juicio de amparo resoluciones pronunciadas por la SecretarÍa de Comercio y Fomento Industrial en materia de dumping, así como violaciones al procedimiento administrativo respectivo, dicho juicio resulta improcedente porque con las mismas no se afectan lo intereses jurídicos del gobernado... el articulo 27 del citado reglamento estatuye que durante el período de investigación las partes que hubieren acreeditado su interés en el resultado de la misma podrán ofrecer toda clase de pruebas con excepción de la confesional o aquellas que atenten contra el orden público, la moral o las buenas costumbres. (La investigación antidumping es un procedimiento) en el que la Secretaría de Comercio y Fomento Industial, ya sea de oficio o a través de una denuncia, es la única encargada de investigar y determinar la existencia o inexistencia de dumping, esto es de la práctica desleal de comercio internacional consistente en la importación al mercado nacional de mercancías extranjeras a un precio inferior a su valor normal; pues debe decirse que la intencion original del legislador, al emitir la ley de la materia, no fue la de favorecer los intereses particulares de una persona física o moral determinada, sino de regular y promover el comercio exterior, la economía del país, la estabilidad de la producción nacional, o de realizar cualquier otro propósito similar en beneficio del mismo (del país) según lo dispone el articulo 1 de la Ley Reglamentaria del artículo 131 Constitucional en materia de comercio exterior...Por lo tanto, el hecho de que las disposiciones de las que emana el acto reclamado concretamente los articulos 13 de la Ley y el 27 del Reglamento, establezcan que los denunciantes o productores nacionales puedan ofrecer toda clase de pruebas salvo las que en el segundo de dichos preceptos se prohiben, solamente significa que tales personas físicas o morales actuan, en todo caso, como coadyuvantes de la autoridad administrativa para la determinación de si existe o no práctica dumping.

It is contrary to law to resort to a juicio de amparo to challenge final resolutions in matters of dumping issued by the Secretariat of Commerce and Industrial Development, as well as violations during an administrative proceeding, because the legal interests of the citizen are not affected. . . . Article 27 provides that during the period of investigation the interested parties are allowed to offer any kind of evidence, with the exception of witnesses or evidence not permitted because of public order, public morals or good custom. In this proceeding, SECOFI, ex-officio or through a complaint, is exclusively in charge of investigating and determining the existence or non-existence of dumping, which is the practice of introducing goods in the market below their normal value. The law’s original intention is not to favor the particular interests of any moral or physical person, but to regulate and to promote foreign commerce, the national economy and to achieve any other similar goal or benefits for the country as provided in Article 131 of the Constitution regarding foreign commerce. Therefore, just because Articles 13 of the Law and 27 of the Regulations provide that domestic producers or complainants may submit any kind of evidence with the exceptions mentioned above, this only means that they only assist the investigating authority to determine whether dumping has or has not occurred.

88. Therefore, an anti-dumping investigation is very different from a fiscal investigation. In an anti-dumping investigation, the U.S. exporters need not participate. The Investigating Authority conducts its own administrative investigation and the participation of individual exporters is not mandated. By contrast, in a fiscal investigation, the person who is the target of the investigation is forced to participate and has a legal duty to cooperate.

89. The Panel recognizes, of course, that the choice facing foreign exporters when an antidumping investigation is initiated is not an easy one. The very filing of such an investigation constitutes a threat to future exports to the importing nation, as high antidumping duties, particularly those imposed through an "all other exporters" rate for non-participants in the investigation, may have the effect of closing the export market. Alternatively, if the foreign exporter decides to participate in the investigation in order to defend its position, as did now those before this Panel, it faces a difficult and extremely costly administrative and legal burden. However, as a matter of law, participation is in fact voluntary on the part of the foreign manufacturer, even though it may not legally be denied the right to participate, as discussed below.

90. In summary, Bethlehem, Inland, LTV, USX or any of the other 26 exporters could have refused to participate without affecting the other aspects of the anti-dumping investigation. SECOFI still had a duty to "proceed with an administrative investigation of the unfair international practices. . . .".⁴³ However, in the absence of their participation, Bethlehem, Inland, LTV and USX would presumably have been subject to the "all other exporters" rate for the deposit of dumping duties.

