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UNITED STATES � LAWS, REGULATIONS AND
Report of the Panel 4. Article 2.4 of the AD Agreement 7.224 Having rejected the claim of the European Communities that the United States acted inconsistently with Article 2.4.2 of the AD Agreement by reason of the method of calculating dumping margins in the administrative reviews at issue306, we now proceed to examine the claim of the European Communities that the calculation of dumping margins in these cases was inconsistent with Article 2.4 of the AD Agreement. (a) Arguments of the Parties 7.225 The European Communities claims that the United States acted inconsistently with Article 2.4 of the AD Agreement because in the administrative reviews at issue USDOC calculated dumping margins by using an asymmetrical comparison between export price and normal value and by not taking into account any amounts by which export prices exceed the (monthly) average normal values. The European Communities argues that the first sentence of Article 2.4 of the AD Agreement contains an obligation to make a fair comparison between the export price and the normal value, which obligation is "overarching" in the sense that it is further elaborated in the other provisions of Article 2.4, including Articles 2.4.1 and 2.4.2, and "independent" in the sense that it is not exhausted by the other provisions of Article 2.4, including Articles 2.4.1 and 2.4.2. This interpretation of the "fair comparison" language in Article 2.4 as creating an overarching and independent obligation is supported by many Appellate Body and panel reports. The European Communities emphasizes the fact that the "fair comparison" language is contained in a separate first sentence in Article 2.4, which is an important difference with the corresponding provision in the Tokyo Round Anti-Dumping Code. The first sentence of Article 2.4 would serve no useful purpose if interpreted as being limited in scope to the remainder of Article 2.4.307 It follows from the ordinary meaning of "fair" that a fair comparison is a symmetrical comparison, which necessarily precludes zeroing. Fairness, in the context of a comparison between domestic sales and export sales, requires that under normal circumstances the same treatment be applied to domestic and export sales, i.e. that such sales be treated in a symmetrical way.308 Zeroing is inconsistent with this symmetry requirement because it involves an artificial reduction of prices that is only applied to export sales.309 This interpretation of fairness as requiring symmetrical treatment of export sales and domestic sales is supported by the context and object and purpose of the AD Agreement because a methodology that is inconsistent in the treatment of domestic sales and export sales cannot establish effectively the existence of international price discrimination.310 7.226 The European Communities also submits that zeroing is inherently unfair because it inflates dumping margins. One aspect of this inherent unfairness in the context of the retrospective duty assessment system of the United States is that exporters need to increase their prices by more than the margin of dumping in order to avoid payment of anti-dumping duties.311 That zeroing is unfair within the meaning of Article 2.4 has been confirmed by the Appellate Body reports in EC �- Bed Linen and US � Corrosion-Resistant Steel Sunset Review and by the Panel and Appellate Body reports in US � Softwood Lumber V.312 7.227 The European Communities also asserts that zeroing is inconsistent with the first and the third to fifth sentences of Article 2.4 because it amounts to an allowance or adjustment to export price, normal value or otherwise, so as to effectively reduce the export price for a difference other than a difference affecting price comparability. The difference for which zeroing makes an allowance or adjustment by reducing the export price is not a difference affecting price comparability but a part of the very price comparison that the investigating authority is obliged to carry out. An allowance or adjustment reflecting a difference that does not affect price comparability is not a "due allowance" within the meaning of the third sentence of Article 2.4. Thus, the European Communities submits that it is not asking the United States to grant an offset or credit for negative dumping but to stop adjusting the export price or normal value or certain intermediate values, or to stop making an allowance or adjustment for something which does not affect price comparability.313 7.228 Regarding the relationship between Articles 2.4 and 2.4.2 of the AD Agreement, the European Communities argues that the first sentence of Article 2.4.2 explains that in normal circumstances the "fair comparison" required by Article 2.4 implies equal and symmetrical treatment while the second sentence of Article 2.4.2 clarifies that a Member may depart from the requirement of symmetrical treatment in case of targeted dumping.314 In this connection, the European Communities considers that zeroing is unfair within the meaning of Article 2.4 when dumping margins are established under the transaction-to-transaction methodology because it conflicts with the requirement of symmetrical treatment of export prices and normal values.315 On the other hand, zeroing is not unfair when used in connection with the average-to-transaction comparison method if the conditions for the use of that method are fulfilled.316 The existence of a distinct pattern of export prices of the type contemplated in the second sentence of Article 2.4.2 can be a difference affecting price comparability for which due allowance may have to be made.317 Similarly, the European Communities considers that the use of an average-to-transaction comparison is not unfair within the meaning of Article 2.4 if the conditions for a targeted dumping analysis are fulfilled.318 7.229 The European Communities considers that the first sentence of Article 2.4.2 does not exhaust the "fair comparison requirement". Thus, for example, a weighted-average-to-weighted average comparison in which an allowance or adjustment has been made that does not correspond to a difference affecting price comparability is inconsistent with Article 2.4.319 7.230 The European Communities interprets the expression "subject to the provisions governing 'fair comparison' in paragraph 4" in the first sentence of Article 2.4.2 to mean that, in case of conflict, the provisions in the second to final sentences of Article 2.4 must prevail over Article 2.4.2.320 This implies that the rules in Article 2.4.2 cannot be applied in such a way as to frustrate or compromise the fair comparison required by Article 2.4.321 7.231 The European Communities submits that Article 9.4(ii) of the AD Agreement does not support the position of the United States that asymmetrical comparison methods must be permitted in the duty assessment phase because in a prospective system the collection of anti-dumping duties is subject to a refund procedure in which the full disciplines of Article 2.4.2 apply.322 7.232 The United States submits that Article 2.4 of the AD Agreement establishes the obligation that a fair comparison be made between normal value and export price and provides detailed guidance as to how that fair comparison is to be made. The focus of Article 2.4 is on how the authorities are to select transactions for comparison and make the appropriate adjustments for differences that affect price comparability.323 While the first sentence of Article 2.4 creates a general, mandatory obligation to make a fair comparison, it cannot be divorced from the provisions in the remainder of Article 2.4 regarding allowances for differences affecting price comparability. The words "this comparison" at the beginning of the seconds sentence of Article 2.4 and the reference in Article 2.4.2 to "the provisions" governing fair comparison in "paragraph 4" confirm this close relationship between the concept of fair comparison and the provisions on allowances to ensure price comparability.324 The United States asserts that numerous Appellate Body and panel reports support its position on the scope of the "fair comparison" language in Article 2.4.325 The panel and Appellate Body reports cited by the European Communities do not demonstrate that the first sentence of Article 2.4 contains an independent obligation extending beyond the remainder of Article 2.4.326 7.233 The United States asserts that the issue of symmetrical comparisons between export price and normal value is only dealt with in Article 2.4.2 of the AD Agreement and that the phrase "subject to the provisions governing fair comparison in paragraph 4" would have been redundant if the "fair comparison" requirement in Article 2.4 already included a requirement to make such symmetrical comparisons.327 7.234 With regard to the argument of the European Communities that the zeroing method used by the United States inflates the margins of dumping, the United States asserts that a methodology cannot be designated as fair or unfair within the meaning of Article 2.4 solely on the basis of whether it makes dumping margins go up or down. Moreover, it is factually incorrect that the average-to-transaction comparison used by the United States in assessment proceedings necessarily results in higher AD duties than a symmetrical comparison.328 7.235 The United States considers that the statement by the Appellate Body in EC � Bed Linen and US � Corrosion-Resistant Steel Sunset Review that zeroing is inherently biased towards inflating the margin of dumping lacked any textual analysis or reasoning and is obiter dictum.329 The United States considers, in this respect, that the lack of a reference to Article 2.4 in the Appellate Body's analysis of zeroing in US � Softwood Lumber V reflects a development in the Appellate Body's consideration of this issue because the Appellate Body was faced with substantive arguments and analysis as to the interpretative problem with its dicta in EC � Bed Linen and US � Corrosion-Resistant Steel Sunset Review.330 7.236 The United States submits that the argument that Article 2.4 requires that an offset be granted for sales at export prices above the normal value is predicated on the assumption that the AD Agreement requires symmetrical comparison methods in assessment proceedings. This assumption is in contradiction with the fact that the Agreement permits several types of assessment systems some of which inherently operate on an entry-specific basis, and that Article 9.4(ii) of the Agreement expressly provides for a comparison between a weighted average normal value and individual export transactions for purposes of assessment.331 Moreover, the European Communities has not offered any argument as to how an offset to antidumping duties assessable on one entry as a result of a distinct entry having been sold at above normal value would be considered an adjustment or other comparison criterion that falls under the rubric of Article 2.4.332 7.237 The United States asserts that an interpretation of Article 2.4 to include an offset requirement for non-dumped sales would be inconsistent with the principle that interpretation must give meaning and effect to all the terms of a treaty because it would render the targeted dumping exception in Article 2.4.2 a nullity as a simple matter of mathematics. If non-dumped transactions are allowed to offset dumped transactions, an average-to-transaction comparison will yield exactly the same result as an average-to-average comparison. Because the targeted dumping provision is only an exception to the provisions of the first sentence of Article 2.4.2 and not to the "fair comparison" requirement of Article 2.4, to interpret Article 2.4 as imposing an offset requirement would necessarily make the targeted dumping provision redundant.333 The United States notes that in its responses to Panel Questions the European Communities appears to have accepted that zeroing must be possible in an average-to-transaction comparison. However, the recognition by the European Communities that zeroing is permissible in the context of the average-to-transaction method cannot be reconciled with the argument that zeroing is an impermissible allowance or adjustment to the export price because there is nothing in Article 2.4.2 to suggest that the targeted dumping provision is an exception to the "fair comparison" requirement.334 7.238 The United States rejects the argument of the European Communities that differences between export prices referred to in the second sentence of Article 2.4.2 can constitute a difference affecting price comparability. (b) Arguments of Third Parties 7.239 Argentina submits that Article 2.4 of the AD Agreement prohibits zeroing independently of the particular method used to compare export price and normal value. The "fair comparison" requirement is a general obligation that informs the whole of Article 2 but applies in particular to Article 2.4.2. The zeroing methodology fails to take into account the entirety of the prices of some export transactions and artificially distorts the margin of dumping by inflating it in a way inconsistent with the "fair comparison" obligation under Articles 2.4 and 2.4.2. An asymmetrical comparison method is not in itself inconsistent with the "fair comparison" requirement if the conditions set out in Article 2.4.2 are met. However, no transaction may be excluded from the calculation of an overall margin of dumping based on such an asymmetrical comparison. 