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ARGENTINA - DEFINITIVE SAFEGUARD MEASURE ON
4.103 Chile submits that the CNCE failed to establish a genuine and substantial causal link between the alleged increased imports and the alleged threat of serious injury to the domestic industry as required by Articles 2 and 4.2(b) of the Agreement on Safeguards. According to Chile, Article 4.2(b) requires that the competent authorities demonstrate, "on the basis of objective evidence", the existence of a causal link.257 Chile further submits that these violations point to a breach of Article 3.1 of the Agreement on Safeguards, since the CNCE's report does not provide any reasoned and adequate explanation of the findings and conclusions reached on all pertinent issues of fact and law relating to the determination of causal link.258 4.104 Chile maintains that, for an analysis of causation to be consistent with Articles 2 and 4.2(b) of the Agreement on Safeguards, the methodology adopted by the investigating authorities must consist of a three-stage approach that complies with the so-called principle of non-attribution of injurious effects of other factors as has been described by the Appellate Body.259 260 Chile contends that, in order to explain their determination of causal link, the competent authorities must establish explicitly, through a reasoned and adequate explanation, that injury caused by factors other than increased imports is not attributed to increased imports. In its view, this explanation must be clear and unambiguous, it must not merely imply or suggest an explanation and it must be a straightforward explanation in explicit terms.261 262 4.105 Argentina contests these claims and refers to Section V.4 of the Annex to Record No. 781 concerning the determination of threat of injury as a result of imports which concludes with the statement "[t]he import situation and the degree of variation and sensitivity of the indicators listed and described in Section V.2 prove the existence of a causal link between the investigated imports and the threat of serious injury."263 4.106 Chile replies that Argentina's defence merely repeats part of what was stated by the CNCE.264 In Chile's view, the CNCE's analysis does not meet the obligations laid down in Article 4.2(b) since the CNCE fails to:
4.107 Chile further contends that regardless of whether there is any foundation for Argentina's arguments, the fact is that these arguments are merely a set of ex post facto explanations which cannot be found among the remarks made by the CNCE directors at the time when they should have been analysing the causal link between the alleged increased imports and an alleged threat of serious injury.266 267
4.108 Chile claims that Argentina gave inadequate consideration to certain relevant factors while failing to analyse others. In Chile's view, most of the relevant factors, if not all, that the CNCE considered or failed to consider, do not point to any causal link between the alleged threat of serious injury and the alleged increase in imports.268 Chile is also of the view that, in supporting its determination, the CNCE does not distinguish or separate the effect of the factors that it did consider from the effect of others factors that it did not analyse and which may have had an influence on the loss of market share adduced by the industry. Thus, from a methodological point of view, the CNCE's examination of causality did not enable it to establish whether there was a genuine and substantial causal link between the adduced loss of market share and the recovery of imports. In Chile's view, this constitutes a violation Article 4.2(b) of the Agreement on Safeguards.269 Chile claims that the CNCE attributes its determination of threat of serious injury, in absolute terms, to alleged increased imports. Chile maintains that although other factors were recorded in the investigation, they were excluded by the authority when it came to analysing them or determining their impact on the situation of the domestic industry. Chile contends that, not only does Argentina fail to include anywhere the objective criteria justifying this manner of proceeding, but it does not even recognize the existence of other factors that could have had an influence on the loss of market share.270 4.109 Argentina responds that Chile's assertions regarding its understanding of the causal link are erroneous. Argentina points out that the investigating authority acted correctly in considering the effect caused by imports separately from the effect caused by other factors. In this regard, Argentina submits that this point was established by the Appellate Body.271 Argentina considers that Chile interprets the Agreement on Safeguards incorrectly when it contends that imports by themselves, separately from other factors, must reach the necessary threshold in order to qualify as a threat of serious injury. In Argentina's view, although the increased imports must contribute to causing the injury or the threat of injury, this does not mean that they are capable by themselves of causing injury or threat thereof. In other words, there is no implication that imports must be the only cause of serious injury or threat of serious injury. Argentina submits that the Appellate Body has already established that the way Chile interprets the obligations under the Agreement on Safeguards is inaccurate.272 273 4.110 Chile contends that Argentina is misinterpreting Chile's arguments. Chile explains that it never said that the CNCE in fact identified, distinguished and separated the effects of alleged increased imports from the effects of other factors. Chile contends that it argued and proved exactly the opposite. It points out that it demonstrated that the CNCE directors, without going through the exercise of identifying, separating and evaluating the effects of other factors which coincided with the alleged increased imports, simply attributes all of the alleged threat of injury to those imports. Chile further submits that what it has said is that in order to attribute threat of injury properly, the competent authorities must demonstrate that an alleged increase in imports has alone reached the threshold for qualification as "serious". By this, it intended to make it clear that there must at least be a genuine and substantial cause-effect relationship between the alleged increased imports and a threat of serious injury, regardless of any other factors which may at the same time be contributing to the existence of such a threat.274 275
4.111 Chile claims that the file of the investigation records a series of relevant factors which may have had an influence on the loss of market share adduced by the Argentine industry that the CNCE did not consider or evaluate in making its finding of a causal link. In addition, there are other public and well-known economic factors which the CNCE could not objectively overlook.276 Chile contends that, although the majority of these factors are recorded in the file of the investigation, and although some of them were well known to the public, they are not even identified by the CNCE in its causal analysis. Chile submits that Argentina at no time provides any explanation of this fundamental omission - rather, it says, it simply tries to address the possible injury factors indicated by Chile, arguing that they are not alleged injury factors and consequently bear no causal relation to the said threat.277 Chile argues that, regardless of whether this explanation by Argentina is correct or not, it does not appear in, or form part of, the CNCE's causal analysis. In its view, the entire argument is an ex post facto explanation.278 4.112 Argentina replies that it conducted its threat of injury analysis in compliance with Article 4.2(a) and (b) of the Agreement on Safeguards.279 Argentina argues that in the course of the investigation, as Chile acknowledges, the investigating authority did establish the serious injury factors other than increased imports. In doing so, the investigating authority distinguished between the effects of these factors and the impact of imports, and also explained their nature and scope. Thus, Argentina contends, it is difficult to agree with Chile's assertions to the effect that the investigating authority did not act in conformity with Article 4.2(a) of the Agreement on Safeguards. In Argentina's view, if Chile recognizes that the effects of the factors other than imports are recorded in the file of the investigation, it cannot at the same time claim that the argument is belated.280
