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WORLD TRADE
ORGANIZATION

WT/DS268/R
16 July 2004

(04-2956)

  Original: English

UNITED STATES - SUNSET REVIEWS OF ANTI-DUMPING
MEASURES ON OIL COUNTRY TUBULAR GOODS FROM
 ARGENTINA (DS268)

AB-2004-2

Report of the Panel
 


TABLE OF CONTENTS

I. INTRODUCTION

II. FACTUAL ASPECTS 

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

A. ARGENTINA
 
B. UNITED STATES

IV. ARGUMENTS OF THE PARTIES
 
V. ARGUMENTS OF THE THIRD PARTIES

VI. INTERIM REVIEW


A. REQUEST OF ARGENTINA

B. REQUEST OF THE UNITED STATES

VII. FINDINGS 

A. GENERAL ISSUES 

1.
Standard of Review 

2. Burden of Proof 

B. UNITED STATES' REQUEST FOR PRELIMINARY RULINGS 

1. Alleged Vagueness of Argentina's Request for Establishment  

(a) Claims raised on page 4 of Argentina's panel request  

(i) Section VII.A of Argentina's first written submission and section III.A of its second written submission 

(ii) Section VII.B.2 of Argentina's first written submission 

(iii) Section VII.E.1 of Argentina's first written submission 

(iv) Section VIII.C.2 of Argentina's first written submission and section III.D.2 of its second written submission

(v) Section IX of Argentina's first written submission and section V of its second written submission 

(vi) Section X of Argentina's first written submission 

(vii) Section III.B of Argentina's second written submission 

(viii) Conclusion 

(b) References to Articles 6 or 3 of the Anti-Dumping Agreement in sections B.1, B.2 and B.3 of the panel request 

(i) Conclusion 

2. Certain Claims That Have Allegedly Not Been Raised in Argentina's Panel Request 

(a) Argentina's claim challenging the US practice as such and as applied in the instant sunset review regarding the alleged irrefutable presumption in sunset reviews 

(b) Argentina's claim regarding the alleged irrefutable presumption under US law as such 

(c) Argentina's claim under Article X:3(a) of the GATT 1994 

(d) Argentina's claim regarding the USITC's sunset determinations in the instant sunset review 

(e) Argentina's consequential claims under Articles 1 and 18 of the Anti-Dumping Agreement, Article VI of the GATT 1994 and ArticleXVI:4 of the WTO Agreement 

(f) Conclusion

3. The Issue of Prejudice 

C. CLAIMS REGARDING US LAW AS SUCH

1. Waiver Provisions under US Law 

(a) Arguments of parties

(i) Argentina 

(ii) United States 

(b) Arguments of third parties 

(i) European Communities 

(ii) Japan

(iii) Korea 

(iv) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu  

(c) Evaluation by the Panel 

(i) Alleged Violations of Article 11.3 of the Agreement  

Measures at issue

Nature of the obligations in Article 11.3 

Examination of the consistency of the waiver provisions

Deemed waivers 

Affirmative waivers 

Company-specific vs. order-wide sunset determinations 

Conclusion

(ii) Alleged Violations of Articles 6.1 and 6.2 of the Agreement  

Applicability of Articles 6.1 and 6.2 to Sunset Reviews

Nature of obligations under Articles 6.1 and 6.2 of the Agreement

Examination of the consistency of the deemed waivers provisions

Conclusion  

2. Alleged Irrefutable Presumption of Likelihood Under US Law/Practice  

(a) Arguments of parties  

(i) Argentina  

(ii) United States

(b) Arguments of third parties 

(i) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 

(c) Evaluation by the Panel

(i) Status of the Sunset Policy Bulletin 

(ii) Standard regarding presumptions 

(iii) Examination of the Measures Cited by Argentina 

The Statute and the Statement of Administrative Action

Conclusion

The Sunset Policy Bulletin 

Relevant provisions of the Sunset Policy Bulletin 

Consistent application of the Sunset Policy Bulletin 

Conclusion 

Impact of the finding regarding the Sunset Policy Bulletin on the consistency of the Statute 

3. US Law's Standard for the Likelihood of Continuation or Recurrence of Injury Determinations in Sunset Reviews 

(a) Arguments of parties 

(i) Argentina 

(ii) United States 

(b) Arguments of third parties

(i) Korea

(ii) Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu 

(c) Evaluation by the Panel 

(i) Conclusion 

D. CLAIMS RELATING TO THE USDOC'S LIKELIHOOD DETERMINATION IN THE OCTG SUNSET REVIEW

1. Arguments of Parties 

(a) Argentina

(b) United States

2. Arguments of Third Parties 

(a) European Communities 

3. Evaluation by the Panel

(a) Relevant facts

(b) Alleged violations of Articles 11.3 and 2 of the Agreement 

(i) Conclusion 

(c) Alleged violations of Article 6 of the Agreement 

(i) Nature of the obligations in Articles 6.1, 6.2, 6.8 and Annex II of the Agreement and their applicability in sunset reviews 

(ii) Examination of the consistency of the USDOC's determination with Articles 6.1 and 6.2 of the Agreement 

Conclusion 

(iii) Alleged violations of Article 6.8 and Annex II of the Agreement in the OCTG review 

Conclusion 

(d) Alleged violations of Article 12 of the Agreement 

(i) Conclusion 

E. CLAIMS RELATING TO THE USITC'S LIKELIHOOD DETERMINATION IN THE OCTG SUNSET REVIEW

1. Introduction

2. Temporal Aspect of the USITC's Likelihood Determination

(a)Arguments of parties  

(i) Argentina 

(ii) United States 

(b) Evaluation by the Panel 

(i) Conclusion 

3. Standard Applied by the USITC

(a) Arguments of parties  

(i) Argentina 

(ii) United States 

(b) Arguments of third parties

(i) European Communities 

(ii) Japan 

(c) Evaluation by the Panel

(i) Applicability of Article 3 in sunset reviews 

(ii) Claims relating to the USITC's determinations regarding the likely volume of dumped imports, their likely price effect and their likely impact on the US domestic industry 

Likely volume of dumped imports 

Conclusion 

Likely price effects of dumped imports 

Conclusion 

Likely impact of dumped imports on the US industry 

Conclusion 

4. Alleged violation of Article 3.4 of the Agreement 

(a) Arguments of parties 

(i) Argentina 

(ii) United States 

(b) Arguments of third parties 

(i) European Communities 

(ii) Japan 

(c) Evaluation and conclusion by the Panel

5. Alleged violation of Article 3.5 of the Agreement 

(a) Arguments of parties   

(i) Argentina 

(ii) United States

(b) Arguments of third parties 

(i) European Communities 

(ii) Japan

(c) Evaluation and conclusion by the Panel 

6. Cumulation

(a) Arguments of parties

(i) Argentina 

(ii) United States 

(b) Evaluation by the Panel

(i) Conclusion 

F. CONSEQUENTIAL CLAIMS UNDER THE ANTI-DUMPING AGREEMENT, THE WTO AGREEMENT AND THE GATT 

1. Arguments of Parties

(a) Argentina 

(b) United States

2. Evaluation and conclusion by the Panel

VIII. CONCLUSIONS AND RECOMMENDATIONS 


 

LIST OF ANNEXES

ANNEX A

FIRST SUBMISSIONS OF PARTIES

Contents

Page

Annex A-1      First Written Submission of Argentina1
A-2
Annex A-2      First Written Submission of the United States
A-87
Annex A-3      Submission from Argentina on the Request of the United States for
                     Preliminary Rulings under Article 6.2 of the DSU
A-175

ANNEX B

SUBMISSIONS OF THIRD PARTIES

Contents

Page

Annex B-1      Third Party Submission of the European Communities
B-2
Annex B-2      Third Party Submission of Japan
B-31
Annex B-3      Third Party Submission of Korea
B-47
Annex B-4      Third Party Submission of the Separate Customs Territory of Taiwan,
                     Penghu, Kinmen and Matsu
B-56

