5. Third Parties: The United States

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

4.1113 In its written submission, the United States made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1114 The EC claims that the DCD failed to inform the exporters of the �essential facts� concerning the existence of dumping, contrary to the requirements of Article 6.9 of the Agreement. The brief of the EC states that the Argentinian authority did not include in the public file a �document prepared by the DCD which identified the �essential facts� that would form the basis of the final determination�. The EC also states that �Article 6.9 requires the investigating authorities to indicate to the interested parties which, of all the facts contained in the file, are the �essential facts� that will form the basis for their decision�.

4.1115 The United States does not take a position on whether, under the facts of this case, the measure in question is consistent with Article 6.9. However, in the view of the United States the EC has read requirements into Article 6.9 which simply are not there, and which are inconsistent with the language as well as the object and purpose of that provision. As Argentina observes, Article 6.9 requires only that interested parties be �informed� of the essential facts, and that this requirement does not impose a particular means of disclosure.

4.1116 Article 6.9 permits a Member wide discretion in choosing the manner in which it will inform interested parties of the essential facts under consideration which form the basis for the Member�s decision regarding an antidumping measure. Contrary to the argument of the EC, Article 6.9 does not require a document setting out essential facts. It does not establish any other particular means of disclosure which must be followed or define the parameters of �essential facts under consideration.� Article 6.9 only requires that, as applied, the selected method actually discloses to interested parties the facts which may be necessary for a defence of their interests. Thus, when a panel is considering whether the obligation in Article 6.9 has been breached, the analysis must turn on whether, under the specific facts of the dispute, the objective set out in Article 6.9 has been met, not on whether any particular mechanism or approach has been used by the Member.

4.1117 Article 6.9 reads as follows:

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 definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests.

4.1118 As the Appellate Body has stated, the Agreement must be interpreted based on the ordinary meaning of its terms, in context, and in light of the object and purpose of the Agreement (see, e.g., Appellate Body Report, United States � Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R, adopted 20 May 1996, at 23; Appellate Body Report, Japan � Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, at 12; and Panel Report, Australia � Subsidies Provided to Producers and Exporters of Automotive Leather � Recourse to Article 21.5 of the DSU by the United States, WT/DS126/RW, adopted 16 June 2000, at para. 6.25. See also Article 31 of the Vienna Convention of the Law of Treaties providing that, when examining the meaning of a treaty�s terms, one must consider those terms �in light of the treaty�s object and purpose.� The United States� interpretation of Article 6.9 is supported by the ordinary meaning of the text of Article 6.9, as well as the object and purpose of this particular provision).

(i) Article 6.9 obligates Members to �inform� interested parties; it does not prescribe any particular means of disclosure

4.1119 As pointed out by Argentina in its submission, Article 6.9 requires that the investigating authority �inform� interested parties of the essential facts under consideration, but it does not prescribe the method by which this obligation must be fulfilled. Thus, while Article 6.9 establishes a required result, it leaves the method of achieving that result to individual Members.

4.1120 The ordinary meanings of the word �inform� include to �make a fact or occurrence known� (The New Shorter Oxford English Dictionary, Clarendon Press Oxford 1993). Thus, the word �inform� defines a result, not how that result is achieved. Furthermore, nothing elsewhere in the AD Agreement dictates or suggests any particular method for how parties are to be informed (A panel may not �add to or diminish the rights and obligations provided in the covered agreements.� Understanding on Rules and Procedures Governing the Settlement of Disputes, Article 19.2. See also Panel Report, Australia � Measures Affecting Importation of Salmon � Recourse to Article 21.5 by Canada, WT/DS18/RW, adopted 20 March 2000, at p. 7.69). The AD Agreement only requires that parties, in fact, be informed in a timely manner so they are able to defend their interests.

4.1121 This understanding of the ordinary meaning of the language of Article 6.9 is reinforced by the object and purpose of Article 6.9. The object and purpose are clear from Article 6.9 itself: �Such disclosure should take place in sufficient time for the parties to defend their interests.� Regardless of the means of disclosure chosen, as long as the object and purpose are achieved, the obligation in Article 6.9 is satisfied (the object and purpose of Article 6.9 are further informed by the discussions of Members on the predecessor provisions under the former Anti-Dumping Code. In 1983, the Committee on Anti-Dumping Practices recognized that �the right of parties to defend their interests during the course of an anti-dumping proceeding can only be guaranteed if they have the right to see all the information that is relevant to their case providing that it is not confidential�. Committee on Anti-Dumping Practices, Recommendation concerning transparency of anti-dumping proceedings, 15 November 1983, ADP/17, GATT B.I.S.D. (30th Supp.) 1984, at 24).

