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WORLD TRADE
ORGANIZATION

WT/DS238/R

14 February 2003

(03-0855)

  Original: English

ARGENTINA - DEFINITIVE SAFEGUARD MEASURE ON
IMPORTS OF PRESERVED PEACHES


Report of the Panel


 



The report of the Panel on Argentina - Definitive Safeguard Measure on Imports of Preserved Peaches is being circulated to all Members, pursuant to the DSU. The report is being circulated as an unrestricted document from 14 February 2003 pursuant to the Procedures for the Circulation and Derestriction of WTO Documents (WT/L/452).


Note by the Secretariat: This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the date of its circulation unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report. If the Panel Report is appealed to the Appellate Body, it shall not be considered for adoption by the DSB until after the completion of the appeal. Information on the current status of the Panel Report is available from the WTO Secretariat.

TABLE OF CONTENTS

  1. INTRODUCTION

  2. FACTUAL ASPECTS
  1. Regulatory framework
     
  2. Safeguards investigation
     
  3. Customs duties and countervailing measures
  1. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
     
  2. ARGUMENTS OF THE PARTIES
  1.  PROCEDURAL ARGUMENTS
  1. Working Procedures of the Panel
  1. SUBSTANTIVE ARGUMENTS
  1. Unforeseen developments: Article XIX:1(a) of the GATT 1994 and Article 3.1 of the Agreement on Safeguards

(a) Whether there was a prior finding or demonstration as a matter of fact of the existence of "unforeseen developments" 

(b) Whether the facts on the record show that there were unforeseen developments 10

(i) What are unforeseen developments? 

(ii) Whether there were unforeseen developments

Whether the increase in imports was a recovery
Which were the unforeseen developments in this case?

(iii) When should the developments be unforeseen?

  1. Determination of an increase in imports. Article XIX.1(a) of GATT 1994 and Articles 2.1, 3.1 and 4.2(a) of the Agreement on Safeguards

(a) Whether there was an increase in imports in absolute or relative terms

(b) Whether the 1994/1996 sectoral study was of relevance

  1. Determination of threat of serious injury. Article XIX:1(a) of GATT 1994 and Articles 2.1, 3.1, 4.1(b) and 4.2(a) of the Agreement on Safeguards

(a) Whether the CNCE evaluated all of the relevant factors listed in Article 4.2(a) of the Agreement on Safeguards having a bearing on the situation of the domestic industry 

(i) Productivity

(ii) Capacity utilization

(iii) Employment 

(b) Whether the CNCE provided a reasoned and adequate explanation of how the evidence gathered on the evaluated relevant listed injury factors justifies a finding of "threat of serious injury" 23

(i) Rate and amount of the increase in imports of the product at issue in absolute and relative terms. Share of domestic market taken by increased imports.

(ii) Changes in the level of sales, in volume and value 

(iii) Production

(iv) Profits and losses 

(v) Other considerations 

(c) Whether the CNCE considered all relevant injury factors not listed in Article 4.2(a) of the Agreement on Safeguards. Industry readjustment

(d) Whether the CNCE based its finding of "threat of serious injury" merely on conjecture or remote possibility and failed to demonstrate adequately that it was clearly imminent

  1.  Demonstration of the existence of a causal link. Articles 2.1, 3.1 and 4.2(b) of the Agreement on Safeguards. 

(a) Whether Argentina followed any rule with respect to the determination of the causal link 

(b) Whether there were other objective and quantifiable factors that the CNCE did not analyse

(i) Whether CNCE analysed other factors that appear in the technical report 

Imports from Greece
Cyclical nature of imports and net importer status
Change from the status of importer to a more export-oriented position
Climatic factors

(ii) Whether there were other factors which the CNCE should have analysed that do not appear in the technical report

Devaluation of the euro against the dollar
Argentine economic situation

(c) Whether the upward trend in imports coincides with negative trends in other injury factors

  1. Permissible extent of application of the measure. Article 5.1 of the Agreement on Safeguards
  2. Investigation report. Article 3.1 of the Agreement on Safeguards.
  3. Notification. Article 12.2 of the Agreement on Safeguards
  1. ARGUMENTS OF THE THIRD PARTIES
  1. EUROPEAN COMMUNITIES
  1. Standard of review and record of investigation
  2. Unforeseen developments
  3. Increase in imports 
  4. Threat of serious injury
  5. Permissible extent of application of the measure 
  1. UNITED STATES
  1. Unforeseen developments
  2. Increase in imports
  3. Threat of serious injury
  4. Causal link
  1. INTERIM REVIEW
     
  2. FINDINGS

A. PRELIMINARY MATTERS

  1. Measure at issue
  2. Relevant documents
  3. Standard of review
  4. Burden of proof
  5. Order of the Panel's analysis
  1. CLAIMS
  1. Unforeseen developments
  2.  Increase in imports

(a) Periods of analysis

(b) Competent authorities' determination

(c) Evaluation of the determination

(i) Increase in imports in absolute terms

(ii) Increase in imports in relative terms

  1. Threat of serious injury

(a) Period of analysis

(b) Competent authorities' determination

(c) Evaluation of the determination

(i) All relevant factors 

Capacity utilization Productivity
Employment

(ii) Reasoned and adequate explanation

(iii) Clearly imminent 

(iv) Remote possibility

  1. Causal link
  2. Judicial economy
  1. CONCLUSIONS AND RECOMMENDATION
  2. ANNEX
  1.  ABBREVIATIONS USED FOR DISPUTE SETTLEMENT CASES REFERRED TO IN THE REPORT 

I. INTRODUCTION

1.1 On 14 September 2001, Chile requested consultations with Argentina pursuant to Article XXIII:1 of the General Agreement on Trade and Tariffs of 1994 (the "GATT 1994"), Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU") and Article 14 of the Agreement on Safeguards. This request was related to the definitive safeguard measure applied by Argentina on imports of peaches preserved in water containing added sweetening matter, including syrup, preserved in any other form or in water, imported under MERCOSUR Common Nomenclature (MCN) tariff codes 2008.70.10 and 2008.70.90.1

1.2 The consultations took place on 2 November 2001, but the parties failed to reach a mutually satisfactory solution. On 6 December 2001, Chile requested the Dispute Settlement Body (the "DSB") to establish a panel, in accordance with Articles 4 and 6 of the DSU in order to examine the definitive safeguard measure applied by Argentina on imports of preserved peaches.2

1.3 At its meeting on 18 January 2002, the DSB established a Panel in accordance with Article 6 of the DSU.3 At that meeting, the parties agreed that the Panel should have standard terms of reference. The terms of reference of the Panel were, therefore, the following:

1.4 "To examine, in the light of the relevant provisions of the covered agreements cited by Chile in document WT/DS238/2, the matter referred to the DSB by Chile in that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."4

1.5 On 16 April 2002, the parties agreed to the following composition of the Panel:5

Chair: Ms. Elaine Feldman
Members: Mr. Jorge Castro Bernieri
Mr. Mateo Diego-Fernandez

1.6 The European Communities, Paraguay and the United States reserved their rights to participate in the Panel proceedings as third parties.