91. 3. Let us next consider the legal interests and rights of U.S. exporters in an anti-dumping investigation. Those legal interests and rights involve three aspects of an anti-dumping investigation: (1) the initiation of the investigation, (2) the exporter’s right to present evidence and arguments and to have its evidence and arguments fairly considered by the Investigating Authority as part of its general investigation; and (3) the Final Determination which imposes any anti-dumping duties.

92. Bethlehem, Inland, LTV and USX do not object to the initiation of this anti-dumping investigation. The parties agree that the provisional resolution of December 24, 1992 was issued by a competent official of SECOFI. Yet, it was the initiation of the investigation, by the provisional resolution, that exposed the products of the foreign exporters to possible anti-dumping duties (to be paid by Mexican importers). The initiation also presented each U.S. exporter with some decisions, i.e., should the exporter voluntarily participate in the proceeding, or present any particular evidence or arguments, or otherwise protect and defend its interests?

93. If an exporter decides to participate in an anti-dumping proceeding, it has a legal interest (and legal right) to present evidence and to have its evidence considered. The following legal provisions support this view.

94. Article 27 of the Regulations Against Unfair International Trade Practices gives to exporters and other interested persons the right to present "all classes of evidence" ("toda clase de pruebas") in an anti-dumping investigation. Article 23 of the same Regulations gives exporters a right "to obtain information made available to the Secretariat by any of the parties concerned, . . . ." ("obtener la información facilitada a la Secretaria por cualquiera de las partes afectadas").

95. Part I of the Agreement On Implementation Of Article VI Of The General Agreement On Tariffs And Trade ("1979 GATT Anti-dumping Code") has similar provisions. Article 6, paragraph 1 of the 1979 GATT Anti-dumping Code requires that foreign suppliers "be given ample opportunity to present in writing all evidence that they consider useful in respect to the anti-dumping investigation in question." Article 6, paragraph 2 requires the investigating authority to "provide opportunities for . . . exporters . . . to see all information that is relevant to the presentation of their cases. Article 6, paragraph 7 requires that "all parties shall have a full opportunity for the defense of their interests."⁴⁴

96. In addition, each U.S. exporter has a right to have the evidence it submits taken into account by the Investigating Authority before the Final Resolution is issued. This principle has been recognized in the following decision of a Mexican court involving an anti-dumping proceeding:

De igual manera tiene razón la quejosa en cuanto aduce que la resolución reclamada viola, en su perjuicio, la garantía de audiencia consagrada en el artículo 14 constitucional, que establece el derecho que tienen los gobernados a ser oídos, previamente a la privación de sus posesiones o derechos, lo que involucra no sólo el derecho de que se les dé oportunidad de defensa en cuanto al conocimiento de los hechos, a la posibilidad de formular alegatos y de ofrecer y desahogar pruebas, sino también al derecho que tienen a que esos alegatos y pruebas sean tomados en cuenta antes de que se emita el acto de autoridad.

In the same manner, the complainant is right inasmuch as they state that the contested resolution violates, to their prejudice, the guarantee of a hearing granted in Article 14 of the Constitution, which establishes the right which the governed have to be heard, prior to the seizure of their possessions or rights, which involves not only the right which gives them the opportunity to defend themselves relative to the knowledge of facts, the possibility of formulating claims and to offer and present evidence, but also the right which they have that these claims and evidence be taken into account before any ruling is issued by the authority.45

97. This legal interest of foreign exporters in presenting evidence—and in having it considered—is subject to one limitation. If a valid questionnaire has been issued by the Investigating Authority, the exporter must respond to the questionnaire; otherwise, his evidence may be disregarded. Article 6, paragraph 8 of the 1979 GATT Anti-dumping Code states that if "any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period," a resolution "may be made on the basis of the facts available."

98. These legal provisions indicate that we should analyze (1) the validity of the notifications and questionnaires that DCC sent to the U.S. exporters on February 8, 1993, separately from (2) the evidence that the U.S. exporters presented in the anti-dumping proceeding. If we assume that the February 8, 1993 notifications and questionnaires were of no legal effect, the U.S. exporters no longer had a duty to respond to those questionnaires as a condition to submitting their own evidence. Nevertheless, they were free to submit their own evidence, and to have their evidence considered, whether or not it was in the form of a response to the invalid questionnaires.

