4. conduct of the investigation and final affirmative determination

7.231 Brazil's Claim 23 concerns the DCD's failure to make freight cost adjustments to the normal value of both Sadia and Avipal. Brazil claims that Argentina violated Article 2.4 of the AD Agreement because the DCD failed to adjust Sadia and Avipal's normal value for freight costs reported by those exporters. Brazil asserts that the freight cost adjustment was claimed by Sadia in Annex VIII, Section C of its questionnaire response of 20 April 1999. Brazil asserts that Avipal claimed a freight cost adjustment in its supplementary questionnaire response dated 21 December 1999.

7.232 Argentina asserts that the DCD did not make the freight adjustment requested by Sadia because the adjustment was not sufficiently proven. In particular, freight costs were not stipulated in the sample invoices submitted by the exporter, nor otherwise properly documented. Instead, Sadia merely submitted a figure representing average freight costs over an extended period of time, rather than transaction-by-transaction freight costs. In this regard, Argentina provided the following response to Question 81 from the Panel:

7.233 Argentina asserts that Avipal�s request for a freight cost adjustment was made too late in the proceedings, was not accompanied by supporting documentation, and was not provided with the proper Spanish translation.

7.234 Brazil's claim concerns the DCD's failure to make freight cost adjustments to the normal value of both Sadia and Avipal. Brazil's claim is based on Article 2.4 of the AD Agreement, which provides in relevant part that:

7.235 As noted by the panel in Argentina - Ceramic Tiles, "Article 2.4 places the obligation on the investigating authority to make due allowance, in each case on its merits, for differences which affect price comparability�".¹⁷⁹ Argentina has not argued that it would not have been appropriate in principle to make the adjustment for freight costs. This is entirely reasonable, since it seems to us that under normal circumstances there is an obvious inconsistency with Article 2.4 if an investigating authority compares f.o.b. export prices with "delivered" domestic prices, because such a comparison would not be made at the same level of trade. We shall now examine the reasons why, according to Argentina, the DCD was entitled not to make the freight cost adjustment.

7.236 Regarding Sadia, Argentina asserts that it was entitled not to adjust for freight costs because Sadia reported its freight costs on an annualized basis, without supporting documentation. We see nothing in the DCD's questionnaire that would exclude specific forms of reporting, including �annualization�. Nor has Argentina identified anything in the questionnaire that would exclude such reporting. Since the questionnaire did not exclude �annualized� reporting, and since there is nothing on the record to explain why "annualized" reporting might be considered unreasonable, the fact that Sadia reported freight costs on an "annualized" basis is not sufficient reason for the DCD not to make any freight cost adjustment.

7.237 Regarding Argentina's argument that Sadia failed to submit supporting documentation for any freight cost adjustment, the Panel asked Argentina to "indicate precisely (page number, paragraph number, line number) where the investigating authority explained the reason for rejecting Sadia's request in its final determination, or in any other document prepared by the investigating authority at the time of its determination".¹⁸⁰ Argentina replied that "[t]he relevant explanation can be found in Section VIII.1.3.3.1 of the Report on Action Taken. In that report, the DCD identified the information that it would use for the determination of normal value, which did not include any adjustment for freight." In reviewing the relevant section of the DCD's final determination, we find no reference to Sadia's alleged failure to provide supporting documentation. Argentina's explanation is therefore ex post rationalization which we are bound to ignore in examining this claim. Although Argentina's reply to Question 82 seems to suggest that the absence of documentary evidence should be inferred from the fact that the DCD failed to make the freight cost adjustment requested by Sadia, there is no basis for us to make any such inference. There could be a any number of reasons why the DCD failed to make the adjustment requested by Sadia, and the purpose of this claim is to determine whether or not the DCD was entitled to do so.

7.238 In any event, we note that in response to Question 81 from the Panel, Argentina acknowledged¹⁸¹ that at least one sales invoice supplied by Sadia referred to freight charged to "emitente", i.e., the supplier.¹⁸² Thus, Sadia had supplied some documentary evidence in support of its request for a freight cost adjustment, since the relevant invoice clearly indicated that freight costs were incurred by the supplier, i.e., Sadia, and not the customer. In light of the requirement in Article 2.4 that investigating authorities make due allowance, in each case on its merits, for differences which affect price comparability, we consider that this documentary evidence should have caused the DCD to seek further clarification from Sadia on this issue. The documentary evidence was in any event sufficient to prevent the DCD from concluding that Sadia had failed to provide any supporting evidence for its freight cost adjustment. On the contrary, there was documentary evidence on the record indicating that Sadia did incur freight costs in respect of domestic sales. We are therefore not persuaded by Argentina's justification for not accepting Sadia's request for a freight cost adjustment.

7.239 Regarding Avipal, Argentina submits that its request for a freight cost adjustment was rejected because it was not supported by documentary evidence, was not fully translated into Spanish, and was tardy. Concerning the issues of translation and tardiness, we find no reference to such considerations in the DCD's final determination. Nor has Argentina provided us with any evidence from the time of the DCD's determination to suggest that such factors caused the DCD to reject Avipal's request for a freight cost adjustment. In the absence of such evidence, Argentina's arguments concerning translation and tardiness constitute ex post rationalization, and therefore provide no basis for us to decide on the issue before us. Concerning the absence of supporting documentation, we note that the first paragraph of page 65 of the Final Affirmative Dumping Determination indicates that the DCD only made those adjustments which it could verify. We understand this to be an assertion by the DCD that it would only make those adjustments for which it had supporting documentation. In examining the substance of Brazil's claim, we find that there is nothing on the record to suggest that Avipal had supplied any documentary evidence in support of its request for a freight cost adjustment. There is therefore a clear distinction between the factual circumstances surrounding the freight cost adjustment requests made by Sadia and Avipal.¹⁸³ Accordingly, we find that the DCD was entitled to reject the freight cost adjustment requested by Avipal.

7.240 To conclude, we find that the DCD acted in violation of Article 2.4 of the AD Agreement by failing to make the freight cost adjustment to normal value requested by Sadia.

7.241 This claim concerns the DCD's use of domestic sales data obtained from JOX for the purpose of establishing normal value for certain Brazilian exporters. Brazil claims that Argentina violated Article 2.4 of the AD Agreement because the DCD compared the JOX data (normal value) with export price without adjusting for differences reported by JOX in respect of tax, finance costs, sales commission and freight costs.