1.7 The Panel met with the parties on 10 and 11 July 2002 and on 11 September 2002. The Panel met with the third parties on 11 July 2002.

1.8 The Panel submitted its interim report to the parties on 21 November 2002. The Panel submitted its final report to the parties on 16 December 2002.

II. FACTUAL ASPECTS

2.1 This dispute concerns the imposition of a definitive safeguard measure by Argentina on imports of peaches preserved in water containing added sweetening matter, including syrup, preserved in any other form or in water, imported under MCN tariff codes 2008.70.10 and 2008.70.90.

  1. Regulatory framework

2.2 Argentina incorporated the Agreement on Safeguards into its domestic legislation by means of Law No. 24,425 of 7 December 1994.6 The Argentine regulatory framework for the conduct of safeguard investigations and the eventual imposition of safeguard measures is contained in Decree No. 1059/96 of 19 September 1996.7 Law No. 19,5498 (Law on Administrative Procedure of the Republic of Argentina), together with its Regulatory Decree No. 1759/729, regulates the administrative proceeding in general and is of suppletory application when there are gaps in the specific legislation.10 Argentina has notified these laws, regulations and administrative procedures relating to safeguard measures to the WTO Committee on Safeguards.11

2.3 Decree No. 1059/96 provides that a safeguard measure may be applied only after an investigation has been conducted by the competent authority, which is the Minister of the Economy.12 On receipt of an application for the initiation of a safeguards investigation, the Secretariat of Industry, Trade and Mining, which is within the Ministry of the Economy (the "ME"), refers the matter to the Undersecretariat of Foreign Trade13 and to the National Foreign Trade Commission (the "CNCE")14 who prepare a technical report prior to the final determination15 (the "technical report") on whether or not there exist increased imports of the product in question which have caused or threaten to cause serious injury.16 The CNCE is the authority responsible for the analysis, investigation and regulation in the determination of injury to domestic production.17 After examining their reports18, the Secretariat of Industry, Trade and Mining submits a report to the Minister of the Economy indicating whether or not a safeguard measure should be adopted.19 In the present case that report was Record No. 781.20 The Minister then issues a resolution, which is published in the Official Bulletin, thereby providing public notice of the decision adopted as a result of the investigation. This resolution considers the different reports or determinations issued by the competent authorities in accordance with the prerogatives granted by the legislation in question, and introduces the administrative act containing a summary of the results of the injury investigation conducted and the reasons which led to the decision to adopt a safeguard measure, as well as the modalities of its adoption.21 In the present case that resolution is Resolution ME No. 348/2001 of 6 August 2001, published in the Official Bulletin of 7 August 2001.

  1. Safeguards investigation

2.4 On 27 November 2000, the Argentine Chamber of Industrial Fruit Production of Mendoza ("CAFIM") requested the predecessor of the Secretariat of Industry, Trade and Mining, within the ME, to initiate an investigation for the application of a safeguard measure on imports of peaches preserved in water containing added sweetening matter, including syrup, preserved in any other form or in water, imported under MCN tariff codes 2008.70.10 and 2008.70.90 ("preserved peaches").22

2.5 On 2 January 2001, by Record No. 711, the Board of Directors of the CNCE decided by majority of its members that the application contained sufficient evidence of threat of serious injury to the domestic industry caused by imports, thereby meeting the conditions laid down by the regulations in force to implement possible provisional safeguard measures.23

2.6 On 5 January 2001, the predecessor of the Undersecretariat of Foreign Trade issued a technical opinion where it found that there was a causal relationship between the increase in imports and the threat of serious injury to the domestic industry and that the proposed adjustment plan was viable. It concluded that sufficient reasons existed in terms of timing, merit and advisability to justify the opening of an investigation and the adoption of a provisional safeguard measure.24

2.7 Accordingly, Resolution ME No. 39 of 12 January 2001, published in the Official Bulletin on 18 January 200125, announced the opening of a safeguards investigation of imports into Argentina of peaches, preserved in water containing added sweetening matter, including syrup, preserved in any other form or in water, imported under MCN tariff codes 2008.70.10 and 2008.70.90, establishing provisional minimum specific duties amounting to US$0.50 per kg. net for a period of 200 days.26

2.8 On 15 January 2001, Argentina notified the WTO of the initiation of an investigation concerning the imposition of a safeguard measure and gave prior notice, under Article 12.4 of the Agreement on Safeguards, of the adoption of a provisional safeguard measure on preserved peaches.27

2.9 On 20 March 2001, a public hearing was held so that the parties involved in the investigation could set forth their arguments.28

2.10 The CNCE conducted the investigation taking into account information received from domestic producer companies in response to a CNCE questionnaire. The CNCE sent its questionnaire to all the companies registered as producers with CAFIM and received replies from six, of which five, representing 59 per cent of production in 2000, were verified, according to the Annex to Record 781. Those five surveyed companies29 are La Colina, IAM, Cartellone, Benvenuto and Arcor.30

2.11 On 2 July 2001, the Board of Directors of the CNCE31 met and, having concluded that the domestic industry was faced with a threat of serious injury within the meaning of Article 4 of the Agreement on Safeguards and that this was happening in the context of unforeseen developments, found that the conditions justifying the application of a safeguard measure had been satisfied.32 Record No. 781 is the minutes of that meeting of the Board of Directors, and is part of investigation file No. 94/00, which includes technical report No. 08/01 as an integral part.33