ANNEX C  

SECOND SUBMISSIONS OF PARTIES

Contents

Page

Annex C-1      Second Written Submission of Argentina
C-2
Annex C-2      Second Written Submission of the United States
C-64

ANNEX D

ORAL STATEMENTS, FIRST AND SECOND MEETINGS

 

Contents

Page

Annex D-1      Opening and Closing Oral Statements of Argentina – First Meeting
D-2
Annex D-2      Oral Statement of the United States – First Meeting
D-38
Annex D-3      Third Party Oral Statement of the European Communities
D-46
Annex D-4      Third Party Oral Statement of Japan
D-53
Annex D-5      Third Party Oral Statement of Mexico
D-59
Annex D-6      Third Party Oral Statement of the Separate Customs Territory of Taiwan,
                      Penghu, Kinmen and Matsu
D-60
Annex D-7      Opening and Closing Oral Statements of Argentina – Second Meeting
D-62
Annex D-8      Opening and Closing Oral Statements of the United States – Second
                     Meeting
D-86

ANNEX E

QUESTIONS AND ANSWERS

Contents
Page
Annex E-1      Answers of Argentina to Questions of the Panel- First Meeting
E-2
Annex E-2      Answers of the United States to Questions of the Panel – First Meeting
E-18
Annex E-3      Answers of the United States to Questions of the Panel – First Meeting
                     (revised version)2
E-43
Annex E-4      Answers of the United States to Questions of Argentina – First Meeting
E-68
Annex E-5      Answers of the United States to Questions of Argentina – First Meeting
                     (revised version)3
E-75
Annex E-6      Question of the European Communities to the United States – Third
                     Parties  Session
E-82
Annex E-7       Answers of Mexico to Questions of Argentina – Third Parties Session
E-83
Annex E-8       Answers of Argentina to Questions of the Panel – Second Meeting
E-85
Annex E-9       Answers of the United States to Questions of the Panel – Second
                      Meeting
E-93
Annex E-10     Answers of the United States to Questions from Argentina – Second
                      Meeting
E-107
Annex E-11     Comments of Argentina on the United States' Closing Statement and
                      the United States' Answers to the Panel's and Argentina's Questions –
                      Second Meeting
E-117
Annex E-12     Comments of the United States on Argentina's Responses to
                      Questions from the Panel – Second Meeting
E-133

ANNEX F 

REQUEST FOR THE ESTABLISHMENT
OF A PANEL

 

Contents
Page
Annex F      Request for the Establishment of a Panel-Document WT/DS268/2
F-1


I. INTRODUCTION

1.1 On 7 October 2002, the Government of the Republic of Argentina requested consultations with the Government of the United States of America pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("the DSU"), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 ("the GATT 1994"), and Article 17.3 of the Agreement on Implementation of Article VI of GATT 1994 ("the Anti-Dumping Agreement") concerning, inter alia, the determinations of the United States Department of Commerce ("the USDOC") and the United States International Trade Commission ("the USITC") in the sunset reviews of anti-dumping duty measure on oil country tubular goods ("OCTG") from Argentina.4 The United States and Argentina consulted on 14 November and 17 December 2002, but failed to settle the dispute.

1.2 On 3 April 2003, Argentina requested the Dispute Settlement Body ("the DSB") to establish a panel pursuant to Article XXIII of the GATT 1994, Article 6 of the DSU and Article 17 of the Anti-Dumping Agreement.5

1.3 At its meeting on 19 May 2003, the DSB established a panel in accordance with Article 6 of the DSU to examine the matter referred to the DSB by Argentina in document WT/DS268/2. At that meeting, the parties to the dispute also agreed that the Panel should have standard terms of reference. The terms of reference are, therefore, the following:

"To examine, in the light of the relevant provisions of the covered agreements cited by Argentina in document WT/DS268/2, the matter referred to the DSB by Argentina in that document and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."

1.4 On 22 August 2003, Argentina requested the Director-General to determine the composition of the Panel, pursuant to paragraph 7 of Article 8 of the DSU. On 4 September 2003, the Director-General accordingly composed the Panel as follows:

Chairman: Mr. Paul O'Connor
Members:
Mr. Bruce Cullen
Dr. Faizullah Khilji 

1.5 The European Communities, Japan, Korea, Mexico and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu reserved their third-party rights.

1.6 The Panel met with the parties on 9-10 December 2003 and on 3 February 2004. It met with the third parties on 10 December 2003.

II. FACTUAL ASPECTS

2.1 This dispute concerns certain aspects of US sunset reviews laws, regulations, and procedures as well as their application in the sunset review of the anti-dumping duty on OCTG from Argentina. The original anti-dumping investigation on OCTG from Argentina that gave rise to the sunset review at issue in these dispute settlement proceedings was initiated in 1994, i.e. before the establishment of the World Trade Organization ("the WTO") and was completed in 1995, i.e. following the entry into force of the Marrakesh Agreement Establishing the WTO. Therefore, the investigation was carried out under pre-WTO US laws and regulations.

2.2 The only exporter from Argentina that was party to the original investigation was Siderca. The dumping margin calculated for Siderca was 1.36 per cent, which also established the basis for the anti-dumping duty imposed. The USDOC calculated a residual duty at the same rate, i.e. 1.36 per cent for other Argentine exporters.

2.3 Following the imposition of the duty, Siderca stopped exporting OCTG into the US market.

2.4 During the five-year lifespan of the anti-dumping duty, four administrative reviews were initiated by the USDOC at the request of the domestic producers of OCTG in the United States. In these administrative reviews, Siderca stated that it had not made any shipment for consumption in the United States and, following its analysis, the USDOC agreed with Siderca and rescinded the administrative review.

2.5 On 3 July 2000, the USDOC initiated, on its own initiative, a sunset review of the anti-dumping duty on OCTG from Argentina. The US producers, petitioners in the sunset review, participated in the sunset review and filed substantive responses to the USDOC. Siderca also participated and filed a substantive response on 2 August 2000. On 22 August 2000, the USDOC decided to conduct an expedited sunset review under US law because Siderca was the lone respondent and accounted for significantly less than the threshold provided for in the Regulations of 50 per cent of total imports of OCTG from Argentina to the United States in the 1995-1999 period.

2.6 In its final determination, the USDOC determined that dumping was likely to continue or recur at 1.36 per cent should the duty on OCTG from Argentina be revoked and reported that to the USITC as the likely margin of dumping.

2.7 The USDOC's final likelihood of continuation or recurrence of dumping determination, in which it found that dumping was likely to continue or recur, was published on 7 November 2000. In June 2001, the USITC published its final injury determination in which it also found a likelihood of continuation or recurrence of material injury. On 25 July 2001, the USDOC published the notice of continuation of the anti-dumping duty on OCTG from Argentina.