7.242 During the course of these proceedings, Argentina made two arguments in defence of the DCD's decision not to make the requested adjustments to normal value. First, Argentina asserted that the JOX domestic sales data was not adjusted to ensure that normal value and export price were compared at the same level of trade. If the adjustments had been made, the comparison would have been - improperly - between an ex-factory price for the normal value and an f.o.b. export price, because there was no identical information on the deductions to be made from the export price of the goods. Second, Argentina submitted that details of the relevant adjustments were submitted by JOX in Portuguese, whereas the Law No. 19,549 on Administrative Procedures and Article 28 of Implementing Decree No. 1759/72 provide that foreign-language submissions to the investigating authority must be translated into Spanish by a registered translator.

7.243 Regarding Argentina's level-of-trade argument, Brazil asserts that even the use of an f.o.b. normal value (i.e., at the same level of trade as the f.o.b. export price) would have required adjustments / deductions for differences in tax and finance costs, because the f.o.b. export price does not include taxes and finance costs.¹⁸⁴

7.244 Regarding the submission of data by JOX in Portuguese, Brazil asserts that the relevant information was submitted by JOX in response to a request made by the DCD, and not by the Brazilian exporters or petitioner.¹⁸⁵ JOX is a private entity, not related to the Brazilian Government or any of the Brazilian exporters subject to the investigation. Thus, JOX did not constitute an "interested part[y]" within the meaning of Article 6.11 of the AD Agreement, and was therefore under no obligation to respond to the Argentinean authorities, much less to provide a translation of its response in Spanish.

7.245 As noted above, Argentina has submitted two arguments (i.e., level of trade and language) in support of the DCD's decision not to make certain adjustments to the JOX data used to establish normal value for certain exporters. There is no evidence before us to suggest that the first argument, concerning level of trade, was relied on by the DCD at the time of its decision. That argument therefore constitutes ex post rationalization which we are unable to consider.

7.246 Regarding the choice of language by JOX, we note that the JOX data first became relevant to the investigation because it was relied on by the applicant for the purpose of establishing normal value in its application. The DCD subsequently had recourse to the JOX data for the purpose of establishing normal value for certain exporters when it determined that those exporters had not submitted domestic sales data sufficient for the purpose of establishing normal value. The DCD requested clarification from JOX regarding the possible need for adjustments on 25 June 1999. Although the official language of the DCD's investigation was Spanish, JOX replied to the DCD in Portuguese (reply received by the DCD on 3 August 1999). JOX informed the DCD that the JOX domestic sales data available to the DCD included various sales taxes (14.65 per cent in total), finance costs (depending on sales terms), sales commissions (0.5 to 1 per cent) and freight costs (depending on geographic location).

7.247 We note, therefore, that JOX only presented details regarding adjustments to the relevant sales data in response to a request from the DCD. JOX did not have any interest in the proceedings. There is nothing on the record before us to suggest that JOX was an "interested part[y]" within the meaning of Article 6.11 of the AD Agreement. Nor is there any evidence that JOX sought to participate in the DCD's investigation as an interested party. In such circumstances, we fail to see why Brazilian exporters should be penalized (because the non-adjusted normal value would have led to a higher margin of dumping) by JOX's failure to submit the relevant information in Spanish, or by the DCD's failure to procure its own translation of that information. The DCD was seeking the information from JOX because the DCD was going to use the JOX data as the basis for normal value, and because it was aware of the likely need to make adjustments to the JOX data. The fact that JOX, which was not an interested party, and not itself taking part in the investigation, failed to respond in Spanish does not absolve the DCD from its obligations under Article 2.4. To the extent that the DCD was seeking clarification from JOX for its own purposes, we consider that the onus was on the DCD to procure its own Spanish translation of JOX's submission.

7.248 We also note that, as demonstrated inter alia in respect of Claim 25 below, the DCD relied in part on the same JOX document - in Portuguese - to increase normal value to reflect alleged differences in the physical characteristics of poultry sold in Brazil and that sold in Argentina.¹⁸⁶ To the extent that the DCD was able to rely on JOX's Portuguese document to make an upward adjustment to normal value, we see no reason why the DCD was similarly not able to rely on the same JOX document to make other, downward adjustments to normal value. Such conduct is not indicative of the actions of an objective and impartial investigating authority.

7.249 In light of the above, we find that the Argentine investigating authority violated Article 2.4 of the AD Agreement by failing to make adjustments when comparing the export price with normal value established on the basis of JOX domestic sales data.

7.250 This claim concerns a 9.09 per cent upward adjustment of normal value made by the DCD to reflect alleged differences in the physical characteristics of poultry sold in Brazil and poultry exported to Argentina. The DCD found that poultry was sold in Brazil with head and feet, whereas poultry was exported to Argentina without head and feet. The DCD concluded that the yield rate (per kg) for poultry sold in Brazil was therefore higher than that for poultry exported to Argentina. Since the alleged difference in yield rates was 9.09 per cent, the DCD increased normal value by that margin.

7.251 Brazil claims that the 9.09 per cent adjustment was inconsistent with Article 2.4 of the AD Agreement because, for the most part, there is no difference between poultry sold in Brazil and poultry exported to Argentina. According to Brazil, most exporters / producers sell in both markets eviscerated poultry without head and feet. Brazil submits that this fact was evident from the questionnaire responses submitted by exporters: Sadia, Avipal and Frangosul indicated in their questionnaire responses that they sold the same poultry in Argentina and Brazil, whereas Catarinense reported differences in respect of broiler (but not griller) poultry only. Catarinense reported that broilers were sold in Brazil without the feet but with the head, whereas broilers exported to Argentina had neither head nor feet.

7.252 Argentina asserts that the Brazilian exporters did not expressly deny the need for an adjustment for differences in physical characteristics during the investigation (although Argentina acknowledges that the exporters criticized the amount of the adjustment). Argentina also asserts that it received evidence from JOX to the effect that poultry was sold with head and feet in Brazil. In particular, a note from JOX received on 3 August 1999 reads: "Except otherwise stated, refrigerated chicken sold in S�o Paulo includes feet and head. The price of (refrigerated chicken without feet and head) should be 10 per cent higher".¹⁸⁷

7.253 This claim concerns the DCD's decision to increase all exporters' normal values by 9.09 per cent to reflect alleged differences in the physical characteristics of poultry sold in Brazil and Argentina respectively.¹⁸⁸ Since Brazil does not dispute that such an adjustment would have been necessary if indeed there had been differences between poultry sold in Brazil and Argentina respectively, we shall resolve this issue by examining whether or not the DCD properly found that such differences existed.