2.12 On 17 July 2001, Argentina notified the WTO Committee on Safeguards pursuant to Articles 12.1(b), 12.1(c) and Article 9, footnote 2, of the Agreement on Safeguards, on its making a finding of serious injury or threat thereof caused by increased imports, its taking a decision to impose a definitive safeguard measure and the non-application of the safeguard measure to South Africa, respectively.34

2.13 In Resolution No. 348/2001, published in the Official Bulletin on 7 August 2001, the Minister of Economy stated that after having ascertained that there had been an increase in imports in circumstances such as to cause a threat of serious injury to domestic production and after the analysis by the Secretariat of Trade of that Ministry, he concluded that the legal conditions and other reasons existed in terms of timing, merit and advisability to justify the application of a safeguard measure. Accordingly, the Minister of Economy ordered the closing of the safeguard investigation and imposed a definitive safeguard measure consisting of minimum specific duties on imports of the product at issue for a period of three years starting from the entry into force of the provisional measure and amounting to US$0.50 per kg/net during the first year, US$0.45 during the second year and US$0.40 during the third year.35

  1. Customs duties and countervailing measures

2.14 At the time Argentina began to apply the provisional safeguard measure, it applied a customs tariff of 16.5 per cent on imports of preserved peaches, but a preferential tariff of 11.5 per cent for imports originating in Chile, in accordance with an Economic Complementarity Agreement No. 35. During the safeguard investigation and prior to the imposition of the definitive measure, the applied customs tariff increased to 30 per cent then settled at 28 per cent (19.6 per cent for Chile). In March 2002, Argentina restored the tariff to its original level of 16.5 per cent (11.5 per cent for Chile).36

2.15 Argentina imposed countervailing duties on imports of peaches in syrup from the European Union in accordance with Resolution MEyOSP No. 06/96, which entered into force on 9 January 1996. The countervailing duty was imposed at a differential rate, according to the country of origin, on the f.o.b. import price for a period of five years (18.12 per cent for Italy, 12.55 per cent for Spain and 12.13 per cent for the other EU member States). At the beginning of 2002, Argentina reviewed the countervailing duties and decided to maintain them but at a single rate of 10.5 per cent for all EU member States.37

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

3.1 Chile requests the Panel:

(a) to conclude and find that the safeguards investigation and the safeguard measure are inconsistent with Article XIX:1(a) of the GATT 1994 and with Articles 2.1, 3.1, 4.1(b), 4.2(a), 4.2(b), 5.1 and 12.2 of the Agreement on Safeguards;

(b) to conclude and find that these breaches have caused nullification and impairment of the benefits accruing to Chile under those Agreements; and

(c) to rule on all of the claims presented in order to ensure that Argentina does not continue to violate these Agreements as it has done.38

3.2 Argentina requests the Panel:

(a) to dismiss Chile's claims and to find that Argentina complied with the obligations imposed by Article XIX:1(a) of the GATT 1994 and with Articles 2.1, 3.1, 4.1(b), 4.2(a), 4.2(b), 5.1 and 12.2 of the Agreement on Safeguards.39

IV. ARGUMENTS OF THE PARTIES

4.1 This section includes a summary of the main arguments of the parties which are of relevance to the findings of the Panel.

A. PROCEDURAL ARGUMENTS

  1. Working Procedures of the Panel

4.2 Paragraph 12 of the Working Procedures adopted by the Panel for the present proceedings reads as follows:

"Within two weeks following the first substantive meeting of the Panel with the parties, each of the parties shall provide the Panel with an integrated executive summary of the facts and arguments as presented to the Panel in their first written submissions, their oral presentations at the first substantive meeting and answers to questions. Within two weeks following the second substantive meeting of the Panel with the parties, each of the parties shall provide the Panel with an integrated executive summary of the facts and arguments as presented to the Panel in their rebuttals, their oral presentations at the second substantive meeting and answers to questions. Each summary should not exceed 25 pages. Third parties are requested to provide the Panel with an executive summary of the facts and arguments as presented to the Panel in their written submissions and oral presentations within 7 days following the special session set aside for third parties to present their views. The summary to be provided by each third party should not exceed 5 pages. The executive summaries will be used only for the purpose of assisting the Panel in drafting a concise factual and arguments section of the Panel report so as to facilitate a timely translation and circulation of the Panel report to the Members. They shall not serve in any way as a substitute for the submissions of the parties or third parties. The Panel may, in light of further developments, including the extent of the questions from the Panel, allow the parties and third parties to submit longer summaries."

4.3 On 10 May 2002, Argentina addressed a letter to the Panel indicating that the obligation to provide integrated executive summaries as required in the above paragraph of the Working Procedures amounted to an additional procedural burden since it limited the time available to the parties for the preparation and delivery of their allegations and, accordingly, diminished the due process guarantees, more so in the case of developing countries as provided in Article 12.10 of the DSU. Argentina therefore requested the Panel to set out the legal grounds for its decision to require executive summaries and the implications of the parties' obligation, in light of the special and differential treatment due to developing countries. Argentina also reserved its right not to provide the integrated executive summaries.

4.4 By a letter dated 16 May 2002, the Panel responded to Argentina, with a copy to Chile, indicating that its decision to adopt its working procedures after consultation with the parties was based on Article 12.1 of the DSU. Specifically, the Panel believed that executive summaries would be an invaluable tool in preparing high-quality factual and argument sections of its report and it had therefore chosen to seek them, as permitted by Article 12.2 of the DSU. It recalled that on many occasions the Appellate Body had instructed dispute settlement panels to adopt detailed working procedures for the sake of the efficiency and transparency of the panel process, and it was the Appellate Body which had initiated the practice of requesting executive summaries. The Panel said that other panels now commonly require executive summaries in disputes, including those to which developing country Members are party.

4.5 In its reply, the Panel further indicated that it was indeed mindful of its duty under Article 12.10 of the DSU, in examining this complaint against a developing country Member, to accord sufficient time for Argentina to prepare and present its argumentation. The Panel believed that the time-limits in the timetable, which were longer than those in Appendix 3 of the DSU, accorded Argentina sufficient time to do this. At the organizational meeting, the Panel had given the parties an opportunity to suggest alternative approaches to executive summaries and, after consulting with them, it had decided exceptionally not to require a single executive summary but rather two consecutive summaries, one after each substantive meeting. The Panel did not believe that the preparation of executive summaries should create an unreasonable burden on parties and therefore did not believe that they reduced the guarantees of due process. The only time-period that could be affected was that for the preparation of written rebuttals, which was still within the limits set out in Appendix 3 of the DSU. It added that executive summaries should actually reduce work for both Panel and parties at the interim review stage as the parties were likely to be more satisfied with the descriptive part of the draft report if it had been drafted with the benefit of executive summaries.