III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

A. ARGENTINA

3.1 Argentina requests the Panel:

1. To find that 19 U.S.C. § 1675(c)(4) of the Tariff Act of 1930 and 19 C.F.R. § 351.218(d)(2)(iii) of the USDOC's Sunset Regulations (the “waiver provisions”) violate:

_ Article 11.3 of the Anti-Dumping Agreement because the waiver provisions mandate that the USDOC find likelihood of continuation or recurrence of dumping without the conduct of a “review,” without any analysis and, hence, without the required “determination” of Article 11.3;

_ Article 6.1 of the Anti-Dumping Agreement because the waiver provisions preclude respondent interested parties from being able to present evidence in sunset reviews;

_ Article 6.2 of the Anti-Dumping Agreement because the waiver provisions deny respondent interested parties the ability to defend their interest in sunset reviews;

2. To find that the provisions of 19 U.S.C. § 1675a(a)(1) and (5) of the Tariff Act of 1930 are inconsistent with Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1 and 11.3 of the Anti-Dumping Agreement because these statutory requirements provide for an open-ended analysis for possible future injury by requiring that the USITC determine whether injury would be likely to continue or recur “within a reasonably foreseeable time” and that the USITC “shall consider that the effects of revocation or termination may not be imminent, but may manifest themselves only over a longer period of time”;

3. To find that the irrefutable presumption embodied in Sections 751(c) and 752(c) of the Tariff Act of 1930, the provisions of Statement of Administrative Action (“the SAA”) relating to sunset reviews, and Section II.A.3 of the Sunset Policy Bulletin (“the SPB”) and demonstrated in the USDOC's consistent practice in sunset reviews violates Article 11.3 because the principal obligation of Article 11.3 of the Anti-Dumping Agreement requires that anti-dumping measures be terminated after five years of imposition, unless the authorities satisfy the requirements for maintenance of the measure;

4. To find that The USDOC’s determination to conduct an expedited sunset review and its conduct of an expedited review, on the basis that Siderca’s OCTG exports to the United States were less than 50 per cent of the total OCTG exports from Argentina to the United States, and the application of waivers provisions were inconsistent:

_ with the requirements of Articles 11.3, 11.4, 6.1, 6.2, 6.8, 6.9 and Annex II of the Anti-Dumping Agreement because notwithstanding Siderca’s full cooperation and submission of a complete substantive response consistent with the USDOC’s regulatory requirements, the USDOC deemed Siderca’s response to be inadequate solely on the basis of import data and, hence, denied Siderca the opportunity to defend its interest;

_ with Article 11.3 of the Anti-Dumping Agreement because the USDOC rendered a determination of likelihood of continuation or recurrence of dumping without any analysis;

_ with Article 6.1 of the Anti-Dumping Agreement because the USDOC failed to give Siderca the opportunity to present evidence;

_ with Article 6.2 because the USDOC denied Siderca the right to defend its interests;

_ with Article 6.8 and Annex II of the Anti-Dumping Agreement because the USDOC did not comply with these provisions in its use of facts available;

5. To find that the USDOC's determination to conduct an expedited sunset review and the USDOC's sunset determination, which incorporated the USDOC's Issues and Decision Memorandum by reference, violated Articles 12.2 and 12.2.2 of the Anti-Dumping Agreement because the USDOC failed to provide public notice and explanations in sufficient detail of its findings on all issues of fact and law;

6. To find that The USDOC's sunset determination was inconsistent with Article 11.3 of the Anti-Dumping Agreement because:

_ the USDOC failed to apply the disciplines of Article 2;

_ the USDOC failed to conduct a prospective analysis;

_ the USDOC failed to make a determination of “likely” (or “probable”) dumping;

_ the USDOC failed to base its determination on positive evidence;

_ the USDOC's reliance on the cessation of Siderca’s exports into the United States in the wake of the anti-dumping measure as the sole basis for its likelihood determination was inconsistent with Article 11.3 of the Anti-Dumping Agreement;

_ the USDOC's reliance on the original margin of dumping of 1.36 per cent, calculated using the WTO-inconsistent practice of zeroing negative margins for purposes of its likelihood decision, as well as its reporting of that margin to the USITC was inconsistent with Article 11.3 and Article 2 of the Anti-Dumping Agreement;

7. Separate and apart from whether US anti-dumping laws and regulations regarding sunset reviews are deemed to establish an unlawful presumption, or are otherwise found to be consistent on their face per se with the US WTO obligations, and irrespective of whether the SAA and SPB are “measures” that can be subject to challenge, to find that the USDOC failed to administer in an impartial and reasonable manner the US sunset review laws, regulations, decisions and rulings in violation of Article X:3(a) of the GATT 1994;

8. To find that, in its determination of the likelihood of continuation or recurrence of injury in the instant sunset review, the USITC applied a lower standard than that which is required by Article 11.3 of the Anti-Dumping Agreement;

9. To find that the USITC's sunset determination violated:

_ Articles 3.1, 3.2, 3.4, 3.5, and 11.3 of the Anti-Dumping Agreement because the USITC did not conduct an objective examination of the record or base its determination on positive evidence regarding its conclusions concerning the likely volume of imports, the likely price effects, and the likely impact of imports on the domestic industry;

_ Article 3.4 of the Anti-Dumping Agreement because in assessing the likelihood of continuation or recurrence of injury to the domestic industry, the USITC failed to evaluate all the relevant economic factors and indices having a bearing on the state of the industry, including those enumerated in the mentioned article;

_ Article 3.5 of the Anti-Dumping Agreement because the USITC failed to respect the causation provisions of this article;

10. To find that the USITC's application of 19 U.S.C. § 1675a(a)(1) and (5) of the Tariff Act of 1930 in the sunset review of OCTG from Argentina was inconsistent with Articles 3.1, 3.2, 3.4, 3.5, 3.7, 3.8, 11.1 and 11.3 of the Anti-Dumping Agreement because by applying the “within a reasonably foreseeable time” standard and by using a time frame that is not “imminent” but which rather relates to “a longer period of time”, the USITC speculated and conducted an open-ended analysis for possible future injury;

11. To find that the USITC's use of cumulation in its likelihood of continuation or recurrence of injury determinations in the OCTG sunset review was inconsistent with Article 11.3 of the Anti-Dumping Agreement, which precludes the use of a cumulative injury analysis in sunset reviews; or, if cumulation is permitted in sunset reviews, to find in the alternative that the USITC's decision to cumulate in the OCTG sunset review violated Article 3.3 of the Anti-Dumping Agreement because the USITC failed to comply with the conditions set out in the mentioned article for the use of cumulation; in addition, to find that the USITC's use of cumulation also conflicted with the "likely" standard of Article 11.3;

12. To find that because the United States violated its obligations under the Anti-Dumping Agreement, it also violated the provisions of Article VI of the GATT 1994, Articles 1 and 18 of the Anti-Dumping Agreement, and Article XVI:4 of the WTO Agreement;

13. To suggest that the United States implement the Panel's recommendations by terminating the anti-dumping duty on OCTG from Argentina and by repealing its WTO-inconsistent laws, regulations, and procedures or by amending such laws, regulations, and procedures to eliminate the WTO-inconsistencies.

B. UNITED STATES

3.2 The United States requests the Panel to reject Argentina's claims in their entirety. The United States requests the Panel to find that the claims set forth in paragraph 3.1 beyond those found in Argentina’s panel request are not within the Panel’s terms of reference.

IV. ARGUMENTS OF THE PARTIES

4.1 The arguments of the parties are set out in their written submissions and oral statements to the Panel and their answers to questions. The parties' submissions, oral statements and their answers to questions are attached to this Report as Annexes (see List of Annexes, pages viii and ix).

V. ARGUMENTS OF THE THIRD PARTIES

5.1 The arguments of the third parties, the European Communities, Japan, Korea, Mexico and the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu are set out in their written submissions and oral statements to the Panel and their answers to questions. The third parties' submissions, oral statements and their answers to questions are attached to this Report as Annexes (see List of Annexes, pages viii and ix).

VI. INTERIM REVIEW

6.1 On 7 May 2004, we submitted the interim report to the parties. Both parties submitted written requests for the review of precise aspects of the interim report. Parties also submitted written comments on the other party's comments. Neither party requested an interim review meeting.

6.2 We have outlined our treatment of the parties' requests below. Where necessary, we have also made certain technical revisions to our report.

A. REQUEST OF ARGENTINA

6.3 Argentina submits that the Panel should make a legal finding that the violations committed by the United States of its WTO obligations constitute nullification or impairment of Argentina's rights under WTO agreements within the meaning of Article 3.8 of the DSU.

6.4 The United States opines that since Argentina has not proved that it suffered actual harm due to the violations found by the Panel, the latter should refrain from finding that these violations lead to a nullification or impairment of Argentina's rights under WTO agreements.