7.240 Brazil submits that zeroing is prohibited by Article 2.4 of the AD Agreement regardless of the method of comparison used and regardless of whether it occurs in an investigation or review proceeding. Zeroing is inherently unfair to respondents because it distorts the calculation of the margin of dumping by effectively ignoring the prices of some export transactions. Dumping and margins of dumping can be established only for a product as a whole and all comparisons must be taken into account. It is with this in mind that the Appellate Body concluded in EC � Bed Linen that zeroing was inconsistent not only with Article 2.4.2 but also with Article 2.4. In response to a Panel Question, Brazil submits that the reasoning of the Appellate Body in US � Softwood Lumber V clearly suggests that the use of zeroing in the context of the transaction-to-transaction or average-to-transaction comparison methods is inconsistent with Article 2.4. Brazil considers that the use of an asymmetrical comparison is not in itself inconsistent with Article 2.4. 7.241 Hong Kong, China submits that the first sentence of Article 2.4 of the AD Agreement creates an overarching obligation to make a fair comparison that is independent of the substantive obligations set out in the remainder of Article 2.4, including Article 2.4.2. This is reinforced by the phrase "subject to the provisions governing fair comparison in paragraph 4" at the beginning of Article 2.4.2. Therefore, dumping margins for a product must be calculated in accordance with both Article 2.4.2 and the "fair comparison" requirement of Article 2.4. In order to be fair, the comparison of export price and normal value must be symmetrical but also objectively fair in the sense of being equitable and balanced. The use of zeroing when establishing an overall margin of dumping for the product under investigation is per se unfair, regardless of which method of comparison under Article 2.4.2 is used because it involves disregarding some or all of the intermediate comparisons. Thus, zeroing results in an overall margin of dumping established on the basis of incomplete price information and is inherently biased towards inflating the margin of dumping. While Article 2.4.2 allows a Member to use an asymmetrical, average-to-transaction comparison method, the use of zeroing in connection with this method is inconsistent with the "fair comparison" requirement of Article 2.4. 7.242 India submits that model zeroing and simple zeroing are inconsistent with Article 2.4 of the AD Agreement. India refers to the statements of the Appellate Body that a zeroing methodology is inherently biased and that a comparison of export price and normal value that does not fully take into account the prices of all comparable export transactions is not a fair comparison. India further recalls that the Appellate Body has ruled that the first sentence of Article 2.4 sets forth a general obligation that informs all of Article 2. Zeroing is inherently inconsistent with the overarching and independent "fair comparison" requirement contained in Article 2.4 because it selectively disregards or alters the results of price comparisons and thereby inflates the margin of dumping. India therefore considers that Article 2.4 proscribes zeroing when a Member establishes dumping on the basis of the transaction-to-transaction or on the basis of the average-to-transaction comparison method. The use of an asymmetrical comparison method is not in itself necessarily unfair because Article 2.4.2 specifically authorizes the use of one type of asymmetrical comparison method. However, even when such an asymmetrical comparison method is permitted, an authority may not disregard or alter the results of any individual comparisons when aggregating the results of individual comparisons to determine an overall margin of dumping. 7.243 Japan notes that the Appellate Body has characterized the first sentence of Article 2.4 of the AD Agreement as a general obligation that informs all of Article 2. The ordinary meaning of the word "fair" suggests that a fair comparison must be "even-handed". The Appellate Body has explicitly linked the concepts of "fairness" and "even-handedness" in Article 2 in its report in US � Hot�Rolled Steel. Model zeroing and simple zeroing operate systematically to disadvantage and prejudice exporters by excluding from the numerator in the calculation of the weighted average dumping margin the negative margins for comparable export transactions or models priced higher than normal value, and by interfering with the comparison of normal value and export price to generate a zero instead of a negative outcome by, in effect, improperly reducing the true export price for the excluded export transactions or increasing the corresponding normal value. The Appellate Body has consistently held in EC � Bed Linen and US � Corrosion -Resistant Steel Sunset Review that a zeroing methodology is unfair within the meaning of Article 2.4 because of its inherent bias. Because of this inherent bias zeroing is inconsistent with Article 2.4 regardless of whether export price and normal value are compared on a weighted-average-to-weighted-average basis, transaction-to-transaction basis or average-to- transaction basis. 7.244 Korea submits that, as stated by the Appellate Body in EC � Bed Linen and reaffirmed in US � Corrosion-Resistant Steel Sunset Review, zeroing is inconsistent with the "fair comparison" requirement of Article 2.4. The first sentence of Article 2.4 establishes an overarching and independent obligation that authorities must observe whenever they calculate margins of dumping. Thus the "fair comparison" requirement in Article 2.4 constitutes an independent ground for finding zeroing to be inconsistent with the AD Agreement. Zeroing is inconsistent with the "fair comparison" requirement in Article 2.4 irrespective of the particular comparison method used. While the use of an average-to-transaction comparison method is specifically permitted under Article 2.4.2, zeroing is not permitted when this method is used. 7.245 Mexico argues that Article 2.4 proscribes zeroing because the "fair comparison" language creates an independent obligation to use an equitable comparison methodology that takes into account all sales of the products under investigation. Article 2.4 prohibits zeroing regardless of which of the three comparison methodologies set out in Article 2.4.2 is applied. A comparison methodology that selectively disregards or alters the results of price comparisons that may be made at a level below that of the entire product as a whole is inherently distorted and not fair. In particular, zeroing, by inflating the margin of dumping above what it would have been had the results of all comparisons been properly considered and treated equally, actually biases and skews the result in the direction of inflating dumping margins. 7.246 Norway submits that, as explained by the Appellate Body in EC � Bed Linen, zeroing is inconsistent with the "fair comparison" requirement contained in Article 2.4 because it does not take into account prices of all export transactions. Norway also refers to the statements of the Appellate Body in US � Corrosion-Resistant Steel Sunset Review on the inherent bias of a zeroing methodology. Norway considers that zeroing is inconsistent with the "fair comparison" requirement of Article 2.4 regardless of the comparison method used because of its inherent bias and distorting effect. An average-to-transaction comparison method referred to in Article 2.4.2 is permitted as an exception to the general "fair comparison" principle if the conditions set out in the Article 2.4.2 are fulfilled. 7.247 Turkey submits that the model zeroing method used by the United States leads to an unfair comparison of export price and normal value within the meaning of Articles 2.4 and 2.4.2 of the AD Agreement. Turkey refers to the finding of the Panel in EC � Bed Linen that zeroing is inconsistent with the requirement of Article 2.4.2 to take into account export prices of all comparable transactions and to the statement of the Appellate Body in EC � Bed Linen that, regardless of the method used to calculate margins of dumping, these margins must be established for the product under investigation as a whole. In response to a Question of the Panel, Turkey states that the "fair comparison" requirement of Article 2.4 is not directly related to the issue of whether zeroing is prohibited or allowed for purposes of Article 2.4.2. Adjustments under Article 2.4 take place at a stage prior to the computation of the dumping margin. For the same reason, Turkey submits that the use of an asymmetrical comparison method is not inconsistent with Article 2.4. (c) Evaluation by the Panel 7.248 The European Communities challenges as inconsistent with Article 2.4 of the AD Agreement the fact that USDOC in certain administrative reviews335 compared (monthly) average normal values with prices of individual export transactions ("asymmetry") and that in calculating dumping margins based on the comparisons between these normal values and individual export transactions, USDOC did not include in the numerator of the dumping margin any amounts by which prices of individual export transactions exceed the normal values (simple zeroing). 7.249 Article 2.4 of the AD Agreement provides:
7.250 The European Communities asserts that the "fair comparison" language in the first sentence prohibits the zeroing of export prices above normal value and the use of an asymmetrical, average-to-transaction comparison where the requirements of the second sentence of Article 2.4.2 are not met, and that zeroing is also prohibited by the provisions on due allowances in the third to fifth sentences of Article 2.4. The United States argues that Article 2.4 only contains obligations regarding the selection of comparable transactions and the making of appropriate adjustments to those transactions so as to render them comparable before calculating margins of dumping and contains no obligations with respect to the issues of symmetry and zeroing. The United States rejects the characterization of zeroing as amounting to an adjustment to export price. 7.251 We will first analyze the issues that arise from the arguments of the parties with respect to the "fair comparison� language in the first sentence of Article 2.4 of the AD Agreement. (i) The "fair comparison" language in the first sentence of Article 2.4 7.252 The disagreement between the parties with respect to whether the "fair comparison" language in Article 2.4 gives rise to obligations with regard to the manner in which a margin of dumping is determined raises three principal questions. The first question is whether the legal obligation created by the "fair comparison" language in the first sentence of Article 2.4336 can only be violated as a result of a violation of the specific requirements set out in the remainder of paragraph 4 regarding steps to be taken by authorities to ensure price comparability or whether it is an independent obligation, i.e. an obligation that can be violated by an action that is not inconsistent with other requirements of paragraph 4. A second question, which necessarily arises only if the answer to the first question is affirmative, is whether the scope of application of the "fair comparison" requirement as an independent obligation is limited to the general subject matter expressly addressed by paragraph 4, i.e. price comparability, or whether its reach extends beyond this paragraph.337 The third question, which arises only if it is established that the "fair comparison� requirement is an independent obligation that is not limited in scope to the general subject matter of paragraph 4 but also applies to the calculation of margins of dumping, concerns the substantive meaning of "fair comparison", particularly in relation to the determination of margins of dumping. 