4.1122 Thus, Members may implement their obligations under Article 6.9 in a variety of ways. Some Members may choose to implement Article 6.9 by requiring the investigating authority to prepare a separate document of essential facts under consideration, as the EC has suggested. Other Members may 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. Other Members may choose some combination of these two approaches, or some other method entirely.

4.1123 It is critical, however, to bear in mind that whether the obligation in Article 6.9 has been satisfied cannot be determined by looking in the abstract at the means of disclosure used. In reviewing a challenge under Article 6.9, the question before the panel is this: under the facts of this case, were the essential facts under consideration made known to interested parties in a timely manner? Because Article 6.9 requires a result rather than a particular method, a claim that Article 6.9 has been violated must be assessed based on the facts of the particular case and whether the particular means of disclosure used, as applied in that instance, satisfied the objective behind Article 6.9. In the case at hand, the Panel must assess whether the Italian exporters were informed of the facts they needed to defend their interests, not whether the Argentinian authorities prepared a particular type of document.

4.1124 The only prior case in which a panel has been directly called upon to interpret the requirements of Article 6.9 provides a good example of why review of a claim under Article 6.9 must be made on a case-by-case basis. In Guatemala � Cement (II), the panel found that disclosing the essential facts in an interim determination was insufficient to fulfill Guatemala�s obligations with respect to Article 6.9 in an investigation where: (1) the basis of the interim determination was threat of material injury, whereas the basis of the definitive determination was actual material injury; (2) the period of investigation was different for the interim determination and the definitive determination; and (3) much of the evidence was obtained after the interim determination (Panel Report, Guatemala � Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para. 8.228). The panel also found that providing access to the authority�s file was insufficient to fulfill Guatemala�s obligations under Article 6.9 because an authority�s file is �likely� to contain vast amounts of information, some of which may not be relied upon by the authority in making its definitive determination. Id. at para. 8.229. Admittedly, the United States does not understand the basis for the panel�s conclusion that such a situation is �likely.� In any event, as discussed below, this Panel should not interpret this statement from Guatemala � Cement (II) to mean that facts which do not ultimately support the determination reached are not essential to that determination and to a party�s ability to defend its interests).

4.1125 Thus, the panel in Guatemala � Cement (II) focused on the facts of the case before it. For example, disclosing facts in the interim determination could not satisfy Article 6.9 in that case because, after the interim determination, the period of investigation changed. The parties were given no notice of this change. This meant that they did not even know which sales were being examined for dumping. The Guatemala � Cement (II) panel might have reached a different conclusion had there been no change in the period of investigation or injury determination, and had all of the facts been gathered before the interim determination. Thus, the same procedures may satisfy Article 6.9 in some cases, but not in others, demonstrating the need for the Panel to undertake a case-by-case analysis, rather than attempting to enunciate a general rule.

(ii) The scope of �essential facts under consideration� should not be interpreted in a restrictive manner

4.1126 The Panel should evaluate compliance with Article 6.9�s obligation to �inform� by focusing on the facts of the particular case, rather than adopting the EC�s suggestion that a particular means of disclosure is required. However, in interpreting Article 6.9, the Panel also must address the scope of the term �essential facts under consideration� in determining whether Article 6.9 has been violated. In the view of the United States, the language as well as the object and purpose of Article 6.9 argue that the Panel not adopt a restrictive interpretation of the scope of �essential facts under consideration.� Thus, not only is the methodology suggested by the EC not required by Article 6.9, the EC�s statement that authorities should be required to select certain �essential facts� for disclosure could defeat the object and purpose of that provision.

4.1127 Article 6.9 describes the facts of which interested parties must be informed as the �essential facts under consideration.� To understand what that phrase means, one must examine the ordinary meaning of the individual terms. Ordinary meanings of the word �essential� include �of or pertaining to a thing�s essence� and �absolutely indispensable or necessary� (The New Shorter Oxford English Dictionary, Clarendon Press Oxford 1993).