Imports from Greece 4.113 Chile submits that, assuming for a moment that the threat of injury alleged by CAFIM was real, and based strictly on the facts and considerations recorded in the CNCE report, there was no separate identification in that report of the alleged injurious effects of a factor which is qualified in the file itself as the substantial and authentic cause of the said threat, that factor being specific imports from Greece which, according to the report, are the main origin, and which, given that country's pricing structures and policies, enter the Argentine market under unfair trading conditions281, with a clear capacity to displace the domestic industry and cause it serious injury.282 Chile further submits that it is not its intention to make a value judgement or a pronouncement on whether or not exports of Greek peaches represent unfair trading practices. Chile indicates that it is making this argument in accordance with the objective merit of the record contained in the investigation file, which is what in principle and in the final analysis is important, to ascertaining whether Argentina acted consistently with its WTO obligations. 4.114 As Chile sees it, the requirement of threat of serious injury or serious injury under Article XIX.1(a) of the GATT 1994 and Article 2.1 of the Agreement on Safeguards applies to imports in general, without distinction as to origin, which enter the market of a specific Member under "fair" trading conditions.283 Chile contends that any reader, upon reading the "file of the investigation", would objectively conclude that on the merits of that file, the genuine and substantial cause of the alleged threat of injury determined by the CNCE and alleged by CAFIM was not imports in general occurring under fair competition. Rather, it claims, it was imports specifically from Greece (the main origin), and not Chile, that were able, owing to their volume, but above all to their price, to cause injury to the domestic industry, a situation that was aggravated by the seasonal differences in the production and harvest of the product under investigation between Argentina (Southern Hemisphere) and Greece (Northern Hemisphere).284 285 Chile points out that this was the case in spite of the imposition of countervailing duties in September 1996 on imports of preserved peaches from the European Union. Chile submits that the imposition of countervailing duties, in spite of the minimum specific import duty of US$0.20 per kg imported, failed to place the imports from the main origin (Greece) in a fair-trade situation.286 In paragraph 47 of its Rebuttal, Chile cites 36 passages from the "file of the investigation"287, including passages from a) the opinions of the directors who voted in favor as well as against the measure, as included in the Annex to Record No. 781; and b) the conclusions of the investigation authority and the arguments of CAFIM and its associated companies, as included in the technical report. It also submits that a proper analysis of the statistical tables and charts in the annex to the technical report reveals that the cited passages are merely a faithful reflection of that data.288 4.115 Argentina contests Chile's argument to the effect that it is peaches of a distinct origin that are responsible for the situation of the industry and, in particular, its statement whereby the investigation itself attributes the situation to peaches from the European Union (more specifically, from Greece). Argentina indicates that in its reply to the questions of the Panel, it provided a detailed account of the situation with respect to the application of countervailing duties to peaches from the European Union. However, it adds, the analysis of this element carried out in the framework of the investigation essentially concerned matters relating to the capacity to generate stocks, the excess harvest in Greece owing to favourable climatic conditions and the price flexibility of peaches of that origin. In its view, it bears no relationship to the notion that in spite of the application of countervailing duties, peaches of European origin continued to be traded under unfair competition.289 It further argues that a passage cited by Chile in footnote 27 of its first oral statement confirms this.290 In response to question No. 55 of the Panel291, Argentina indicated that the subsidy component of the imports from Greece was duly neutralized by the countervailing duties. Cyclical nature of imports and net importer status 4.116 Chile maintains that the international preserved peaches market is cyclical because it is so closely associated with agricultural fluctuations affecting producers, particularly Greece. At the same time the supply of preserved peaches from Greece has a strong influence on international prices, and hence on the volume of exports to its markets of destination. Climatic factors in Greece led to a sharp fall in Argentine imports in 1997/1998. If, according to Chile, over the past ten years Argentina has pursued a policy of opening up to the international preserved peaches market, it is logical that its industry should be sensitive to changes in that market, particularly the fluctuations and cycles of the leading world producer and exporter. In fact, Chile claims, the technical report shows that the domestic industry increased the volume of sales on the domestic market, having to reduce its exports, at least in 2000, to satisfy domestic demand.292 4.117 Argentina does not agree that the international preserved peaches market is cyclical "because it is so closely associated with agricultural fluctuations affecting producers" and refers to Tables 5 to 13 in the "International market" section of the technical report as showing that there was no evolution of the kind described by Chile. Nor does Argentina agree with the reference to Argentina's "position of net importer" because it takes no account of the structural changes that took place in the Argentine productive sector when Argentina began opening up its market.293 Change from the status of importer to a more export-oriented position 4.118 Chile claims that, notwithstanding the low volume of exports in 2000 as a result of the need to satisfy domestic demand, the recent evolution of domestic production, as recorded in the technical report, reflects a change in the position of the domestic industry from net importer to exporter. Chile explains that, leaving aside 1998, during which imports were minimal, in 1999, when their recovery was already nearing completion, Argentina exported 6,878 tons and imported 6,601 tons. In Chile's view, this trend towards a more export-oriented position could be having an influence on the loss of market share adduced by the domestic industry.294 Climatic factors 4.119 As regards local climatic risks and integration of production, Chile contends that, according to the technical report, one element which has a direct impact on local output is the high climatic risk in the Mendoza area which affects the quantities, and hence the prices, of peaches available for the industry. The fact that the manufacturing industry has become closely integrated with the primary sector has meant that the manufacturing industry now has to assume the risks associated with the climate directly. This factor is of particular importance in determining the levels of competitiveness of the peach processing industry as well as its fixed costs, and could have a direct impact on the loss of market share adduced by CAFIM.295 As regards world climatic factors, Chile submits that, although between 1997 and 1998 there was a disruption in the historical levels of imports, the CNCE failed to take into consideration and evaluate the possible effect of this factor in its analysis. On the contrary, Chile claims, it makes its findings by comparing the situation of the domestic industry during 1999 and 2000 without considering the trends for those years in the context of a recovery of imports. As an example, Chile mentions that Greece's lower prices in 1999 and 2000 can be explained to a considerable extent by the fact that those years were preceded by two years of high prices due to the lack of supply of canned peaches and to the increase in exportable production.296 297 4.120 Argentina submits that, as regards the climatic factors, both domestic and international, these were evaluated in the context of Record No. 781 and the corresponding report. Firstly, it argues, the surplus harvest in Greece in the 1999/2000 season was reflected in the volumes and stocks available to be poured onto the export markets on top of the average values for the decade, as shown in the section on the evolution of international trade in preserved peaches (pages 46 to 72 of the technical report) containing tables reflecting the breakdown by country of the evolution of world production as well as exportable volume and stocks, based on USDA information. According to Argentina, these values show (technical report, page 59, Table No. 7) that in the case of the leading world exporter and supplier (Greece), available stocks in 1999 and 2000 were 152.25 per cent and 173.27 per cent higher, respectively, than the average for the whole period 1990/2000. In its view, these stocks, in a context such as the Argentine one in which consumption of preserved peaches was growing during the period under analysis while import prices were falling steadily (technical report, Table No. 16, page 1484) to the point where imports were systematically marketed at prices lower than domestic prices - by up to 20 per cent in 1999 and 2000 - and with domestic production increasing until 1999, cannot in any way be considered part of the normal cycle of recovery of the sector - in fact, they constitute a threat of injury scenario.298 4.121 Argentina considers that Chile's argument is biased and partial, in that it takes no account of the difference in context between the 1995/96 period and the 1999/00299 whilst, at the same time, even Chile could not but acknowledge the importance of Greece in world trade in preserved peaches300, and hence Greece's capacity to influence the world cycle, particularly prices, with its enormous production capacity and above all, its export capacity.301 In Argentina's view, this can be seen in the enormous diversity of f.o.b. price quotations for Greek peaches depending on the market of destination, the quotation for the Argentine market being, in 1999, among the lowest, a fact which explains the increase in exports during 2000.302 Argentina submits that Chile's claim is without foundation given the fall in Argentine production in 2000 of 12 per cent in the context of growth in apparent consumption over the previous year.303 As regards company strategy in this sector during the 1990s, Argentina replies304 that there was an extensive adjustment that enabled these companies to reduce climatic risks while ensuring a more reliable supply of raw materials, through technical improvements and vertical integration with the primary sector. Argentina submits that Chile itself admits that Argentina improved its competitive capacity, as demonstrated beyond question by the evolution of production costs for peaches.305 306