4.6 Accordingly, the Panel urged the parties to comply with the working procedures as adopted. In any event, the Panel made clear that it would issue the descriptive part of its report based on the written submissions and written versions of oral statements and answers to questions submitted by the parties.

4.7 At the second substantive meeting, the Panel agreed to extend the deadline for submission of the second executive summary due to public holidays in Chile. Argentina and Chile both provided integrated executive summaries after both substantive meetings within the agreed deadlines.

B. SUBSTANTIVE ARGUMENTS

  1. Unforeseen developments: Article XIX:1(a) of the GATT 1994 and Article 3.1 of the Agreement on Safeguards

(a) Whether there was a prior finding or demonstration as a matter of fact of the existence of "unforeseen developments"

4.8 Chile submits that neither Record No. 781 nor the technical report contains a finding or demonstrates, as a preliminary matter of fact, the existence of unforeseen developments as stipulated in Article XIX.1(a) of GATT 1994. Chile claims that this violates Article XIX.1(a) of GATT 1994 and Article 3.1 of the Agreement on Safeguards.40 41

4.9 Argentina replies that both Record No. 781 and the technical report demonstrate and establish in a reasoned and adequate manner the existence of unforeseen developments.42 Argentina contends that its investigating authority did establish and demonstrate, as a matter of fact and law prior to the adoption of the safeguard measure, the existence of "unforeseen developments" in conformity with the obligation laid down in Article XIX:1(a) of the GATT 1994.43

4.10 Chile argues that nowhere in the Annex to Record No. 781 is there any indication that the CNCE conducted a prior and specific analysis of whether or not there had been unforeseen developments and that it provided a reasoned and adequate explanation - i.e. that it explicitly established - how the facts analysed supported its determination of the existence of such developments.44 Chile further contends that the technical report, like the Record and its Annex, contains no analysis relating to the previous condition of "unforeseen developments".45

4.11 Chile claims that an analysis of the considerations that guided the directors who voted in favour of the application of the safeguard measure reveals that the regulatory framework used in the analysis of the evolution of imports is Article 4.2(a) of the Agreement on Safeguards, which states how the competent authorities should investigate whether increased imports have caused or are threatening to cause serious injury to the domestic industry, and that nowhere in the analysis is there so much as an indirect mention of Article XIX:1(a) of the GATT 1994 and its prerequisite of unforeseen developments.46

4.12 Argentina replies that the Argentine investigating authority applied the WTO rules since they have been incorporated in Argentine domestic law through Law No. 24,425, regulated by Decree No. 1059/96. Argentina believes that Record No. 781 and the technical report reveal that the investigating authority applied the WTO rules in this case. Argentina stresses that the implementing authority stated from the very beginning of its analysis that the investigation would be conducted in accordance with the regulations laid down in the framework of Article XIX of GATT 1994.47 In this connection, Argentina explains, the Record No. 781 states that "… having concluded that the domestic industry is facing a threat of serious injury within the meaning of Article 4 of the Agreement on Safeguards and that this is happening in the context of unforeseen developments, the CNCE finds that the conditions justifying the application of a safeguard measure under that Article have been met."48

4.13 In response to question No. 4 of the Panel49, Argentina explains that there is no difference between the word "context" of unforeseen developments which is used in both Record No. 781 and the technical report and the word "result" of unforeseen developments as provided in Article XIX:1(a) of the GATT 1994. Argentina indicates that, for the purposes of this case, the term "context" should be understood as being identical to the term "result".

4.14 Chile replies that Argentina's above response is an ex post facto clarification since it cannot find any such explanation or clarification in the Annex to Record No. 781. Moreover, Chile argues, the two words are different, and they have different meanings. In Chile's view, Argentina's explanation is an attempt to justify a clear inconsistency committed by the CNCE, and is not consistent with the meaning and scope that emerges from the actual Annex to Record No. 781. If the directors did not specify a particular definition for the word "context", we can only conclude that it was used in its ordinary and obvious meaning, which is not the consequence or effect of something (result), but a given situation, or a set of circumstances or conditions.50

4.15 According to Chile, in order to comply with the obligations contained in Article XIX.1(a) of GATT 1994 and Article 3.1 of the Agreement on Safeguards:

(a) it is not enough for the Annex to Record No. 781 to state, under the heading "Legal Framework of the Commission's Report", that the imposition of a safeguard measure is regulated by the Agreement on Safeguards and that this Agreement establishes rules within the framework of Article XIX of the GATT 1994;

(b) nor is it enough that in Record No. 781, the directors who voted in favour of imposing the measure concluded that the domestic industry was facing a threat of serious injury within the meaning of Article 4 of the Agreement on Safeguards and that this was happening in a context of unforeseen developments. This Record, which contains the final decision of the CNCE, i.e. its recommendation, must be a faithful reflection of the CNCE's prior analysis and evaluation on the basis of the facts investigated;

(c) nor is it enough that the evolution of imports in terms of volume and price, or the conditions of competition, were considered in Record No. 781 and the Annex to the technical report, since these comments were clearly made by the CNCE in relation to the requirement of increased imports in absolute or relative terms and the determination of whether or not there was a threat of serious injury to the domestic industry.51

4.16 Argentina recalls the Panel's argument in US - Lamb52 to the effect that "[w]hile the Panel correctly stated that the demonstration of 'unforeseen developments' does not require the precise terminology of 'unforeseen developments' to be used, it is nevertheless necessary that the circumstances … are in substance identified as such". Argentina understands that this was not rejected by the Appellate Body and, accordingly, the CNCE Report in the present case demonstrates as a matter of fact the existence of unforeseen developments for the application of a safeguard measure. In support of this view, Argentina refers to four excerpts of Record No. 781: in the Annex containing the joint vote of the CNCE directors who voted in favour of the safeguard measure, page 6 which refers to imports and pages 9 and 10 which refer to world production and a trend in prices; in the technical report, page 47 which refers to the European Union's output and exports and pages 73 and 74 which refer to world production, exports and stocks (Exhibits ARG II, III and IV).53 Argentina stresses that both the increase in world production and exports and the increase in world stocks are referred to in the Annex to the Record and in the technical report. However, in response to question No. 6 of the Panel54, Argentina indicates that the finding on unforeseen developments in the competent authorities' report can be found in three of these excerpts - the excerpt on pages 9 and 10 from the joint opinion of the CNCE directors who voted in favour of the safeguard measure, and the two excerpts on page 47 and on pages 73 and 74 from the technical report.55

