4.1060 Similarly, the EC argues in paragraph 69 of its first oral statement that �Finally, Argentina contends that the violation of Article 6.10 would be a �harmless� error since the EC has not demonstrated that it caused a prejudice to the exporters concerned. For the reasons set out by the Panel in Guatemala � Cement (II), the EC considers that this is not a valid defence under the WTO Agreement. In accordance with Article 3.8 of the DSU, all violations of the WTO Agreement are presumed to cause nullification or impairment. It is for Argentina to rebut that presumption� (emphasis added by the EC). 4.1061 Apart from its importance in international law and the WTO, the concept of �harmless error� has clearly not been overlooked by the WTO in resolving specific issues, especially those relating to concepts such as �nullification or impairment�.

4.1062 This is confirmed, for example, in the report of the Appellate Body in Korea � Dairy Products of 14 December 1999 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 � � (see Appellate Body, Korea � Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/AB/R, adopted on 12 January 2000, at para. 131). Clearly, to arrive at these conclusions, the Appellate Body accepted the concept of �harmless error� � i.e. an error which, by its nature, cannot change the result. In other words, the fact that the EC�s request �should have been more detailed� did not cause Korea �nullification or impairment�. This is precisely what makes this particular situation harmless. Otherwise, the Appellate Body�s ruling would be without foundation.

4.1063 In this particular case, even if one assumed that the procedure followed by the implementing authority contained an error, quod non, the EC did not suffer nullification or impairment of any kind as a result.

4.1064 A harmless error is an error which does not cause injury or adversely affect the rights of one of the parties � in other words, it is irrelevant as regards the consequences of the challenged act. In this context, the concept of harmless error has implicitly been accepted in a number of WTO cases (Appellate Body Report, Korea � Definitive Safeguard Measures on Imports of Certain Dairy Products, WT/SD98/AB/R, adopted 12 January 2000, at para. 131).

4.1065 As a part of WTO�s case history relating to the dispute settlement procedure, the concept of harmless error forms part of the Organization�s �acquis�, and is therefore of considerable importance in connection with GATT/WTO disputes.

4.1066 The interpretation of the obligations contained in Article 6.9 must be based on an adjusted definition of its content, i.e. the content of what Article 6.9 describes or specifies as an obligation of results and not of means (a position shared by Argentina and other WTO Members).

4.1067 In other words, the definition of an obligation as being one of results is a definition which may contemplate different means but which is only in fact met when the objective has been reached: informing the parties of the essential facts.

4.1068 It should be noted that an interpretation whereby the Article 6.9 obligation is an obligation of means, i.e. an obligation which prescribes one of the forms of disclosure presented by the EC or Japan � a separate report in the case of the EC, or the so-called �disclosure conference� in the case of Japan � could result in a situation where the parties are informed only partially of the facts, since either the authority may be restricted as regards what is defined or considered, under the methodology, as an essential fact, or a party may be deprived access to a particular fact that is essential.

4.1069 At the same time, a restrictive interpretation would mean that the separate report, as proposed by the EC, would ultimately only contain such essential elements as support the authority�s decision whether to apply a measure. What would happen, in this case, with the essential facts that did not support the decision to apply a measure and that, following the EC�s logic, should not form part of the report on the essential facts supporting the determination? Should a fact lose its essential character just because it does not support the decision to apply a measure? And do such facts therefore cease to be part of the essential facts which must be disclosed? Other delegations have also argued that this is not the case.

4.1070 The United States makes an interesting point in its oral submission as a third party on the question of how to reconcile the object and purpose of Article 6.9, i.e. to permit parties to defend their interests, with the result that would be obtained through a report containing only the essential facts which supported a determination, when there could very well be cases in which certain facts which support another conclusion were of particular importance to a party in defending its interests.

4.1071 Argentina�s approach as regards the particular case at issue was to consider that all of the facts forming part of the record were essential for the purposes of the determination. For example, would it have made any sense, following the EC�s logic, for Argentina to refer to the samples of models which it submitted as Exhibit ARG-22, which certainly did not constitute any kind of basis for making an adjustment by model? Indeed, this information did not permit the authority to make the necessary adjustment, so that it would not have formed part of the essential facts that led to an affirmative determination for which only an adjustment by size was made. As this information was not relevant for the purposes of the adjustment by size, it would not have formed part of the essential facts to be disclosed under Article 6.9. Nevertheless, this information is included in the record and was relevant in a negative sense, since it was not relied upon for the purposes of the determination. How, following the EC�s definition of the essential facts, should Argentina have treated this information? Should it have included it in a separate report or not?