4.122 Chile claims that there are various factors which are not reflected in the technical report, such as the devaluation of the euro against the dollar and the Argentine economic situation which should have been analysed by the CNCE. Devaluation of the euro against the dollar 4.123 Chile observes that, as soon as the euro was introduced in 1999, it began to devalue against the dollar (as did the drachma in Greece, which adopted the euro in January 2000). Chile indicates that, coupled with the dollarization of the Argentine peso until recently, this could reasonably be seen to have had an influence on the rate of recovery of imports of preserved peaches from the European Union, particularly Greece. To Chile, it follows that this factor could have been linked to the loss of market share adduced by the domestic industry.307 4.124 Argentina responds that, first of all, regardless of whether or not there was an analysis of this variable, it should be recalled that in normative terms, the evolution of the exchange rate, particularly if the resulting competitive improvement is sustained over time, does not preclude the legitimate right of a country to adopt the necessary measures to protect its industry which could otherwise be seriously impaired. In Argentina's view, although obvious, it bears recalling that a safeguard is a mechanism that is activated in conditions of fair competition in response to an objective situation of competitive difference where there is injury or threat of injury to the domestic industry. Argentina adds that the fact that the situation may be the result of a technological improvement, the accumulation of inventories, production shocks or whatever in no way changes the situation as regards the justification of the measure, provided all of the relevant factors have been properly evaluated. Secondly, Argentina argues, in macroeconomic terms, it is a well-known fact that the effects of a devaluation are never immediate, particularly in the case of primary products whose production is distinctly seasonal. In other words, when it comes to explaining the surplus harvest in Greece and the historical accumulation of stocks, Greek overproduction precedes the devaluation in causal terms. Moreover, Argentina insists, the values referred to by Chile are purely nominal, i.e. they do not reflect the effective exchange rate (net of the relevant inflation index and possible export taxes).308 Argentine economic situation 4.125 Chile claims that the CNCE completely avoided recording and examining the Argentine economic situation. Indeed, Chile argues, towards the end of 2000, Argentina's level of indebtedness, both private and State, was extremely high and there was a general default on payments and decline in the purchasing power of the various economic intermediaries, a situation that did not spare the domestic preserved peaches industry. In view of this situation of imminent economic crisis, Chile claims that it is difficult to understand why the CNCE completely avoided recording and examining this factor in its investigation for the purposes of analysing the possible reasons for the domestic industry's loss in market share.309 4.126 Argentina responds that imports at decreasing, and, relatively speaking, low prices, introduced a substitution effect at the consumption-related stage of the product's cycle. Argentina explains that the fall in imports in 1998 due to the influence of climatic factors, and the subsequent stage, involving a recovery followed by progress beyond historical values, took place in a context in which the production situation in the preserved peaches sector in Argentina was changing and consumption was affected by a high rate of price-induced substitution. On this basis, Argentina submits, it was found that the effect of the economic recession in Argentina was not a factor in the deterioration of the sector as Chile claims, but that the chain of negative effects for a sector whose production was undergoing adjustment was initiated and aggravated by the presence of a volume of low-price imports.310
4.127 Chile considers that, as stated in the file of the investigation, most, if not all, of the threat of injury factors which the CNCE may or may not have invoked in support of its threat of injury finding, point to the exact opposite. According to Chile, those factors were either negative before the recovery of imports during 1999 and 2000, or evolved positively when the recovery took place, or suffered only a very small decline in 2000, or did several of the above at the same time.311 4.128 According to Chile, the annual production capacity of preserved peaches for companies in the survey list totalled 38,110 tons in 1997 and 44,430 tons in 1998. During the years that followed, in which the CNCE describes a sharp and unforeseen increase in imports, production capacity rose to 51,010, and 53,130 respectively. Chile further indicates that the degree of utilization of production capacity for the companies in the survey list was 71 per cent in 1997 and 73 per cent in 1998, while in the two following years it reached 88 per cent and 73 per cent respectively. It adds that the profitability (net result/total assets) of the companies in the survey list rose at the end of the period when imports began to recover, and fell when imports were interrupted. Examples of the former are La Colina: with an increase from 2 per cent in 1999 to 3 per cent in 2000, and IAM, which remained at 4 per cent from 1998 to 2000. An example of the latter is Cartellone, with a profitability of close to 0 per cent in 1997, falling to minus 2 per cent during the year in which the disruption reached its peak (1998), and remaining negative up to 2000. In the case of Benvenuto, profitability was at 9 per cent during 1997, falling to 6 per cent during the following year and remaining at 5 per cent during 1999 and 2000. As regards the apparent consumption of preserved peaches of Argentine origin for 1999 and 2000, when the CNCE claims that there was a sharp and unforeseen increase in imports, they totalled 55,763 tons for 1999 and 55,020 tons for 2000. However, these are CNCE estimates made without any explanation of the methodology used. Chile adds that the figures provided by CAFIM were 55,763 tons for 1999 and 32,774 tons for 2000. Chile argues that, if we compare 1998 and 2000 on the basis of the CNCE estimate, we find that in 1998, when imports were at a minimum, and in 2000, when growth in apparent domestic consumption was 17,383 tons: imports (adjusted for inventories) increased by 7,308 tons, and sales of the domestic product increased by 10,075 tons. As regards the employment level in the peach production sector, Chile sustains that it increased by 18 per cent in 1999, decreasing slightly (by 4 per cent) in 2000.312 According to Chile, this shows that there is no causal link between the upward trend of imports during 1999 and 2000 (recovery) and the alleged threat of injury claimed by CAFIM and found by the CNCE.313 4.129 Chile maintains that the concept of serious injury or threat of serious injury in Article 5.1 of the Agreement on Safeguards is the same as that which appears in Article 4. Chile claims that, with respect to Article 4.2(b) in particular, the safeguard measure that is imposed must necessarily be proportionate to the injury or threat of injury attributable to the increase in imports that the competent authorities have adequately determined on the basis of an objective examination of the causal link.314 Chile submits that, bearing in mind that Argentina failed to comply with its obligations under Article 4.2(b) of the Agreement on Safeguards, the measure at issue can also be presumed to violate Article 5.1.315 316 Chile further argues that, without prejudice to the above, the facts show that the measure, its level and the way it was formulated, went beyond and continues to go beyond the extent necessary to prevent the alleged threat of serious injury and facilitate adjustment. The specific duty imposed is so out of proportion that it is tantamount to an import prohibition. This is confirmed by the fact that since the application of the provisional safeguard measure, to date, Argentina has not imported any preserved peaches from Chile or indeed any other country.317 4.130 Argentina submits that Chile is confining itself to dogmatic statements to the effect that the measure does not meet the requirements of Article 5.1 of the Agreement on Safeguards. Argentina submits that, contrary to what Chile