4.990 The textual analysis of Article 6.9 made by the United States is selective and flawed. Contrary to the US assertion, Article 6.9 does not �describe the facts of which interested parties must be informed as the �essential facts under consideration��. The United States gloss over the terms �which form the basis for the decision whether to apply definitive measures�. Those terms qualify the phrase �essential facts under consideration� and are of crucial importance for the correct interpretation of Article 6.9. They indicate clearly that the investigating authority is required to identify which facts will be relied upon in the decision whether to impose measures.

4.991 The United States contends that the EC�s interpretation would prevent interested parties from defending their interests, because they would not be informed of those facts that do not support the determination that the authority intends to make. According to the United States, �if a party is not informed of a fact under Article 6.9, it may never know that fact exists at all�. This is not correct. The United States overlook that other provisions of Article 9 already ensure that the parties are informed of all relevant facts. In particular, the United States disregard that Article 6.4 requires the investigating authorities to give access to all �information that is relevant for the presentation of their cases � and that is used by the authorities in an anti-anti-dumping investigation�.

4.992 As noted correctly by the panel in Guatemala � Cement (II), the interpretation of Article 6.9 made by Argentina and the United States in this case would render redundant that provision (Panel Report, Guatemala � Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para. 8.230). The contorted arguments advanced by the United States in order to distinguish its reading of Article 6.9 from the requirements imposed by Article 6.4 are contrived and unconvincing. In light of those arguments, it is ironic that the United States accuses the EC and Japan of engaging in a �tortured� interpretation of Article 6.9.

4.993 Furthermore, in order to give meaning to Article 6.9, the United States is forced to make an unduly narrow interpretation of Article 6.4. According to the United States, Article 6.9 would address the situation where an investigating authority may legitimately refuse access to the file on the grounds that it would be �impracticable� to do so. However, Article 6.4 does not say that interested parties will be given access to the file only �if practicable�, but rather that they will do so �whenever practicable� (this difference comes even clearer in the French version, which reads �chaque fois que cela sera r�alisable�). The terms �whenever practicable� do not address the question of �whether� the investigating authority must grant access to the file, but exclusively the question of �when� to do so. Those terms reflect the assumption that it will always be �practicable� for the investigating authority to grant �timely opportunities� for seeing the file. They do not carve out an exception to the obligation imposed by Article 6.4, but rather reinforce such obligation. They make clear that, although the investigating authority is not required to make the file permanently accessible to the public, it must do so every time that it is practicable, rather than, for example, once at the end of the investigation.

4.994 The United States themselves recognise that a Member claiming that access to the record is not practicable �faces a heavy burden�. Furthermore, at the third party session, the representatives of the United States admitted that the instances where a Member could refuse legitimately access to the file would be �exceptional�. Thus, on the United States� own interpretation, Article 6.9 would be no more than a safeguard of last resort, which would become operational only in the exceptional situation where the investigation authority is not required to give access to the file pursuant to Article 6.4.

4.995 However, the interpretation of treaty provision cannot start from the unsupported premise that it is intended to apply only in exceptional circumstances. There is simply no indication in Article 6.9, or elsewhere in the AD Agreement, or in its drafting history, that Article 6.9 was designed to address only the very exceptional situation described by the United States (indeed, so exceptional that it is likely to remain purely hypothetical), or that the obligation imposed by Article 6.9 is subsidiary in any manner to that imposed by Article 6.4.

4.996 Argentina also argues that, at any rate, the violation of Article 6.9 is �by nature� a �harmless error�. As mentioned above, the EC considers that this is not a valid defence. In any event, the EC believes that the disclosure provided for in Article 6.9 constitutes an essential procedural safeguard, the omission of which, �by nature�, prejudices the rights of defence of interested parties and, therefore, vitiates necessarily and irreparably the final determination.

4.997 In its second oral statement, the EC did not address its claim under Article 6.9 of the AD Agreement.

4.998 The Panel did not ask the EC any questions following the second meeting relating to the EC�s claim under Article 6.9 of the AD Agreement.

2. Argentina

(a) Arguments in Argentina�s first written submission relating to the EC�s claim under Article 6.9 of the AD Agreement

4.999 In its first written submission, Argentina made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1000 Argentina first presented a number of facts relevant for its legal arguments.