99. Significantly, the administrative record does not show that any U.S. exporter objected to, or did not wish to submit, any of the evidence that the U.S. exporters eventually submitted. In fact, the administrative record shows that Bethlehem, Inland, LTV and USX each voluntarily filed notices of appearance in the anti-dumping proceeding on January 18 and January 22, 1993, more than two weeks before the February 8 notifications and questionnaires were sent.⁴⁶ Moreover, USX asked for a questionnaire.⁴⁷ Next, when they submitted evidence in the form of responses to the questionnaires, the U.S. exporters made no objection regarding any of the material they submitted. After they submitted this evidence, the U.S. exporters continued to submit more evidence to the Investigating Authority.⁴⁸

100. Thus, the administrative record shows that the U.S. exporters voluntarily exercised their right to submit evidence. As discussed, they had a legal right to submit this evidence. The invalidity of the February 8, 1993 notification and questionnaires did not destroy or limit the legal right and interest of these U.S. exporters to submit their own evidence in this general investigation, and to have this evidence considered in a fair manner.

D. GUIDANCE FROM PAST AMPARO AND PANEL DECISIONS

101. To help us determine the legal significance of the incompetent acts of DCC and DGPCI, the participants have also called our attention to certain decisions of Mexican courts. Unfortunately, they provide only limited guidance to this Panel.

102. There have been three decisions in amparo proceedings in which U.S. steel exporters were granted protection under the Amparo Law from a final resolution in an anti-dumping proceeding.⁴⁹ These proceedings challenged the competence of verification visits ordered by the director of DCC before April 1, 1993.

103. One of these amparo decisions has recently been upheld on appeal.⁵⁰ The court in this appeal upheld an amparo based on the illegality of verification visits where the orders were purportedly issued by DGPCI and signed by the director of DCC. The appeals court stated that the relevant administrative unit that issued the verification orders was DGPCI and noted that this administrative unit lacked competence because it was not listed in the applicable Internal Regulation of SECOFI. The appeals court also ruled that U.S. exporters had legal interests affected by the final resolution in an anti-dumping proceeding.⁵¹

104. As discussed above, this Panel agrees that DGPCI, as well as DCC, lacked competence to issue the notifications and questionnaires of February 8, 1993. ⁵² Similarly, we agree with the earlier binational panel decision in Case No. MEX-94-1904-02, that the notifications and questionnaires of February 8, 1993 were not issued by an official of a competent administrative unit of SECOFI. We also note that the recent binational panel decision in case No. MEX-94-1904-03 did not attempt to analyze the specific competence of DGPCI or DCC before April 1, 1993. With all due respect, however, we also believe that the amparo decisions and the majority in the earlier binational panel decisions did not fully analyze all of the matters that we have considered here. The previous binational panel decision are not binding on us, but were only "binding on the involved Parties with respect to the particular matter between the Parties that [was] before the panel" ("obligatorio para las Partes implicadas con relación al asunto concreto entre esas Partes que haya sido sometido al panel")^.53 Degussa Corporation, S.A. de C.V., November 24, 1994. Another decision has reached the opposite result, concluding that U.S. exporters do not have legal interests in an anti-dumping proceeding. Segundo Tribunal Colegiado en Materia Administrativa del Primer Circuito amparo en revisión 2762/94 (Amparo Decision 193/93), Bethlehem Steel Corporation and USX Corporation, July 13, 1995.

105. Significantly, the decision in Case No. MEX-94-1904-02 does not in our view correctly analyze whether the Final Determination is actually derived from an incompetent act or from other evidence or dispositions that were generated by the incompetent act. That is an issue to which we now turn.

E. PARTS OF THE FINAL DETERMINATION DERIVED FROM THE INCOMPETENT ACTS

1. Key Terms In Article 238/I.

106. Under Article 1904(1), (2) and (5) and Annex 1911 of NAFTA, this Panel may review only the Final Determination. This Panel may not review any intermediate act in the anti-dumping proceeding, unless it is incorporated is some way in the Final Determination. At the same time, under Article 238/I of the Federal Fiscal Code, the Panel must determine whether an "administrative determination" that is being reviewed is "derived from" a proceeding carried out by an incompetent official.⁵⁴ We must interpret three key terms in Article 238/I: (a) "administrative determination" ("resolución administrativa"); (b) "proceeding ("procedimiento"); and © "derived from" ("deriva de").