7.253 With respect to the first question, i.e. whether the "fair comparison" language creates an independent obligation or whether it contains an obligation that can be violated only if a Member acts inconsistently with other requirements of paragraph 4, we note that although there exists a close link between this first sentence and the remainder of the paragraph, we find no language in Article 2.4 that suggests that this "fair comparison" requirement is defined exhaustively by the specific requirements set out in the remainder of the paragraph regarding the steps to be taken to ensure price comparability. Indeed, to read the "fair comparison" requirement as doing no more than repeating the requirements that follow would render this provision inutile. In this regard, we consider that our reading is confirmed by the decision in the Uruguay Round negotiations to place the "fair comparison" language in a separate sentence at the beginning of Article 2.4, rather than continuing with the Tokyo Round text, in which the "fair comparison" language was contained in an introductory clause to the counterpart provision to Article 2.4, where its meaning was ambiguous.338 7.254 We now turn to the second question, i.e. whether the "fair comparison" requirement, as an independent obligation, is limited in scope of application to the general subject matter of paragraph 4. In this regard, we note first that the narrow interpretation of the scope of application of the "fair comparison" requirement as being limited to the issue of steps to be taken to ensure price comparability is difficult to reconcile with the structure of Article 2.4. The fact that provisions on currency conversions and the establishment of margins of dumping during the investigation phase are not contained in separate paragraphs of Article 2 but are indented as sub-paragraphs of Article 2.4 means that these provisions and the provisions in the chapeau of Article 2.4 are part of a whole. We see nothing in the text of these provisions to suggest that they should not be read as a whole. On the contrary, the text of Articles 2.4.1 and 2.4.2 contains an express substantive link with Article 2.4. As discussed in the panel report in Egypt � Steel Rebar339, the "comparison" referred to in Articles 2.4.1 and 2.4.2 is the "comparison" under Article 2.4. Since the subject matter of Article 2.4.2 in particular is different from price comparability, the inclusion of paragraph 2.4 and sub-paragraphs 2.4.1 and 2.4.2 in a single provision supports the interpretation that "fair comparison" in Article 2.4 is not limited to price comparability. 7.255 Second, the expression "subject to the provisions governing fair comparison in paragraph 4" in Article 2.4.2 in our view clearly supports an interpretation that the "fair comparison" requirement is of broader application than the issue of price comparability. We note in this regard the analysis by the Appellate Body in EC � Bed Linen:
The Appellate Body's characterization of the "fair comparison" language as a "general obligation" which "informs all of Article 2" but which "applies in particular to Article 2.4.2" by virtue of the phrase "subject to the provisions governing fair comparison in paragraph 4" entails that the "fair comparison" requirement in the first sentence of Article 2.4 is not limited in its scope of application to the issue of price comparability within the meaning of Article 2.4 but at a minimum also encompasses the calculation of margins of dumping under Article 2.4.2 of the AD Agreement.341 7.256 In this connection, we note that the panel report in Egypt � Steel Rebar, which the United States cites as support for its position that the fair comparison requirement only applies to the issue of price comparability, discusses Article 2.4 and its context as follows:
Thus, the Panel explicitly equated "comparison of export price and normal value", which is subject to the "fair comparison" requirement, with "calculation of the dumping margin" and considered that this calculation of the dumping margin is subject not only to the "fair comparison" requirement but also to the burden of proof requirement of Article 2.4. It would also appear that the Panel interpreted the reference made in Article 2.4.2 to "the provisions governing fair comparison" to mean that the provisions in Article 2.4.2 lay down rules for the method by which a "fair comparison" is to be made. 7.257 Third, we note that the dispute settlement reports cited by the parties in support of their respective positions on the interpretation of the first sentence of Article 2.4 generally contain little detailed analysis of the specific question of whether the "fair comparison" requirement is limited in its scope of application to the issue of price comparability within the meaning of Article 2.4. It is true that panel reports that have made findings on claims raised under Article 2.4 have in most cases focused their discussion of the meaning of Article 2.4 on the requirement to make allowance for differences affecting price comparability.343 In most of these cases, however, the question presented to the panel was whether or not an allowance should be made for a particular factor claimed to affect price comparability, and it has not been necessary for panels to pronounce on the broader issue of whether the "fair comparison" requirement can apply to issues other than price comparability.344 Therefore, these panel reports do not support the proposition that the scope of the "fair comparison" requirement in the first sentence of Article 2.4 does not extend beyond the question of price comparability. As discussed above, the panel report in Egypt- Steel Rebar, which is one of the few reports to have discussed this issue, appears to reflect a view that the "fair comparison" requirement is broader in scope than Article 2.4 and applies to the calculation of margins of dumping. The Appellate Body report in EC � Bed Linen also appears to reject a narrow interpretation of the scope of this requirement. 7.258 In sum, while Article 2.4 could ideally have been expressed more clearly, we conclude that the obligation to make a fair comparison is not limited to the issue of how to ensure price comparability by selecting comparable transactions or making appropriate adjustments but also applies to the issue of the calculation of margins of dumping within the meaning of Article 2.4.2 of the AD Agreement. 7.259 Accordingly, we must now proceed to consider the substantive meaning of the term "fair comparison" in this context. 7.260 We have carefully considered the arguments of the European Communities and some of the third parties regarding the ordinary meaning of the word "fair" in light of dictionary definitions.345 We recall that we have already expressed our reservations earlier in this Report with respect to an approach to treaty interpretation that focuses on particular words divorced from their context in the AD Agreement and that equates "ordinary meaning" as used in the Vienna Convention with dictionary definitions of words. We consider that caution with respect to such an approach is especially warranted where, as in the case of the first sentence of Article 2.4, a legal rule is expressed in terms of a standard that by its very nature is more abstract and less determinate than most other rules in the AD Agreement. The meaning of "fair" in a legal rule must necessarily be determined having regard to the particular context within which that rule operates. Whereas words like "fair" are also frequently used in connection with obligations of a procedural nature, in Article 2.4 of the AD Agreement "fair" is used in a substantive obligation relating to the determination of dumping. Thus, a claim that a particular methodology is not "fair" within the meaning of Article 2.4 is a claim that the methodology is not a fair method of determining dumping. The fairness of the methodology logically cannot be divorced from the underlying conception of what dumping means. To determine whether an approach is unfair there must be a discernible standard of appropriateness or rightness within the four corners of the AD Agreement which would provide a basis for reliably judging that there has been an unfair departure from that standard.346 The brute fact that methodology A produces a higher margin of dumping than methodology B can be a basis for assessing the fairness of methodology A only if methodology B can be equated with such a discernable standard. In other words, when comparing the results of the two methodologies, one would be entitled to regard methodology A as unfair only if it could be established that methodology B was the only "correct" methodology for determining the margin of dumping. 7.261 The "fair comparison" requirement in Article 2.4 exists as part of a provision that contains other rules that are more determinate in their substantive content, reflecting the outcome of negotiations on specific aspects of the determination of dumping. In our view, this means that this requirement must be interpreted in harmony with such rules. The "fair comparison" requirement cannot have been intended to enable a dispute settlement panel to review a measure in light of a necessarily somewhat subjective or in effect arbitrary judgement of what fairness means in the abstract and in complete isolation from the substantive context and thereby effectively create obligations additional to and perhaps even inconsistent with the express requirements of Article 2. 7.262 In light of these considerations, we are of the view that in order to determine what is "fair" under the AD Agreement in relation to the calculation of margins of dumping, we must take into account substantive rules and concepts in the AD Agreement relevant to the issue of the determination of margins of dumping. In particular, our analysis must take into account Article 2.4.2 of the AD Agreement, which is the only provision of the AD Agreement that specifically addresses the subject of methods of determining margins of dumping. Furthermore, given that we are considering the applicability of the "fair comparison" standard in the determination of margins of dumping for purposes of assessing the amount of anti-dumping duties, our interpretation of the meaning of "fair" must also take into account relevant rules and concepts in Article 9 regarding the imposition and collection of anti-dumping duties. 7.263 The fact that Article 2.4.2 expressly permits the use of an asymmetrical, average-to-transaction comparison method of export price and normal value as an exception to the symmetrical comparison methods in the first sentence of Article 2.4.2 and that, as discussed in the previous section of this Report, negotiators did not extend the application of Article 2.4.2 beyond investigations within the meaning of Article 5 of the AD Agreement indicates that the negotiators did not treat asymmetry as a practice to be banned in all circumstances. Similarly, while zeroing effectively is prohibited under the average-to-average method in the first sentence of Article 2.4.2, the non-application of Article 2.4.2 outside the "the investigation phase" shows that zeroing was not treated as a practice to be banned in all circumstances. Conceptually, it is difficult to understand why one provision of the AD Agreement specifically dealing with a particular subject would prohibit a practice in certain circumstances and specifically permit or not address the same practice in other circumstances, if another provision of the AD Agreement already prohibited that practice as inherently unfair in all circumstances. In fact, the very rationale for the existence of Article 2.4.2 is undermined if asymmetry and zeroing are already proscribed in all circumstances as practices that are inherently unfair by Article 2.4. Therefore, the treatment of asymmetry and zeroing as necessarily unfair is contradicted by the manner in which Article 2.4.2 treats these practices. 