6.5 We note that Article 3.8 of the DSU sets out the presumption that in cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment of benefits under that agreement. The cited article does not require that the complaining party prove actual harm for the Panel to find that an infringement of a WTO obligation also constitutes nullification or impairment of the complaining party's WTO rights. We therefore made a modification to paragraph 8.2 of our report to accommodate Argentina's comment.

6.6 Second, Argentina argues that the Panel should make findings regarding Argentina's claim concerning the use by the USDOC of the original dumping margin, which, in Argentina's view, had been calculated on the basis of the so-called methodology of zeroing.

6.7 The United States submits that the Panel should exercise judicial economy and not make any findings regarding this aspect of Argentina's claim.

6.8 We note that in paragraph 7.219 below we found that the USDOC erred in basing its factual finding that dumping had continued over the life of the measure on the existence of the margin of dumping from the original investigation. We therefore concluded that the factual basis of the USDOC's determination that dumping had continued over the life of the measure was improper. In paragraph 7.223, we stated that, having found that the USDOC erred in relying on this original dumping margin, we did not analyse the issue of whether that margin had been calculated through zeroing. We therefore decline to make additional findings in this regard.

6.9 Third, Argentina submits that the Panel should make findings regarding the USDOC's reliance on the post-order decline in the volume of imports of OCTG from Argentina.

6.10 The United States argues that the Panel should exercise judicial economy and not make any findings regarding this aspect of Argentina's claim.

6.11 We note that in paragraphs 7.201-7.206 below, we made the relevant factual findings regarding Argentina's claim challenging the USDOC's determinations in the OCTG sunset review. In particular, in paragraph 7.202, we observed as a matter of fact that the USDOC had based its likelihood determination on the facts that dumping had continued over the life of the measure and that import volumes of the subject product had declined. It is, therefore, clear that we have made relevant factual findings in this regard. As far as legal findings are concerned, we note that we have decided Argentina's claim regarding the USDOC's likelihood determinations in the OCTG sunset review. We have found that the USDOC's reliance on the existence of the original dumping margin was inconsistent with Article 11.3 of the Anti-Dumping Agreement. We therefore did not need to address whether the USDOC's reliance on declined import volumes was yet another action inconsistent with that article. Argentina argues that we should make a finding in this regard in case our decision is appealed and the Appellate Body finds that the USDOC's reliance on the original dumping margin was in fact consistent with Article 11.3. We do not consider, however, that it would be appropriate to make an additional legal finding based on the hypothetical situation Argentina posits. We therefore decline to make additional findings in this regard.

6.12 Fourth, Argentina submits that it put forward sufficient argumentation to support its claim under Article 6.9 of the Anti-Dumping Agreement and therefore the Panel should make findings in this regard.

6.13 The United States agrees with the Panel's view that Argentina did not develop sufficient argumentation to make a claim under Article 6.9 and submits that the Panel should not make any finding in this regard.

6.14 We consider that Argentina did not develop arguments sufficient to make a claim under Article 6.9. We added paragraphs 7.243-7.244 to our report in order to further clarify the reasons why we decline to make any finding under Article 6.9 of the Agreement.6

6.15 Fifth, Argentina disagrees with the Panel's characterization of Argentina's claim regarding the USITC's failure to apply the "likely" standard of Article 11.3 of the Anti-Dumping Agreement in the OCTG sunset review. In particular, Argentina disagrees with the Panel's statement in paragraph 7.280 that "... the crux of Argentina's claim is..." and the statement in paragraph 7.285 that "...the essence of Argentina's claim is not..."

6.16 The United States did not specifically respond to this comment.

6.17 We note that Argentina's main argument in this regard, i.e. the USITC failed to apply the "likely" standard of Article 11.3 in the OCTG review, is correctly identified and then discussed by the Panel in paragraphs 7.284-7.285 below. The statement in paragraph 7.280 is intended to draw attention to the similarity between the texts of Articles 3.1 and 3.2 of the Anti-Dumping Agreement on the one hand and the Panel's standard of review in the present proceedings on the other. As such, this statement does not determine the Panel's main line of approach with respect to this claim. The statement in paragraph 7.285 is intended to link Argentina's claim regarding the USITC's failure to apply the "likely" standard to the three arguments raised by Argentina regarding the USITC's determinations in the OCTG sunset review, i.e. volume, price effect and consequent impact of likely dumped imports. Similarly, this statement does not undermine, nor change, the nature of Argentina's claim.

6.18 We therefore decline to make any modification to our findings in this regard.

6.19 Sixth, Argentina disagrees with the Panel's characterization of Argentina's claim regarding cumulation. In this context, Argentina argues that the Panel has failed to discuss Argentina's arguments that Articles 11.3 and 3.3 of the Agreement prohibit cumulation in sunset reviews and that the USITC's use of cumulation in the OCTG sunset review led to a failure to apply the "likely" standard of Article 11.3.

6.20 The United States generally disagrees with Argentina and submits that the report adequately discusses Argentina's argument that Articles 11.3 and 3.3 prohibit cumulation in sunset reviews.

6.21 We note that in paragraphs 7.325 and 7.326 below we have addressed Argentina's argument that Article 3.3 limits the use of cumulation to investigations. This, in our view, is equivalent to the proposition that Article 3.3 prohibits the use of cumulation in sunset reviews. We have nevertheless added paragraph 7.334 to discuss Argentina's argument regarding the use of the word "duty" in the singular, as opposed to the plural, in Articles 11.1 and 11.3 of the Agreement in connection with the present claim.7

6.22 Regarding Argentina's claim that the USITC failed to apply the "likely" standard of Article 11.3 by using cumulation in the OCTG sunset review, we note that we have discussed this particular issue in paragraph 7.337 below. We therefore decline to make any modification to our findings in this regard.

6.23 We have made a modification to paragraph 7.239 at the request of Argentina.

B. REQUEST OF THE UNITED STATES

6.24 The United States requests the Panel to make certain modifications to paragraphs 7.85 and 7.91 to prevent a potential misunderstanding regarding the legal basis of the provisions of US law governing affirmative and deemed waivers. More particularly, the United States argues that under US law the provisions that apply to deemed waivers are found exclusively in the Regulations, not the Statute. The modifications that the United states is suggesting are aimed at clarifying this issue.

6.25 Argentina disagrees with the United States with respect to both paragraphs and opines that although the provision that creates the deemed waiver category is found in the Regulations, the Statute is also relevant with respect to the provisions applicable to deemed waivers in that it is the Statute, and not the Regulations, that sets out the legal consequence of deemed waivers.

6.26 We note that, as stated in the two paragraphs cited by the United States, under US law it is the USDOC's Regulations, and not the Statute, which creates the deemed waivers category. Section 751(c)(4)(A) of the Tariff Act provides that interested parties may elect to waive participation in the USDOC part of a sunset review and limit their participation to the USITC part. Section 351.218(d)(2)(iii) of the USDOC's Regulations, however, describes the situations in which waivers may arise. One of the situations described in this section is the deemed waivers category. The legal consequence of waivers, regardless of the situation in which they arise, is set out in Section 751(c)(4)(B) of the Tariff Act, i.e. an affirmative finding of likelihood. We cannot, therefore, accept the US comment, which suggests that the Statute has no effect with respect to deemed waivers.

6.27 Second, the United States requests that the Panel make certain modifications to paragraphs 7.156 and 7.158 of the report to reflect the fact that the SPB has no authority to request the USDOC to do anything and similarly no authority to give the USDOC the discretion to do anything.

6.28 Argentina opines that the modifications requested by the United States are aimed at re-litigating certain substantive issues that have been decided by the Panel and therefore the Panel should reject them.