4.1072 Ultimately, by considering the entire record to be made up of the essential facts, the implementing authority places the parties in a better position to defend their interests.

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

4.1073 In its second oral statement, Argentina made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1074 Argentina reaffirms that it complied with the Article 6.9 obligation to inform the interested parties of all of the essential facts.

4.1075 In its reply a question by the Panel following the first meeting, the EC recognizes that the Article 6.9 obligation is an obligation of results and not of means when it states that �� the essential purpose of Article 6.9 is to allow the parties to defend adequately their interests�.

4.1076 Indeed, the text of this provision does not establish an obligation to inform by any particular means: as revealed by the discussions of the Ad Hoc Group of the Anti-Dumping Committee on this subject, the means are left to the discretion of Members.

4.1077 Similarly, Argentina does not agree with the EC�s reply to a question by the Panel following the first meeting to the effect that Article 6.9 �� requires the investigating authority to make always disclosure of the essential facts �� Argentina submits, in reply, that according to the text of Article 6.9, �The authority shall � inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures ��.

4.1078 It is Argentina�s understanding, and the text of the provision does not contradict this, that the essential facts are above all those which are included in the record of the investigation, since all of these facts would be weighed by the authority in arriving at an affirmative or negative determination of dumping.

4.1079 Argentina therefore submits that there was no violation of Article 6.9, and that hence, there is no prima facie nullification or impairment under Article 3.8 of the DSU.

4.1080 In any case, Argentina considers that even if it is assumed that there was prima facie nullification or impairment under Article 3.8 of the DSU, and Argentina does not accept that there was in this case, several WTO precedents, in connection with the concept of �harmless error�, have pointed to the importance of the existence of injury (see Appellate Body Report, Korea � Definitive Safeguard Measure on Imports of Certain Dairy Products, WT/DS98/ABR, adopted 12 January 2000, at para. 162 and Appellate Body Report, Thailand � Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland, WT/DS122, adopted 5 April 2000, at paras. 95 and 96).

4.1081 In its reply to a question by the Panel following the first meeting, the EC states that the DCD should have disclosed which facts available would be relied on for establishing the normal value and the export price. In Argentina�s view, the implementing authority is under no obligation to anticipate its decision, which is made once the evidence-gathering stage is concluded and the pleadings submitted.

4.1082 The Panel did not ask Argentina any questions following the second meeting relating to the EC�s claim under Article 6.9 of the AD Agreement.

3. Third Parties: Japan

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

4.1083 In its written submission, Japan made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1084 The account in the EC first written submission indicates that DCD failed to conduct a disclosure conference with exporters or their representatives, as required by Article 6.9 of the AD Agreement. According to the EC, DCD invited the exporters to inspect the public file, which did not include the final dumping determination or any other document prepared by DCD which identified the �essential facts� that would form the basis of that determination. In response to a request by the exporters for a disclosure conference, DCD took the position that the requirements of Article 6.9 are fully fulfilled by allowing interested parties to inspect the public file.

4.1085 Every investigating authority is required under Article 6.4 of the AD Agreement to maintain a file for each antidumping investigation of all information that is relevant and that the authority uses in the investigation, and to provide timely opportunities for interested parties to have access to this information. Japan fully supports the EC position that the provisions of Article 6.9 must be read as imposing obligations that go beyond those in Article 6.4; otherwise Article 6.9 would be rendered mere surplusage.

4.1086 The issue of what Article 6.9 requires has already been settled in the recently- adopted panel report on Guatemala � Cement (II). In that case, Guatemala simply offered to provide interested parties with copies of the information in the file. As the panel noted, the public file typically contains large amounts of information that will not be relied on; the key obligation in Article 6.9 is the requirement that the antidumping authority disclose the essential facts that it will actually rely on, in time for interested parties to defend their interests (Panel Report, Guatemala � Definitive Anti-dumping Measures on Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at paras. 8.229-8.230).

4.1087 The requirements of Article 6.9 are not satisfied by merely opening for inspection a file that includes both facts that will be relied upon and facts that will not.