7.264 Similarly, as discussed above347, Article 9 of the AD Agreement clearly permits the use of an asymmetrical method of comparing normal value and individual export prices in the context of a system of variable anti-dumping duties, which necessarily involves zeroing. The principle that treaty provisions must be presumed not to be in conflict entails that Article 2.4 cannot be read to ban this methodology in all circumstances by treating it as unfair within the meaning of Article 2.4 of the AD Agreement. 7.265 The conceptual difficulty discussed in the preceding paragraphs translates into a specific problem in terms of the principle of effective treaty interpretation.348 This principle means that the "fair comparison" requirement can only be interpreted to entail a prohibition of asymmetry and zeroing insofar as this would not deprive other provisions of the AD Agreement of their useful effect. 7.266 This problem arises, first, in respect of the second sentence of Article 2.4.2. This sentence of Article 2.4.2 addresses the issue of "targeted dumping". This provision acknowledges that an examination, in an original investigation, of average behaviour for a product and exporter through the symmetrical comparison methodologies in the first sentence may in some cases mask the existence of targeted dumping with respect to specific purchasers, regions or time periods.349 In other words, it recognizes that a pattern of export prices below normal value may need to be addressed even in cases where based on average exporter behaviour that pattern might be offset by other export prices in excess of normal value. It therefore permits an alternative, asymmetrical, comparison methodology in such cases. An interpretation of zeroing as by definition unfair in all circumstances, such that even in these circumstances a Member would be required to offset the (pattern of) below-normal-value export prices by others above normal value, would deny the second sentence the very function for which it was created. In fact, under such an interpretation the alternative asymmetrical comparison methodology would as a matter of mathematics produce a result that was identical to that of the first, average-to-average, methodology.350 We cannot interpret the Agreement in a manner that denies a provision the role for which it was created and in fact renders that provision without effect. Accordingly, we must conclude that Article 2.4 does not consider zeroing to be unfair and thus prohibited in all circumstances, but rather recognizes that in some cases zeroing may be appropriate in order to accurately reflect the existence of dumping by an exporter.351 7.267 The same problem arises in respect of our finding regarding the scope of application of Article 2.4.2 of the AD Agreement. The European Communities alleges that there are two aspects of the unfairness of the methodology applied by USDOC: the use of an asymmetrical, average-to-transaction comparison and the use of simple zeroing. Article 2.4.2 explicitly addresses the issue of the use of symmetrical and asymmetrical comparison methods and the Appellate Body has confirmed that it also addresses the issue of zeroing. We have found, however, that Article 2.4.2 is limited in its application to investigations within the meaning of Article 5 of the AD Agreement by virtue of the phrase "the existence of margins of dumping during the investigation phase".352 To interpret Article 2.4 as prohibiting asymmetry and zeroing not only in investigations within the meaning of Article 5 but also in duty assessment proceedings under Article 9 (and reviews under Article 11), would render ineffective the language in Article 2.4.2 that limits its scope of application to investigations. 7.268 Our analysis above353 of the merit of the argument that the AD Agreement requires an exporter-oriented method of duty assessment is also relevant here. Interpreting the "fair comparison" standard of Article 2.4 to prohibit zeroing and asymmetrical comparisons between export price and normal value would be inconsistent with the specific provisions on duty assessment in Article 9, which clearly envision that a Member may operate a system of variable duties. Since there is nothing in the text of Articles 2.4 and 9 to indicate that what is unfair under the general "fair comparison" standard of Article 2.4 is not unfair if permitted by Article 9, an interpretation of Article 2.4 as prohibiting the practice of zeroing and making of asymmetrical comparisons necessarily deprives some of the provisions of Article 9 of their useful effect. 7.269 We note that the European Communities argues that asymmetry and zeroing are not unfair when the conditions set out in the second sentence of Article 2.4.2 are met.354 According to the European Communities, "Article 2.4.2 clarifies what fairness means when establishing the margin of dumping in normal circumstances and in the exceptional circumstances of targeted dumping".355 This approach effectively attempts to resolve the tension between, on the one hand, the proposition that asymmetry and zeroing are unfair within the meaning of Article 2.4 and, on the other, the need to give effect to the second sentence of Article 2.4.2 with regard to the average-to-transaction comparison methodology by construing Article 2.4.2 as a clarification of the meaning of the "fair comparison" obligation. We note that the logic underlying this approach is that what is fair or unfair in relation to the calculation of margins of dumping is driven by the specific provisions of Article 2.4.2. If this is true, then the logical implication of the express limitation of Article 2.4.2 to original investigations is that asymmetry and zeroing when used in the duty assessment phase cannot be found to be unfair within the meaning of Article 2.4. More generally, the argument of the European Communities amounts to an implicit admission that with respect to the calculation of margins of dumping the specific provisions of Article 2.4.2 prevail over the "fair comparison" requirement. 7.270 We note that the Appellate Body has not actually made any legal findings that zeroing is inconsistent with Article 2.4 of the AD Agreement. Nevertheless, we recognize that, as emphasized by the European Communities and many third parties to this proceeding, the Appellate Body has twice expressed the view that the practice of zeroing is unfair within the meaning of Article 2.4. Under Article 11 of the DSU our task is to make an objective assessment of the matter before us. In this respect, we consider that the matter before us is different from the matter considered by the Appellate Body in the decisions referred to by the European Communities and third parties. In particular, in making an objective assessment of this matter, we have had to rule on different claims and to address directly a multiplicity of arguments not addressed by the Appellate Body in these decisions. We must, of course, carefully consider the reasoning contained in relevant Appellate Body reports.356 7.271 In EC � Bed Linen, the Appellate Body discussed the implications of the "fair comparison" requirement of Article 2.4 for the use of a zeroing methodology in the context of the weighted-average-to-weighted-average comparison method in the first sentence of Article 2.4.2:
When read as a whole, it is clear that the main theme in this passage is the inconsistency of zeroing with the "all comparable export transactions" language in the first sentence of Article 2.4.2 of the AD Agreement. It is only in the last sentence that the Appellate Body mentions Article 2.4 for the first time. Other than the statement that zeroing does not take into account the prices of all comparable export transactions, the last sentence does not analyze the text of Article 2.4 and provides no explanation of the conclusion that zeroing is unfair. However, this statement is virtually indistinguishable from the explanation of the finding of inconsistency with Article 2.4.2. The "all comparable export transactions" language used by the Appellate Body thus suggests that the Appellate Body may have derived its substantive benchmark for qualifying zeroing as unfair from its interpretation of the average-to-average comparison method in the sentence of Article 2.4.2. We therefore question whether the Appellate Body should be understood to have meant to imply that zeroing is necessarily unfair when used in the context of any other comparison methods set out in Article 2.4.2. Moreover, it is surely significant that the Appellate Body made this statement that zeroing is unfair in the context of a dispute involving an investigation within the meaning of Article 5. As discussed above, Article 2.4.2 does not apply to proceedings other than investigations within the meaning of Article 5. We therefore see no basis for the view that the reasoning of the Appellate Body in EC � Bed Linen can be interpreted to sustain the proposition that the use of zeroing outside the context of average-to-average comparisons in original investigations is necessarily inconsistent with the "fair comparison" obligation of Article 2.4. Where zeroing is not permitted by Article 2.4.2 of the AD Agreement, it can understandably be considered to be unfair. However, where zeroing is effectively permitted by Article 2.4.2, to characterize it as unfair and inconsistent with Article 2.4 raises the issues of effective treaty interpretation discussed above. 7.272 In US � Corrosion-Resistant Steel Sunset Review, the Appellate Body ruled that Article 11.3 of the AD Agreement does not obligate investigating authorities to calculate or rely on margins of dumping in determining the likelihood of continuation or recurrence of dumping but that, if they choose to rely upon dumping margins in making this determination, those margins must be calculated in a manner consistent with Article 2.4.of the AD Agreement.358 The Appellate Body observed in this respect:
While this case involved a review under Article 11 of the AD Agreement and the Appellate Body specifically discussed the use of a zeroing methodology "whether in an original investigation or otherwise", the Appellate Body made no findings on Article 2.4. Indeed, on the zeroing issue, the Appellate Body was not in a position to complete the analysis as the panel report did not contain sufficient factual findings on the precise methodology used by USDOC in the administrative reviews on which USDOC had relied in its sunset review.360 The Appellate Body did not expand the reasoning in EC � Bed Linen as to why zeroing is unfair beyond its indication that a zeroing methodology will tend to inflate margins of dumping and may lead to a finding of dumping where no dumping would have been found in the absence of zeroing. We recall in this respect our observation that an assessment of whether a particular methodology is fair cannot be simply based on a comparison of the results of that methodology with the results produced by another methodology361, but requires at a minimum knowing that the latter methodology somehow reflects a discernable standard or norm of "fairness". We see no indication that the Appellate Body considered this issue in this case. Indeed, as noted, because of the state of the record and the absence of panel findings, the Appellate Body was unable to complete the analysis of the underlying claim. Thus, we are of the view that the reasoning of the Appellate Body in EC � Bed Linen and US - Corrosion-Resistant Steel Sunset Review does not necessarily provide a basis to conclude that zeroing is unfair in a context other than the use of the average-to-average comparison methodology in the first sentence of Article 2.4.2. 7.273 That the Appellate Body Reports in EC - Bed Linen and US � Corrosion-Resistant Steel Sunset Review must necessarily be interpreted to support the proposition that zeroing is always unfair within the meaning of Article 2.4 is also difficult to square with the Appellate Body's decision in US � Softwood Lumber V. The Appellate Body made it very clear in US � Softwood Lumber V that the issue before it was limited to the use of zeroing in the context of the average-to-average comparison methodology in the first sentence of Article 2.4.2362, which provision, it specifically noted, is "applicable during the investigation phase".363 We recognize that in US � Softwood Lumber V the Appellate Body did not have a panel finding under Article 2.4 before it and that it was therefore not strictly necessary for it to discuss Article 2.4 but neither did it in EC � Bed Linen, in which case it did pronounce on the inconsistency of zeroing with the "fair comparison" requirement. The lack of any reference in US � Softwood Lumber V to Article 2.4 and to the reasoning in EC � Bed Linen and US � Corrosion-Resistant Steel Sunset Review calls into question the idea that those cases have firmly established the principle that zeroing is always unfair within the meaning of Article 2.4 of the AD Agreement. In this regard, we see considerable significance in the fact that the Appellate Body declined to address the issue of zeroing in the context of the transaction-to-transaction comparison method set out in the first sentence of Article 2.4.2 even though the United States had referred to this method as a core contextual argument in support of its position that zeroing is not proscribed by Article 2.4.2.364 It is very difficult to reconcile this fact with the idea that previous Appellate Body decisions had already confirmed the existence of a general prohibition of zeroing under Article 2.4 of the AD Agreement, particularly in light of the explanation provided by the Appellate Body of its decision not to examine this issue:
This passage in our view clearly indicates that the Appellate Body treated the issue of "whether zeroing is permitted under those methodologies" as an open question. 7.274 In this regard, we recall that the Appellate Body has consistently emphasized the distinctions between the purposes of investigations and other proceedings under the AD Agreement, notably duty assessment under Article 9 and reviews under Articles 11.366 Considerations that are pertinent to determining whether zeroing is unfair in an original investigation, the purpose of which is to analyze whether application of an anti-dumping measure is appropriate, may not be equally relevant to the duty assessment phase, the purpose of which is to assess the amount of anti-dumping duty to be paid by an importer in respect of a particular import transaction. We recall our conclusion above that there exists no compelling rationale to interpret the AD Agreement to mean that duty liability must necessarily be established on an exporter-oriented basis, which would result in the payment of anti-dumping duties by importers in respect of imports whose prices were above the normal value. In this respect, we do not see the logic of an approach that interprets the "fair comparison" standard of Article 2.4 in a way that compels such a result. 7.275 In sum, we consider that while Article 2.4 gives rise to a "fair comparison" obligation that also applies to the calculation of margins of dumping, to interpret Article 2.4 as prohibiting zeroing and asymmetrical comparisons, zeroing and importer-specific assessment of anti-dumping duties in proceedings other than original investigations cannot be reconciled with the fact that the negotiators of the AD Agreement specifically permitted and/or decided not to address these practices in certain circumstances and would undermine the useful effect of Article 2.4.2 and of provisions of Article 9 that permit the collection and assessment of anti-dumping duties on a transaction-specific basis.367 In light of the foregoing analysis, we do not consider that the Appellate Body reports in EC � Bed Linen and US � Corrosion-Resistant Steel Sunset Review, when read together with the Appellate Body's subsequent decision in US � Softwood Lumber V, lead us to a different conclusion. (ii) Zeroing as an impermissible allowance or adjustment for a difference that does not affect price comparability 7.276 We now turn to the second main argument raised by the European Communities in support of its claim under Article 2.4 of the AD Agreement with respect to the methodology applied by USDOC in the administrative reviews at issue. According to the European Communities, zeroing amounts to "an allowance or adjustment to export price, normal value or otherwise, so as to effectively reduce the (true) export price, for a difference other than a difference affecting price comparability" and is thereby inconsistent with the third to fifth sentences of Article 2.4.368 7.277 In our view, the argument that zeroing is an impermissible allowance or adjustment for a difference not affecting price comparability cannot be reconciled with the fact that Article 2.4.2 specifically does not deal with zeroing other than in the context of original investigations and that the second sentence of Article 2.4.2 specifically permits an asymmetrical comparison method that would be without any useful effect if zeroing were prohibited. If zeroing is characterized as an impermissible allowance or adjustment, there is no rational basis to explain why an allowance or adjustment that is prohibited because it does not correspond to a difference affecting price comparability is no longer prohibited in the context of the asymmetrical comparison method provided for in the second sentence of Article 2.4.2 or in the context of a duty assessment proceeding under Article 9. 7.278 We note that the European Communities acknowledges that zeroing may be necessary in the situation envisaged in the second sentence of Article 2.4.2, and that in order to reconcile the possible need for zeroing in this context with its characterization of zeroing as an impermissible allowance or adjustment, the European Communities submits that the existence of a "pattern of export prices which differ significantly among different purchasers, regions or time periods" envisaged in the second sentence of Article 2.4.2 can be a factor affecting price comparability. According to the European Communities, where there exists such a pattern of "targeted dumping", "[i]t is self-evident that prices in what has been identified as distinct market A cannot-without some further consideration and explanation-necessarily simply be directly compared with prices in what has been identified as distinct market B".369 In turn if prices in the two export markets A and B cannot be compared, it follows that by definition they cannot together be compared with prices in the home market.370 7.279 This argument reflects a misinterpretation of the very concept of price comparability as used in Article 2.4 of the AD Agreement. Differences in price comparability in Article 2.4 for which an adjustment or allowance may have to be are differences between the product as sold in the export market and the product as sold in the domestic market with respect to factors such as level of trade, taxation, quantities, etc. The existence of differences in prices in the export market between regions, purchasers and time-periods is conceptually wholly irrelevant to, and outside the scope of, Article 2.4 because such differences have nothing to with whether or not export sales and domestic sales are comparable with regard to factors such as level of trade, taxation, quantities, etc. Therefore, if zeroing is inconsistent with Article 2.4 on the ground that it is an impermissible adjustment or allowance, the existence of a "pattern of export prices which differ significantly among different purchasers, regions or time periods"371 cannot justify what is otherwise an adjustment or allowance prohibited by Article 2.4. 7.280 In light of these considerations we reject the argument of the European Communities that zeroing is inconsistent with Article 2.4 of the AD Agreement as an allowance or adjustment for a difference other than a difference affecting price comparability. (iii) General conclusion 7.281 We have found that the two main arguments of the European Communities in support of its claim that the use of a methodology involving zeroing and asymmetry in the administrative reviews at issue was inconsistent with Article 2.4 cannot be reconciled with the fact that the negotiators of the AD Agreement specifically permitted and/or decided not to address these practices in certain circumstances and is inconsistent with the principle of effective treaty interpretation. 7.282 We recall that the standard that we must apply in interpreting the AD Agreement is set forth in Article 17.6(ii) of the AD Agreement:
7.283 In light of our analysis in the preceding sections, we find that it is permissible to interpret Article 2.4 of the AD Agreement as not proscribing a method of calculating dumping margins for purposes of duty assessment under Article 9.3 in which an asymmetrical comparison is made between normal value and export price and in which the numerator of the dumping margin does not reflect the amount by which individual export prices exceed the normal value. 7.284 The Panel therefore finds that the United States did not act inconsistently with Article 2.4 of the AD Agreement when in the administrative review proceedings challenged by the European Communities in this dispute372 USDOC calculated dumping margins by comparing average monthly normal value with prices of individual export transactions and did not include in the numerator of the dumping margins any amounts by which export prices of individual transactions exceeded the normal value. 7.285 One Member of the Panel offers the following additional observations: Aside from the considerations set out above, the view that the AD Agreement cannot be interpreted to prohibit the use of zeroing and an asymmetrical comparison between export price and normal value in the collection and assessment of anti-dumping duties is supported by the text of Article 2.1 of the AD Agreement, which defines dumping as a situation in which a product is "introduced into the commerce of another country at less than its normal value". Because it clearly connotes real world business transactions, the phrase "a product...introduced into the commerce of another country" can reasonably be interpreted to permit an authority to focus on particular import transactions and does not require a consideration of dumping in terms of an aggregate or average of export transactions over a period of time.373 While the Appellate Body has relied on Article 2.1 of the AD Agreement as textual support for the view that dumping and margins of dumping can be found to exist only for the product as a whole, it is important to emphasize that the Appellate Body articulated this interpretation of Article 2.1 as context for its analysis of Article 2.4.2374, which is applicable only to the investigation phase. The notion that dumping can be found only for the product as a whole is particularly relevant to an original investigation, one of the main purposes is to determine whether dumping exists above a de minimis level so as to justify the imposition of an anti-dumping measure. A focus on average conduct may well be appropriate in that regard. However, to transpose this notion to the duty collection and assessment phase is difficult to reconcile with the particular purpose of such a phase to determine liability for payment of anti-dumping duties on particular imports and with the meaning of the concept of introduced into the commerce of another country. 