6.29 We note that the basis on which the United States builds its comments at issue are closely related to the substance of the claims raised by the parties and discussed by the Panel in the present proceedings. We have already made a decision regarding the US' view that the SBP as such cannot give rise to a WTO violation because it is not binding under US law. We therefore decline to revisit our substantive finding in that regard. We have nevertheless made certain modifications to the descriptive portions of paragraphs 7.156 and 7.158 to accommodate the concern raised by the United States regarding the binding effect of the SPB on the USDOC.

6.30 Third, the United States requests the Panel to add to the recitation of facts in paragraph 7.203 of the report the fact that no Argentine exporter other than Siderca responded to the notice of initiation.

6.31 Argentina requests that the preceding four sentences of this paragraph be maintained should the Panel decide to make any modification to this paragraph.

6.32 We note that the two paragraphs that follow paragraph 7.203 make clear that no Argentine exporter other than Siderca filed a substantive response to the notice of initiation in the OCTG sunset review. We therefore decline to make any modification to paragraph 7.203 in this regard.

6.33 Fourth, the United States submits that either the Panel should point to relevant evidence that demonstrates that Siderca requested a hearing in the OCTG sunset review and was declined or paragraphs 7.232 through 7.236 should be deleted.

6.34 Argentina disagrees with the United States and submits that the Panel should reject the US comment because the application of waiver provisions and the conduct of an expedited sunset review in the OCTG sunset review precluded Siderca from having the opportunity to request a hearing.

6.35 We note our factual finding in paragraph 7.235 that in the OCTG sunset review, which took the form of an expedited sunset review under US law, Siderca did not have an opportunity to request a hearing because US law precluded such an opportunity. This is, in our view, enough ground to make a decision as to the WTO-consistency of the procedural rights provided to interested parties in the OCTG sunset review. In other words, we disagree with the view that in order to be able to challenge the US investigating authorities' failure to provide an opportunity for a hearing in the OCTG sunset review, Siderca had to make such a request and have it denied even though it was evident that such a request would not be granted as a matter of US law. We therefore decline to make any modification to our report in this regard.

6.36 We have deleted four paragraphs from the part of our report dealing with the United States' request for preliminary rulings at the request of the United States. We have also made the modifications requested by the United States to paragraphs 7.11, 7.74 and 7.106.

6.37 Finally, we have made some typographical and style-related improvements to the interim report.

VII. FINDINGS

A. GENERAL ISSUES

1. Standard of Review

7.1 In light of the claims and arguments made by the parties in the course of these Panel proceedings, we recall, at the outset of our examination, the standard of review we must apply to the matter before us.

7.2 Article 11 of the DSU8, in isolation, sets forth the appropriate standard of review for panels for all covered agreements except the Anti-Dumping Agreement. Article 11 imposes upon panels a comprehensive obligation to make an "objective assessment of the matter", an obligation which embraces all aspects of a panel's examination of the "matter", both factual and legal.

7.3 Article 17.6 of the Anti-Dumping Agreement sets forth the special standard of review applicable to anti-dumping disputes. It provides:

“(i) in its assessment of the facts of the matter, the panel shall determine whether the authorities’ establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned;”

“(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities’ measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.”

7.4 Thus, together, Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement set out the standard of review we must apply with respect to both the factual and legal aspects of our examination of the claims and arguments raised by the parties.9

7.5 In light of this standard of review, in examining the claims under the Anti-Dumping Agreement in the matter referred to us, we must evaluate whether the United States measures at issue are consistent with relevant provisions of the Anti-Dumping Agreement. We may and must find them consistent if we find that the United States investigating authorities have properly established the facts and evaluated them in an unbiased and objective manner, and that the determinations rest upon a "permissible" interpretation of the relevant provisions. Our task is not to perform a de novo review of the information and evidence on the record of the underlying sunset review, nor to substitute our judgment for that of the US authorities, even though we might have arrived at a different determination were we examining the record ourselves.

2. Burden of Proof

7.6 We recall that the general principles applicable to burden of proof in WTO dispute settlement require that a party claiming a violation of a provision of the WTO Agreement by another Member must assert and prove its claim.10 In these Panel proceedings, Argentina, which has challenged the consistency of the United States' measures, thus bears the burden of demonstrating that the measures are not consistent with the relevant provisions of the Agreement. Argentina also bears the burden of establishing that its claims are properly before us. We also note that it is generally for each party asserting a fact to provide proof thereof.11 In this respect, therefore, it is also for the United States to provide evidence for the facts which it asserts. We also recall that a prima facie case is one which, in the absence of effective refutation by the other party, requires a panel, as a matter of law, to rule in favour of the party presenting the prima facie case.

B. UNITED STATES' REQUEST FOR PRELIMINARY RULINGS

7.7 In its first written submission, the United States made a request for preliminary rulings by the Panel.12 From an analytical point of view, the bases of the United States' request for preliminary rulings can be divided into two groups. First, the United States asserts that Argentina's panel request is vague in two respects. The United States submits that, inconsistently with Article 6.2 of the DSU, the claims raised by Argentina on page 4 of its panel request do not present the problem clearly. Along the same line, the United States argues that references to Articles 6 and 3 of the Anti-Dumping Agreement in sections B.1, B.2 and B.3 of Argentina's panel request do not present the problem clearly, because these articles are being referred to generally in their entirety, without any specification of the relevant sub-paragraphs.

7.8 Second, the United States contends that certain claims presented in Argentina's first submission are not within our terms of reference because they were not raised in Argentina's panel request. These are:

  • Argentina's claim challenging the US practice as such and as applied in the instant sunset review regarding the alleged irrefutable presumption in sunset reviews,

  • Argentina's claim regarding the alleged irrefutable presumption under US law as such,

  • Argentina's claim under Article X:3(a) of the GATT 1994,

  • Argentina's claim regarding the USITC's sunset determinations in the instant sunset review,

  • Argentina's consequential claims under Articles 1 and 18 of the Anti-Dumping Agreement, Article VI of the GATT 1994 and Article XVI:4 of the WTO Agreement.

7.9 In response to the United States' request for preliminary rulings on the basis of Article 6.2 of the DSU, Argentina generally submits that the United States can not prevail because it has failed to demonstrate to the Panel that it has suffered prejudice as a result of the alleged deficiencies in Argentina's panel request. In addition to this general observation, Argentina also puts forward counter-arguments to the US allegations with regard to each aspect of the latter's request for preliminary rulings.

1. Alleged Vagueness of Argentina's Request for Establishment

7.10 The United States requests that we dismiss certain claims raised by Argentina in its panel request on the grounds that, inconsistently with the requirements of Article 6.2 of the DSU, these claims were identified vaguely. In this context, the United States takes issue with the claims raised on page four and those raised in sections B.1 through B.3 of Argentina's panel request.

(a) Claims raised on page 4 of Argentina's panel request13

7.11 The United States argues that Argentina failed to provide a brief summary of the legal basis of the claims raised on page four of its panel request. According to the United States, inconsistently with Article 6.2 of the DSU, the claims raised by Argentina on page 4 of its panel request fail to present the problem clearly and are therefore outside our terms of reference. The United States submits that Argentina's reference to various articles from WTO agreements that contain multiple obligations fell short of the requirements of Article 6.2 of the DSU. The United States also asserts that the absence of a brief summary of the legal basis of the claims raised on page four renders this portion of the panel request inconsistent with Article 6.2 of the DSU.

7.12 Argentina argues that the Panel has to read Argentina's panel request as a whole in deciding whether it meets the requirements of Article 6.2 of the DSU. Argentina submits that the minimum requirement to clarify the legal basis of a claim in WTO dispute settlement proceedings is the citation of the treaty articles alleged to have been violated. According to Argentina, claims on page four of its panel request met this standard. Argentina contends that, although Article 6.2 does not require the inclusion of a narrative description of the legal basis of a claim, Argentina did provide such a description in relation to its page four claims. Argentina states that page four of its panel request is not intended to set out additional claims that are not found elsewhere in the request. According to Argentina, therefore, even if page four is severed from the rest of its panel request, the effect would be minimal.14

7.13 We note that, under Article 7 of the DSU, it is Argentina's panel request that determines our terms of reference in these proceedings. Article 6.2 of the DSU, which sets out the requirements applicable to the requests for the establishment of a panel, provides:

The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. In case the applicant requests the establishment of a panel with other than standard terms of reference, the written request shall include the proposed text of special terms of reference.