4.1001 In its first written submission, the EC states as its fourth claim that contrary to the requirements set out in Article 6.9 of the AD Agreement, the DCD failed to inform exporters of the �essential facts� concerning the existence of dumping which would form the basis for the decision whether to apply the definitive measures.

4.1002 Article 6.9 of the AD Agreement stipulates that:

The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply the definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests.

4.1003 By Notes DCD No. 273-000586/99, 273-000587/99, 273-000588/99, 273-000589/99, 273-000590/99, 273-000591/99 and 273-000592/99 of 11 May 1999, the DCD informed the representatives of Canteras Cerro, Casalgrande, Caesar, Bismantova, Marazzi and Assopiastrelle, respectively, that � � the judicial decision concerning the evidence duly provided by the firms involved in this investigation has been taken, so that those that so wish may consult the corresponding document and familiarize themselves with the decision contained therein ��.

4.1004 On 18 June 1999, the representative of Assopiastrelle confirmed that she had consulted file No. 061-000794/98 consisting of 25 sections with 7,368 folios and taken full note of the proceedings.

4.1005 The EC�s first written submission cites a Note of 28 August 1999 in which the DCD informs exporters that the evidence-gathering stage of the investigation has terminated and invites them to consult the record and, where they deem necessary, submit their final pleadings before 10 September.

4.1006 On 3 September 1999, representatives of the exporters consulted the record, as recorded in Note DCD No. 273-001040/99. According to the EC submission, the Final Dumping Determination was not available in the record, nor did the record contain any other document prepared by the DCD which identified the �essential facts� that would form the basis of the Final Dumping Determination.

4.1007 As stated in the EC submission, by letter dated 9 September 1999, the DCD informed the exporters that, as far as the dumping determination was concerned, the Argentine authorities considered that the disclosure requirements imposed by Article 6.9 were fully complied with by granting to the interested parties access to the record.

4.1008 Indeed, in Note DCD No. 273-001040/99 of 9 September 1999 to Assopiastrelle, Bismantova, Casalgrande, Caesar and Marazzi, the DCD pointed out that �� the usual procedure applied by the Undersecretariat for Foreign Trade when addressing this aspect of Article 6.9 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade of 1994, incorporated into Argentine legislation through Law No. 24.425, was respected in full by the implementing authority when the DCD clearly notified all of the parties concerned in the procedure of the termination of the evidence-gathering stage, inviting them to consult the full record of the proceedings in order to acquaint themselves with all of the essential facts to date and to submit, on the basis of all of the information gathered thus far, and providing they so wished, their final pleadings.�

4.1009 On 21 September 1999, the representative of Assopiastrelle confirmed that she had consulted File No. 061-000794/98 consisting of 28 sections and taken full note of the proceedings.

4.1010 Argentina presented next its legal arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1011 Article 6.9 does not specify in what way the authorities shall inform all interested parties of the essential facts under consideration which form the basis of the decision whether to apply definitive measures. It stipulates that the authorities �� shall inform all interested parties of the essential facts�. The obligation in the Article is to inform; the text does not specify how, but simply imposes a minimum standard (to inform) and leaves it up to the authority to choose the means. This is what would be defined as an obligation of results, as opposed to an obligation of means.

4.1012 The EC submission cites (in a footnote) the recent Panel on Guatemala � Cement (II), in which the Panel concluded that Guatemala did not comply with Article 6.9 by offering to provide interested parties with copies of all information in the file.

4.1013 In that case, Guatemala argued that the Ministry had revealed the �essential facts� by placing a copy of the file at the disposal of the interested parties. However, in the case of Argentina, the DCD did not merely offer to provide the interested parties with a copy of all of the information contained in the record, but expressly invited them to consult the full record of the proceedings.

4.1014 In this connection it should be stressed that although �dar copia� (�providing a copy�) was not sufficient to comply with the Article 6.9 obligations, the scope of the expression �dar vista� (�give sight�) is different, since contrary to the expression �dar copia�, it implies notifying the interested parties of the record of the proceedings.

4.1015 In this specific case, the entire record of the proceedings was being made available, which implies that the essential facts on which the implementing authority would base its final decision in the subsequent stage were also being made available.