7.254 As a starting-point, we note that the DCD's record contained evidence to the effect that there were differences between poultry sold in Brazil and poultry exported to Argentina. The DCD was in possession of a document from JOX (received 3 August 1999) indicating that certain poultry sold in Brazil included head and feet.¹⁸⁹ In that document, JOX stated that "[e]xcept otherwise stated, refrigerated chicken sold in Sao Paulo includes feet and head".

7.255 However, there was also evidence on the record indicating that at least certain exporters sold an identical product in both Brazil and Argentina. In particular, Section A, Annex II, of Sadia's questionnaire responses (i.e., both the original and supplemental responses) described the product sold in both Brazil and Argentina in identical terms (namely "whole poultry with giblets").¹⁹⁰ The product description in the equivalent section of Avipal's questionnaire response¹⁹¹ also did not distinguish between domestic and export sales. Both these exporters' questionnaire responses suggested, therefore, that they sold the same product in both Brazil and Argentina.

7.256 Section A, Annex II, of Frangosul's original questionnaire response also drew no distinction between domestic and export products.¹⁹² Furthermore, Frangosul's supplementary questionnaire response included a product brochure stating that both broiler and griller poultry did not contain head or feet. Thus, Frangosul's questionnaire response not only indicated that it sold the same products in Brazil and Argentina, but also demonstrated that those products did not include head and feet.

7.257 Only one exporter, Catarinense, reported any difference between the products sold in Brazil and Argentina. Catarinense's questionnaire response reported that broilers sold in Brazil included head but not feet, whereas broilers exported to Argentina contained neither head nor feet.

7.258 Furthermore, we note that the Government of Brazil objected to the DCD's adjustment for differences in physical characteristics in a letter dated 19 January 2000.¹⁹³ Brazil stated that the adjustment was "absurd", since poultry was sold in the same condition in Brazil as it was in Argentina.

7.259 In light of the above, we are of the view that the record did not provide sufficient basis for the DCD to conclude that there were differences in the physical characteristics of all poultry sold in Brazil and Argentina respectively. Only one exporter's questionnaire response suggested that some form of adjustment may be necessary. Other exporters' questionnaire responses indicated that the same product was sold in both Brazil and Argentina. Despite the possibility of an adjustment alluded to in the above-mentioned JOX document, the substance of the exporters' questionnaire responses, and the observations of the Government of Brazil, should have precluded an objective and impartial investigating authority from concluding, on the basis of the JOX document alone, that there were differences in the physical characteristics of poultry sold in Brazil and Argentina respectively. At the very least, the conflicting evidence should have caused the DCD to pursue this matter further with the exporters.

7.260 For the above reasons, we find that the DCD violated Article 2.4 of the AD Agreement by increasing all exporters' normal values by 9.09 per cent to reflect alleged differences in the physical characteristics of poultry sold in Brazil and Argentina.

7.261 Brazil asserts that the DCD violated Article 2.4 of the AD Agreement because it did not inform exporters of the period of investigation for dumping until nine months after initiation of the investigation, during which time exporters were faced with the unreasonable burden of submitting domestic and export sales data for 1996-1998 and the months of 1999 for which data was available.

7.262 Argentina asserts that the AD Agreement does not regulate the period for which dumping data may be collected. Argentina denies that the DCD imposed an unreasonable burden on exporters by requesting an excessive amount of data. Indeed, Argentina submits that it calculated normal value on the basis of a limited sample of invoices precisely so that exporters would not need to produce a large volume of invoices.

7.263 The European Communities submits that Brazil's claim is not covered by the scope of Article 2.4 of the AD Agreement. The European Communities asserts that, as recently recalled by the panel report in Egypt - Steel Rebar, Article 2.4 is concerned exclusively with the comparison between the normal value and the export price.¹⁹⁴ It does not apply to the determination of the normal value and the export price. The European Communities suggests that the relevant provisions of the AD Agreement for examining the issue raised by Brazil are Article 6.1 and the first paragraph of Annex II.

7.264 This claim concerns the fixing of the period of investigation by the investigating authority. It does not concern the comparison between normal value and export price. We recall the finding by the panel in Egypt - Steel Rebar that:

7.265 The report of the Egypt - Steel Rebar panel was adopted during the course of these Panel proceedings. We agree with that panel's finding that Article 2.4 imposes obligations in respect of the comparison between normal value and export price. In our view, Article 2.4 does not impose obligations in respect of the fixing of the period of investigation by the investigating authority, which is the object of Brazil's Claim 26.

7.266 In light of the above, we reject Brazil's Claim 26.

7.267 This claim concerns the comparison methodology used by the DCD to calculate margins of dumping for Sadia and Avipal.

7.268 Brazil claims that the DCD acted in violation of Article 2.4.2 because, although Sadia and Avipal reported all relevant domestic sales transactions, the DCD did not take into account all domestic sales when comparing the weighted average normal value with the weighted average export price. In other words, Brazil claims that the DCD violated Article 2.4.2 by comparing the weighted average export price with only a weighted average statistical sample of normal value.

7.269 Argentina asserts that the sample of domestic sales transactions used by the DCD for the purpose of establishing a weighted average normal value was statistically valid, and based on documentation provided by the exporters.

7.270 Article 2.4.2 provides that:

7.271 Article 2.4.2 provides that an investigating authority should normally calculate a margin of dumping by comparing normal value and export price either on a weighted average basis, or transaction-to-transaction. In the event that a weighted average comparison is used, Article 2.4.2 provides for the comparison of "a weighted average normal value" with a weighted average of prices of all comparable export transactions. Brazil claims that Argentina violated Article 2.4.2 because, instead of calculating weighted average normal values for Sadia and Avipal on the basis of all of those exporters' domestic sales transactions, the DCD calculated weighted averages of a statistical sample of the domestic transactions reported by them. This raises the issue of whether or not a Member must include all domestic sales transactions when establishing "a weighted average normal value" for the purpose of Article 2.4.2.¹⁹⁶

7.272 In examining what is meant by "a weighted average normal value", we attach particular importance to the meaning of the term "normal value". We note that Article 2.1 of the AD Agreement refers to normal value as "the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country". Article 2.1 therefore defines normal value in terms of domestic sales transactions in the exporting Member (although Article 2.2 provides that alternative methods to establish normal value may be used in certain circumstances).¹⁹⁷ Article 2.1 does not specify, however, whether or not all domestic sales transactions need be included. This issue is addressed by Article 2.2.1, which sets out the conditions to be met before domestic sales may be treated as not in "the ordinary course of trade", and therefore excluded for the purpose of establishing normal value in accordance with Article 2.1. Article 2.2.1 states that domestic sales "may be disregarded in determining normal value only if" the relevant conditions are met. We understand these provisions to mean that there are only specific circumstances in which domestic sales transactions may be excluded from normal value. We consider that these provisions constitute relevant context for interpreting the phrase "a weighted average normal value", since they indicate that "a weighted average normal value" is a weighted average of all domestic sales other than those which may be disregarded pursuant to Article 2.2.1 of the AD Agreement.