7.14 According to Article 6.2, therefore, a panel request must identify the specific measures at issue and must provide a brief summary of the legal basis of the complaint. Together, these two elements comprise the "matter referred to the DSB", which forms the basis for a panel's terms of reference under Article 7.1 of the DSU. It is important that the panel request be sufficiently clear for two reasons: First, it defines the scope of the dispute. Second, it serves the due process objective of notifying the parties and third parties of the nature of a complainant's case. We must therefore scrutinize carefully Argentina's panel request "to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU." In doing that, we shall consider Argentina's panel request as a whole and take into account the circumstances of the present proceedings.15

7.15 With these considerations in mind, we now turn to the text of Argentina's panel request to decide whether it conforms to the requirements of that article. The portion of page four of Argentina's panel request contested by the United States reads:

Argentina also considers that certain aspects of the following US laws, regulations, policies, and procedures related to the determinations of the Department and the Commission are inconsistent with US WTO obligations, to the extent that any of these measures mandate action by the Department or Commission that is inconsistent with US WTO obligations or preclude the Department or Commission from complying with US WTO obligations:

  • Sections 751(c) and 752 of the Tariff Act of 1930, as amended, codified at Title 19 of the United States Code §§ 1675(c) and 1675a; and the US Statement of Administrative Action (regarding the Agreement on Implementation of GATT Article VI) accompanying the Uruguay Round Agreements Act (the SAA), H.R. Doc. No. 103-316, vol. 1;

  • The Department's Policies Regarding the Conduct of Five-year ("Sunset") Reviews of Anti-Dumping and Countervailing Duty Orders; Policy Bulletin, 63 Federal Register 18871 (16 April 1998) (Sunset Policy Bulletin);

  • The Department's sunset review regulations, codified at Title 19 of the United States Code of Federal Regulations § 351.218; and the Commission's sunset review regulations, codified at Title 19 of the United States Code of Federal Regulations §§ 207.60-69 (Subpart F).

Argentina considers that the Department's Determination to Expedite, the Department's Sunset Determination, the Commission's Sunset Determination, the Department's Determination to Continue the Order and the above mentioned US laws, regulations, policies and procedures are inconsistent with the following provisions of the Anti-Dumping Agreement, the GATT 1994, and the WTO Agreement:

  • Articles 1, 2, 3, 6, 11, 12, 18 and Annex II of the Anti-Dumping Agreement;

  • Articles VI and X of the General Agreement on Tariffs and Trade (GATT) 1994; and

  • Article XVI:4 of the WTO Agreement.16

7.16 We note that on page four, Argentina invokes various articles of the Anti-Dumping Agreement and other WTO agreements in their entirety, many of which contain multiple obligations, such as Articles 2, 3 and 6 of the Anti-Dumping Agreement. However, as we stated above, we shall not read page four of Argentina's panel request in isolation. Argentina's panel request consists of four pages altogether. We have to scrutinize the text of the panel request as a whole in inquiring whether it conforms to the requirements of Article 6.2.

7.17 The crux of the US allegation regarding page four of Argentina's panel request is that page four is vague in the sense of being overly broad. The United States argues that since page four is not sufficiently clear, it is not possible to discern the nature of the claims raised in this part of the panel request.

7.18 In our view, the task before us is not to decide, in the abstract, whether Argentina's panel request conforms to the requirements of Article 6.2 of the DSU. Rather, the issue is whether Argentina has, during the course of these proceedings, asked us to address claims which are not identified with sufficient clarity in its panel request to satisfy the terms of Article 6.2 and thus could not be foreseen by the defendant and the third parties. To that end, we invited the United States to identify, in concrete terms, which claims in Argentina's submissions to the Panel were based exclusively on page four of the panel request and therefore should, in the United States' view, be found to be outside our terms of reference. In response to our question, the United States identified a number of claims raised by Argentina in its first and second submissions that it considered to fall in this category. In response to the US allegation, Argentina generally argued that the United States was attempting to recast Argentina's claims, and asked the Panel to reject the US allegations in this regard in their entirety.

7.19 The claims that are alleged by the United States to be outside our terms of reference because of the alleged vagueness on page four of Argentina's panel request17 and our analysis with regard to each one of them are as follows:

(i) Section VII.A of Argentina's first written submission and section III.A of its second written submission

7.20 The United States asserts that although section A of Argentina’s panel request refers only to Section 351.218(e) of the USDOC's Regulations, in section VII.A of its first written submission and section III.A of its second written submission, Argentina extends the scope of this claim to Section 351.218(d)(2)(iii) of the Regulations. Argentina submits that the Panel should reject the US allegation.

7.21 We note that section A.1 of Argentina's panel request reads, in relevant part:

...In particular, 19 U.S.C. § 1675(c)(4) and 19 C.F.R. § 351.218(e) operate in certain instances to preclude the Department from conducting a sunset review and making a determination as to whether termination of an anti-dumping duty measure would be likely to lead to continuation or recurrence of dumping, in violation of Articles 11.1, 11.3...of the Anti-Dumping Agreement. When a respondent interested party is deemed by the Department to have "waived" participation in the Department sunset review, US law mandates that the Department find that termination of the order would be likely to lead to continuation or recurrence of dumping, without requiring the Department to conduct a substantive review and to make a determination based on the substantive review. (emphasis added)

7.22 We note that, as the United States also concedes18, the narrative part of section A.1 clearly refers to US law's provisions relating to deemed waivers and asserts that the USDOC is precluded from making the requisite determination in these cases. We therefore consider that the text of Argentina's panel request makes it sufficiently clear that Argentina could pursue a claim challenging Section 351.218(d)(iii) of the Regulations, which contains the provision that creates the deemed waivers category under US law.

7.23 Furthermore, we note that the United States also acknowledges that this alleged extension of Argentina's claim did not cause any prejudice to the United States.19

7.24 We therefore decline the US request for a preliminary ruling in this regard.

(ii) Section VII.B.2 of Argentina's first written submission

7.25 The United States argues that section VII.B.2 of Argentina's first written submission contains claims regarding 19 U.S.C. 1675(c) and 1675a(c), the SAA, and the SPB. However, section A of the panel request refers to 19 U.S.C. 1675(c)(4) only and does not refer to the other provisions of 19 U.S.C. 1675(c), 19 U.S.C. 1675a(c), the SAA, or the SPB. According to the United States, therefore, these portions of Argentina's claims are outside the Panel's terms of reference and have to be disregarded by the Panel. Argentina submits that the Panel should reject the US allegation.

7.26 We note that Section A.4 of Argentina's panel request provides:

The Department's Sunset Determination is inconsistent with Article 11.3 of the Anti-Dumping Agreement, and Article X:3(a) of the GATT 1994 because it was based on a virtually irrefutable presumption under US law as such that termination of the anti‑dumping duty measure would be likely to lead to continuation or recurrence of dumping. This unlawful presumption is evidenced by the consistent practice of the Department in sunset reviews (which practice is based on US law and the Department's Sunset Policy Bulletin). (emphasis added)

7.27 We note that section A.4 of Argentina's panel request takes issue with US law's provisions relating to the likelihood of continuation or recurrence of dumping determinations. In addition to this general reference, the mentioned section also cites the SPB and the USDOC's practice in this regard. In our view, this section is sufficiently clear to inform the United States that Argentina may pursue a claim to challenge the provisions of US law regarding the alleged irrefutable presumption under US law concerning the likelihood of continuation or recurrence of dumping determinations in sunset reviews. We consider that the references to 19 U.S.C. 1675(c), 19 U.S.C. 1675a(c) and the SAA on page four of the panel request, viewed in conjunction with section A.4, further clarify that Argentina can invoke these provisions of US law in its first written submission to the Panel.