4.1016 Indeed, the fact of having made available the record of the proceedings implies that the requirements set forth in Article 6.9 of the AD Agreement were met. The parties, through this procedural step, were informed of the record of the proceedings �in toto�. In other words, since no single fact considered by the implementing authority remained unknown to the interested parties, their rights were not impaired.

4.1017 Nor did the exporters at any time demonstrate that they had suffered injury as a result of this interpretation. Thus, it is clear that the requirements of Article 6.9 of the AD Agreement were met by the implementing authority, and that exporters had access to all of the information on the basis of which the said authority reached its conclusions.

4.1018 In any case, even if one were to assume that the procedure followed by the implementing authority was not in keeping with Article 6.9 of the AD Agreement, quod non, Argentina considers that this would be a case of �harmless error�. In other words, an error which, by its nature, is not sufficiently important to alter the implementing authority�s conclusions.

4.1019 Also important with respect to the content of the Article 6.9 obligation is the work carried out by the Ad Hoc Group on Implementation of the AD Agreement (see Documents G/ADP/W/401 and G/ADP/W/400) created by the Committee on Anti Dumping Practices to prepare recommendations on issues on which the Agreement is more lax and on issues where agreement among Members seems possible.

4.1020 At its meeting of 29 and 30 April 1997, the Ad Hoc Group on Implementation of the Committee on Anti-Dumping Practices, analysing the question of the information making up the essential facts under consideration before making a final determination, addressed the practical issue of how such information should be provided, recognizing that the specific nature of the investigation and decision-making processes in the systems of the different Members also implied differences as to the way in which this obligation was met. On the one hand, it was suggested that the information should be supplied at as early as possible a stage of the process; on the other hand, it was considered important that the information should be supplied once all of the various stages of the investigation process had been completed and the investigating authority was in a position to make a determination. In fact, this is a provision of the Agreement which leaves WTO Members a certain amount of room for interpretation of the obligation involved. So much so that the Ad Hoc Group tried to find a solution that would conciliate the different positions within the WTO � all of them permissible under the Agreement, owing in particular to Article 17.6. The fact that the Ad Hoc Group did not adopt a recommendation implies that the Member countries still differ on the matter on how to notify the essential facts. In other words, the text of Article 6.9 does not specify a means of fulfilling the obligation.

4.1021 In short, Argentina considers that its interpretation of Article 6.9 did not cause any injury to the exporters concerned. Moreover, the said exporters at no time demonstrated that they had suffered any prejudice as a result of that interpretation. Thus, even if one were to accept that Argentina�s application of Article 6.9 was erroneous, this would be, quod non, a harmless error.

(b) Arguments of Argentina in its first oral statement relating to the EC�s claim under Article 6.9 of the AD Agreement

4.1022 In its first oral statement, Argentina made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1023 Argentina submits that the DCD acted in conformity with Article 6.9 in that it informed the exporters of the �essential facts� concerning the existence of dumping.

4.1024 While Article 6.9 lays down the obligation to inform the interested parties of the essential facts, it does not specify the way in which this should be done. In other words, the implementing authority has the discretion to choose the way in which it informs the parties.

4.1025 Thus, the text of the article simply lays down a minimum standard (to inform) and leaves it up to the authority to choose the means. This is what would be defined as an obligation of results, as opposed to an obligation of means, as stated in Argentina�s first written submission, a view which is also shared by other WTO Members.

4.1026 Since the article in question, in laying down the obligation to inform, does not lay down a method or means for doing so, Argentina considers that the DCD met that obligation when it duly notified all the parties concerned in the procedure of the termination of the evidence � gathering stage, inviting them to consult the full record of the proceedings in order to acquaint themselves with all of the essential facts to date and to submit, on the basis of all the information gathered thus far, their final pleadings.

4.1027 As stated in Argentina�s first written submission, this is reflected in Notes DCD Nos. 273-000586/99, 273-000587/99, 273-000588/99, 273-000589/99, 273-000590/99, 273-000591/99 and 273-000592/99 of 11 May 1999, and Note DCD No. 273-001040/99 of 9 September 1999.

4.1028 No single fact considered by the implementing authority remained outside the knowledge of the interested parties: they were invited to consult the record of the proceedings, and thus, the requirements of Article 6.9 of the AD Agreement were met. In other words, the parties, through this procedural step, were informed of what had taken place in the proceedings.