7.273 We do not consider that our interpretation is undermined by the fact that Article 2.4.2 refers to a weighted average normal value, and not the weighted average normal value. In our view, use of the word "a" simply means that there are various ways of establishing a weighted average.¹⁹⁸ It does not mean that there are various ways of establishing normal value.

7.274 Nor do we consider that our interpretation is undermined simply by the fact that Article 2.4.2 does not refer to weighted average normal value in terms of all domestic transactions, whereas for the purpose of weighted average export price Article 2.4.2 specifies that prices of all comparable export transactions shall be included. We believe that the strict rules in Article 2 regarding the determination of normal value require that, in the usual case,¹⁹⁹ normal value should be established by reference to all domestic sales of the like product in the ordinary course of trade. There would be no need to stipulate the circumstances in which domestic transactions may be excluded from normal value if there were no general obligation to otherwise include all domestic transactions in normal value.

7.275 In the present case, the DCD established weighted average normal values on the basis of statistical samples of domestic sales transactions. The DCD did not establish weighted average normal values on the basis of all domestic sales transactions other than those it was entitled to exclude under Article 2.2.1.

7.276 In light of the above, we find that the DCD acted in violation of Article 2.4.2 by failing to compare the weighted average export price with a proper weighted average normal value.

7.277 This claim concerns the consistency of the CNCE's injury determination with Articles 3.1, 3.4 and 3.5 of the AD Agreement.

7.278 Brazil claims that the CNCE's injury determination was inconsistent with Article 3.1 of the AD Agreement because it reviewed certain injury factors on the basis of January 96 - December 98 data, but other injury factors on the basis of January 96 - June 99 data. In other words, some injury factors were analysed in light of 1999 data, whereas others were not. Brazil submits that a violation of Article 3.1 necessarily gives rise to a violation of Articles 3.4 and 3.5. Brazil also argues that Argentina violated Article 3.5 because the period of review for dumping ended in January 1999, whereas the period of review for injury ended in June 1999. According to Brazil, the investigating authority should not have attributed injury found to exist in June 1999 to dumped imports from January 1999.

7.279 Argentina asserts that the CNCE took 1999 injury data into account because the investigation was initiated on the basis of a threat of injury, and an investigation of an alleged threat of injury requires the examination of the most recent data possible. Argentina also asserts that the existence of a voluntary agreement between "the parties" between October 1998 and March 1999 meant that it was necessary to analyse imports without the effects produced by that agreement, so the analysis was extended until June 1999.

7.280 In addition, Argentina provided the following response to Question 87 from the Panel:

Nevertheless, Argentina reiterates what it stated in its two previous submissions, and for a better understanding of the overall context, we repeat our reply that:

It should be noted that the determination of threat of injury was based on the period from January 1996 to December 1998, and the other data, as stated in previous replies and in the Record in question, was used for reference purposes."²⁰⁰

7.281 Brazil provided the following comments on Argentina's response:

7.282 Articles 3.1, 3.4 and 3.5 provide that:

7.283 Argentina does not deny that the CNCE only reviewed 1999 data for certain injury factors. Article 3.1 requires an "objective" examination of injury. In our view, there is a prima facie case that an investigating authority fails to conduct an "objective" examination if it examines different injury factors using different periods. Such a prima facie case may be rebutted if the investigating authority demonstrates that the use of different periods is justifiable on the basis of objective grounds (because, for example, data for more recent periods was not available for certain injury factors). Since the CNCE only examined 1999 data for certain injury factors, we find prima facie that the CNCE failed to conduct an objective examination of injury. We shall now consider whether or not Argentina has rebutted that prima facie case.

7.284 Argentina asserted in reply to Panel Question 87 that 1999 data was used for certain injury factors to "double check the trends". However, although the final determination refers to 1995 data being used for "reference purposes", it does not refer to 1999 data being used for this purpose. Argentina also argued before the Panel that the CNCE needed to review 1999 data because it was examining the existence of a threat of injury. However, there is nothing in the CNCE's final determination, or any evidence on the record, to suggest that these explanations constitute anything other than ex post rationalization which we are precluded from taking into consideration. In any event, even if there were good reasons for the CNCE to review injury data for 1999, this does not explain why the CNCE considered 1999 data for certain injury factors only, and not all of them. Argentina has failed to provide any justification as to why 1999 data was only used for certain, but not all, injury factors. Although Argentina's response to Question 87 from the Panel could perhaps be understood to mean that 1999 data was only available for certain injury factors ("Argentina considered a number of variables accessible to the public"), no such explanation was contained in the CNCE's final injury determination, or in any other document on the record before us. Furthermore, the fact that 1999 data for the remaining injury factors may not have been available to the public does not necessarily mean that such data was not available to the investigating authority. Accordingly, Argentina has failed to rebut the presumption that the CNCE conducted a subjective examination of the relevant injury factors.

7.285 In light of the above, we find that the CNCE acted inconsistently with Article 3.1 of the AD Agreement by only examining 1999 data for certain injury factors.

7.286 Brazil asserts that the abovementioned violation of Article 3.1 would also constitute a violation of Articles 3.4 and 3.5. In this respect, Brazil appears to consider that Articles 3.4 and 3.5 also require investigating authorities to conduct an objective examination of injury and causation. That part of Brazil�s Claim 32 concerning an alleged violation of Article 3.4 is based on exactly the same facts underpinning our finding of violation of Article 3.1. According to the logic of Brazil�s claim, therefore, if Argentina were to bring its measure into conformity with Article 3.1, it would also bring its measure into conformity with Article 3.4. Accordingly, there is no need for us to examine that part of Claim 32 concerning Article 3.4 of the AD Agreement.