5. Claims of the European Communities under other provisions of the AD Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement 7.286 The European Communities claims that in the administrative reviews at issue375 USDOC also acted inconsistently with Articles 9.3, 11.1 and 11.2, 1 and 18.4 of the AD Agreement, Articles VI:1 and VI:2 of GATT 1994 and Article XVI:4 of the WTO Agreement as a consequence of the unlawful zeroing method used in the calculation of margins of dumping.376 7.287 These claims of the European Communities are dependant in that they presuppose that the zeroing method used by USDOC in these administrative reviews is inconsistent with Articles 2.4 and/or Article 2.4.2 of the AD Agreement. However, we have found in our analysis in Section E that USDOC did not act inconsistently with Articles 2.4 and 2.4.2 in this respect.377 7.288 We therefore reject the claims of the European Communities that in the administrative reviews at issue USDOC acted inconsistently with Articles 9.3, 11.1 and 11.2, 1 and 18.4 of the AD Agreement, Articles VI:1 and VI:2 of GATT 1994 and Article XVI:4 of the WTO Agreement. F. CLAIMS OF THE EUROPEAN COMMUNITIES IN RESPECT OF THE STANDARD ZEROING PROCEDURES, THE TARIFF ACT AND THE USDOC's REGULATIONS IN RELATION TO PERIODIC ADMINISTRATIVE REVIEWS 7.289 The European Communities claims that "Standard Zeroing Procedures" used by the United States in administrative reviews or the United States practice or methodology of zeroing and Sections 771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act and Section 351.414(c)(2) of the USDOC Regulations are as such inconsistent with Articles 2.4, 2.4.2,9.3, 11.1 and 11.2, 1 and 18.4 of the AD Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement.378 7.290 We note that these claims are dependent upon a violation of Articles 2.4 and/or 2.4.2 and that the claim of a violation of Articles 2.4 and/or 2.4.2 is based on an interpretation of these provisions as prohibiting zeroing and the use of asymmetrical comparison of export price and normal value in periodic administrative reviews. We have rejected that interpretation in our analysis in Section E. In addition, we recall that we have found that Sections 771(35)(A) and (B),731 and 777A(d) of the Tariff Act are not WTO-inconsistent as such because they do not specifically address the issue of zeroing.379 7.291 We therefore reject the claims of the European Communities that "Standard Zeroing Procedures� used by the United States in administrative reviews or the United States practice or methodology of zeroing and Sections 771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act and Section 351.414(c)(2) of the USDOC Regulations are as such inconsistent with Articles 2.4, 2.4.2,9.3, 11.1 and 11.2, 1 and 18.4 of the AD Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement. G. CLAIMS OF THE EUROPEAN COMMUNITIES IN RESPECT OF THE STANDARD ZEROING PROCEDURES, THE TARIFF ACT AND THE USDOC's REGULATIONS IN RELATION TO NEW SHIPPER REVIEWS, CHANGED CIRCUMSTANCES REVIEWS AND SUNSET REVIEWS 7.292 The European Communities claims that "Standard Zeroing Procedures" used or relied upon by the United States in new shipper reviews, changed circumstances reviews and sunset reviews and Sections 771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act and Section 351.414(c)(2) of the USDOC Regulations are as such inconsistent with Articles 2.4, 2.4.2, 9.3, 9.5, 11.1,11.2, 11.3, 1 and 18.4 of the AD Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement.380 7.293 We note that these claims are dependent upon a violation of Articles 2.4 and/or 2.4.2 and that the claim of a violation of Articles 2.4 and/or 2.4.2 is based on an interpretation of these provisions as prohibiting zeroing and the use of asymmetrical comparison of export price and normal value in proceedings under Articles 9.5, 11.2 and 11.3. In light of our analysis in Section E, we reject that interpretation. In addition, we recall that we have found that Sections 771(35)(A) and (B),731 and 777A(d) of the Tariff Act are not WTO-inconsistent as such because they do not specifically address the issue of zeroing.381 7.294 We therefore reject the claims of the European Communities that "Standard Zeroing Procedures" used or relied upon by the United States in new shipper reviews, changed circumstances reviews and sunset reviews and Sections 771(35)(A) and (B), 731, 777A(d) and 751(a)(2)(i) and (ii) of the Tariff Act and Section 351.414(c)(2) of the USDOC Regulations are as such inconsistent with Articles 2.4, 2.4.2, 9.3, 9.5, 11.1,11.2, 11.3, 1 and 18.4 of the AD Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement. VIII. CONCLUSIONS AND RECOMMENDATION 8.1 In light of our findings above, we conclude that:
8.2 We have also concluded that it is not necessary for us to make findings on the claim of the European Communities that the application of the model zeroing method in the investigations listed in Exhibits EC-1 to EC -15 was inconsistent with Articles 1, 2.4, 3.1,3.2,3.5,5.8,9.3 and 18.4 of the AD Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement390, and on the claim of the European Communities that the Standard Zeroing Procedures used by USDOC in original investigations are inconsistent as such with Articles 1, 2.4 3.1, 3.2, 3.5, 5.8, 9.3 and 18.4 of the AD Agreement, Articles VI:1 and VI:2 of the GATT 1994 and Article XVI:4 of the WTO Agreement.391 8.3 Under Article 3.8 of the DSU, in cases where there is 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. Accordingly, we conclude that to the extent the United States acted inconsistently with the provisions of the AD Agreement, it has nullified or impaired benefits accruing to the European Communities under the AD Agreement. 8.4 We therefore recommend that the Dispute Settlement Body request the United States to bring its measures into conformity with its obligations under the AD Agreement. 9.1 The Panel has given long and careful consideration to the arguments advanced by both parties. I agree with three of the Panel's findings which have been made unanimously by all three Panel members:
However, I must respectfully disagree with all other findings of the Panel. My disagreement is based essentially on a different interpretation of the term "during the investigation phase" in Article 2.4.2 of the AD Agreement and of the "fair comparison" principle in the first sentence of Article 2.4 of the AD Agreement and its importance in the context of Article 2.4.2.
9.2 The European Communities, in its first written submission to the Panel392, has stressed that the dispute, even if technically addressing symmetry too, is essentially about a single issue: "zeroing", i.e. the counting as zero of the results of price comparisons in those cases where export prices exceed normal value. 9.3 Panels have noted that the practice of zeroing arises in situations where an investigating authority makes multiple comparisons of export price and normal value, and then aggregates the results of individual comparisons to calculate a dumping margin for the product as a whole.393 Zeroing in its most common form is practiced either for a certain series of transactions ("simple zeroing") or per model ("model zeroing"). 9.4 The effect of zeroing is best illustrated by the following example: Suppose the home market price for a certain product is 100. If there is one shipment of the product made at an export price of 100 there is no dumping. If, however, the same quantity is exported in two shipments, one at a price of 70, the other at 130, the dumping margin established will be 30 ("positive" dumping) plus 0 ("negative" margin of 30 counted as zero) divided by 2 = 15. With zeroing, the size of the dumping margin therefore depends on the size and the frequency of shipments. The result of comparisons is influenced by the calculation method used. 9.5 Zeroing is also related to "symmetry". Where price comparisons are symmetrical, simple and model zeroing cannot occur, at least not so long as there is no aggregation of any intermediate result obtained. This is the reason why Article 2.4.2 of the AD Agreement, without mentioning zeroing, prescribes symmetry, under certain conditions. In order to simplify discussions, I shall therefore address both issues together as "zeroing". 9.6 Whether zeroing should be permitted under the AD Agreement has been the subject of intensive discussions between the negotiators of the Uruguay Round AD Agreement. Those basing themselves on a more economically inspired concept of average price behaviour of an exporter over time confronted those defending a literal interpretation of Article VI of the GATT 1994394 implying that dumping margins either exist (positive) or do not exist (zero), but can neither be negative nor give any credit to compensate operations below normal value. 9.7 The result has been a compromise laid down in Articles 2.4 to 2.4.2. of the AD Agreement395, which can be summarized as follows:
9.8 While the "fair comparison" principle and the prohibition of zeroing, except for situations of targeted dumping, undoubtedly constituted major progress, the need and effect of the insertion of the words "during the investigation phase" remained unclear. 9.9 The Panel argues that the limitation of the ban on zeroing to original investigations only, which in its opinion resulted from the insertion of the words "during the investigation phase" "could reflect a compromise bridging different interests".396 However, the reality was more complex. The text of Article 2.4.2 AD Agreement changed several times in the course of the negotiations and it was adopted as part of an overall compromise. But who understood when what it was really intended to mean?397 9.10 The natural reading and literal similarity of "investigation phase" and "investigation period" assimilated the text to the usual kind of reference to the existence of dumping during the investigation period occurring several times in Article 2.398 Why therefore should the inexperienced among the approximately 140 delegations, unfamiliar with the particularities of original investigations and assessment and review proceedings under United States municipal law, discover that that text was intended to mean the at that time unthinkable, i.e. that the prohibition of zeroing should apply to original investigations only and become irrelevant in the assessment and review phase? Who could imagine that the more precise dumping calculations, those without zeroing, should be done in the original investigation and the more rudimentary ones, those with zeroing, in the assessment and review stage399, with the result that inflated duties would be finally assessed in the later stages of the proceedings? The situation would have been different of course if the text had been unambiguous, clearly spelling out the term "original investigation". But this was not the case, and I have the greatest of doubts whether such a text would ever have had a chance of being adopted. 9.11 For the more initiated negotiators discovering the intended meaning, certain in the final stage of the discussions, they were confronted with the delicate choice either to refuse the text with all the incalculable consequences on the AD Agreement and the entire Uruguay Round or to accept it on the grounds that its ambiguity and the lack of any similar precedent in the anti-dumping area would inevitably lead to litigation where its drafting and context, and the dramatic consequences of its restrictive interpretation, would lead to a different reading. 9.12 Thus, as in so many international negotiations, ambiguity and the need to conclude finally the Uruguay Round allowed the text to be adopted. 9.13 It is illustrative of this situation that the European Communities in its Regulation (EC) No 384/96400 implementing the Uruguay Round AD Agreement, interpreted the term "during the investigation phase" as not restricting the prohibition of zeroing by Article 2.4.2 of the AD Agreement401 to original investigations.402 The United States, on the other hand, in the Statement of Administrative Action interpreting the URAA, opted for a narrow interpretation, expressly excluding reviews from the scope of Article 2.4.2 of the AD Agreement as transposed into United States law.403 9.14 This Panel, by a majority of its members, has now confirmed this limited interpretation and has concluded that zeroing is permitted in United States duty assessment proceedings, as well as regular and newcomer reviews, since it is condemned by Article 2.4.2 of the AD Agreement for original investigations only. The term "during the investigation phase" in Article 2.4.2 of the AD Agreement is interpreted narrowly, assimilating it to the phrase "during the original investigation" and is considered decisive for the interpretation of the fairness principle established by Article 2.4 of the AD Agreement. 9.15 The Panel's interpretation raises four major questions:
1. Meaning of the term "during the investigation phase" if linked to the preceding or the subsequent part of Article 2.4.2 9.16 The Marrakesh Agreement establishing the WTO and its annexes have been established in three languages: English, French and Spanish, each text being authentic.404 9.17 The English version of the first sentence of Article 2.4.2 of the AD Agreement reads as follows:
The most natural reading of this provision, and the only one which is grammatically correct, is to link the term "during the investigation phase" to the preceding words, i.e. to the existence of margins of dumping. It would be otherwise only if the negotiators had opted for a different drafting, such as:
9.18 The French text reads as follows:
Here the situation is even clearer: a link with the second half of the sentence, i.e. the establishment of dumping margins, would not only be not natural and grammatically incorrect but simply impossible. It would be otherwise only if the sentence would have been drafted as:
or
9.19 The Spanish text reads as follows
As to its interpretation, similar considerations apply as above in French.
