3. Article 5.3 of the Anti-Dumping Agreement

41. In Mexico's view, contrary to what Guatemala claims, Article 5.3 of the Anti-Dumping Agreement does not simply oblige an authority to examine the accuracy and adequacy of the evidence. The wording of that Article clearly indicates that the object and purpose of the examination is "to determine whether there is sufficient evidence to justify the initiation of an investigation". By revealing that the evidence is accurate and adequate, the examination does not ensure that the evidence is "sufficient", since these are different things. The authority must, therefore, examine the accuracy, adequacy and the sufficiency of the evidence. Mexico contends that Guatemala's interpretation would allow groundless investigations to be initiated and is, therefore, contrary to the purpose of Article 5.3.

42. Mexico believes that Article 5.8 of the Anti-Dumping Agreement resolves all doubt that an authority must have sufficient evidence to initiate an investigation. It states not only that an investigation shall be terminated as soon as the authorities are satisfied that there is not sufficient evidence but also that "[a]n application ... shall be rejected" if there is insufficient evidence. (emphasis added)

43. As regards the relevance of Article 2 of the Anti-Dumping Agreement, Mexico asserts that Guatemala is trying to confuse the issue by arguing that Article 2 conflicts with Article 5.2. There is, however, no conflict and the provisions are complementary. Moreover, given the opening words of Article 2.1 ("For the purpose of this Agreement ... "), the definition provided in Article 2 of the term "dumping" applies to all provisions of the Agreement and to all stages of an investigation. Mexico maintains that, if this were not so, there would be no other way to define the term "dumping". Mexico argues that the definition provided in Article 3.7 of the Anti-Dumping Agreement of "threat of material injury" also applies throughout that Agreement and, therefore, at all stages of an investigation.³¹ Moreover, although Article 5.2 refers expressly to paragraphs 2 and 4 of Article 3, it does so purely by way of illustration. Article 5.2 of the Anti-Dumping Agreement therefore envisages that other factors, such as those listed in Article 3.7, may also be relevant under Article 5.2. Finally, as regards Guatemala's argument on Article 12 of the Anti-Dumping Agreement, Mexico submits that the Panel did not find that this Article required reference to be made in the public notice to the need to make a "fair comparison" or to the factors mentioned in Article 3.7. Rather, the Panel concluded that it could find no trace in the documentary file of the assertions Guatemala made in this respect.

44. With respect to the information referred to in footnote 242 of the Panel Report, Mexico states that the Panel refused to take it into consideration not because, as Guatemala claims, it was not mentioned in the public notice, but because the Panel could find no trace of this information anywhere in the administrative record for the investigation. Guatemala's claim that it is not necessary for an authority to reveal what additional evidence it may have taken into consideration amounts to a flagrant violation of the principles of procedural transparency and legal security. Affected parties would not have the slightest idea of the basis on which decisions were taken, and investigations could be commenced groundlessly in the knowledge that errors and omissions could be rectified subsequently.

45. According to Mexico, Guatemala's argument that information supplied in an application does not need to be capable of objective evaluation is also flawed in several respects. Guatemala confuses the word "evidence" used in the first sentence of Article 5.2 of the Anti-Dumping Agreement with the word "information" that is used in the third sentence. In addition, the second sentence of Article 5.2 provides that "[s]imple assertion, unsubstantiated by relevant evidence" does not satisfy the requirements of that paragraph. It would, in any event, be absurd to deny that "evidence" is something whose accuracy and adequacy can be objectively evaluated. In both the exact sciences and in law, a piece of evidence that cannot be objectively evaluated is not "evidence".

46. Mexico does not agree that the Panel misinterpreted Article 17.6(i) in reviewing the Guatemalan authority's evaluation of the evidence. The text of Article 17.6(i) does not require the complaining Member to show bias or subjectivity. Rather, it requires a panel to determine whether the investigating authority acted in an unbiased and objective manner. Mexico asserts that Guatemala's subsidiary argument that the Panel carried out a de novo review of the facts questions the impartiality of the Panel and is not substantiated by any evidence. Furthermore, no definition of the expression "de novo review" is given by Guatemala, nor does the Anti-Dumping Agreement offer any assistance. The Panel has, in any event, clearly explained the way in which Guatemala failed properly to establish the facts and the reasons why an unbiased and objective authority could not have acted as the Guatemalan authority did.

47. Mexico also believes that Guatemala has confused the standard of review a panel must apply under Article 17.6(i) with the obligations of sufficiency of evidence that were addressed in United States - Softwood Lumber and that are imposed on the investigating authority.

48. Finally, Mexico submits that the Panel's conclusion that Guatemala initiated an investigation in violation of Article 5.3 of the Anti-Dumping Agreement is irrefutably correct because the Guatemalan authority in this case acted on the basis of simple assertions by the applicant and not on the basis of accurate, adequate and sufficient evidence.