maintains, it has shown that it complied with the requirements of Article 4 of the Agreement on Safeguards.318 Argentina also refers to Chile's statement to the effect that Argentina has failed to comply with Article 5.1 of the Agreement on Safeguards because the measure, consisting of the application of specific duties, went beyond the extent necessary to prevent the threat of serious injury and to facilitate adjustment.319 Argentina responds that Chile substantiates this statement by merely indicating the amount of the specific duties and their share of the percentage of customs duties applied to Chilean exports, and maintaining, without further explanation, that this amounted to an import prohibition. In this connection, Argentina points out that in accordance with Article 2.2 of the Agreement on Safeguards, a safeguard is applied to a product being imported irrespective of its source.320 4.131 Chile replies321 that the concept of serious injury (including threat of serious injury) used in Article 4.2(b) of the Agreement on Safeguards is the same as the concept used in Article 5.1. Consequently, Chile argues, if the CNCE made no analysis enabling it properly to attribute the alleged threat of serious injury to an alleged increase in imports, it is impossible for that authority to have determined and known what was the extent necessary to prevent that threat and to facilitate adjustment. Chile stresses that the mere fact of having demonstrated that the CNCE did not comply with its obligations under Article 4.2(b) of the Agreement on Safeguards establishes a presumption or a prima facie case that the Argentine measure in turn violated Article 5.1 of the said Agreement.322 In Chile's view, this prima facie case or presumption is not in any way rebutted by Argentina.323 4.132 Argentina considers that, as argued by the United States in its third party submission in this dispute, even if Argentina had acted inconsistently with Article 4.2(b) of the Agreement on Safeguards, that does not justify the presumption that the said inconsistency automatically entails non-compliance with Article 5.1 of the Agreement on Safeguards.324 In this connection, Argentina points out that, where such a presumption exists under the WTO Agreements, it is explicitly indicated.325 In response to question No. 22 of the Panel326, Argentina explained that the views of Chile and the European Communities are based on the Appellate Body Report in US - Line Pipe. In Argentina's view, the circumstances of that dispute do not match the circumstances of this case since the conclusions of the Appellate Body in that case are based on the circumstance that the United States had not acted in conformity with Article 4.2(b) of the Agreement on Safeguards, nor had it refuted that claim. Argentina submits that neither of these two elements of this precedent apply to this case, since Chile has not demonstrated that Argentina violated Article 4.2(b) of the Agreement on Safeguards and Argentina has refuted that claim. 4.133 Chile insists that the "serious injury" referred to in Article 4.2 and the "serious injury" referred to in the first sentence of Article 5.1 are the same. In its view, the principle of non-attribution established in Article 4.2(b) has two purposes: (i) it seeks to ensure that in situations in which there are various factors causing injury at the same time, the competent authorities do not infer the required "causal link" between alleged increased imports and an alleged threat of serious injury or actual serious injury on the basis of the injurious effects of factors other than the said increased imports; and (ii) it serves as a criterion for ensuring that only an appropriate share of the overall injury is attributed to alleged increased imports. According to Chile, it is precisely this second purpose that determines the circumstances in which it is acceptable to apply a safeguard measure under the first sentence of Article 5.1. Thus, Chile concludes, if the complainant demonstrates that the respondent violated Article 4.2(b) of the Agreement on Safeguards, it establishes a prima facie case of violation of the obligation imposed by the first sentence of Article 5.1.327 4.134 Chile observes that, in its reply to question No. 9 of the Panel328, Argentina points out that at the time of the investigation and the adoption of the safeguard measure, Chile was paying a tariff of 11.5 per cent because it had a preference of 30 per cent under Economic Complementarity Agreement No. 35. Chile contends that this reply is entirely wrong. It explains that on 18 January 2001, when Argentina applied the provisional safeguard measure consisting in a specific duty of US$0.50 per kg. net imported, Chile did in fact pay a tariff of 11.5 per cent in view of its tariff preference. However, during the investigation that was under way and prior to the imposition of the definitive safeguard measure, the tariff increased from 16.5 per cent to 30 per cent, finally settling at 28 per cent. Thus, the tariff paid by Chile was 19.6 per cent considering the tariff preference. It was only in March 2002 that Argentina restored the tariff to its original level of 16.5 per cent (11.5 per cent for Chile).329 Thus, Chile concludes, the specific duties applied under the safeguard measure, combined with Chile's tariff situation as described above and the tariff situation of the member States of the European Communities, almost automatically spelled the total elimination of outside competition for preserved peaches in the Argentine market. 4.135 Also in its Rebuttal, Chile claims that it has not made any dogmatic statements to demonstrate that the safeguard measure went beyond the extent necessary to prevent the alleged threat of serious injury and facilitate adjustment.330 Chile submits that it has explained and provided evidence of how the minimum specific import duty applied with the safeguard led to a situation where since its provisional imposition, the flow of exports of the product under investigation to Argentina from the main origins, Chile and Greece, has halted completely.331 In any case, Chile argues, if Argentina is of the opinion that this statement is dogmatic and not true, it should provide the Panel with official information showing the contrary.332 4.136 Argentina stresses that the application of the safeguard measure complies with the requirement set forth in Article 5.1 of the Agreement on Safeguards in that it is applied only to the extent necessary to prevent or remedy the serious injury and facilitate adjustment. Indeed, Argentina explains, imports rose from 3,568 tons in 1998 to 7,271 tons in 1999, and then to 12,181 tons in 2000. In relative terms, these volumes represented annual increases of 103.7 per cent and 68 per cent respectively. Furthermore, it adds, if one analyses imports in volume as a percentage of domestic production, we note a sharp increase of 10 per cent between 1999 and 2000. Likewise, the growth rate for that indicator (imports as a percentage of production) reached 90 per cent for 2000 as compared to 1999. One must also take account of the price of the imported product in relation to the price of the domestic product (US$1.081). If one bears this factor in mind, one can see that the application of the safeguard measure was appropriate (US$0.50). If the amount of the specific duty under the safeguard measure had been less, the application of the measure would not have had any effect on imports. The price of Greek peaches, once the safeguard duty is deducted, is US$0.654. In the light of these circumstances, Argentina claims that it is easy enough to understand the rationality of the measure, which provides for a liberalization period involving a percentage reduction of the measure. The reduction is of 10 per cent for the year following the base year and 20 per cent for the last year. Finally, Argentina notes that pursuant to Article 2.2 of the Agreement on Safeguards, a safeguard measure is applied irrespective of the origin of the product.333 4.137 Chile claims that it does not emerge from the file of the investigation "published"334 by the competent authorities (the Record No. 781 and the technical report) that the CNCE made adequate and sufficient findings on all the pertinent issues of fact and law which, pursuant to Article XIX of the GATT 1994 and the Agreement on Safeguards, must be investigated, analysed, established, found and verified, as provided in the final part of Article 3.1 of the Agreement. Consequently, in Chile's view, the safeguarded measure imposed by Argentina violates its obligations under that Article.335 4.138 Argentina replies that Chile appears to be confusing the obligation to publish a report setting forth the findings and reasoned conclusions reached on issues of fact and law with the substantive elements in Articles 2 and 4 of the Agreement on Safeguards which must be established in order to apply a measure. Argentina understands that the inconsistency of a measure with the substantive requirements of the Agreement on Safeguards cannot also be claimed under Article 3.1 of the Agreement on Safeguards vis-�-vis the substantive requirements imposed by the Agreement on Safeguards for the application of a measure. Argentina therefore considers that in accordance with its detailed analysis, the CNCE made adequate and sufficient findings on all pertinent issues of fact and law which, pursuant to Article XIX of