(iii) Section VII.E.1 of Argentina's first written submission

7.28 The United States argues that section VII.E.1 of Argentina's first written submission raises a claim regarding the United States' administration of its laws, regulations, decisions, and rulings with respect to sunset reviews in violation of Article X:3(a) of the GATT 1994. However, section A.4 of the panel request only challenges the OCTG sunset determination in this regard, rather than all US laws, regulations, decisions, and rulings with respect to all sunset reviews. Argentina submits that the Panel should reject the US allegation.

7.29 We need not, and do not, address this aspect of the US request for a preliminary ruling here given that this claim was submitted by Argentina as an alternative to its claim regarding the alleged irrefutable presumption under US law regarding the likelihood of continuation or recurrence of dumping determinations and that we did not address it.20

(iv) Section VIII.C.2 of Argentina's first written submission and section III.D.2 of its second written submission

7.30 The United States argues that section VIII.C.2 of Argentina's first written submission and section III.D.2 of its second written submission contains a claim regarding the USITC’s application of 19 U.S.C. 1675a(a)(1) and (5) in the instant sunset review even though section B.3 of the panel request is limited to US law "as such" and makes no reference to the instant sunset review. Argentina submits that the Panel should reject the US allegation.

7.31 We note that section B of Argentina's panel request reads, in relevant part:

B. The Commission's Sunset Determination was inconsistent with the Anti-Dumping Agreement and the GATT 1994:

...

3. The US statutory requirements that the Commission determine whether injury would be likely to continue or recur "within a reasonably foreseeable time" (19 U.S.C. § 1675a(a)(1)) and that the Commission "shall consider that the effects of revocation or termination may not be imminent, but may manifest themselves only over a longer period of time" (19 U.S.C. § 1675a(a)(5)) are inconsistent with Articles 11.1, 11.3 and 3 of the Anti-Dumping Agreement. (emphasis added)

7.32 On its face, section B.3 of Argentina's panel request seems to be limited to the US statutory provisions and does not refer to the USITC's application of these statutory provisions in the sunset review at issue. However, the heading of section B refers to the USITC's determinations in this sunset review. Therefore, we consider that the text of section B, including the heading, is sufficiently clear to inform the United States that Argentina may challenge the application of the cited statutory provisions in the sunset review at issue.

(v) Section IX of Argentina's first written submission and section V of its second written submission

7.33 The United States argues that Article VI of the GATT 1994, Articles 1 and 18 of the Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement that are being raised in section IX of Argentina's first written submission and section V of its second written submission only appear on page four of Argentina's panel request. According to the United States, therefore, these claims are outside our terms of reference. Argentina submits that the Panel should reject the US allegation.

7.34 We note that we exercised judicial economy with respect to these consequential claims raised by Argentina and did not rule on them.21 We therefore need not, and do not, rule on this aspect of the US request for a preliminary ruling either.

(vi) Section X of Argentina's first written submission

7.35 The United States takes issue with the phrase “US sunset review, statutory, regulatory, and administrative provisions as such violate the Anti-Dumping Agreement and the WTO Agreement” in the conclusion part of Argentina's first written submission and argues that the only basis for this general assertion is page four of Argentina's panel request. Argentina submits that the Panel should reject the US allegation.

7.36 We note that the phrase cited by the United States is heading A under the "Conclusion" section of Argentina's first written submission. As evidenced by its name, rather than introducing new claims, the conclusion is intended to, and does in fact, repeat the claims already raised by Argentina throughout its first submission. Given that we have not made substantive rulings regarding the "Conclusion" section of Argentina's first written submission, we need not, and do not, address this aspect of the US request for a preliminary ruling.

(vii) Section III.B of Argentina's second written submission

7.37 Regarding the alleged irrefutable presumption, the United States argues that the claim raised in section III.B of Argentina's second written submission regarding certain provisions of the US Statute, the SAA and the SPB are outside our terms of reference because section A.4 of Argentina's panel request only contains a claim aimed against the application of an alleged irrefutable presumption in the instant sunset review. Argentina submits that the Panel should reject the US allegation.

7.38 We note once again that section A.4 of Argentina's panel requests provides:

The Department's Sunset Determination is inconsistent with Article 11.3 of the Anti-Dumping Agreement, and Article X:3(a) of the GATT 1994 because it was based on a virtually irrefutable presumption under US law as such that termination of the anti‑dumping duty measure would be likely to lead to continuation or recurrence of dumping. This unlawful presumption is evidenced by the consistent practice of the Department in sunset reviews (which practice is based on US law and the Department's Sunset Policy Bulletin). (emphasis added)

7.39 Given the two clear references in this section to US law regarding the alleged irrefutable presumption, we consider that Argentina's panel request made it sufficiently clear to the United States that Argentina could be raising a claim aimed against US law as such concerning this alleged irrefutable presumption.

(viii) Conclusion

7.40 In conclusion, we decline the US request for preliminary rulings relating to the alleged vagueness of the claims set forth on page four of Argentina's panel request.

(b) References to Articles 6 or 3 of the Anti-Dumping Agreement in sections B.1, B.2 and B.3 of the panel request

7.41 The United States argues that Argentina's references to Article 6 of the Anti-Dumping Agreement in sections B.1 and B.2, and to Article 3 in section B.3, of its panel request in their entirety fail to present the problem clearly. According to the United States, since Articles 3 and 6 of the Anti-Dumping Agreement both contain multiple obligations, the mere listing of these articles in their entirety makes it impossible to discern the nature of Argentina's problem, inconsistently with Article 6.2 of the DSU. The United States also claims to have suffered prejudice due to these deficiencies in sections B.1, B.2 and B.3 of Argentina's panel request because it did not know what case to answer. Therefore, the United States requires us to find that the claims of inconsistency with Article 6 in sections B.1 and B.2 and the claim of inconsistency with Article 3 in section B.3 of Argentina's panel request are not within our terms of reference.

7.42 Regarding the references to Article 6, Argentina submits that these references present the problem clearly because Article 6 is relevant to sunset reviews in its entirety. With regard to the reference to Article 3, Argentina similarly argues that given that Article 3 is generally applicable to sunset reviews and that it is particularly relevant to the issue of the time-frame on the basis of which sunset determinations have to be made, this reference also presents the problem clearly. Argentina argues that Article 6.2 requires that claims – not arguments – be set out in the panel request and that its panel request sets out its claims under Articles 3 and 6 with sufficient clarity. Finally, Argentina asserts that we should decline the US request because the United States has not been prejudiced in its right to defend itself due to the alleged inconsistency with Article 6.2 of sections B.1, B.2 and B.3 of its panel request.

7.43 We note that the contested sections B.1 through B.3 of Argentina's panel request read:

The Commission's Sunset Determination was inconsistent with the Anti-Dumping Agreement and the GATT 1994:

1. The Commission's application of the standard for determining whether the termination of anti‑dumping duty measure would be "likely to lead to continuation or recurrence of ... injury" was inconsistent with Articles 11, 3 and 6 of the Anti-Dumping Agreement. The Commission failed to apply the plain and ordinary meaning of the term "likely" and instead applied a lower standard in assessing whether injury would continue or recur in the event of termination, in violation of Articles 11.1, 11.3, 11.4, 3.1, 3.2, 3.3, 3.4, 3.5, and 6 of the Anti-Dumping Agreement.