7.287 That part of Claim 32 concerning Article 3.5 is not based on the same facts as Brazil�s arguments concerning Articles 3.1 and 3.4. It is therefore necessary for us to address Brazil�s arguments concerning Article 3.5. Brazil�s arguments relate to the fact that the periods of review used for the separate dumping and injury determinations did not end at the same point in time. We note, however, that there is nothing in the AD Agreement to suggest that the periods of review for dumping and injury must necessarily end at the same point in time. Indeed, since there may be a time-lag between the entry of dumped imports and the injury caused by them, it may not be appropriate to use identical periods of review for the dumping and injury analyses in all cases. Furthermore, we note that the issue of periods of review has been examined by the Anti-Dumping Committee. It has issued a recommendation to the effect that, as a general rule, "the period of data collection for injury investigations normally should be at least three years, unless a party from whom data is being gathered has existed for a lesser period, and should include the entirety of the period of data collection for the dumping investigation" (emphasis added).²⁰² It would appear, therefore, that the period of review for injury need only "include" the entirety of the period of review for dumping. There is nothing in the Anti-Dumping Committee's recommendation to suggest that it should not exceed (in the sense of including more recent data) the period of review for dumping.²⁰³

7.288 For the above reasons, we uphold Brazil�s Claim 32 in respect of the violation of Article 3.1 of the AD Agreement. We make no findings in respect of Article 3.4, and we reject that part of Brazil's Claim 32 based on Article 3.5 of the AD Agreement.

7.289 Brazil's Claim 33, concerning Article 12.2.2 of the AD Agreement, is based on the same factual circumstances as the preceding Claim 32.

7.290 Brazil submits that Argentina violated Article 12.2.2 of the AD Agreement because the CNCE's final determination on injury did not explain why the CNCE examined 1999 data for certain injury factors but not for others.

7.291 Argentina submits that all relevant information was made public through published resolutions, and was available in the record to interested parties.

7.292 In essence, Brazil claims that a violation of Article 12.2.2 follows automatically from the abovementioned violation of Article 3.1 (Claim 32). In other words, just as the CNCE violated Article 3.1 by failing to explain why it considered 1999 data for some factors but not for others, so the absence of any such explanation in the final determination constitutes a violation of Article 12.2.2 of the AD Agreement.

7.293 We note that two adopted panel reports have already examined the application of the procedural provisions of Article 12.2.2 to factual circumstances which have already been found to be in violation of substantive provisions of the AD Agreement.²⁰⁴ Those panels found that it was not necessary to make findings under Article 12.2.2 in such circumstances. We agree with those panels. If the CNCE's injury determination was substantively inconsistent with the relevant legal obligations, the adequacy of the public notice of the CNCE�s findings on injury is immaterial.

7.294 For the above reasons, we do not consider it necessary to examine Brazil's Claim 33.

7.295 These claims concern the meaning of the term "dumped imports" in Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreement.

7.296 Brazil claims that Argentina violated Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreement by including the effect of non-dumped imports in its injury determination. These non-dumped imports were exported / produced by Nicolini and Seara, which were found by the DCD not to be dumping. According to Brazil, Article 3 only allows Members to take into account the injurious effects of dumped imports.

7.297 Argentina submits that, when analysing causal link, the CNCE did take into account the fact that imports from Nicolini and Seara were not dumped. The average f.o.b. prices of these enterprises were substantially higher than the prices of other exports found to have dumped. Furthermore, the volume of imports from Nicolini and Seara came nowhere close to the levels reached by the majority of exports from Brazil throughout the period analysed by the CNCE. The CNCE found that price was the decisive factor on the market, and that the decrease in domestic prices throughout the period of investigation was caused by the price of dumped imports. Had the CNCE excluded imports from Nicolini and Seara, the average f.o.b. price of imports taken into account by the CNCE would have been even lower, thereby accentuating the causal link between imports and injury to the domestic industry. In this regard, Argentina submitted evidence to the Panel showing that in 1997 and 1998 the average f.o.b. prices of imports from Nicolini and Seara were 13 per cent higher than the other imports investigated. In addition, the fact that imports from Nicolini and Seara did not have the major share in any year during the period investigated by the CNCE implied that no radical changes could be expected in the volume and share of the other imports investigated. Imports from exporters / producers found to have dumped represented the majority of imports, rising in 1998 to almost 40,000 tonnes compared with 56,000 tonnes for total imports from Brazil, and with the volume of dumped imports increasing more rapidly than the volume of total imports in 1998. Consequently, the share of dumped imports in apparent consumption rose, displacing domestic sales of the like domestic product.

7.298 The European Communities opposed Brazil's interpretation of Article 3. The European Communities suggested that an anti-dumping investigation is country-specific, rather than exporter-specific, so that once certain imports from an exporting country are found to be dumped, an investigating authority is entitled to treat all imports from that country as dumped.

7.299 Brazil's claims are based on Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreement. Brazil asserts that the CNCE violated these provisions by including the effects of non-dumped imports (i.e., imports from exporters / foreign producers found by the DCD not to have dumped) in its injury analysis. In examining these claims, we must first determine whether or not the term "dumped imports" in the relevant provisions of Article 3 of the AD Agreement excludes imports from producers / exporters found not to have dumped. If it does, we must determine whether or not the CNCE excluded non-dumped imports from Nicolini and Seara when making its final determination on injury.

7.300 We consider that a determination of dumping is made with reference to a product from a particular producer/exporter. If a particular producer/exporter has been found not to have dumped, then we see no basis for including that producer/exporter's imports in the category of "dumped imports". We note that the term "dumped imports" was interpreted by the panel in EC - Bed Linen, and by the subsequent panel reviewing India's recourse to Article 21.5 of the DSU regarding the EC's implementation of the results of the original proceeding.

7.301 The EC - Bed Linen panel found that "all imports from any producer/exporter found to be dumping may be considered as dumped imports for purposes of injury analysis".²⁰⁵ Although this finding does not resolve the issue of whether imports from producers / exporters found not to be dumping may be considered as "dumped imports", that panel observed that

7.302 In the implementation proceedings under Article 21.5 of the DSU, the panel "agree[d] fully"²⁰⁷ with the preceding observation of the EC - Bed Linen panel, and in turn found that:

7.303 We agree with the findings of the EC - Bed Linen and the EC - Bed Linen (Article 21.5 - India) panels, and with the abovementioned observation by the EC - Bed Linen panel. On the basis of the ordinary meaning of the text, we find that the term "dumped imports" refers to all imports attributable to producers or exporters for which a margin of dumping greater than de minimis has been calculated. The term "dumped imports" excludes imports from producers / exporters found in the course of the investigation not to have dumped.