4.17 Chile says that Argentina's citation of pages 73 and 74 of the technical report illustrates its lack of objectivity in its attempt to demonstrate that it did comply with its obligations under Article XIX.1(a) of GATT 1994 and Article 3.1 of the Agreement on Safeguards. Chile argues that the quotation from pages 73 and 74 is incomplete because Argentina fails to point out that the statement was made by a member of CAFIM (the applicant), named COPAL, which did not respond to the questionnaire and whose remarks do not appear to have been verified by the CNCE. Secondly, Chile adds, the quotation is also incomplete because Argentina fails to point out that COPAL does not refer to the evolution of imports from the European Union to Argentina, but only to the evolution of imports into other markets from the European Union, not Argentina.56

4.18 In Chile's view, in order to comply with the obligations laid down in Article XIX.1(a) of the GATT 1994 and Article 3.1 of the Agreement on Safeguards, it is essential that the competent authorities analyse and examine beforehand, and hence independently and specifically57, whether there were circumstances which, having developed in an unforeseen manner, resulted in imports in such increased quantities and under such conditions as to cause or threaten to cause serious injury to the domestic industry in question. Chile adds that the analysis must be adequate and sufficient in terms of demonstrating, not implicitly but explicitly, the existence of this prior condition in the file of the investigation.58 In Chile's view, the comments of the directors that voted in favour of imposing the measure by no means constitute a prior, adequate, reasoned and independent evaluation of the "unforeseen development" requirement. Their analysis is biased, out of context, and in direct contradiction with the conclusion reached by the investigating authority.59

4.19 Regarding page 47 of the technical report, Chile argues that: (i) it should have focused on Greece, as the main origin of imports, rather than the European Union; (ii) it took 1998 as a base year which was not a representative year; and (iii) Argentina should have taken account of what the investigating authority stated on pages 57 and 58 of the technical report which speak of a recovery of supply in 1999, a similar level of supply in 2000 and lower levels of production in 2000.60

4.20 Argentina replies that the procedure followed by the investigating authority met the requirements of Article 3.1 of the Agreement on Safeguards and that, pursuant to Article 13 of Decree 1059/96, the administrative act providing for the initiation of the investigation came into force as from its publication in the Official Bulletin.61 Article 3 of Decree 1059/96 stipulates that all of the interested parties, including the representatives of the exporting countries, shall have access during the course of the investigation to all of the information contained in the file, except information that is confidential. Furthermore, once the investigation is completed, the competent implementing authority issues a resolution, published in the Official Bulletin, providing public notice of the decision adopted as a result of the investigation which in this case was Resolution ME No. 348/2001, published in the Official Bulletin, which outlines the results of the injury (threat of injury) investigation conducted as well as the reasons which led to the decision to adopt a safeguard measure and the modalities of its adoption. Argentina concludes that Chile had access to the investigation procedures, that it had the possibility of making such observations as it deemed necessary at the appropriate stage in the proceedings, and that Argentina acted in conformity with Article 3.1 of the Agreement on Safeguards. Argentina notes that Chile did not make any observations during the proceedings.62

(b) Whether the facts on the record show that there were unforeseen developments

4.21 Chile also claims that the facts considered by the CNCE do not prove, by and of themselves, that there were unforeseen developments.63

(i) What are unforeseen developments?

4.22 As regards the concept of unforeseen developments, Chile refers to the interpretation by the Appellate Body of the ordinary meaning of the expression "as a result of unforeseen developments" where it provided that the developments as a result of which a product is being imported in such increased quantities and under such conditions as to cause or threaten to cause serious injury to domestic producers must be unexpected.64

4.23 Argentina submits that the Appellate Body in Argentina - Footwear (EC) found that the clause "as a result of unforeseen developments" must be interpreted to mean that the developments which led to a product being imported in such increased quantities and under such conditions as to cause or threaten to cause serious injury to domestic producers must have been unexpected. As regards the meaning of the terms "unexpected" or "unforeseen", the Appellate Body understands unforeseen to be synonymous with unexpected, i.e. it refers to developments that were not expected or foreseen at the time the obligation was incurred.65

4.24 For Chile, different unforeseen developments must unquestionably be the cause of, or precede66, imports in such increased quantities, absolute or relative, and under such conditions as to cause or threaten to cause serious injury to the domestic industry that produces like or directly competitive products. Nor can there be any question that the demonstration of unforeseen developments must appear in the actual report of the competent authorities. In Chile's view, this is clear from the first part of Article XIX:1(a) of GATT 1994 and Articles 2.1 and 3.1 of the Agreement on Safeguards, and has been established by the Appellate Body.67 68

4.25 In response to questions Nos. 7 and 8 of the Panel69, Chile explains that Article XIX.1(a) of the GATT 1994 and Article 2.1 of the Agreement on Safeguards establish a cause-effect relationship which requires, on the one hand, that one or more developments take place in an unforeseen manner, and on the other hand, that as a result of such unforeseen developments, a product be imported into the territory of another Member in such increased quantities, absolute or relative to domestic production, and under such conditions as to cause or to threaten to cause serious injury to the domestic industry that produces like or directly competitive products.