2. The Commission failed to conduct an "objective examination" of the record and failed to base its determination on "positive evidence" regarding whether termination of the anti‑dumping duty measure "would be likely to lead to continuation or recurrence" of injury. In particular, the Commission's conclusions with respect to the volume of imports, price effects on domestic like products, and impact of imports of the domestic industry demonstrate the Commission's failure to conduct an objective examination in violation of Articles 11, 3, and 6. The Commission's findings on these issues do not constitute "positive evidence" of likely injury in the event of termination, in violation of Articles 11.1, 11.3, 11.4, 3.1, 3.2, 3.3, 3.4, 3.5, and 6 of the Anti-Dumping Agreement.

3. The US statutory requirements that the Commission determine whether injury would be likely to continue or recur "within a reasonably foreseeable time" (19 U.S.C. § 1675a(a)(1)) and that the Commission "shall consider that the effects of revocation or termination may not be imminent, but may manifest themselves only over a longer period of time" (19 U.S.C. § 1675a(a)(5)) are inconsistent with Articles 11.1, 11.3 and 3 of the Anti-Dumping Agreement.

7.44 We note that sections B.1 and B.2 contain a number of references to specific paragraphs of Articles 11 and 3 of the Anti-Dumping Agreement and a general reference to Article 6. Section B.1 contains Argentina's claim regarding the standard applied by the USITC in the instant sunset review, whereas section B.2 deals with the USITC's alleged failure to carry out an objective examination. We note, however, that with respect to both claims, Argentina has not invoked Article 6 in its submissions to the Panel during these proceedings. Consequently, in our report, we have not made any findings with regard to Article 6 under these two claims. We therefore need not, and do not, rule on the US request for a preliminary ruling concerning the general references to Article 6 of the Anti-Dumping Agreement in sections B.1 and B.2 of Argentina's panel request.

7.45 Turning to section B.3, we note that this section contains a general reference to Article 3, as well as specific references to two individual paragraphs of Article 11 of the Anti-Dumping Agreement. We also note that in its submissions to the Panel, although Argentina cited various subparagraphs of Article 3 in support of its claim challenging US law's provisions regarding the time-frame on the basis of which the USITC carries out its likelihood determinations, it only developed arguments under paragraphs 7 and 8 thereof. Therefore, the issue is whether section B.3 of Argentina's panel request was sufficiently clear to inform the United States that Argentina could invoke Articles 3.7 and 3.8 as part of this claim.

7.46 As we have already stated, Article 3 contains, in its various paragraphs, detailed rules dealing with injury determinations in anti-dumping investigations. These provisions govern different aspects of injury determinations. Paragraphs 7 and 8, in their turn, deal with threat of material injury determinations in anti-dumping investigations. Article 3 sets out certain factors to be considered in threat of material injury determinations whereas Article 3.8 requires that special care be exercised in the application of anti-dumping measures on the basis of a threat of material injury. Among other things, Article 3.7 also contains provisions regarding the timing aspect of threat of material injury determinations. In this context, we note that the chapeau of Article 3.7 reads in the relevant part:

A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent10....

___________

10 One example, though not an exclusive one, is that there is convincing reason to believe that there will be, in the near future, substantially increased importation of the product at dumped prices. (emphasis added)

7.47 We note that there are important textual indications that Article 3.7 entails certain elements that deal with the time-frame on the basis of which threat of material injury determinations are to be made. In our view, a comparison of the text of Article 3.7 with section B.3 of Argentina's panel request reveals certain textual similarities. For instance, the use of certain words or phrases such as "imminent", "within a reasonably foreseeable time" and "over a longer period of time" in section B.3 of Argentina's panel request demonstrates that the panel request was sufficiently clear to allow the United States to expect that Argentina could be relying on Articles 3.7 and 3.8 in its submissions to the Panel in this regard. We therefore conclude that although Article 3 of the Agreement contains multiple obligations that apply to different aspects of injury determinations, in the circumstances of the present proceedings, section B.3 of Argentina's panel request was sufficiently clear to inform the United States about the nature of the claim that could be pursued by Argentina.

(i) Conclusion

7.48 In conclusion, we decline the US request for preliminary rulings regarding the citation of Articles 6 and 3 of the Anti-Dumping Agreement in their entirety in sections B.1 through B.3 of Argentina's panel request.

 
To continue with  2. Certain Claims That Have Allegedly Not Been Raised in Argentina's Panel Request

1 Argentina confirmed, by its letter dated 12 December 2003, that all references made to Exhibit ARG-56 in Argentina's first written submission, must now be understood as being made to Exhibit ARG-56 bis.

2 Pursuant to the explanations provided by the United States at the beginning of the second substantive meeting of the Panel with parties, the United States provided a revised version of its written answers to the questions of the Panel in connection with the first substantive meeting of the Panel with parties. In this revised version, the full text of paragraph 14 of the original document dated 8 January 2004, as well as similar sentences found in paragraph 17 (the penultimate sentence), paragraph 41 (the second sentence), and paragraph 44 (the latter part of the third sentence) were deleted.

3 Pursuant to the explanations provided by the United States at the beginning of the second substantive meeting of the Panel with parties, the United States provided a revised version of its written answers to the questions of Argentina in connection with the first substantive meeting of the Panel with parties. In this revised version, edits were made to paragraph 14 of the original document dated 8 January.

4 WT/DS268/1.

5 WT/DS268/2.

6 We note that the United States requested to be given a new comment period in case the Panel decided to make a finding under Article 6.9. Given that our additional discussion in paragraphs 7.243-7.244 of our report is intended to clarify why we declined to make a finding regarding Argentina's argumentation under Article 6.9, rather than constituting a finding, we do not find it necessary to give the United States another opportunity to make comments in this regard.

7 We note that the United States requested to be given a new comment period in case the Panel decided to engage in an additional discussion of Argentina's arguments under this claim. Given that our discussion of Argentina's argument regarding the word "duty" does not change our conclusion with respect to this claim and that the United States has already expressed its views on this particular issue (see, for instance, First Written Submission of the United States, para. 366), we do not find it necessary to give the United States another opportunity to make comments in this regard.

8 Article 11 of the DSU, entitled "Function of Panels", states: "The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered agreements…"

9 Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel Products from Japan ("US – Hot-Rolled Steel  "), WT/DS184/AB/R, adopted 23 August 2001, paras. 54-62.

10 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India ("US – Wool Shirts and Blouses"), WT/DS33/AB/R and Corr. 1, adopted 23 May 1997, DSR 1997:I, 323, p. 337.

11 Ibid.

12 The US request for preliminary rulings is premised solely on the allegation that Argentina has failed to provide a brief summary of the legal basis of some of its claims sufficient to present the problem clearly, inconsistently with Article 6.2 of the DSU. The United States has not alleged a failure to identify the specific measure at issue. See, Response of the United States to Question 21 from the Panel Following the Second Meeting.

13 We note that page four of Argentina's panel request is not limited to the part that the United States is challenging on the grounds of vagueness. The United States is taking issue with the portion of page four of Argentina's panel request that is found between the paragraph numbered four and the concluding paragraph that starts with "Accordingly, Argentina respectfully requests that..." Given that both parties refer to this portion of Argentina's panel request as "page four", we have also used the same characterization for ease of reference.

14 Argentina’s Comments on the US Closing Statement at the Second Substantive Meeting of the Panel, and US Answers to Questions from the Panel and Argentina in Connection with the Second Substantive Meeting, para. 49.

15 We find support for our approach in the Appellate Body decision in US – Carbon Steel. See, Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany ("US – Carbon Steel "), WT/DS213/AB/R and Corr.1, adopted 19 December 2002, paras. 125-127.

16 WT/DS268/2, p.4.

17 See, Response of the United States to Question 22 from the Panel Following the Second Meeting.

18 Footnote 26 to the Response of the United States to Question 22 from the Panel Following the Second Meeting.

19 First Written Submission of the United States, footnote 103; footnote 26 to the Response of the United States to Question 22 from the Panel Following the Second Meeting.

20 See, infra para. 7.169.

21  See, infra para. 7.342.