7.304 We recall that the DCD found that imports from Nicolini and Seara were not dumped. Our finding regarding the meaning of the term "dumped imports" therefore means that the CNCE should have excluded imports from Nicolini and Seara when examining the potentially injurious effects of "dumped imports" on the domestic industry. We shall now examine whether or not the CNCE did so.

7.305 There is nothing on the record before us or in the CNCE's final injury determination to suggest that the CNCE excluded imports from Nicolini and Seara from its injury analysis. Indeed, it would have been unlikely that CNCE could have excluded Nicolini and Seara's imports (by virtue of their being non-dumped) since the CNCE's injury determination preceded by six months the DCD's determination that Nicolini and Seara were not dumping. In other words, the CNCE could not have excluded imports from Nicolini and Seara from its injury analysis, since it did not know at the time of its injury analysis that imports from those exporters / producers were not dumped.

7.306 Furthermore, Argentina has not argued that imports from Nicolini and Seara were excluded from the CNCE's injury analysis. Rather, Argentina has focused on the effects of the inclusion of Nicolini and Seara imports in the CNCE's injury analysis, suggesting that the finding of injury would have been aggravated had those imports been excluded because the average f.o.b. price of imports would have decreased. While Argentina made arguments to the Panel regarding average f.o.b. import prices excluding imports from Nicolini and Seara, it failed to identify anything in the record to the effect that the CNCE considered such arguments during its injury analysis. The same is true of Argentina's arguments to the Panel regarding the Nicolini and Seara's share of total imports. Thus, even if such arguments were relevant for the purpose of determining whether or not relevant imports from Nicolini and Seara were excluded from the CNCE's injury analysis - a fact of which we are not at all convinced - such arguments constitute ex post rationalization which we are bound not to consider. In any event, we consider that, consistent with a proper interpretation of the term "dumped imports", imports from Nicolini and Seara should have been excluded outright from the CNCE's injury analysis. It is clear from the record that CNCE failed to do this.

7.307 In light of the above, we find that the CNCE violated Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreement by including imports from Nicolini and Seara in its injury analysis, even though such imports had been found by the DCD to be non-dumped.

7.308 These claims concern the issue of whether or not the CNCE examined each of the injury factors set forth in Article 3.4 of the AD Agreement. Brazil submits that the CNCE failed to do so, thereby violating Articles 3.1, 3.4 and 12.2.2 of the AD Agreement.

7.309 Brazil submits that the CNCE violated Articles 3.1 and 3.4 of the AD Agreement by failing to examine each of the injury factors and indices having a bearing on the state of the domestic industry set forth in Article 3.4. In particular, Brazil asserts that the CNCE failed to examine actual and potential decline in productivity, factors affecting domestic prices, the magnitude of the margin of dumping, actual and potential negative effects on cash flow, growth, the ability to raise capital or investments. Brazil further asserts that failure to address each of the Article 3.4 injury factors also constitutes a violation of the public notice requirement set forth in Article 12.2.2 because not all of the Article 3.4 injury factors were referred to or evaluated in the CNCE's injury determination.

7.310 Argentina submits that the CNCE did evaluate the injury factors identified by Brazil. Argentina refers to the inclusion of factors relating to productivity in the CNCE's injury determination, and provides a summary of the characteristics of the Argentine poultry market, of factors affecting domestic prices, and the effects of the margin of dumping. Argentina also explains why the CNCE did not need to analyse cash flow and the ability to raise capital, claiming that it correctly focused on liquidity and the "break-even point" instead.

7.311 The United States asserts that a violation of Article 3.4 would not necessarily constitute a violation of Article 12.2.2, since Article 12.2.2 only requires publication of findings and conclusions on issues of fact and law considered material by the investigating authorities. Thus, if certain Article 3.4 factors are not material to a given case, they need not be included in the Article 12.2.2 publication, as long as the lack of materiality is at least implicitly apparent from the final determination.

7.312 We shall first examine Brazil's Claim 38, concerning the application of Article 3.4 of the AD Agreement. We shall then examine Claims 39 and 40, concerning Articles 3.1 and 12.2.2, respectively.

7.313 Article 3.4 of the AD Agreement provides that:

7.314 It is well-established in WTO dispute settlement proceedings that an investigating authority must analyse each of the factors enumerated in Article 3.4. We note that both the EC - Bed Linen panel, and the Mexico - Corn Syrup panel to which it referred, have found that Article 3.4 is a mandatory provision, that every Article 3.4 factor must be considered, and that the nature of the investigating authority's consideration must be apparent.²⁰⁹ We agree, and shall now examine whether or not the CNCE complied with these requirements in respect of the specific Article 3.4 factors identified by Brazil, namely actual and potential decline in productivity, factors affecting domestic prices, the magnitude of the margin of dumping, actual and potential negative effects on cash flow, growth, and the ability to raise capital or investments.

7.315 Argentina asserts that the CNCE made a number of considerations regarding productivity, including the following statement in the CNCE's final injury determination:

7.316 In our view, this statement is sufficient to demonstrate that the CNCE considered productivity, and found that productivity increased as a result of the introduction of new technology. This statement alone, therefore, is sufficient for the purposes of Article 3.4 of the AD Agreement.²¹¹ Accordingly, we reject Brazil's claim that the CNCE failed to consider productivity.

7.317 Argentina asserts that the CNCE considered factors affecting domestic prices by analysing the trend in the price index for substitute products, mainly red meat, as well as the general level of activity and price indexes in the most important relevant sectors. In this regard, Argentina provided the following response to part of Question 59 from the Panel:

7.318 In addition, Argentina provided the following response to Question 88 from the Panel regarding Table 16 of Record No. 576:

7.319 In our view, the above extracts from the CNCE's final determination on injury (Record No. 576 and the accompanying Technical Report) clearly indicate that the CNCE did consider factors affecting domestic prices, by considering the trend in poultry prices relative to the trend in the price of substitute products. Accordingly, we reject Brazil's claim that the CNCE failed to consider factors affecting domestic prices.