4.1029 Moreover, the implementing authority, in reaching its conclusion, analysed all of the elements of the case, which implies that every action taken was important. Thus, by inviting the parties to consult the full record, the implementing authority complied with the obligation contained in Article 6.9 of the AD Agreement, the purpose of which is to ensure that the parties are informed of the essential facts so that they can defend their interests.

(c) Arguments of Argentina in its oral statement at the third-party session of the first meeting of the Panel with the parties, relating to the EC�s claim under Article 6.9 of the AD Agreement

4.1030 In its oral statement at the third-party session of the first meeting of the Panel with the parties, Argentina made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement

4.1031 Like the EC, Japan sees in Article 6.9 a requirement that it does not contain, ie. the obligation to produce a special, separate publication containing the essential facts, or to conduct a so-called �disclosure conference�.

4.1032 Moreover, Japan appears to meld the obligation in Article 6.8 and paragraph 6 of Annex II with Article 6.9 when it states that �The DCD never informed the exporters at any time during the investigation that the information they had supplied on normal value and export prices had been disregarded�. This statement appears to confuse the obligations set forth in Article 6.8 and paragraph 6 of Annex II with the provisions of Article 6.9 requiring that the parties be informed of the essential facts. If this interpretation were correct, Annex II, paragraph 6 would be meaningless. And neither the text itself nor its context warrants such an interpretation.

4.1033 The DCD met its obligation under Article 6.9 by duly notifying the interested parties in writing of the closure of the investigation and inviting them to inspect the file containing all of the essential facts and to submit their pleadings. Argentina reiterates that there was a notification with all of the legal consequences implied by something different from merely allowing the interested parties to �inspect� the file in the sense suggested by Japan.

4.1034 Article 6.9 imposes a result, i.e. to enable the parties to defend their interests in the knowledge of the essential facts. The same point is made in Turkey�s submission and in the United States� submission. This is exactly what Argentina did by duly notifying the parties.

(d) Replies of Argentina to the first set of questions by the Panel relating to the EC�s claim under Article 6.9 of the AD Agreement

4.1035 Argentina replied to the first set of questions by the Panel relating to the EC�s claim under Article 6.9 of the AD Agreement as follows.

4.1036 The Panel asked the parties what was, in their view, the object and purpose of the requirement of Article 6.9 AD Agreement to disclose �the essential facts under consideration�.

4.1037 Argentina replied that the purpose of this provision is to enable the parties, in full knowledge of the essential facts, to fully defend their interests prior to the final determination by the implementing authority.

4.1038 If the purpose of Article 6.9 was to enable parties better to defend their interests, the Panel asked the parties whether this interpretation suggested that a Party claiming a violation of Article 6.9 also should present information to the Panel on how its exporters were impeded in their defence.

4.1039 Argentina replied that its answer to the previous question did not imply that the parties must prove that they were unable to defend their interests. This was not an obligation under Article 6.9. The Article 6.9 obligation was to disclose the essential facts. Thus, a party claiming violation of Article 6.9 had to prove that this obligation of the AD Agreement was violated.

4.1040 The Panel recalled that, in paragraph 78 of its first written submission, Argentina distinguished the DCD�s practice from that of the Guatemalan authority which the Panel in the Guatemala � Cement (II) case found to be inconsistent with Article 6.9 AD Agreement. Argentina asserted that �it should be stressed that although �dar copia� (�providing a copy�) was not sufficient to comply with the Article 6.9 obligations, the scope of the expression �dar vista� (�give sight�) is different, since contrary to the expression �dar copia�, it implies notifying the interested parties of the record of the proceedings�. The Panel asked the parties to comment on the importance of this difference, if any.

4.1041 Argentina replied that, as pointed out in paragraph 75 of its first written submission, Article 6.9 contained an obligation of results, i.e. to inform the parties of the essential facts, and not an obligation of means, i.e the means by which the parties are informed of the facts and hence duly notified thereof.

4.1042 Similarly, paragraph 78 of Argentina�s first written submission should not be taken out of its context: it forms part of the Argentine counter-argument developed in paragraphs 76 to 80 to the EC�s argument concerning the Panel�s interpretation in the Guatemala � Cement (II) case.