the GATT 1994 and the Agreement on Safeguards, must be investigated, analysed, established, found and verified, as provided in the final part of Article 3.1 of the Agreement.336 4.139 Argentina explains that, for example, the CNCE began by addressing the issue of the like or directly competitive product.337 With equal care, it analysed the domestic industry338, the evolution of imports339 and the conditions under which the imports occurred.340 As regards the situation of the industry and serious injury, the CNCE reached its conclusion on threat of serious injury to the domestic industry on the basis of an evaluation of each and every one of the factors listed in Article 4.2(a) of the Agreement on Safeguards as well as all of the other relevant factors of an objective and quantifiable nature having a bearing on the situation of that industry.341 Similarly, the CNCE evaluated the causal link between the increased imports and the serious injury or threat of serious injury to the domestic industry.342 Thus, Argentina submits, the report published by the competent authorities, i.e. Record No. 781 of the CNCE and the technical report, clearly reveals that the investigating authority examined all of the pertinent information, including the conclusions reached on increased imports under such conditions, the like product, the domestic industry, the analysis of factors, threat of serious injury, causal link and unforeseen developments.343 4.140 Argentina notes that Chile appears to disregard the verifications conducted during the proceedings of which, as an interested party in the investigation, it took cognizance at the appropriate procedural stage without the slightest comment. Indeed, Argentina argues, it is untrue that "the CNCE based its conclusions on information supplied by part of the domestic industry without investigating or verifying � ". Argentina stresses that Chile's involvement in the procedure was in fact very limited. It further adds that both the Record and the technical report contain explanations of the methodologies used by the CNCE.344 4.141 In response to question No. 1 of the Panel345, Chile submits that for a Member to comply with the obligation imposed by the final part of Article 3.1 of the Agreement on Safeguards, it is not enough for the report merely to mention the determinations reached by the competent authority. In Chile's view, it must also explicitly establish, through a reasoned and adequate explanation, how the facts investigated support each one of those determinations. Otherwise, Chile argues, the Agreement on Safeguards would not require the findings to be accompanied by "reasoned conclusions". Moreover, a Member must set forth its findings and reasoned conclusions reached on all pertinent issues of fact and law which, according to Article XIX:1(a) and the Agreement on Safeguards, must be considered, evaluated and demonstrated before that Member has the right to apply a safeguard measure, and must explain why it did not evaluate the factors it failed to consider or analyse. Chile considers that, for the purposes of requesting a finding of inconsistency of the Argentine measure with Article 3.1 of the Agreement on Safeguards, it was enough to submit a claim based exclusively on that Article since it has a principal and general status with respect to Article 4.2(c). 4.142 As regards the documents constituting the "report" that the competent authorities must publish for the purposes of Article 3.1 of the Agreement on Safeguards, Chile contends that whatever the documents the said authorities decide to publish, the fact is that they must, one way or another, set forth all of the findings and "reasoned conclusions" reached on "all pertinent issues" of fact and law. Chile also responds that, on the basis of what appears in the Annex to Record No.781, which is the part in which the CNCE directors record their analysis of the facts investigated and present their findings, it is clear that the investigating authority did not comply with the final part of Article 3.1 of the Agreement on Safeguards, since it does not set forth all of its findings and "reasoned conclusions" reached on "all pertinent issues" of fact and law. It further contends that, although theoretically, the investigating authority is only supposed to investigate and record facts, while a decision-making authority is supposed to evaluate those facts and make conclusions and findings, in the case at issue, the technical report contains a series of determinations which presuppose a prior analysis of the facts investigated. Chile indicates that it has undertaken to point out these determinations and to show that they are not supported or substantiated by any reasoned and adequate explanation.346 4.143 In response to questions Nos. 1 to 3 of the Panel347, Argentina explains that the publication requirement of Article 3 of the Agreement on Safeguards starts with the initiation of the investigation, when the initiation itself is made public through notification in the Official Bulletin of the Republic of Argentina of the corresponding administrative act of the competent implementing authority introduced by a resolution, in this particular case Resolution ME No. 39 of 12 January 2001, published in the Official Bulletin of 18 January 2001. Consequently, Argentina argues, regardless of the specific communications by the authorities to those that may be interested in the investigation, such as the producers, importers, exporters, etc., the actual publication in the Official Bulletin constitutes an act which is in itself considered to be of general public knowledge in accordance with explicit provisions under Argentine law. Thus, any natural or legal persons who consider that they have a legitimate interest in the investigation may invoke that interest and appear during the investigation with a view to defending such rights as they consider to be theirs. Similarly, Law No. 19,549 (Law on Administrative Procedure of the Republic of Argentina) which, together with Regulatory Decree No. 1059/96, regulates the treatment of applications for safeguard measures, stipulates that interested parties shall have access to all information contained in the file, except such information as may be treated as "confidential", and all parties shall also be supplied information by the implementing authority when the hearings provided for under the same legislation take place.348 4.144 Argentina explains that, once the investigation has been completed, also in strict compliance with Article 3, the competent implementing authority 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, which in the case at issue is Ministry of the Economy Resolution No. 348/2001 of 6 August 2001, published in the Official Bulletin of 7 August, considering the different reports or determinations issued by the competent authorities in accordance with the prerogatives granted by the legislation in question, 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.349 4.145 Argentina explains that Record No. 781, with its Annex, constitutes a single instrument, and is the injury determination of the implementing authority - the CNCE - which is based on the technical report. The technical report, as its name suggests, contains all of the objective data and information gathered during the investigation. The CNCE, when it adopts its decision, takes account both of the file of the investigation, made up, in this case, of 2,999 pages, and the technical report, and hence these two documents are integrated.350 Record No. 781 and its Annex, made up of five parts, constitute the CNCE's determination, added to which, there is the technical report with the scope described above, plus the 12 sets of documentation and three annexes making up the 2,999 pages covering the proceedings pertaining to the case.351 4.146 Chile argues that if one examines what it has called the "file of the investigation", particularly Record No. 781 and its Annex, which contain the recommendations, conclusions and findings of the CNCE Board members, one finds that the said decision-making authority fails to establish explicitly, through reasoned and adequate explanations, how the facts investigated support each and every one of its determinations. Similarly, one finds that the said authority failed to set forth its findings and reasoned conclusions reached on all issues of fact and law which, according to Article XIX:1(a) and the SA, must be evaluated and demonstrated before the Member in question has the right to apply a safeguard measure.352 4.147 Furthermore, Chile argues that Argentina, both in its first written submission and its first oral submission, states that the report of the competent authorities to which the final part of Article 3.1 refers consists of Record No. 781 of the CNCE and the ITDF. Chile notes that notwithstanding these statements Argentina states in its rebuttal submission that the report of the competent authorities to which Article 3.1 of the Agreement on Safeguards refers is not the said file, but Ministry of the Economy Resolution No. 348/2001. For Chile, the Panel need only skim through Resolution No. 348/2001 to see that it violates the obligations laid down in the final part of Article 3.1 even more seriously than the "file of the investigation". According to Chile, the content of that Resolution is even more deficient than the content and tenor of the "file of the investigation", particularly