4.1128 In the context of the AD Agreement, the essential facts are those that are necessary to the determination of whether definitive measures are warranted. This may include all the facts before the investigating authority. In such a situation, the EC�s suggestion that an authority had to designate certain facts as the essential facts has no meaning. For example, in identifying material injury, the authority must necessarily weigh all of the facts submitted, which typically includes some contradictory information. Similarly, in determining whether dumping has taken place, every sale considered, every adjustment made, and every issue addressed influences whether the ultimate margin found is above the de minimis threshold (see AD Agreement, Article 5.8) and definitive measures warranted. Accordingly, the Panel should not adopt a restrictive interpretation of �essential facts under consideration� since that would have the potential to improperly circumscribe the facts disclosed under Article 6.9.

4.1129 Additionally, Article 6.9 refers to the essential facts �under consideration�. The term �consideration� has been defined, inter alia, as �the action of taking into account� (The New Shorter Oxford English Dictionary, Clarendon Press Oxford 1993). With respect to any specific issue, the investigating authority may have conflicting information, all of which is weighed, i.e., �taken into account,� in reaching its final determination (this understanding of �essential facts under consideration� is further supported by the use of the phrase �the decision whether to apply definitive measures.� The word �whether� is used to express two alternatives. The New Shorter Oxford English Dictionary, Clarendon Press Oxford 1993. Consequently, the facts referred to are those which support both alternatives). Thus, all such evidence is under consideration in the determination (the Guatemala � Cement (II) panel seem to suggested that Article 6.9 might function to reveal, inter alia, information not relied upon because it has been �shown to be inaccurate upon verification�. Panel Report, Guatemala � Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, WT/DS156/R, adopted 17 November 2000, at para. 8.229. However, Article 6.7 independently provides for disclosure of the results of verification, and Article 6.9 should not be interpreted in a manner redundant of Article 6.7).

4.1130 Further, the scope of �essential facts under consideration� must be interpreted in a manner consistent with the object and purpose of Article 6.9. As discussed above, the object and purpose of Article 6.9 are to permit interested parties to defend their interests. To allow for a proper defence, that provision must be interpreted to require that interested parties be informed of all essential facts under consideration, including those that militate against the decision ultimately reached.

4.1131 The interpretation of Article 6.9 suggested by the EC, which would require authorities to select certain facts for disclosure as the �essential facts� would permit authorities only to designate the facts which supported their ultimate findings as �essential.� Such an interpretation would work against the object and purpose of this provision. It would permit an authority to disclose all of the facts supporting its decision, while not disclosing facts which would support a contrary decision (even assuming an authority is acting in good faith to inform parties of all facts it believes would be necessary for their defence, such an authority will not necessarily know which facts the party would consider necessary). Such an interpretation of Article 6.9 would prevent interested parties from defending their interests. In order to defend its interests, a party must be informed of those facts which militate against that decision, as well as any other facts which would permit an affirmative defence. Thus, limiting the facts of which parties are informed under Article 6.9 to those which support one particular outcome would defeat the expressed purpose of that provision.

4.1132 Additionally, if Article 6.9 only addresses facts in support of the determination ultimately reached, then an authority which changed its determination as a result of an argument presented late in the proceeding would have to provide a new disclosure of essential facts. This amounts to a requirement of multiple interim determinations. However, the AD Agreement does not require an interim determination at all. Even where a Member chooses to issue such a determination in order to apply provisional measures under Article 7, Articles 7.1 and 12.2 only contemplate a single interim determination (further, reading Article 6.9 to require disclosure only of those facts relied upon in support of the ultimate decision would amount to a requirement that parties be provided with information to defend their interests only after the authorities have decided on the outcome of the case � a plainly absurd result. The object and purpose of Article 6.9 being to allow parties to defend their interests, those parties must be permitted to mount such a defence before the authority has decided whether to impose definitive measures. Moreover, reading a requirement of multiple disclosures under Article 6.9 into the AD Agreement runs the risk of preventing an authority from meeting the deadlines for completion of an investigation set forth in Article 5.10).

4.1133 Finally, the interaction of Article 6.9 and 6.4 does not dictate a restrictive interpretation of the facts of which interested parties must be informed under Article 6.9. Article 6.4 is not mandatory, but specifies a procedure: parties must be allowed to �see� the public information, but only if the authorities determine that it is �practicable.� On the other hand, as discussed above, Article 6.9 is mandatory, but does not specify a procedure. In other words, whether or not an authority determines that it is practicable to let the parties see the record under Article 6.4, in every case interested parties must be informed of the �essential facts under consideration�. Thus, it may be in a particular case that liberal disclosure under Article 6.4 also satisfies Article 6.9 (this does not necessarily mean that every disclosure under Article 6.4 will satisfy Article 6.9. For example, allowing parties to see a very large record for a very short time may not be sufficient. On the other hand, allowing parties to have unrestricted access to the record, including all arguments about the facts in that record, as it is being developed throughout the investigation, will inform those parties of the essential facts under consideration in accordance with Article 6.9. The Panel must determine under Article 6.9 whether the parties were actually informed).