107. a. Administrative Determination. As discussed in Part II/B of this Opinion, the words "administrative determination" ("resolución administrativa") in Article 238 should not be interpreted to mean only the Final Determination. Instead, these words refer to any "administrative determination" ("resolución administrativa") that is included in (or provides the basis for) portions of the Final Determination. Thus, the Panel must look separately at each "administrative determination" (1) that is included in or provides the basis for some portion of the Final Determination, and (2) that has been challenged in a Complaint of a party.

108. b. Proceeding. The word "proceeding" ("procedimiento") in Article 238/I must be interpreted to mean an administrative activity that includes some administrative disposition—like a demand for information or records, the setting of a deadline, the denial of an extension of time, the rejection of a filing. There are three reasons for this view. First, the word "proceeding" ("procedimiento") must be more limited than the entire anti-dumping investigation. Article 238/I refers only to one official ("el funcionario") who carries out the proceeding; however, in an anti-dumping investigation, there are many officials who carry out many administrative actions. This suggests that each administrative action is a "proceeding." Second, since the Panel cannot annul an incompetent act, subsequent acts within the proceeding are not directly affected, as would be otherwise the case with a decision by the Federal Fiscal tribunal to annul an incompetent act and all other subsequent acts based on it. Third, under our limited jurisdiction, this Panel must determine if a particular administrative determination within the Final Determination (or on which the Final Determination is based) "derives from" ("deriva de") a "proceeding" carried out by an incompetent official. If a particular "proceeding" during an anti-dumping investigation has been carried out by an incompetent official, this does not mean that all administrative determinations on which the Final Determination is based should be declared illegal.

109. Therefore, an anti-dumping investigation should be viewed as having several proceedings, and each proceeding should be viewed as having at least one administrative disposition. For example, the sending of the notifications and questionnaires on February 8, 1993 should be viewed as a "proceeding" separate from the verification visits, the initiation of the investigation, or the determination of dumping margins (each of which is also a "proceeding"). Our duty under Article 238/I is to determine if an "administrative determination" that has been challenged in a party’s Complaint and that is included in (or is the basis for) a portion of the Final Determination is "derived from" any particular "proceeding" carried out by an incompetent official.

110. c. Derived From. We are also of the view that there must be some logical link between the act of an incompetent official and an administrative determination in the Final Determination. Article 238/I requires that an administrative resolution be "derived from" ("deriva de") a proceeding carried out by an incompetent official. Not every "proceeding" during an anti-dumping investigation becomes a basis for an administrative determination in the Final Determination. For example, acts of notification, a determination to receive a particular document, or an inquiry to verify information from a party (i) may be carried out by an official who lacks competence, but (ii) may not be part of the basis for the Final Determination.

111. In Part III/C of this Opinion, this Panel has suggested that the effect of the February 8, 1993 notifications and questionnaires on the Final Determination must be analyzed separately from the evidence that the U.S. exporters chose to submit (which evidence of course was a partial bias for the Final Determination). It is this Panel’s view that if the administrative record demonstrates that a foreign exporter or exporters voluntarily chose to submit evidence, as they had a right to do under the GATT Antidumping Code and under Mexican law, the fact that some of that evidence was provided in response to a questionnaire originally sent by an incompetent official, does not automatically require that the Final Determination be declared illegal, even though the Final Determination is clearly derived from the evidence supplied by the exporter. In effect, the voluntarily submitted evidence stands on its own, distinct from the incompetent and therefore illegal acts of the Investigating Authority.

112. Thus, we must review the Final Determination with great care to determine whether the challenged portions of the Final Determination are "derived from" (1) a "proceeding" carried out by an incompetent official, or (2) evidence that the U.S. exporters voluntarily submitted. With this background, we consider the position of each of the U.S. exporters, beginning with Inland.

2. Effect On Inland.

113. The February 8, 1993 notifications contained a warning of consequences if information was not submitted by a certain time. Where a notification establishes a time limit for presenting information, it potentially affects the exporter’s legal interest in presenting evidence.