Record No. 781 and its Annex. Chile argues that, with respect to those two documents, throughout these proceedings Chile has produced sufficient arguments and evidence, unrefuted by Argentina, to show a clear violation of Article 3.1 owing to: (i) the failure to explain, in a reasoned and adequate manner, how the facts investigated support each one of the determinations (explicit justification of the determinations); and (ii) failure to set forth the findings and reasoned conclusions reached on all issues of fact and law which, according to Article XIX:1(a) and the Agreement on Safeguards must be considered, evaluated and demonstrated before a Member has the right to apply a safeguard measure.353 In this regard, Chile insists that its claim has nothing to do with whether or not the Argentine competent authorities published a report in conformity with the obligations laid down in Article 3.1. For Chile, the basis for its claim is the fact that the content of the said report does not comply with the requirements of the final part of that Article.354 4.148 Chile submits that if one follows the precedent established in the Appellate Body report in Korea - Dairy, Argentina's notifications violate the second paragraph of Article 12 of the Agreement on Safeguards because they fail to provide evidence substantiating the finding of an alleged threat of serious injury caused by alleged increased imports, and they do not provide all of the pertinent information.355 In response to question No. 59 of the Panel356, Chile confirmed that Chile considers that the notification must refer to all factors listed, at a minimum, in Article 4.2(a) of the Agreement on Safeguards. 4.149 Argentina submits that its notifications to the Committee on Safeguards under Article 12.1(b) and 12.1(c) of the Agreement on Safeguards were made in conformity with Article 12.2 and Appellate Body precedent. It argues that the Argentine notification provided "all pertinent information" under Article 12.2, including evidence of threat of serious injury caused by increased imports as well as a precise description of the product involved, with an adequate definition of the like product and the domestic industry, and an analysis of the factors.357 4.150 Chile contends that, from its notifications to the Committee on Safeguards358, it would appear that Argentina merely provided an excerpt from the Annex to the Record containing the remarks of the CNCE directors that voted in favour of imposing the measure. The notifications also included Resolution No. 348/2001 of the Argentine Ministry of the Economy closing the investigation and imposing the safeguard. However, Chile argues, the notifications were not accompanied by any material evidence substantiating the cited remarks or the findings referred to in that Resolution; nor do these notifications contain all of the information pertinent to a determination of threat of injury. Chile specifies that the notifications do not make any reference to all of the relevant factors which, according to Article 4.2(b) of the Agreement on Safeguards must be evaluated, at a minimum, by the competent authorities. According to Chile, the only factors indicated in the notifications, but without any material evidence substantiating them, are "the rate and amount of the increase in imports of the product concerned in absolute and relative terms", "the share of the domestic market taken by increased imports", "changes in the level of sales" and "profits and losses".359 4.151 Argentina responds that in its notifications to the Committee on Safeguards, by "merely provid[ing] an excerpt from the Annex to the Record containing the remarks of the directors of the CNCE that voted in favour of imposing the measure" as claimed by Chile, it acted in conformity with Article 12.2.360 361 In Argentina's view if, when it comes to establishing the conformity of the process by which it is decided to apply a safeguard measure, it is not necessary for the required evaluation to be identical to the evaluation conducted by the national authority in assessing and applying Articles 2 and 4 of the Agreement, this threshold or congruity is even less applicable in cases of the kind covered by Article 12, in which a determination of injury or a threat thereof is not even involved. Argentina explains that the notification requirement in Article 12 is the first step in a process of transparency that can continue with a review by the Committee on Safeguards and eventual bilateral consultations with other Members that may have been affected.362 Argentina submits that, in conformity with Article 12.2 of the Agreement on Safeguards, the Argentine notification includes, in addition to the evidence of serious injury or threat thereof caused by increased imports, a precise description of the product involved and the proposed measure, the proposed date of introduction, the expected duration and the timetable for progressive liberalization.363 In response to question No. 59 of the Panel364, Argentina indicates that it considers that the notification must refer to the injury factors set forth in Article 4.2(a) of the Agreement on Safeguards. However, Argentina adds, this minimum requirement does not imply that the evidence of threat of serious injury must include all of the details of the recommendation and the reasoning applied and set forth in the competent authority's report. According to Argentina, the Argentine notification includes precise data on employment, productivity and capacity utilization. 4.152 Regarding Chile's claims to the effect that the Argentine notifications did not contain all of the pertinent information and that the factors indicated in the notifications were not supported by any material evidence365, Argentina infers from all of the statements of the various panels and of the Appellate Body that it was only required to refer to the items expressly mentioned in Article 12, and in relation to the item concerning "evidence of injury or threat of injury", to confirm in its notification that in determining injury or threat of injury, the national authority had evaluated all of the factors mentioned in Article 4.2(a). In this connection, Argentina claims that it is possible to show that Argentina not only made the notifications as required, but even went beyond what was required by reporting on the appraisal of the factors other than increased imports referred to in Article 4.2(b). In Argentina's view, one needs only to refer to document G/SG/N/8/ARG/4, G/SG/N/10/ARG/3, G/SG/N/11/ARG/3 of 23 July 2001, which contains a specific section on "Evidence of serious injury or threat thereof caused by increased imports". In accordance with paragraph 4.113 of Chile's submission366, that section of the Argentine notification under Article 12.1(b) of the Agreement on Safeguards provides data concerning the rate and amount of the increase in imports of the product concerned in absolute and relative terms, the share of the domestic market taken by increased imports, changes in the levels of sales, and profits and losses. Likewise, and contrary to what Chile states in paragraph 4.114 of its submission367, the Argentine notification also includes precise data on productivity, capacity utilization and employment.368 4.153 At the same time, and contrary to what Chile claims369, Argentina contends that the following section, entitled "Information on whether there is an absolute increase in imports or an increase in imports relative to domestic production (see also Article 12.1 for the context)", presents in detail, with the support of precise data and figures, the analysis conducted by the competent Argentine authorities of the evolution of imports substantiating the finding of threat of serious injury, and provides all of the pertinent information to that end.370 4.154 Chile replies that the best evidence that Argentina failed to comply with its obligations under Article 12.2 of the Agreement on Safeguards can be found in the merits of the actual notifications made to the Committee on Safeguards. In Chile's view, the inconsistency of the Argentine measure with that provision emerges from the Argentine defence itself. Chile observes where the Panel asks Argentina where the explicit references to each injury factor in the notifications are, Argentina merely states that they can be found in "Part I (Evidence of serious injury or threat thereof caused by increased imports) of document G/SG/N/8/ARG/4, G/SG/N/10/ARG/3 and G/SG/N/11/ARG/3 of 23 July 2001.371 However, Chile argues, Argentina does not substantiate its statement in any way, nor does it identify the serious injury factors allegedly referred to in Part I. Chile further indicates that Argentina's response to Chile's argument that it should have provided, together with its notification or in its notification, evidence to substantiate a finding of serious injury or threat thereof, was that this was not an obligation. However, Chile adds, it is according to Argentina itself that "the Argentine notification provided � evidence of threat of serious injury caused by increased imports � ".372 373
258 See Chile's first written submission, paragraph 4.100.
259
Chile refers to the Appellate Body Reports, US - Wheat
Gluten, paragraph 69 and US - Lamb, paragraph 177.
260 See Chile's first written submission, paragraph 4.74.
261
Chile refers to the Appellate Body Report, US - Line Pipe,
paragraphs 216 and 217.