4.1088 If Argentina�s position were accepted, then an antidumping authority could simply provide a voluminous file of relevant and irrelevant facts, refuse to identify which facts it will actually rely on, and inform the interested parties of its reasoning as a surprise, only when it is too late to defend their interests. The panel must reject this position.

4.1089 In addition, Japan we would like to point out the logical consequence of this violation. The Argentine authority, by violating the requirements of the Article 6.9, nullifies the provisions which require the Panel to determine whether the authorities� establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective, pursuant to the Article 17.6 of the AD Agreement, or to make an objective assessment of the matter pursuant to the Article 11 of the DSU.

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

4.1090 In its oral statement, Japan made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1091 Article 6.9 of the AD Agreement requires national authorities to inform all interested parties of the �essential facts� under consideration. Japan has already stated in its third party submission that the provisions of Article 6.9 must be read as imposing obligations that go beyond those in Article 6.4 of the Agreement. Japan wishes to further respond to the arguments on Article 6.9 in Argentina�s first written submission.

4.1092 Japan agrees with Argentina�s argument in paragraph 75 that the AD Agreement does not impose a particular methodology by which national authorities should �inform� interested parties of the key facts that will be relied upon in the decision whether to apply definitive measures. The relevant question before the Panel in the present case is: have the interested parties actually been informed of the �essential facts� under consideration, by the methodology chosen by Argentina? In Japan�s view, the answer to this question would appear to be no.

4.1093 Argentina states in paragraph 77 that it did not even provide a copy (�dar copia�) of the file, as Guatemala did in Guatemala � Cement (II). Instead, DCD simply invited interested parties to examine the contents of the file, by a mere viewing (�tomar vista�) of the entire file. Argentina argues in paragraphs 77-80 that Article 6.9 is complied with if the entire administrative file is made available for inspection, since the essential facts are by definition included in the entire file. Thus, according to Argentina, no fact considered by the authorities was unknown to the interested parties, including the essential facts.

4.1094 The Panel should reject this method as insufficient under Article 6.9. As the Guatemala � Cement (II) panel found, the administrative file in an antidumping investigation usually contains large amounts of information that will not be relied on. The key obligation in Article 6.9 is the requirement that the antidumping authority disclose the essential facts that it will actually rely on, in time for interested parties to defend their interests (Panel Report, Guatemala � Definitive Anti-dumping Measures on Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at paras. 8.229-8.230).

4.1095 Argentina also argues in paragraph 81 that the exporters never indicated they had been injured by Argentina�s interpretation of Article 6.9. If Argentina argues that the rights of a WTO Member under the WTO Agreement are (or could be) diminished because of actions taken or not taken by private parties during an antidumping investigation, this argument must be rejected. WTO Members have rights under the WTO Agreement as a matter of international law (see Panel Report, Guatemala � Definitive Anti-dumping Measures on Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para. 8.24, rejecting Guatemala�s arguments alleging acquiescence and estoppel). In the past the United States argued that a government should be legally barred from making a legal argument to a panel if (private) respondents had not previously made the same argument to the investigating authority during the underlying antidumping investigation. That US argument was squarely rejected both by panels (see GATT Panel Report, United States � Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, ADP/87, adopted 28 April 1994, at paras. 347-351. See also GATT Panel Report, United States � Imposition of Countervailing Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway, SCM/153, adopted 28 April 1994, at paras. 216-220), and in the Uruguay Round negotiations on antidumping.

4.1096 Even if Argentina�s argument is that the EC as a litigant has failed to identify during this dispute any prejudice to EC exporters from denial of Article 6.9 rights, this argument must be rejected. The right to information under Article 6.9 is absolute, not conditional. Requiring a showing of damage to exporters would impose a new condition not provided for by the AD Agreement, in a manner inconsistent with of Article 3.2. of DSU.

4.1097 Moreover, Argentina argues in paragraph 84 that because Article 6.9 is under consideration in the Ad Hoc Group on Implementation of the Committee on Anti-Dumping Practices, Argentina has acted in conformity with this provision by merely making the entire file available for inspection by interested parties. However, the fact that a matter or an interpretation is under consideration by a WTO body, or has been under consideration by a WTO body that was deadlocked, does not mean that a panel cannot make a ruling on the matter or interpret the relevant provisions of the WTO Agreement (see also Appellate Body Report, India � Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/AB/R, adopted 22 September 1999, at para. 102).