(ii) Whether there were unforeseen developments

Whether the increase in imports was a recovery

4.26 For Chile, it is clear that the CNCE considered that the "unforeseen developments" condition correspond to a sharp and unexpected increase in imports, which took place entirely in the most recent past.70 Chile notes that in different parts of the technical report, the investigating authority points out that the historical levels of imports of preserved peaches in Argentina were seriously disrupted during the period 1997/1998 as a result of severe climatic conditions which affected the primary production of preserved peaches in Greece, the world's leading producer and exporter. In view of this disruption, the authority determines that imports experienced a recovery rather than an increase in the period 1999/2000.71 Chile contends that in spite of this finding, the CNCE, analysing only the trends for the most recent past (1999/2000), concludes that the increase in total imports was sharp and that the domestic industry faced a threat of injury in a context of unforeseen developments. Chile argues that after an isolated interruption of imports as a result of climatic conditions affecting the leading world producer and exporter, a recovery of those imports can, or should reasonably, be expected. Thus, in Chile's view, it is not objectively possible to find that there were unforeseen developments. Consequently, Chile concludes that the CNCE failed to examine this requirement objectively on the basis of the results of the investigation as reflected in the technical report.72

4.27 Argentina replies that Chile's quotations from the technical report (pages 32 and 58) are biased. It explains that the reference in the CNCE technical report to the "recovery" of imports was not made in a contextual vacuum: the report also points (on the basis of USDA data) to a high level of leftover stocks in Europe. Argentina considers that if the Europeans have that capacity to generate stocks, it can be assumed that the effect of climatic conditions on harvests will be more moderate. Indeed, the Record also mentions this fact based on USDA information.73 Argentina also points out that Chile is mistaken in stating that "after an isolated interruption of imports . . . a recovery of those imports can, or should reasonably, be expected" when, in this particular case, an unprecedented and unexpected situation had arisen in conjunction with a sharp increase of almost 300 per cent in the level of world stocks (see Exhibits ARG-III and ARG-IV).74

4.28 Chile contends that Argentina75 is trying to distort the scope and meaning of an objective fact recorded and analysed by the investigating authority in the technical report. According to Chile, the authority determined that the increases in imports of preserved peaches into Argentina in the period 1999/2000 (the last two years of the investigation period) reflected a recovery of those imports, whose historical levels had been seriously disrupted during the period 1997/1998 as a result of severe climatic conditions which affected the primary production of preserved peaches in Greece, the world's leading producer and exporter. In its view, the CNCE openly contradicts this fact, which was recorded in the technical report itself, when it concludes that an analysis of the most recent past (1999/2000) reveals a sharp increase in imports and that the threat of injury was occurring in a context of unforeseen developments.76 Furthermore, Chile argues, Argentina's explanations are merely an ex post facto analysis which does not appear anywhere in the Annex to Record No. 781 or the technical report, and which cannot alter or remedy the fact that the CNCE failed to provide an adequate and reasoned demonstration prior to the imposition of the measure. Chile states that nowhere in the technical report or its Annex is there any record of the information which Argentina is now submitting to the Panel as Exhibits ARG-III and ARG-IV.77 Chile further contends that the file of the investigation reveals that the measure imposed by Argentina was basically aimed at imports of preserved peaches from their two main origins: Greece and Chile. Thus, Chile argues, the foreseen and expected recovery of imports as recorded by the investigating authority is not linked to world stocks, but to the isolated and particular situation affecting Greece as the leading world producer and exporter of the product under investigation in 1997 and 1998.78

4.29 Argentina replies that Chile is re-interpreting the conclusions of the investigating authority, arguing that the said authority had detected a recovery of imports only. Argentina also responds to Chile's claim that the information contained in Exhibits ARG-III and ARG-IV cannot be found in the technical report or in its annex. In fact, Argentina argues, the information contained in Exhibits ARG II and ARG-IV can be found on pages 47, 48, 53, 59, 61, 64, 66, 68, 70 and 72 of the technical report.79

4.30 Argentina further submits that the "recovery" of imports is also related to the imposition of countervailing duties on peaches from the European Union as of January 1996, a factor that should be taken into account with respect to the evolution of imports, and one which Chile fails to mention.80

4.31 In reference to the above, Chile submits that Argentina provides no arguments or explanations regarding the implications of this relationship between the recovery of imports and the countervailing duties for the purpose of evaluating whether or not there were unforeseen developments. According to Chile, even if Argentina were to provide an explanation during what remains of the proceedings, it would be dealing with an ex post facto analysis which does not appear anywhere in the Annex to Record No. 781 or the technical report, and which cannot alter or remedy the fact that the CNCE failed to provide an adequate and reasoned demonstration prior to the imposition of the measure.81 82

4.32 Argentina replies that, although the application of the countervailing duties may have succeeded in reducing the flow of imports from the European Union by eliminating the unfair competition element, they were unable to alleviate any of the circumstances constituting unforeseen developments. Indeed, Argentina adds, given the objective pursued in applying countervailing duties, it could not be otherwise.83

Which were the unforeseen developments in this case?

4.33 Argentina contends that the investigating authority's determination of "unforeseen developments" was in fact corroborated by the file; indeed, the authority made the determination by establishing three circumstances constituting unforeseen developments: (a) increased production as a result of the exceptional Greek harvest; (b) substantial increase in world stocks; and (c) a downward price trend.84 In response to question No. 28 of the Panel85, Argentina indicated that the authorities demonstrated the existence of unforeseen developments on pages 6, 9 and 10 of their report.

4.34 In response to question No. 5 of the Panel86, Argentina confirmed that it does not allege that increased imports themselves constitute an unforeseen development. However, it adds, if the "conditions under which the preserved peaches were being imported, or something else" refers to the low prices, the surplus harvest in Greece which exceeded the average for the entire decade, and the high concentrations of stocks, then yes, there were unforeseen developments.87

(iii) When should the developments be unforeseen?

4.35 Chile contends that the reference point to determine whether certain developments are unforeseen, is the concessions negotiated under the WTO, and in this specific case, during the Uruguay Round. However, it adds, a series of developments that were not foreseen during the negotiations can generate imports in such increased quantities as to cause or threaten to cause injury to the domestic industry, leading to the adoption of a safeguard measure. The unforeseen development must form part of the investigation on the application of a safeguard measure.88

4.36 Also in response to questions Nos. 7 and 8 of the Panel89, Argentina explains that that the "unforeseen developments" in this case occurred after the relevant tariff concession had been negotiated. Argentina argues that at the time the concessions were granted, the negotiators could not have foreseen the developments that took place.