262 See Chile's first written submission, paragraph 4.75.
See also Chile's First Oral statement, paragraph 39.
263 See Argentina's first written submission, paragraph
108.
264 See Chile's first oral statement, paragraph 42.
265 See Chile's first oral statement, paragraph 43. See
also Chile's rebuttal, paragraph 42.
266
Chile refers to the arguments by Argentina in paragraphs 108
to 127 of its first written submission and paragraphs 54 to 74 of its first oral
statement.
267 See Chile's rebuttal, paragraph 43.
268
See Chile's first written submission, paragraph 4.100.
269
See Chile's first written submission, paragraph 4.76.
270 See Chile's first written submission, paragraphs 4.77
to 4.78.
271
Argentina refers to the Appellate Body Report, US - Lamb,
paragraph 179.
272
Argentina refers to the Appellate Body Reports, US - Wheat
Gluten, paragraph 67; and US - Line Pipe, paragraph 209.
273
See Argentina's first oral statement, paragraphs 54 to
56.
274
Chile refers to paragraph 4.77 of its first written
submission and paragraphs 38 et seq. of its first oral statement. See
paragraph 4.108 of the present report.
275 See Chile's rebuttal, paragraphs 37 to 42.
276
See Chile's first written submission, paragraph 4.79.
277
Chile refers to paragraphs 109 to 127 of Argentina's first
written submission.
278 See Chile's first oral statement, paragraph 45
279 See Argentina's first written submission, paragraph
109.
280 See Argentina's rebuttal, paragraph 37.
281
In response to question No. 56 of the Panel ("Please refer
to paragraph 50 of Chile's written rebuttal. Does Chile allege that an
investigating authority must establish that products are being imported in
conditions of fair competition before it imposes a safeguard measure?"),
Chile explains that although the investigating authority is not required to
establish in its report whether products from a specific origin are being
imported in conditions of fair competition before it imposes a safeguard
measure, it must evaluate the characteristics of the imports from such origin
and the conditions in which they compete with the domestic product, as compared
with the characteristics and conditions of competition of imports from other
origins. An investigating authority can thus perfectly determine whether the
genuine and substantial cause of an alleged threat of injury is imports from one
origin in particular on the basis of the conditions in which they enter its
market. If the causal link is demonstrated by the facts under investigation, it
is not appropriate to impose a safeguard measure on imports in general, without
discrimination as to their origin. Moreover, if imports from one origin in
particular enter the country in conditions of unfair competition, the
appropriate measure would be an anti-dumping or countervailing duty. If those
imports were already subject to a countervailing duty but this failed to
effectively offset the effects of the subsidy, it would be appropriate to
increase that duty but not to impose a safeguard measure.
282 See Chile's first oral statement, paragraph 46.
283 See Chile's first oral statement, paragraph 48.
284
See Chile's rebuttal, paragraph 45.
285 See also Chile's response to question No. 20.a) of the
Panel ("Why does Chile assert that, in the view of Argentina and CAFIM, a
situation of unfair competition continued to exist despite the imposition of
countervailing measures?") and 20.b) ("Does Chile believe that the
imposition of countervailing measures on imports of certain products prevents
the imposition of safeguard measures on imports of the same products? If so, on
what basis?") of the Panel.
286 See Chile's rebuttal, paragraph 46.
287
Chile cites passages from pages 6 to 14 of the Annex to
Record No. 781 and from pages 32 to 91 of the technical report.
288
Chile refers to Table 15.3, to Charts 3, 4, 5.1 and 5.2,
Tables 16.1 and 16.2, Charts 6, 7.1, 7.2, 8.1, 8.2, Tables 17 and 18 and Chart 9
of the technical report.
289
Argentina refers to Exhibits ARG-II, ARG-III, ARG-IV, ARG-IX
and ARG-XI.
290
Argentina cites "These changes at the international level
have resulted in unforeseen and unexpected imports of the product under
investigation from different origins, with a growth in imports from the EU,
taking place under conditions such that although fair competition has been
restored through the application of countervailing duties, the increase has been
sharp over the past two years."
291
Namely, "Chile�s answer to question 20(c) indicates that
it believes that "the cause of the alleged threat of serious injury appears to
be imports from Greece in conditions of �unfair� competition". Could
subsidization of production in Greece have contributed to the threat of serious
injury to the Argentine industry? If not, why not? If so, where did the
competent authorities take it into account in their assessment of the causal
link between the increased imports and the threat of serious injury?".
292
See Chile's first written submission, paragraphs 4.82
to 4.87.
293
See Argentina's first written submission, paragraphs
110 and 111. See also Argentina's first oral statement, paragraph 57 and
58.
294
See Chile's first written submission, paragraphs 4.88
to 4.89.
295 See Chile's first written submission, paragraphs 4.90
to 4.92.
296
Chile refers to the analysis made by one of the directors who
voted against the application of the measure, Annex to Record No. 781, page 14,
paragraph 5.
297
See Chile's first written submission, paragraphs 4.93
to 4.94.
298
See Argentina's first written submission, paragraphs
112 to 115. See also Argentina's first oral statement, paragraphs 59 to
62.
299
See Argentina's first written submission, paragraph
116.
300
Argentina refers to paragraph 4.82 of Chile's first written
submission. See paragraph 4.116 of the present report.
301 See Argentina's first written submission, paragraph
117.
302
See Argentina's first written submission, paragraph
118.
303
See Argentina's first written submission, paragraph
119. See also Argentina's first oral statement, paragraphs 63 to 66.
304
Argentina refers to paragraph 4.91 of Chile's first written
submission. See paragraph 4.119 of the present report.
305
Argentina refers to Tables 10.1, 10.2, 10.3 and 10.4 of the
annex to the technical report; sheets 1452 to 1455.
306
See Argentina's first written submission, paragraphs
120 to 121. See also Argentina's first oral statement, paragraphs 67 to
68.
307
See Chile's first written submission, paragraph 4.95.
308 See Argentina's first written submission, paragraphs
123 to 124. See also Argentina's first oral statement, paragraphs 69 to
71.
309
See Chile's first written submission, paragraph 4.96.
310 See Argentina's first written submission, paragraphs
126 to 127. See also Argentina's first oral statement, paragraphs 72 to
74.
311
See Chile's first written submission, paragraph 4.97.
312
See Chile's first written submission, paragraph 4.97.
313
See Chile's first written submission, paragraph 4.99.
314
See Chile's first written submission, paragraph 4.104.
315 n response to question No. 23 of the Panel ("Does Chile
allege that the measure falls within Article 5.1, second sentence, of the
Agreement on Safeguards, which applies to quantitative restrictions? "),
Chile confirmed that it alleges that the Argentine safeguard measure violates
the first sentence of Article 5.1 of the Agreement on Safeguards.
316 See Chile's first written submission, paragraph 4.105.
317
See Chile's first written submission, paragraphs 4.106
to 4.108.
318
Argentina refers to paragraph 4.105 of Chile's first written
submission. See paragraph 4.129 of the present report.
319
Argentina refers to paragraphs 4.106 to 4.108 of Chile's
first written submission. See paragraph 4.129 of the present report.
320 See Argentina's first written submission, paragraphs
128 to 132. See also Argentina's first oral statement, paragraphs 75 to
80.
321
Chile refers to Argentina's arguments in paragraphs 128 to
132 of its first written submission. See paragraph 4.130 of the present
report.