4.1134 This does not mean that Article 6.9 is redundant of Article 6.4. Article 6.9 requires that interested parties be informed of the essential facts under consideration regardless of whether the authorities have found it practicable to allow those parties to see the public record under Article 6.4.

4.1135 In conclusion, Article 6.9 does not prescribe a particular means of disclosure. Rather, that provision requires a reviewing panel to determine, on a case-by-case basis, whether the method employed, in fact, informed the interested parties of all of the �essential facts under consideration� in sufficient time to allow for a defence of their interests.

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

4.1136 In its oral statement, the United States made the following arguments relating to the EC�s claim under Article 6.9 of the AD Agreement.

4.1137 The United States addressed first the arguments regarding the proper interpretation of Article 6.9. Article 6.9 of the AD Agreement furthers the goal of transparency in dumping proceedings by requiring that investigating authorities inform interested parties of all essential facts under consideration prior to making a final determination of dumping. Both the United States and Argentina have argued in their written submissions that Article 6.9 is concerned with a particular result, and does not prescribe the process for reaching that result. By contrast, the EC, joined in some respects by Japan and Turkey, has suggested that Article 6.9 requires the preparation and issuance of a single document prior to the final determination that contains all the supporting facts that the investigating authority will actually rely on when it makes the final determination.

4.1138 In considering the arguments the United States are presenting regarding the proper interpretation of Article 6.9, the United States wishes the Panel to keep in mind a single important consideration apparently overlooked by the EC and Japan: if a party is not informed of a fact under Article 6.9, it may never know that fact exists at all. Article 6.9 is the only guarantee in the Agreement that a party will be informed of all the facts it might need to mount its defence. Under the interpretation advanced by the EC and Japan, parties may find themselves in a situation where the only facts of which they have been informed are those which support the determination the authority intends to reach.

4.1139 Why is this the case? With respect to facts gathered by the authority (and thus not subject to a service requirement under Article 6.1), the only provisions of Article 6 which address disclosure to the parties are Articles 6.4 and 6.9. Note, however, that the language of Article 6.4 holds out the possibility that, in a particular case, and given the appropriate circumstances, an authority could find that it is only practicable to permit interested parties to view the public record for a very brief period of time, or that it is only practicable to permit them to view it at a stage before all of the information has been gathered. Thus, the disclosure under Article 6.4 may be very limited.

4.1140 Article 6.9, on the other hand, guarantees that parties have access to all facts relevant to the final determination. If the more limited interpretation of Article 6.9 offered by the EC and Japan were adopted, the authority would reach its conclusions and inform the parties only of the facts on which it actually intends to rely in support of those conclusions. The parties would then be permitted to defend their interests, informed of only the facts which support one determination and facing an authority which has already made a decision on the outcome of the case.

4.1141 The United States finds it difficult to believe that any interpretation of Article 6.9 which would permit the goal of transparency to be thwarted in this manner is a proper interpretation. Fortunately, as discussed in our written submission, a careful examination of the language, including the express object and purpose of that provision, reveals that the interpretation offered by the EC and Japan is not correct. Rather, Article 6.9 permits a Member wide discretion in choosing the manner in which it will inform interested parties of the essential facts under consideration which form the basis for the Member�s decision regarding an antidumping measure. Moreover, the facts addressed by Article 6.9 are all those which are relevant to the determination of whether definitive measures are warranted � facts which argue for, as well as those which argue against, application of such measures.

4.1142 The language of Article 6.9 does not support the interpretation advanced by the EC and Japan. First, as Argentina also pointed out, Article 6.9 only requires that interested parties be informed, and does not specify a means of disclosure. Article 6.9 makes no mention of the disclosure document discussed by the EC, or the disclosure conference discussed by Japan. Second, Article 6.9 requires that parties be informed of the �essential facts under consideration.� As discussed in the United States� submission, those words cannot be read as limited to the facts which will be actually relied upon in support of a particular outcome.

4.1143 In interpreting Article 6.9, the Panel must also bear in mind the object and purpose of that provision. The object and purpose is expressed in the provision itself: to permit parties to defend their interests. This object and purpose would not be served if parties were only informed of the facts which support one outcome of the case.