7.320 The only arguments made by Argentina concerning the CNCE's consideration of the magnitude of the margin of dumping for the purpose of Article 3.4 of the AD Agreement are contained in the following two paragraphs taken from Argentina's first written submission:

7.321 We note that Argentina has failed to indicate where such arguments are set forth in the CNCE's Record No. 576, or to point us to any other document in which the CNCE is alleged to have considered such arguments. Such arguments therefore constitute ex post rationalization which we are precluded from taking into account. In any event, we note that Argentina's reference to dumping margins of 8 - 14 per cent concerns the margins calculated by the applicant in its application. They are not the margins calculated by the DCD during the investigation. Furthermore, the CNCE completed its injury analysis (on 23 December 1999) six months before the DCD completed its dumping investigation (on 23 June 2000), so we do not see how the CNCE could have taken the magnitude of the margin of dumping into account in its injury analysis.

7.322 For the above reasons, we uphold Brazil's claim that Argentina violated Article 3.4 of the AD Agreement because the CNCE failed to consider the magnitude of the margin of dumping in its analysis of the impact of the dumped imports on the domestic industry.

7.323 Argentina's most detailed arguments concerning the CNCE's alleged analysis of cash flow, growth, the ability to raise capital and investments were contained in its first written submission:

7.324 Argentina therefore argues that, because of the particular statutory and market circumstances in which Argentine poultry producers operate, certain Article 3.4 factors were not relevant to the state of the domestic industry. However, we find no reference to this explanation in any of the documentation prepared by or for CNCE (i.e., neither in the CNCE's final injury determination nor in the Technical Report attached thereto). For this reason, we are bound to treat these arguments as ex post rationalization that we are precluded from taking into account. Leaving such arguments aside, there is nothing on the record to suggest to us that the CNCE considered cash flow, growth, ability to raise capital, or investments. Furthermore, we recall that both the Mexico - Corn Syrup and EC - Bed Linen panels found that that "while the authorities may determine that some factors are not relevant or do not weigh significantly in the decision, the authorities may not simply disregard such factors, but must explain their conclusion as to the lack of relevance or significance of such factors."²¹⁶ We agree with that finding, and note that there is nothing on the record to suggest that the CNCE excluded those factors because it had found that such factors were not relevant or did not weigh significantly in its decision on injury. We therefore find that the CNCE failed to consider these factors, in violation of Article 3.4 of the AD Agreement.

7.325 In Claim 39, Brazil argues that our finding in the preceding paragraph that Argentina violated Article 3.4 should necessarily lead us to conclude that Argentina also violated Article 3.1 of the AD Agreement. Argentina does not respond to this argument. In our view, there is an obvious connection between paragraphs 1 and 4 of Article 3. Article 3.1(b) requires "an objective examination of � the consequent impact of the[] imports on domestic producers" of the relevant products. Article 3.4 provides that "[t]he examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry �". We consider that "[t]he examination of the impact of dumped imports" referred to in Article 3.4 is precisely the same "objective examination of � the consequent impact of the[] imports" referred to in Article 3.1(b). Thus, to the extent that a Member failed to conduct a proper "examination of the impact of dumped imports" for the purpose of Article 3.4, that Member also failed to conduct an "objective examination of � the consequent impact of the[] imports" within the meaning of Article 3.1(b). Accordingly, since we have found that Argentina violated Article 3.4 of the AD Agreement, we also find that Argentina violated Article 3.1(b) thereof.

7.326 Brazil further claims (Claim 40) that a violation of Article 3.4 would automatically violate the procedural requirements of Article 12.2.2. As noted above in respect of Claim 33, once the CNCE's injury determination is found to be inconsistent with the relevant legal requirements, findings concerning the adequacy of the CNCE's notice become immaterial.²¹⁷ Accordingly, it is neither necessary nor appropriate for us to examine this claim.

7.327 For the above reasons, we find that Argentina violated Articles 3.1(b) and 3.4 by failing to evaluate all of the economic factors and indices enumerated in Article 3.4 of the AD Agreement. We do not consider it necessary to address Brazil's Claim 40.

179 Id., para. 6.113.

180 Question 82 from the Panel.

181 See para. 7.232 supra.

182 See Exhibit BRA-29, p. 6.

183 Furthermore, Avipal's request was made very late in the proceedings, on 21 December 1999 (even though its initial questionnaire response was submitted in April 1999), thereby limiting the time available for the DCD to revert to Avipal on this issue.

184 See Brazil's reply to Question 93 from the Panel.

185 See Brazil's comments on Argentina's reply to Question 85 from the Panel.

186 The DCD also relied on a second JOX document submitted by the applicant, which had been translated from Portuguese into Spanish.

187 Exhibit BRA-32.

188 Unlike the similar claim under Article 5.3 (Claim 2), Brazil's Claim 25 only challenges the need for - but not the amount of - the adjustment made by the DCD during the course of the investigation.

189 See supra, note 187.

190 Exhibit BRA-22.

191 Exhibit BRA-23.

192 Exhibit BRA-24.

193 Letter from the Brazilian Embassy in Buenos Aires to the Argentine authorities (Exhibit BRA-39).

194 Panel Report, Egypt - Definitive Anti-Dumping Measures on Steel Rebar from Turkey ("Egypt - Steel Rebar"), WT/DS211/R, adopted 1 October 2002, para. 7.335.

195 Ibid.

196 We note that the panel in Egypt - Steel Rebar found that Article 2.4 "has to do with ensuring a fair comparison (�) of export price and normal value. Thus, we find that it does not apply to the investigating authority's establishment of normal value as such�" (see footnote 194 supra). Although we examine the present issue in light of the provisions of Article 2 governing the establishment of normal value, we are not examining the establishment of normal value per se. Rather, we are examining the weighted average normal value established by the investigating authority for the purpose of comparison with the weighted average export price.

197 These methods are not relevant in the present proceedings, since the DCD established normal value on the basis of domestic sales transactions.

198 "Weighted average" is defined as "an average in taking which each component is multiplied by a factor chosen to give it its proper importance" (http://www.oed.com). The weighted average may vary, therefore, depending on the factor chosen.

199 That is to say, in the case where normal value is based on domestic transactions.

200 See Argentina's reply to Question 87 of the Panel.

201 See Brazil's comments to Argentina's reply to Question 87 of the Panel.

202 Recommendation concerning the periods of data collection for anti-dumping investigations, G/ADP/6, adopted by the Committee on Anti-Dumping Practices on 5 May 2000.