322
Chile refers to the Appellate Body Report, US - Line Pipe,
paragraphs 249, 252, 261 and 262.
323
See Chile's first oral statement, paragraphs 56 to 57.
324
Argentina refers to paragraphs 17 to 20 and texts quoted
therein, of the United States' third party submission. See paragraph 5.27
of the present report.
325
See Argentina's first oral statement, paragraph 78.
326
Namely, " Could Argentina comment on the views of Chile,
the United States and the European Communities as to whether a violation of
Article 4.2(b) of the Agreement on Safeguards constitutes a prima facie case of
a violation of Article 5.1 of the Agreement on Safeguards? ".
327
See Chile's rebuttal, paragraphs 54 to 55.
328
See footnote 36 of the present report.
329
Chile refers to footnotes 52 and 53 to its first written
submission.
330
Chile is refuting Argentina's statements to this end in
paragraph 128 of its first written submission. See paragraph 4.130 of the
present report.
331
Chile refers to paragraphs 4.107 to 4.108 of its first
written submission, and Exhibits CHL-9, CHL-10 and CHL-11. See paragraph
4.129 of the present report.
332
See Chile's rebuttal, paragraph 58.
333
See Argentina's second oral statement, paragraphs 63
to 68.
334
In footnote 55 of its first written submission, Chile
explained that, although it was able to view the file of the investigation (CNCE
No. 94/00) containing Record No. 781 and its Annex as well as the technical
report and its Annex, and was able to obtain photocopies thereof, Argentina did
not publish a report setting forth its findings and reasoned conclusions - i.e.
conclusions explained in a reasoned and adequate manner - reached on all
pertinent issues of fact and law, and therefore violated the obligation imposed
by the last sentence of Article 3.1 of the Agreement on Safeguards.
Notwithstanding, for the purposes of this claim, Chile takes that file to be the
report "published" by the competent authorities.
335
See Chile's first written submission, paragraph 4.109.
336
See Argentina's first written submission, paragraphs
133 to 136. See also Argentina's first oral statement, paragraphs 81 to
84.
337
Argentina refers to the Annex to Record No. 781, pages 2, 3
and 4, and corresponding analysis in the technical report.
338
Argentina refers to the Annex to Record No. 781, pages 4 and
5, and corresponding analysis in the technical report.
339
Argentina refers to the Annex to Record No. 781, pages 6 and
7, and corresponding analysis in the technical report.
340
Argentina refers to the Annex to Record No. 781, pages 9 and
10, and corresponding analysis in the technical report.
341
Argentina refers to the Annex to Record No. 781, pages 7 and
8, and corresponding analysis in the technical report.
342
Argentina refers to the Annex to Record No. 781, pages 10 and
11, and corresponding analysis in the technical report.
343
See Argentina's first written submission, paragraphs
137 to 138. See also Argentina's first oral statement, paragraphs 85 to
86.
344
See Argentina's first written submission, paragraphs
140 to 141. See also Argentina's first oral statement, paragraphs 88 to
89.
345
Namely, " Which documents constitute the report that the
competent authorities must publish for the purposes of Article 3.1 of the
Agreement on Safeguards, and the detailed analysis that they must publish for
the purposes of Article 4.2(c) of the Agreement on Safeguards? Is there any
relevant legislative provision?".
346
See Chile�s response to question No. 1 of the Panel.
See footnote 345 of the present report.
347
For question No. 1, see footnote 345 of the present
report. Question No. 2, " How was the investigation carried out by the
competent authority? Which documents comprise the file of the competent
authority?" and question No. 3, " Can factual information in the
technical report and its Annexes, which does not appear in Acta 781 or the
Annexed 15 page Expediente, constitute a finding or reasoned conclusion for the
purposes of Article 3 of the Agreement on Safeguards? If so, how?".
348
See Argentina's response to questions Nos. 1 to 3 of
the Panel. See also Argentina's second oral statement, paragraphs 69 to
72.
349
See Argentina's response to questions Nos. 1 to 3 of
the Panel. See also Argentina's second oral statement, paragraph 73.
350
See Argentina's second oral statement, paragraph 74.
351
See Argentina's response to questions Nos. 1 to 3 of
the Panel. See also Argentina's second oral statement, paragraph 75.
352 See Chile's rebuttal, paragraph 65.
353
See Chile's second oral statement, paragraphs 6 to 9.
354
See Chile's second oral statement, paragraph 10.
355
See Chile's first written submission, paragraph 4.116.
356
Namely, "In paragraph 4.114 of its first written
submission, Chile claims that Argentina's notifications did not include three
particular factors. Do the parties believe that the notification must refer to
all factors listed in Article 4.2(a) of the Agreement on Safeguards? Does
document G/SG/N/8/ARG/4, section 1, fifth bullet, refer to employment and
productivity? Does it make any reference to capacity utilization?".
357
See Argentina's first written submission, paragraphs
144 and 145. See also Argentina's first oral statement, paragraphs 92.
358
In footnote 56 to its first written submission, Chile refers
to Documents G/SG/N/8/ARG/4, G/SG/N/10/ARG/3,
G/SG/N/11/ARG/3, G/SG/N/8/ARG/Corr.1, G/SG/N/10/ARG/2/Corr.1,
G/SG/N/11/ARG/2/Corr.1, G/SG/N/8/ARG/4/Suppl.1, and G/SG/N/10/ARG/3/Suppl.1. In
response to question No. 24 of the Panel ("Can
Chile confirm the document references for the notifications by Argentina to the
WTO Safeguard Committee that it challenges?"), Chile points out a mistake in the listing of
documents since the corrigendum identified as
G/SG/N/8/ARG/Corr.1, G/SG/N/10/ARG/2/Corr.1, G/SG/N/11/ARG/2/Corr.1
in its first written submission does not refer to the measure challenged in this
dispute.
359
See Chile's first written submission, paragraphs 4.111
to 4.114.
360
Argentina refers to the interpretation of this obligation in
the Appellate Body Report, Korea - Dairy.
361
See Argentina's first written submission, paragraphs
145 to 149. See also Argentina's first oral statement, paragraphs 93 to
97.
362
See Argentina's first written submission, paragraphs
150 to 152. See also Argentina's first oral statement, paragraphs 98 to
100.
363
See Argentina's first written submission, paragraph
158. See also Argentina's first oral statement, paragraph 106.
364
See footnote 356 to the present report.
365
Argentina refers to paragraphs 4.112 and 4.113 of Chile�s
first written submission. See paragraph 4.150 of the present report.
366
See paragraph 4.150 of the present report.
367
See paragraph 4.150 of the present report.
368
See Argentina's first written submission, paragraphs
153 to 156. See also Argentina's first oral statement, paragraphs 101 to
104.
369
Argentina refers to paragraph 4.116 of its Chile's first
written submission. See paragraph 4.148 of the present report.
370
See Argentina's first written submission, paragraph
157. See also Argentina's first oral statement, paragraph 105.
371
Chile refers to Argentina's response to question No. 25 of
the Panel ("Where are there explicit references to each injury factor in the
notifications?").
372
Chile refers to paragraphs 92 and 101 of Argentina's first
oral statement. See paragraphs 4.151 and 4.152 of the present report.
373
See Chile's rebuttal, paragraphs 67 to 70.
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