9.20 There is therefore only one plausible and correct reading of the term "during the investigation phase": to link it to the existence of margins of dumping and interpreting it as synonymous with "during the period of investigation", the time span relevant for the existence of dumping. This is the terminology used two lines above405 and in many other places in the AD Agreement406, which neither defines the phrase "during the investigation phase" nor uses it in any other place.407 9.21 I realize that the words "investigation phase" and "investigation period" are not identical, no more than "investigation phase" and "original investigation" assimilated by the Panel408, but in my opinion the difference between "investigation period" and "investigation phase" is not such as to justify the radical conclusions which are drawn from this difference by the Panel. I therefore do not share the Panel's interpretation that Article 2.4.2 of the AD Agreement applies to original investigations only. 9.22 The Panel's reading is different.409 I shall therefore now examine if the term "during the investigation phase" would have to be interpreted narrowly, even if one were to follow the Panel's opinion that it has to be understood as related to the establishment, and not the existence, of dumping. 2. Meaning of the terms "investigation"/"investigation phase" throughout the AD Agreement 9.23 The term "investigation" is not defined in the AD Agreement. Negotiators realized this but, given differences between prospective and retrospective assessment systems, they renounced to further clarification.410 9.24 I agree with the Panel that, in Articles 3.3; 5.10; 7; 10.7 and 18.3 of the AD Agreement, the words have to be interpreted narrowly, referring to the original investigation only, as suggested by the United States for Article 2.4.2.411 9.25 A broader meaning, covering original investigations as well as assessment and review proceedings - which all, even if pursuing different purposes, involve the same type of investigations into prices or costs412 and into the existence and the amount of dumping � is, however, implied by rules such as: Article 1: "An anti-dumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and conducted an accordance with the provisions of this Agreement". "Initiated" of course refers to the original investigation. The further conduct of these investigations must however include the assessment and review stage. Otherwise these parts of the proceedings would fall outside the disciplines of the AD Agreement.
This confirms that the meaning of the term "investigation" is not limited to original investigations throughout the AD Agreement413 but varies, depending on the context.
9.26 Opinions expressed by Panels and the Appellate Body also vary:
9.27 In the Panel's opinion419, the analysis should focus on the meaning of the phrase "existence of margins of dumping during the investigation phase" as a whole and not on the word "investigation" taken in isolation. I do not see how this could justify the Panel's assimilation between "investigation phase" and "original investigation". First, if the term "investigation phase" is read in conjunction with the existence of dumping, it can only be assimilated with the term "investigation period" which under Article 2 of the AD Agreement is the time span relevant for the existence of dumping. Second, if the words "investigation phase" are read as related to the establishment of dumping, the word "phase" does not solve the problem either. For those interpreting the term "investigation" narrowly it might refer to the original investigation. For those, however, reading the term broadly it would simply distinguish the formal overall proceedings from the more informal pre-initiation stage of Article 5.3 of the AD Agreement where a more summary examination of dumping than prescribed by Article 2 of the AD Agreement is sufficient.420 Thus I do not see any reason whatsoever for imposing the conclusion that the term "phase" used in Article 2.4.2 designates the original investigation only.421 9.28 The Panel422 makes this step because it notes a textual similarity between the phrase "� the existence of margins of dumping during the investigation phase shall normally be established �" in Article 2.4.2 and the term "an investigation to determine the existence � of any alleged dumping" in Article 5.1 of the AD Agreement. But the existence of dumping is not only examined in original investigations. Assessment and review proceedings require the same kind of investigation into the existence of dumping. Also, Article 5.1 of the AD Agreement expressly underlines that investigations must determine not only the existence but also the degree of dumping, a task which, in the Panel's opinion, is typical for the assessment stage.423 There may be a "similarity" of expressions used in Article 2.4.2 and 5.1 AD Agreement but it does not prove that the term "investigation", occurring more than 30 times in the AD Agreement, is used as synonymous to "original investigation" in Article 2.4.2 of the AD Agreement. 9.29 Article 9 of the AD Agreement is also highlighted by the Panel424 in order to demonstrate the qualitative differences between investigations and reviews justifying a narrow interpretation of Article 2.4.2. But paragraph 4 of this Article 9 concerning sampling uses the term "investigation" irrespective of the fact that this may relate to an original investigation or to a later review. Similar considerations apply to Article 9.5 and its newcomer reviews, which refers to "period of investigation". 9.30 As to the cross-references in Article 11 and 12 of the AD Agreement, I am also not convinced by the Panel's argument425 that they can only be explained by the fact that provisions applicable to "investigations" are not automatically applicable to review proceedings. For me they, on the contrary, confirm that original investigations and reviews involve the same kind of investigation into the existence and the amount of dumping. 9.31 Under those conditions, I consider that the term "investigation" in Article 2.4.2 of the AD Agreement, when compared to the other instances where the AD Agreement uses similar terms, does not present itself as limited to original investigations only. 3. Relationship between Article 2.4.2 and the "fair comparison" requirement in the first sentence of Article 2.4 9.32 Article 2.4 of the AD Agreement starts with a "Leitmotiv� placed at its very beginning: "A fair comparison shall be made between export price and normal value". The corresponding text resulting from the Tokyo Round was constructed differently426: what is now a separate first sentence of Article 2.4 of the AD Agreement was part of the present second sentence, worded in terms of an explanatory introduction to the more substantive rules which followed. By singling it out and placing it into a separate sentence the Uruguay Round has strengthened this "Leitmotiv�, elevating it to a general principle governing all of Article 2.4 and its subparagraphs.427 9.33 The second to sixth sentences of Article 2.4 and its subparagraphs 2.4.1 and 2.4.2 elaborate this general and "overarching" principle, with however an exception for targeted dumping. According to the rules of interpretation of the Vienna Convention, they cannot exhaust it since otherwise they would deprive it of its meaning so that the first sentence would become a nullity, serving no purpose.428 The first sentence thus constitutes an independent obligation which can be violated by an action that is not inconsistent with the other requirements of paragraph 4. 9.34 As to its scope, i.e. whether this is limited to price comparability, "the general subject matter expressly addressed in paragraph 4, ... or whether its reach extends beyond this paragraph",429 the Panel concludes430 that the provisions of Article 2.4.1 on currency conversion, of Article. 2.4.2 on the establishment of dumping margins and the provisions of the "chapeau" of Article 2.4 are part of a whole. "Since the subject matter of Article 2.4.2 in particular is different from price comparability, the inclusion of paragraph 2.4 and sub-paragraphs 2.4.1 and 2.4.2 in a single provision supports the interpretation that "fair comparison" in Article 2.4 is not limited to price comparability"431 "by selecting comparable transactions or making adjustments but also applies to the issue of the calculation of margins of dumping."432 The Panel thus follows the Appellate Body which had chosen as formulation: "Article 2.4 '... informs all of Article 2, but applies, in particular, to Article 2.4.2 which is specifically made "subject to the provisions governing fair comparison in [Article 2.4]'�.433 9.35 I agree with all these conclusions. My disagreement with the Panel starts where it measures zeroing against what it considers to be the "substantive meaning" of the term "fair comparison".434 The Appellate Body has several times taken position on this issue:
9.36 These decisions clearly support the suggestion that zeroing is unfair and inconsistent with the "fair comparison" requirement in Article 2.4 of the AD Agreement.438 9.37 The Panel argues, however, that the importance and value of these decisions is limited by the fact that the Appellate Body "has not actually made any legal findings that zeroing is inconsistent with Article 2.4 of the AD Agreement".439 This may be correct, but I nevertheless consider that the Appellate Body's statements are more than obiter dicta. For me they are too well reasoned, too consistent to be considered as unsupported statements. 9.38 Also, the Appellate Body, in EC � Bed Linen440 specifically refers to the "fair comparison" required by Article 2.4 and by Article 2.4.2 of the AD Agreement. 9.39 In US � Corrosion Resistant Steel Sunset Review, the Appellate Body upholds that decision, stressing that in EC � Bed Linen it "emphasized that a comparison such as that undertaken by the European Communities in that case is not a 'fair comparison' between export price and normal value as required by Articles 2.4 and 2.4.2 of the AD Agreement".441 It is true that, in this case, the Appellate Body was not in a position to complete its analysis because the panel report did not contain sufficient factual findings.442 The Appellate Body's statements are however legal, not factual, and there was no reason for the Appellate Body to make them if it was not convinced that they were justified. 