4.1098 The US third party submission of March 23 makes certain statements regarding Article 6.9 of the AD Agreement, on which Japan has the following comments. The United States argues in paragraph 10 that the Panel should interpret Article 6.9 in such a way as to allow Members to �choose to establish an investigative process which allows interested parties to be presented with all of the facts as they are presented to the authority, as well as all arguments made about those facts.� The United States finds support for this broad interpretation of Article 6.9 in some of the findings in Guatemala � Cement (II) (Panel Report, Guatemala � Definitive Anti-dumping Measures on Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para 8.228. ) .

4.1099 The US account of the Guatemala � Cement (II) panel findings is too selective. That panel found in paragraph 8.228 that disclosure of the �essential facts� forming the basis of a preliminary determination is clearly inadequate when the factual basis of the preliminary determination differs substantially from the factual basis of the final determination. Japan agrees, and apparently so does the United States. However, in the present case, DCD never provided anything more than �dar vista� of the file at any point during the antidumping investigation. The United States dismisses the key findings in paragraphs 8.229-8.330 of Guatemala � Cement (II) with a footnote noting that it �does not understand the basis for the Panel�s conclusion�. But these findings are still valid and strongly support the argument that the method Argentina has applied in the present case would fall outside the range of possible methodologies that could have been applied under Article 6.9 (Panel Report, Guatemala � Definitive Anti-dumping Measures on Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para. 8.228).

4.1100 Finally, the United States argues in paragraph 20 for an interpretation of Article 6.4 and 6.9 that would allow for a situation where there would be little, if any, practical difference between the two provisions. Japan cannot accept the US interpretation, as the Panel on Guatemala � Cement (II) observed that Article 6.9 imposes more substantive requirements than Article 6.4 (Panel Report, Guatemala � Definitive Anti-dumping Measures on Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para. 8.230).

4. Third Parties: Turkey

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

4.1101 In its written submission, Turkey made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1102 The EC submits that, Argentina infringed Article 6.9 of the AD Agreement, by failing to inform the exporters of the �essential facts� underlying the dumping determination before imposing definitive measures.

4.1103 Turkey considers that Article 6.9 is very clear in wording and leaves no room for misinterpretations. It puts the investigating authorities under obligation of informing all interested parties of the essential facts which form the basis for the decision whether to apply definitive measures.

4.1104 Furthermore, it specifies that such disclosure should take place before a final determination is made and in sufficient time for the parties to defend their interests.

4.1105 Turkey further considers that, if the intention of Article 6.9 was no more than providing timely opportunities for all interested parties to see information, there would be no need for Article 6.9 when Article 6.4 stood for such intention.

4.1106 In Turkey�s view, it is clear that this Article requires the authorities to inform the interested parties and grant them the right to defend their interests before the final determination is made.

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

4.1107 In its oral statement, Turkey made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1108 Turkey is of the view that, as Article 6.8 and paragraph 6 of Annex II, Article 6.9 also contributes to conduction of fair investigations and predictable results.

4.1109 In this respect, Turkey submits that, the purpose of Article 6.9, in the very essence, is to permit the interested parties to fully defend their interests. To that end, provisions of Article 6.9 are obligatory taken the ordinary meanings of the words. It obliges the investigating authorities to inform the interested parties of the essential facts before the final determination is made. The �essential facts under consideration� in Turkey�s understanding refers to all the factual information that the authority had at this hand and considered in deciding whether or not to take anti-dumping action. Moreover, the Article requires such disclosure of essential facts to take place at an appropriate time so that the respondents should be provided and not be deprived of their right of defence.

4.1110 This two basic requirements brings us to a point where authorities, under any given condition, are obliged to inform the interested parties of the essential facts with the aim to provide them an opportunity to make a possible final statement, if any, before the final determination is made.

4.1111 Given such explicit obligations, authorities providing opportunities for interested parties only to see relevant information, where practicable, shall not be deemed to satisfy the requirements of Article 6.9.

4.1112 Furthermore, Turkey also wishes to note that, the problem addressed by the EC in its first written submission, considering the inconsistency with Article 6.9 was not solely on means of disclosure. The EC appears to allege that the public file provided by DCD did not include the �final dumping determination�. If that is the case, Turkey is of the view that this panel should also address this matter.

Continuation: 5 Third Parties: The United States

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