4.1144 The object and purpose of Article 6.9 is further informed by the purpose of the other provisions of Article 6. The provisions of Article 6 of the AD Agreement are aimed at ensuring that parties know what is required of them, and have a full opportunity to be informed of the evidence presented by other parties and gathered by the authorities. For example, Article 6.1.2 requires that �evidence presented in writing by one interested party shall be made available promptly to other interested parties participating in the investigation.� Article 6.2 requires authorities to �provide opportunities for all interested parties to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered.� Article 6.3 requires that oral information only be taken into account �insofar as it is subsequently reproduced in writing and made available to other interested parties.� Thus, the provisions of Article 6 appear to reflect a concern that parties be given as much information as possible, so that they may be fully in control of their own defence.

4.1145 By contrast, the arguments advanced by the EC and Japan with respect to Article 6.9 appear to reflect a concern that parties may be given too much information, and that the authority conducting the investigation must be required to sort through that information and inform the parties only of the facts on which it will rely. Such an argument is paternalistic and an invitation for mischief. It might be possible that an authority, acting in bad faith, could fill the record with such vast amounts of irrelevant information that parties would be effectively precluded from defending their interests. However, in the view of the United States, the danger posed by this unlikely scenario is vastly outweighed by the very real concern, reflected in the rest of Article 6, that parties must receive all of the information about the investigations to which they are subject in order to adequately defend their interests.

4.1146 In light of this concern, the United States does not understand Japan�s suggestion that a dumping file is likely to contain large amounts of irrelevant information. The very purpose of Article 6 is to allow parties to judge for themselves in the first instance whether they believe a particular fact is relevant to arguments they wish to raise, rather than leaving such a judgment to the authority. Recall that if a party is not informed of a fact under Article 6.9, it may not know the fact exists at all, and thus will have no way of determining whether that fact would be relevant to its arguments.

4.1147 In reviewing the arguments raised by the EC and Japan, in this respect joined by Turkey, that Article 6.9 must be interpreted to �go beyond� the requirements of Article 6.4, the source of this misunderstanding of Article 6.9 becomes clear. Because these parties have interpreted Article 6.4 in an excessively broad manner, and have not recognized the limitations of that provision, they are forced into a tortured reading of Article 6.9 in order to avoid a redundancy. However, a proper reading of the language of Article 6.4 reveals that it is not redundant of Article 6.9, and that these Articles can operate independently of and harmoniously with each other.

4.1148 The misunderstanding of Article 6.4 is best summarized by the following sentence from Japan�s submission: �[e]very 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�. While the United States finds this a laudable ideal, the fact is that the language of Article 6.4 is not quite so broad.

4.1149 Article 6.4 is not mandatory in all circumstances: the requirement to allow parties to see the record under Article 6.4 could be limited by a finding by the authority that such disclosure is not practicable. Thus, while a Member claiming that access to the record is not practicable faces a heavy burden, it is possible that this burden could be met in certain cases such that disclosure under Article 6.4 may be very brief, or occur at a time before all of the information has been gathered. Article 6.9 ensures that, even if the authority is able to support a finding that it is not practicable under Article 6.4 to allow parties to see the full record, that authority must still find a way to inform those parties of the facts contained in that record. Of course, in the view of the United States, allowing liberal access to the record under Article 6.4 goes a long way toward satisfying the requirements of Article 6.9. However, the key point for the Panel to bear in mind is that only Article 6.9, and not Article 6.4, guarantees that parties will be informed of all of the facts they need to defend their interests in every case.

4.1150 On the other hand, Article 6.4 does �go beyond� Article 6.9 in that it requires a particular means of disclosure. When an authority implements Article 6.4, it can only do so by allowing parties to see the original source documents in the record. This firsthand access may be of particular value to parties in assuring them of the completeness and accuracy of the information. Although the United States believes that this also may be the best method of implementing Article 6.9, as the United States has frequently stated, Article 6.9 does not prescribe a particular means of disclosure. To sum up, Article 6.9 is mandatory, but does not prescribe a means of disclosure, whereas Article 6.4 is conditional, but does prescribe a means of disclosure.

4.1151 Thus, the concern that Article 6.9 not be interpreted as redundant of Article 6.4 flows from a misreading of Article 6.4. Article 6.4 and Article 6.9 simply address different concerns, and represent different obligations. The fact that an authority can devise a single means of disclosure which satisfies both provisions does not mean that it is interpreting those provisions in an improper manner.

Continuation: Section 4.1152

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