114. Inland did not submit responses to the questionnaire before the time limit stated in the notification. Inland submitted questionnaire responses later in the proceeding.⁵⁵ SECOFI rejected the responses because (i) Inland did not submit responses before the deadline stated in the February 8, 1993 notification, and (ii) Inland also did not submit the responses within 30 days of the resolution revising the provisional resolution.⁵⁶

115. Inland was also one of the U.S. exporters that requested an extension of time of the original deadline.⁵⁷ This request for a time limit extension was denied.⁵⁸ This denial also interfered with Inland’s legal interest in presenting evidence and in having the evidence considered.

116. Thus, for Inland, a portion of the Final Determination—in which Inland was subjected to the "all other exporters" rate because the information Inland submitted was ignored was clearly derived from an administrative disposition of an incompetent official—the deadline established in the February 8, 1993 notification. In the Final Determination, SECOFI relied directly on the fact that Inland had not submitted timely responses to the questionnaire— specifically, responses before the deadline stated in the February 8, 1993 notification from its incompetent official.⁵⁹ We declare this part of the Final Determination insofar as it relates to the determination of Inland’s dumping margins to be illegal under Article 238/I.

3. Effect on Other U.S. Exporters.

117. For other U.S. exporters, there is no evidence in the administrative record that the deadline in the February 8, 1993 notifications affected the ability or willingness of any of the U.S. exporters to present evidence in the anti-dumping proceeding. All of these U.S. exporters chose to participate in the proceeding and seemed willing and able to present the information on time. Of equal importance, there is also no evidence that the February 8, 1993 notifications resulted in the U.S. exporters presenting documents or information they did not wish voluntarily to present as part of their evidence in the anti-dumping proceeding, as discussed above.

118. In our view, therefore, SECOFI was required to consider the evidence that Bethlehem, LTV and USX submitted voluntarily, and without objection, even if its February 8, 1993 notifications and questionnaires are illegal, null or void. Therefore, even if the February 8, 1993 notifications are without legal effect, SECOFI still was required to determine the dumping margins for these U.S. exporters based on the evidence these exporters voluntarily submitted. In these particular circumstances, it is our conclusion that the portions of the Final Determination which established dumping margins for Bethlehem, LTV and USX, were derived from the evidence these exporters voluntarily submitted and not from the February 8, 1993 notifications (or the particular proceeding that consisted of the issuance of the February 8, 1993 notifications) or from other related actions taken by incompetent officials.

119. In their Complaints in this Binational Panel proceeding, USX, Bethlehem and LTV raised numerous issues regarding whether SECOFI reached correct conclusions based on the evidence presented. For the above reasons, we must address these conclusions of SECOFI on their merits, which we do in Part VI of this Opinion.

4. Remedy With Respect To Inland.

120. The Panel again notes that it does not have jurisdiction under NAFTA Article 1904 to declare any part of the Final Determination a "nullity." Under Article 1904(8) of NAFTA, this Panel can only "uphold a final determination, or remand it for action not inconsistent with the panel’s decision" ("confirmar la resolución definitiva o devolverla a la instancia anterior con el fin de que se adopten medidas no incompatibles con su decisión.").

121. For all these reasons, the Panel has determined that the only appropriate decision is to declare illegal, under Article 238, Section I of the Federal Fiscal Code, only that portion of the Final Determination that determines the dumping margins of Inland and to declare that it shall be given no legal effect.⁶⁰ We declare this portion of the Final Determination to be illegal because Inland had a right to present evidence and to have this evidence considered by SECOFI, and because the only reason SECOFI states that it did not consider this evidence is because Inland did not submit its evidence by the deadline stated in a notification issued by an official of an incompetent entity (DGPCI or DCC).

122. The Panel is of the view that it would be consistent with the Panel’s decision for SECOFI, on remand, to consider Inland’s evidence, to offer Inland an opportunity to provide additional relevant evidence (an opportunity which was denied to Inland as a result of the actions of an incompetent official) and to comment on the Investigating Authority’s analysis, and to make a new decision based on that evidence. SECOFI may also, or in the alternative, take any other action permitted by applicable law. The Panel is of the view that grouping Inland with "all other exporters" (or taking other actions which prejudice Inland’s right to present evidence) would not be consistent with applicable law. We do not at this time express a view on whether applicable law would permit a modification of the Final Determination to assess the exports of Inland with zero anti-dumping duties. Although such an approach was taken in the Panel decision in MEX-94-1904-02, one would have to consider the legal interests of Mexican producers and the duty of SECOFI to carry out a full investigation of possible unfair trade practices that affect the economy of Mexico.