4.37 Chile replies that, regardless of Argentina's response, the analysis on when and by whom the developments were unforeseen cannot be found anywhere in the remarks of the CNCE directors that voted in favour of imposing the measure. Chile notes that the Uruguay Round took place between 1986 and 1994, and the WTO Agreement entered into force on 1 January 1995. Argentina incorporated, in its domestic legislation, the Final Act of the Uruguay Round and the Marrakesh Agreement on 5 January 1995. Chile claims that, despite the above, it cannot find, either in Argentina's response or in the "file of the investigation", any indication or record whatsoever of what Argentina's concession was on canned peaches when it was negotiated, when it was granted, or what the reasonable expectations of the Argentine negotiators were with respect to the preserved peaches market, including prices, production, inventories and exports at that moment or period, andabove all, with respect to the "price" factor, since according to the "file of the investigation" this would appear to be the determining factor in the alleged increased imports and the alleged threat of serious injury to the domestic industry.90

4.38 Argentina submits that the negotiators could not reasonably have been expected to foresee that abnormal circumstances, such as the record production of 1992/1993, would become the rule rather than the exception.91 In response to question No. 31 of the Panel92, Argentina clarified that the Argentine negotiators could not have foreseen that an exceptional case such as 1992/1993 might recur, and hence it was that they opted for the least trade-distortive alternative. Indeed, the tariff applied to the product in question was 35 per cent. Moreover, Argentina adds, the Agreement on Safeguards applies specifically to situations of injury under fair trading conditions which, owing to their exceptional nature, are difficult to predict.

4.39 Chile replies that the "record" world production of preserved peaches in 1992/1993 of which Argentina speaks in its reply is based on an assertion by the applicant, CAFIM, which, in turn, uses World Horticultural and U.S. Export Opportunities as a source. Nowhere in the technical report can Chile find any indication that the CNCE investigating authority verified that information or checked on its reliability for validation purposes. In Chile's view, if the CNCE itself only considered imports of preserved peaches from the European Union and Chile93, Argentina's reply, in addition to referring to the reasonable expectations of its negotiators with respect to a world production indicator, should have addressed these expectations with respect to the two main origins, or should, at least, have discussed how one or more specific world production indicators implied unforeseen developments with respect, at least, to prices, production, inventories and exports in Chile and the European Union (chiefly Greece).94


To continue with 2. Determination of an increase in imports. Article XIX.1(a) of GATT 1994 and Articles 2.1, 3.1 and 4.2(a) of the Agreement on Safeguards


1 See WT/DS238/1.

2 See WT/DS238/2.

3 See WT/DSB/M/117.

4 See WT/DS238/3.

5 Ibid.

6 Published in the Official Bulletin of Argentina (the "Official Bulletin") by the Ministry of External Relations and Culture, 5 January 1995.

7 Published in the Official Bulletin by the Ministry of the Economy, Public Works and Services, 24 September 1996.

8 Published in the Official Bulletin by the Ministry of Justice, 27 April 1972.

9 Ibid.

10 See Article 2 of Law No. 19,549. See footnote 8 of the present report.

11 See G/SG/N/1/ARG/1, G/SG/N/1/ARG/2, G/SG/N/1/ARG/3 and G/SG/N/1/ARG/3/Suppl.1.

12 See Articles 1 and 7 of Decree No. 1059/96. The Panel understands that the Ministry of the Economy was formerly known as the Ministry of the Economy, Public Works and Services.

13 The Undersecretariat of Foreign Trade is part of the SICyM within the ME.

14 The CNCE is a decentralized agency of the SICyM, established by Decree No. 766 of 12 May 1994.

15 "Informe Técnico previo a la Determinación Final".

16 See Article 10 of Decree No. 1059/96.

17 See Article 1 of Decree No. 766/94.

18 See Article 11 of Decree No. 1059/96.

19 See Article 17 of Decree No. 1059/96.

20 Record No. 781 is included in Exhibit CHL-1.

21 See Argentina's response to questions Nos. 1 to 3 of the Panel.

22 See G/SG/N/8/ARG/4/Suppl. 1 and Annex to Record No. 781, page 1 in Exhibit CHL-1.

23 Ibid.

24 See Resolution No. 348/2001, in Exhibit CHL-2.

25 Published in the Official Bulletin of Argentina, 18 January 2001.

26 See G/SG/N/8/ARG/4/Suppl. 1 and Annex to Record No. 781, page 1, in Exhibit CHL-1.

27 See WT/DS/238/1.

28 See G/SG/N/8/ARG/4/Suppl. 1 and Annex to Record No. 781, page 1, in Exhibit CHL-1.

29 The surveyed companies ("relevamiento"), according to the Annex to Record No. 781, are the companies that replied to the questionnaire for domestic producers. A company called Nieto was removed from the survey upon verification because the information it provided could not be correlated with the supporting documentation. See Annex to Record No. 781, page 5.

30 See Annex to Record No. 781, page 5 in Exhibit CHL-1.

31 The Panel notes that according to Article 5 of Decree No. 766/94, the CNCE Board of Directors consists of one Chairman and 4 Members. However, Record No. 781 shows that two directors, including the Chairperson, voted in favour of the safeguard measure and two directors voted against. Since, pursuant to Article 11 of Decree No. 766/94 the chairperson holds a casting vote, the CNCE thus voted in favour of the safeguard measure.

32 See Record No. 781, page 1 and 2 in Exhibit CHL-1.

33 See Chile's first written submission, paragraph 3.7.

34 See G/SG/N/8/ARG/4, G/SG/N/10/ARG/3, G/SG/N/11/ARG/3, G/SG/N/8/ARG/4/Suppl.1, G/SG/N/10/ARG/3/Suppl.1.

35 See Resolution No. 348/2001 in Exhibit CHL-2 and G/SG/N/8/ARG/4.

36 See Argentina's response to question No. 9 of the Panel (" At the time of the investigation and the time of adoption of the safeguard measure, what was the tariff rate applied to imports of preserved peaches from Chile? At the same times, what were the tariff and countervailing duties applied to imports of preserved peaches from the various member States of the European Communities?"), footnotes 52 and 53 to Chile's first written submission and paragraphs 59 to 60 of Chile's rebuttal.

37 See Argentina and Chile's response to question No. 10 of the Panel ("In 1996, Argentina applied countervailing measures to imports of preserved peaches from Greece. Are these measures still in place? If so, have they remained at the same level?").

38 See final conclusion in Chile's first written submission, page 42. See also Chile's rebuttal, paragraph 71.

39 See Argentina's first written submission, paragraph 160, Argentina's rebuttal, paragraph 41 and Argentina's second oral statement, page 17.