4.1043 The Panel asked the parties what, if any, were the essential facts under consideration that the exporters were not informed of.

4.1044 Argentina replied that the parties were informed of all of the essential facts.

4.1045 The Panel asked the parties whether, in their view, the fact that the information from the exporters was disregarded for the calculation of normal value and export price was an essential fact of which the exporters should have been informed under Article 6.9 AD Agreement.

4.1046 Argentina replied that it was of the view that all of the facts in the record were essential.

4.1047 The Panel recalled that, on several occasions in its first written submission, Argentina referred to the concept of �harmless error�. The Panel asked Argentina to define this concept in international law and explain what, in its view, the role of this concept was in WTO dispute settlement proceedings.

4.1048 Argentina replied that a harmless error was an error which did not cause injury or adversely affected the rights of one of the parties � in other words, it was irrelevant as regards the consequences of the challenged act. The concept of harmless error has been accepted in a number of different WTO cases.

4.1049 This was confirmed, for example, in Korea�Dairy Products in which the Appellate Body maintained that " �the European Communities' request should have been more detailed. However, Korea failed to demonstrate to us that the mere listing of the Articles asserted to have been violated has prejudiced its ability to defend itself in the course of the Panel proceedings. Korea did assert that it had sustained prejudice, but offered no supporting particulars in its appellant's submission nor at the oral hearing �" (emphasis added by Argentina). (Appellate Body Report, Korea � Definitive Safeguard Measures on Imports of Certain Dairy Products, WT/SD98/AB/R, adopted 12 January 2000, at para. 131).

4.1050 Clearly, to arrive at these conclusions, the Appellate Body accepted the concept of "harmless error". Otherwise, the Appellate Body's ruling would be without foundation.

4.1051 Thus, as part of the WTO's legal precedent with respect to disputes under the DSU, the concept of harmless error is relevant to the legal settlement of a dispute.

(e) Arguments of Argentina in its second written submission relating to the EC�s claim under Article 6.9 of the AD Agreement

4.1052 In its second written submission, Argentina made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1053 Argentina reaffirms that it complied with the obligation arising from the text of paragraph 6.9 of the AD Agreement, which stipulates that the authorities �� shall inform all the interested parties of the essential facts�, without indicating the method by which the authorities must fulfil that obligation.

4.1054 Argentina submits that the implementing authority informed the exporters of the �essential facts� concerning the existence of dumping, which would form the basis for the decision to apply definitive measures.

4.1055 In paragraph 68 of its first written submission, Argentina mentioned the notes sent to the representatives of Cerro Negro, Casalgrande, Caesar, Bismantova, Marazzi and Assopiastrelle, in which it stated that �� the judicial decision concerning the evidence duly provided by the firms involved in this investigation has been taken, so that those that so wish may consult the corresponding document and familiarize themselves with the decision contained therein ��.

4.1056 Argentina then went on, in paragraphs 69 and 71 of its first written submission, to state that the representative of Assopiastrelle had confirmed that she had consulted the file, consisting of 25 sections with 7,368 folios, on 18 June 1999, and taken full note of the proceedings, and again on 3 September 1999, as recorded in Note DCD No. 273-001040/99.

4.1057 Similarly, paragraph 70 of the said submission cites a note of 28 August 1999 in which the DCD informs exporters that the evidence-gathering stage of the investigation has terminated and invites them to consult the record and, where they deem necessary, submit their final pleadings before 10 September.

4.1058 At the same time, paragraph 72 cites a letter from the EC stating that �� the DCD informed the exporters that, as far as the dumping determination was concerned, the Argentine authorities considered that the disclosure requirements imposed by Article 6.9 were fully complied with by granting to the interested parties access to the record� (Note DCD No. 273-001040/99 of 9 September 1999 to Assopiastrelle, Bismantova, Casalgrande, Caesar and Marazzi).

4.1059 It is clear from the above notes that the exporters were given access to the entire record of the proceedings, and hence, to the essential facts on which the implementing authority would base its final decision, which Argentina considers to be all of the facts making up the record. It should be stressed on the basis of the above that no single fact considered by the implementing authority remained unknown to the interested parties, since the exporters were given access to all of the information on the basis of which the authority reached its conclusions.

Continuation: Section 4.1060

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