203 We note that even when different periods of review are applied in respect of dumping and injury, there is still an obligation under Article 3.5 to establish a causal link between the injury and dumped imports.

204 Panel Report, Guatemala - Cement II, supra, note 48, para. 8.291 and Panel Report, European Communities - Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India ("EC - Bed Linen "), WT/DS141/R, adopted 12 March 2001, as modified by the Appellate Body Report, WT/DS141/AB/R, para. 6.259.

205 Id., para. 6.137.

206 Id., para. 6.138.

207 Panel Report, European Communities - Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India - Recourse to Article 21.5 of the DSU by India ("EC - Bed Linen (Article 21.5 - India) "), WT/DS141/RW, 29 November 2002 (reports of the panel and Appellate Body not yet adopted), para. 6.131.

208 Panel Report, EC - Bed Linen (Article 21.5 - India), supra, note 207, para. 6.133.

209 See Panel Report, EC - Bed Linen, supra, note 204, para. 6.159, and Panel Report, Mexico - Corn Syrup, supra, note 65, para. 7.128.

210 Exhibit BRA-14, Record No. 576, page 13.

211 For this reason, we do not consider it necessary to conduct a detailed examination of the other instances in which Argentina claims that the CNCE considered productivity. We note, however, that in some instances Argentina has pointed to CNCE statements on production, which is not the same as productivity.

212 See Argentina's reply to Question 59 of the Panel.

213 See Argentina's reply to Question 88 of the Panel.

214 See Argentina's first written submission, paras. 294-295.

215 Ibid., paras. 296-299.

216 See Panel Report, EC - Bed Linen, supra, note 204, para. 6.162, and Panel Report, Mexico - Corn Syrup, supra, note 65, para. 7.129.

217 See para. 7.293 supra.

218 We note that this claim is not concerned with the issue of whether an investigating authority may immediately define the "domestic industry" in terms of domestic producers "whose collective output of the products constitutes a major proportion of the total domestic production", without first seeking to include in the "domestic industry" all domestic producers as a whole of like products.

219 Brazil relies on The Concise Oxford Dictionary of Current English (Clarendon Press, 1995).

220 The New Shorter Oxford English Dictionary (Clarendon Press, 1993).

221 The EC also argued that its interpretation was supported by Article 5.4 of the AD Agreement. We are not convinced by this argument, because the Article 5.4 standard relates to the standing of applicants, and not the definition of the domestic industry. Furthermore, Article 5.4 does not mean that the application is necessarily filed "by" the domestic industry if it is supported by domestic producers accounting for 25 per cent of domestic production. In such a case, one cannot exclude the possibility that the application was merely filed "on behalf of" - rather than "by" - the domestic industry. It is illogical to suggest that an application could have been filed both "by" and "on behalf of" a single domestic industry. Thus, domestic producers accounting for 25 per cent of domestic production do not necessarily constitute the "domestic industry", contrary to the view expressed by the EC.

222 The Concise Oxford Dictionary of Current English (Clarendon Press, 1995), p. 822.

223 We recall that, in accordance with Article 17.6(ii) of the AD Agreement, if an interpretation is "permissible", then we are compelled to accept it.

224 If Article 4.1 had referred to "the" major proportion, we may have been required to accept Brazil's interpretation of Article 4.1.

225 Brazil's first oral statement, para. 87.

226 Brazil's second written submission, para. 127.

227 The Tokyo Round AD Agreement is also instructive, since Article 8.3 of that Agreement stated "[t]he amount of the anti-dumping duty must not exceed the margin of dumping as established under Article 2. Therefore, if subsequent to the application of the anti-dumping duty it is found that the duty so collected exceeds the actual dumping margin, the amount in excess of the margin shall be reimbursed as quickly as possible" (emphasis added). This provision clearly demonstrates that the general requirement that anti-dumping duties shall not exceed the margin of dumping is concerned with duty assessment.

228 Taken literally, Brazil's argument concerning Article 2.4.2 would mean that Article 2.4.2 is the only provision of Article 2 that applies in the context of Article 9.3. This is because Brazil notes that Article 9.3 refers to the "margin of dumping as established under Article 2", and that Article 2.4.2 is the only provision of Article 2 that refers to the establishment of a "margin of dumping". We cannot accept such an approach, however, since it would mean that the provisions of Article 2 governing sales not made in the ordinary course of trade and fair comparisons etc. would not apply in the context of Article 9.3. Although Brazil has asserted that its argument should not be understood in this way (Brazil's second written submission, para. 136), this is the inevitable result of Brazil attaching such prominence to the words "margin of dumping" in Article 9.3.

229 We note that the measure at issue calculates anti-dumping duty liability by comparing actual export price with a "minimum export price", which is slightly lower than the normal value established during the investigation. Accordingly, it may not be entirely appropriate to state that the Argentine collection mechanism involves the use of a prospective "normal value". It does, however, involve the use of a prospective reference price, which in our view is sufficient to bring it within the scope of Article 9.4(ii). To conclude otherwise would elevate form over substance, since it would mean that the collection of variable duties calculated by reference to a prospective normal value is permitted, whereas the collection of lower duties by reference to a reference price lower than the normal value established during the investigation is not.

230 Brazil's second written submission, para. 149.

231 The Concise Oxford Dictionary of Current English (Clarendon Press, 1995), p. 14. <http://www.oed.com/>

232 Brazil's second written submission, para. 141.

233 We use this term with particular regard to the Article 17.6(ii) standard of review.

234 Brazil's second written submission, para. 133.

235 The scope of this finding is of course limited to the circumstances of the case at hand, which concerns initial duty imposition, and not Article 9.3.2 refund or Article 11 review proceedings.

236 Brazil's second written submission, para. 124.

237 See para. 7.293 supra.

238 Appellate Body Report, US - Wool Shirts and Blouses, supra, note 67, p. 19.

239 We note that a similar approach was followed by the panels Guatemala - Cement II (Panel Report, Guatemala - Cement II, supra, note 48, para. 8.296) and US - DRAMS (Panel Report, United States - Anti-Dumping Duty on Dynamic Random Access Memory Semiconductors (DRAMS) of One Megabit or Above from Korea ("US - DRAMS "), WT/DS99/R, adopted 19 March 1999, DSR 1999:II, 521, para. 6.92).

240 Brazil's first written submission, para. 550.