40 In support of this argument, Chile quotes the Appellate Body Report, US - Lamb , paragraph 72.

41 See Chile's first written submission, paragraph 4.1.

42 See Argentina's first written submission, paragraph 30.

43 See Argentina's first written submission, paragraph 32.

44 See Chile's first written submission, paragraph 4.7(b).

45 See Chile's first written submission, paragraph 4.8.

46 See Chile's first written submission, paragraph 4.7(a).

47 See Argentina's first written submission, paragraph 34; Argentina's first oral statement, paragraph 4.

48 Argentina refers to Annex to Record No. 781, page 11. See Argentina's first written submission, paragraph 35.

49 Namely, "Why do Acta 781 and the Expediente (page 11) refer to the "context" of unforeseen developments, and not the "result" of unforeseen developments? Is there a difference?".

50 Chile refers to the meaning of the word context (contexto) according to the Dictionary of the Real Academia Española de la Lengua.

51 See Chile's first oral statement, paragraphs 10(a), 10(b) and 10(c).

52 Argentina refers to the Appellate Body Report, US - Lamb , paragraph 61, which refers to the Panel Report, paragraph 7.31.

53 See Argentina's first written submission, paragraphs 39 to 44.

54 Namely, "Where is the finding on unforeseen developments in the competent authorities' report?".

55 See Argentina's response to question No. 6 of the Panel. See also Argentina's first written submission, paragraphs 39 to 45.

56 See Chile's first oral statement, paragraph 12.

57 In response to question No. 26 of the Panel ("Can Chile explain why it believes that a finding on the existence of unforeseen developments must be "specific and independent" ("en forma específica e independiente")?"), Chile explained that the specificity and independence of a finding on the existence of unforeseen developments is based on the requirement that the developments in question be examined and identified as such in the report of the competent authorities. According to Chile, this is the only way to establish that a Member has fulfilled its obligation to demonstrate the existence of this condition before a safeguard measure is applied. The above notwithstanding, the competent authorities must also explain how the investigated facts support their determination.

58 See Chile's first oral statement, paragraph 10(c). See also Chile's rebuttal, paragraph 4.

59 See Chile's first oral statement, paragraph 11.

60 See Chile's rebuttal, paragraphs 11 to 13.

61 Argentina makes a reference to its response to question No. 1 of the Panel.

62 See Argentina's rebuttal, paragraphs 1 to 5.

63 See Chile's first written submission, paragraph 4.10.

64 See Chile's first written submission, paragraph 4.11.

65 Appellate Body Report, Argentina - Footwear (EC), paragraph 91.

66 In response to question No. 27 of the Panel (namely, "Could Chile clarify its view that unforeseen developments must "be the cause or precede" ("ser la causa o el antecedente") an increase in imports, in the light of the finding by the Panel in US - Lamb which rejected a so-called two-stage causation test? (See WT/DS177/R, paragraph 7.16)"), Chile explained that the Panel's finding in US - Lamb on the so-called two-stage causation test does not in any way counter or contradict the assertion that unforeseen developments must be the "cause of, or precede", an increase in imports. As stated by the Panel in its Report, "unforeseen developments" are an element or a requirement distinct from increased imports per se. The Panel notes that "it may be sufficient for a showing of the existence of this 'factual circumstance' that 'unforeseen developments' have caused increased imports to enter 'under such conditions' and to such an extent as to cause serious injury or threat thereof". As emerges from the preceding reply, the Panel (a) starts from the premise that the competent authorities must demonstrate the existence of "unforeseen developments" before a safeguard measure is applied; (b) the developments in question must be examined and identified as such in the report of the competent authorities; and (c) as Chile asserts in its Rebuttal, these developments must be the cause of, or precede, imports in such increased quantities, absolute or relative, and under such conditions as to cause or threaten to cause serious injury.

67 Chile refers to the Appellate Body Reports, Korea - Dairy, paragraphs 83-85; Argentina - Footwear (EC), paragraphs 90-92; and US - Lamb, paragraph 72.

68 See Chile's rebuttal, paragraph 5.

69 Namely, "Does "unforeseen developments" mean developments occurring after the negotiation of the relevant tariff concession which it would not be reasonable to expect that the Argentine negotiators could and should have foreseen at the time when the concession was negotiated? When were those negotiations in this case?" (question No. 7); "At the time of the negotiations of the relevant tariff concession, what were the reasonable expectations of the Argentine negotiators with respect to the market for preserved peaches, including prices, production and stocks?" (question No. 8).

70 See Chile's rebuttal, paragraph 10.

71 See Chile's first written submission, paragraph 4.12.

72 See Chile's first written submission, paragraph 4.14.

73 See Argentina's first written submission, paragraph 47.

74 See Argentina's first written submission, paragraph 48.

75 See paragraph 4.27 of the present report.

76 See Chile's first oral statement, paragraphs 13 to 14.

77 See Chile's first oral statement, paragraph 15(c). See also Chile's rebuttal, paragraph 4.

78 See Chile's first oral statement, paragraph 15(d).

79 See Argentina's rebuttal, paragraphs 7 to 8.

80 See Argentina's first written submission, paragraph 46.

81 Chile makes a reference to the Appellate Body Report, US - Lamb, paragraph 72.

82 See Chile's first oral statement, paragraph 15(a).

83 See Argentina's rebuttal, paragraphs 14 to 15.

84 See Argentina's rebuttal, paragraph 9.

85 Namely, "In Argentina's answer to question 5 posed by the Panel and in paragraph 9 of its written rebuttal, Argentina indicates what the competent authorities considered to be the unforeseen developments in this case. Where in their report did the competent authorities show that these developments were unforeseen?".

86 Namely, "Does Argentina allege that increased imports themselves, the conditions under which the preserved peaches were being imported, or something else constituted unforeseen developments?".

87 See Argentina's response to question No. 5 of the Panel.

88 See Chile's response to questions Nos. 7 and 8 of the Panel.

89 See footnote 69 of the present report.

90 See Chile's rebuttal, paragraphs 17-18.

91 See Argentina's response to questions Nos. 7 and 8 of the Panel.

92 Namely, "Given the fluctuations in world production of preserved peaches, as evidenced by record production in 1992/93, why did the Argentinean negotiators in the Uruguay Round not expect such fluctuations in the future?".

93 Chile clarifies that the safeguard measure excludes imports of preserved peaches from MERCOSUR States Parties and South Africa.

94 See Chile's rebuttal, paragraphs 19-20.