C. United States - Third Participant

49. The United States considers that this is a "difficult" case. On the one hand, Guatemala has violated its obligations under the Anti-Dumping Agreement by initiating the investigation without sufficient evidence, while, on the other hand, Mexico has failed to comply with the provisions of the DSU since it did not properly identify the measure challenged. The United States believes that the Panel should have found that Mexico's request for the establishment of a panel was inconsistent with Article 17.4 of the Anti-Dumping Agreement, and it should, therefore, have dismissed Mexico's complaint, leaving Mexico free to file a new and proper request with the DSB.

1. Whether the Dispute was Properly Before the Panel

50. The United States submits that the Panel erred in concluding that the provisions of Article 17 of the Anti-Dumping Agreement "replace" the provisions of the DSU.³² According to Article 1.2 of the DSU, it is only in the event of a "difference" that the special or additional rules and procedures in Appendix 2 prevail over the provisions of the DSU. If, as in the case of Articles 4 and 6 of the DSU and Article 17 of the Anti-Dumping Agreement, a Member can comply with both the special or additional rules and the provisions of the DSU, there is no "difference" between them and no need for the former provisions to "prevail" over the latter. In such a situation, the special or additional provisions supplement rather than supplant the provisions of the DSU. The United States argues that the Panel also erred in according Article 17.3 of the Anti-Dumping Agreement the status of a special or additional rule or procedure because that provision is not identified as such in Appendix 2 of the DSU.

51. According to the United States, if the rules of the Vienna Convention are applied to Article 17 of the Anti-Dumping Agreement and to the DSU it is clear that the Panel's "replacement doctrine" rests on an impermissible interpretation of the DSU and the Anti-Dumping Agreement. First, it is inconsistent with the plain text of those agreements. Second, if applied to other covered agreements (e.g., the Subsidies Agreement), it would fundamentally alter the rights and obligations under those agreements. Third, it would frustrate the object and purpose of the dispute settlement provisions of the DSU and the Anti-Dumping Agreement, thus undermining the ability of the DSU to serve as a unifying force in WTO dispute settlement.

52. Furthermore, the United States believes that, contrary to the Panel's views, Article 17.4 of the Anti-Dumping Agreement imposes a "jurisdictional requirement" on a panel such that one of the three anti-dumping measures mentioned in Article 17.4 must be identified as part of the "matter" in dispute. The United States emphasizes that Panels may, nonetheless, examine claims directed against those measures that relate to the initiation and conduct of an anti-dumping investigation. In the view of the United States, this jurisdictional requirement serves the purpose of ensuring that all the matters which relate to a single anti-dumping measure will be heard by one panel.

2. Article 5.3 of the Anti-Dumping Agreement

53. According to the United States, the Panel did not err in rejecting Guatemala's arguments on the interpretation of Articles 5.2 and 5.3 of the Anti-Dumping Agreement. The Panel was also correct in finding that the Guatemalan investigating authority did not have before it sufficient evidence of dumping, injury and causal link to justify initiation of the investigation. The United States wishes to stress, however, that the Panel's determination on these points is stated narrowly. In particular, according to the United States, the Panel did not attempt to define either a standard of sufficiency under Article 5.3 or the precise relationship between that provision and Article 5.2 of the Anti-Dumping Agreement. The United States maintains that the Appellate Body's findings on this issue should be equally narrow.

54. Finally, with respect to footnote 242 of the Panel Report, the United States submits that the Appellate Body should reject Guatemala's argument that Article 12.1.1 of the Anti-Dumping Agreement does not oblige an investigating authority to indicate that a decision to initiate was based on information which was not contained in the application filed pursuant to Article 5.2. Any other reading of Article 12.1.1 would allow investigating authorities to conceal the grounds upon which they decided to initiate an investigation. The Panel's refusal in footnote 242 to consider post hoc the additional information offered by Guatemala is also consistent with the findings of the panels in United States - Restrictions on Imports of Cotton and Man-Made Fibre Underwear³³ and United States - Shirts and Blouses³⁴, since in both of those disputes, the panels refused to consider evidence that was not available at the time the importing Member made its determination to impose measures.

III. Issues Raised in this Appeal

55. The appellant, Guatemala, raises the following preliminary issue in this appeal:

56. In the alternative, if we should find that this dispute was properly before the Panel, Guatemala raises the following issues:

To continue with Whether This Dispute Was Properly Before the Panel

³¹See footnote 9 and the chapeau to Article 5.2 of the Anti-Dumping Agreement.

³²Panel Report, para. 7.16.

³³Adopted 25 February 1997, WT/DS24/R.

³⁴Adopted 23 May 1997, WT/DS33/R.