Continue on to Section IV: Competence of officials involved in the verification phase

³⁸ See Administrative Record (VC) Nos. 32-57.

³⁹ See Final Determination, 26 and 27.

⁴⁰ See Final Determination, 123.

⁴¹ We also note that, from the information collected during SECOFI’s general investigation, there was legal authority to determine a rate of duty for all other exporters "based on the facts which were available." Final Determination, ¶ 123; 1979 GATT Anti-dumping Code, Article 6(8).

⁴² Cuarto Tribunal Colegiado en Materia Administrativa del Primer Circuito. Semanario Judicial de la Federación, 8a. época, tomo: X, diciembre, p. 363, Amparo en revisión 334/92, Fibras Sintéticas, S.A de C.V. 14 de mayo de 1992. Unanimidad de votos. Ponente: José Méndez Calderón. Secretario: Benito Alva Zenteno.

⁴³ See Foreign Trade Regulatory Act Implementing Article 131, Article 11.

⁴⁴ International treaties like the 1979 GATT Antidumping Code to which Mexico is a party are self-executing in Mexico, in that they become part of the law of Mexico without the need for additional implementing legislation. Thus, Article 133 of the Federal Constitution of Mexico states: Article 133.—This Constitution, the laws of the Congress of the Union which emanate therefrom, and all treaties made, or which shall be made in accordance therewith by the President of the Republic, with the approval of the Senate, shall be the Supreme Law throughout the Union. See Contradicción del Tesis 3/92, Pleno de la Suprema Corte de Justicia, sesión del 2 de marzo de 1994 (international treaties are to be directly applied even if inconsistent with pre-existing internal rules).

⁴⁵ Primer Tribunal Colegiado Materia Administrativa del Primer Circuito. Amparo en revisión 2011/94. Degussa Corporation, S.A. de C.V., November 24, 1994.

⁴⁶ See Administrative Record (VC) Nos. 11, 12 and 16.

⁴⁷ Id. No. 22.

⁴⁸ See Administrative Record (VC) Nos. 89, 90, 183, 236, 240, 242, 257, 289, 293, 296, 300, 303, 308, 310, 323, 336, 354, 370, 373, 375, 377, 383, 385, 394, 395, 411, 429, 444, 446, 450.

⁴⁹ Juzgado Cuarto de Distrito en materia administrativa. Amparo Decision Nos. 193/93, 194/93 and 195/93 (1994).

⁵⁰ Quinto Tribunal Colegiado en MateriaAdministrativa del Primer Circuito. Amparo en revisión 3005/94 (Amparo Decision No. 194/93), June 24, 1996.

⁵¹ The legal interests of U.S. exporters in anti-dumping proceedings have also been recognized in another decision. Primer Tribunal Colegiado en Materia Administrativa del Primer Circuito (amparo en revisión-2011/94),

⁵² As discussed in Part IV/A of this Opinion, this case differs from the earlier amparo decisions because the orders for the verification visits in our case were not issued by DGPCI or DCC as they were in the amparo proceedings.

⁵³ NAFTA Article 1904(9).

⁵⁴ A similar concept appears in Mexican decisions. For example: Cuando un acto envuelva un error que lo haga inscontitucional, todos los actos que se deriven or que lo condicionen son de origen insconstitucionales y el tribunal no deberia darle ningun valor... When an act or deed involves an error that makes it unconstitutional, all the acts derived from it or based on it, or in any way conditioned by it by origin are unconstitutional and the tribunal should not give any legal value to it . . . . Amparo directo. 504/75, Montacargas de Mexico, 8 de octubre de 1975. Unanimidad de votos.

⁵⁵ See Administrative Record (VC) No. 244.

⁵⁶ See April 21, 1995 Hearing Transcript ("Transcript I"), pages 251-58 (in Spanish), Administrative Record (VC) No. 243; and Final Determination 27.

⁵⁷ Administrative Record (VC) No. 66.

⁵⁸ Id. No. 75.

⁵⁹ Final Determination 27.

⁶⁰ See Final Determination 27.