9.40 The most interesting aspect of this Appellate Body's decision is however the fact that it is made in the context of a case which involved a review and that the Appellate Body underlined that its evaluation of the zeroing methodology as unfair applied irrespective of whether zeroing took place "in an original investigation or otherwise".443 Since its factual information was insufficient, the Appellate Body was not obliged to make this statement, but it made it, thus pronouncing itself on the crucial issue in the present dispute of whether there should be any differentiation between original investigations and later stages of the proceedings.444 9.41 As to the US � Softwood Lumber V case, it is true, as the Panel states445, that the Appellate Body has examined zeroing only in the context of weighted average-to weighted-average comparisons, finally condemning it because, inter alia, it does not take full account of the prices of all export transactions and "thus inflates the margin of dumping for the product ...".446 But zeroing presupposes averaging and, even if there would be no reference to weighted averages in Article 2.4.2, would it be fair within the meaning of Article 2.4 of the AD Agreement to apply arithmetical averages to dumping calculations or not to take full account of all transactions? 9.42 This leads me to the key element in the Panel's decision, the argument447 that "to determine whether an approach is unfair there must be a discernible standard of appropriateness or rightness within the four corners of the AD Agreement which would provide a basis for reliably judging that there has been an unfair departure from the standard". Since Article 2.4.2 of the AD Agreement" is the only provision of the AD Agreement that specifically addresses the subject methods of determining margins of dumping", the Panel, interpreting Article 2.4.2 narrowly as limited to original investigations, then concludes that zeroing is not unfair within the meaning of Article 2.4 and inconsistent with Article 2.4.2 in original investigations only. 9.43 With all respect to the Panel and its thorough examination of the dispute, I find this argumentation inconceivable because of the results to which it leads, contradictory because in conflict with the independent nature of the fairness requirement under Article 2.4 of the AD Agreement recognized by the Panel448 449 and artificial because it seeks interpretation of the basic principle "informing all of Article 2"450 in one of its most enigmatic subparagraphs. But even more important, the Panel's decision ignores a very important aspect, that Article 2.4.2 is preceded by the "subject to the provisions governing fair comparison in paragraph 4" requirement. This double security, additional to the independent principle established in the first sentence of Article 2.4, clearly subordinates Article 2.4.2 to the "fair comparison" rule of Article 2.4 with the consequence that, in case of conflict, the fairness principle prevails. 9.44 Therefore, the Panel's decision has made of Article 2.4 of the AD Agreement with its fairness principle "informing all of Article 2.4"451 and of the "subject to" requirement heading Article 2.4.2 a nullity serving no purpose, thus also bypassing the Vienna Convention. 9.45 As to the "discernible standard of appropriateness or rightness within the four corners of the agreement which would provide a basis for reliably judging that there has been an unfair departure from the standard"452 of fairness, I am convinced that there at least four, either specifically related to the comparison exercise or more general in nature, permeating the entire AD Agreement, but also relevant in the context of price comparisons. 9.46 First: the requirement of consistency. The AD Agreement is based on the principle of a unique definition of dumping applying throughout all anti-dumping proceedings.453 Nowhere in the AD Agreement is there any provision foreseeing different calculation methods for different stages of the proceedings:
9.47 It has never been argued that any of these rules should not apply at the assessment and the review stage. Depending on the circumstances, the effect of zeroing can be much more dramatic than many of the adjustments or calculations made under the above Articles. Is it possible, under these circumstances, to admit that zeroing is the only practice for which it would be fair to take a different line in the different stages of a proceeding? 9.48 All substantive definitions on injury and causality454 apply to all stages of anti-dumping proceedings, from initiation to review and refund. Procedural requirements for initial investigations are, at least mutatis mutandis, equally valid for reviews455 and price undertakings.456 Is it fair, in these circumstances that the results of the original investigations, moderated by the absence of zeroing, are eclipsed by higher duties fixed in the assessment or review stage? In other words, is it possible that what is an unfair comparison for one stage of the proceeding becomes fair at another stage, that the concept of fairness varies with the context? 9.49 The argument now advanced by the Panel457 in favour of such a contextual concept justifying the differentiation between original investigations and assessment and review proceedings is that a narrow interpretation of Article 2.4.2 would have a protective effect for exporters since "the limitation would make it more difficult to impose an anti-dumping duty in the first instance". Unfortunately, reality does not confirm this. The most recent Semi-Annual Report under Article 16.4 of the United States, covering the period 1 July to 31 December 2004458, shows that anti-dumping activities undertaken by the United States during that period involved 248 cases. Not a single one of these cases has been terminated because of a No Dumping finding in the period under consideration! Margins may have been lower in the original investigations but expectations founded on this by exporters and importers must have been deceived in many or most of the cases by the heavier results in the assessment and review stage. 9.50 Second: fairness of aggregation. Article 2.4.2 specifically calls for weighting of averages when establishing dumping margins. The Panel argues that the requirements of Article 2.4.2 are limited to original investigations. But even if this were the case, would it be possible to qualify as fair within the meaning of Article 2.4, creating obligations independent from Article 2.4.2, aggregations not taking full account of all comparable transactions? 9.51 Third: legal security and predictability of administrative action. Importers and exporters have to be informed of intended action459 and provisional measures must indicate the estimated amount of duty460 and, if the duty is higher than the provisional duty paid or payable, the difference shall not be collected. Therefore, can it be fair that exporters which have increased their export prices by the amount of the original dumping margin have to realize in the assessment or review phase that this was not enough to avoid further collection of duties? 9.52 Fourth: non-discrimination: the principle is specifically referred to in Article 9.2 of the AD Agreement but is of general importance for all anti-dumping and trade policy activity. Can it be fair therefore within the meaning of Article 2.4 of the AD Agreement that, in review proceedings, newcomers are subject to another, more radical method of calculation than exporters subject to the original investigation? My answer to all these questions is negative.
9.53 The Panel argues461 that "the fairness of the methodology logically cannot be divorced from the underlying conception of what dumping means". This leads back to the traditional dispute between the two schools on dumping. But the Appellate Body has consistently condemned zeroing as unfair in cases involving original investigations and this Panel follows the Appellate Body on this, thus adhering to the average concept of dumping for original investigations. Is it conceivable, under those circumstances, that there is now a new formation between the schools of dumping: one for the original stage and a different school for assessment and review proceedings? 4. Relationship between Articles 2.4. and 2.4.2 and Article 9.3 of the AD Agreement 9.54 Article 9.3 of the AD Agreement provides that the amount of the anti-dumping duty shall not exceed the margin of dumping as established under Article 2. It thus refers back to Article 2 enshrining the fairness principle, independent from Article 2.4 but "informing all of Article 2", and where the answers to the key question of this dispute are found. My disagreement with the Panel on the interpretation of this provision is not affected by Article 9.3 of the AD Agreement. 9.55 For clarity's sake, I would however like to note that I am not convinced by the Panel's argument that the qualitative differences between assessment proceedings under Article 9.3 and original investigations "could" be a rational basis for differentiating between the comparison methods applied for these operations.462 Of course, there are differences of purpose, not of nature, between original investigations and sunset reviews463 or assessment proceedings. This however by no means proves that there is a rational justification for applying different methods of comparison for the different stages of one and the same proceeding. Duties collected in the final instance are higher but it is difficult to conceive that this could be qualified as a rationale for such a differentiation. 9.56 As to whether administrations should follow an "exporter-oriented" or an "importer-oriented" assessment and refund system, the Panel argues464 that "while the present AD Agreement � explicitly reflects the existence of retrospective and prospective duty assessment systems, Articles 9.3 and 9.4 provide little detail as regards the substantive methodology to be followed by an authority to determine the basis for attributing liability in respect of any particular transaction". This may be the case. Nevertheless, there can be no doubt that, from the point of view of fairness towards those subject to anti�dumping proceedings, an exporter�oriented approach, such as applied by the European Communities, has the advantage to take full account, via refund procedures, of "negative" dumping margins established for certain importers, while retrospective systems, such as utilized by the United States and certain other countries, achieve an effect equivalent to that of the now generally condemned model zeroing, insofar as they limit themselves to collecting "zero" from importers with negative margins without any compensation in an overall assessment of the exporter concerned. 9.57 Finally, retrospective and prospective assessment systems are both recognized by the AD Agreement.465 Great care is taken by the AD Agreement to ensure immediate refunds if there has been excessive collection of duties under any of those systems. I cannot see any textual support in the AD Agreement for the assertion that the methods of comparison used for calculating such refunds should differ from one system to the other. I therefore disagree with the Panel when it posits466 that there is no requirement that in identical situations retrospective and prospective duty assessment systems should lead to the same level of protection against dumped imports. In order to avoid that users of retrospective systems are advantaged the level of protection obtained, if not identical, should be at least comparable. 5. Conclusion 9.58 For all these reasons, I am not in a position to admit that the disciplines established for zeroing by Articles 2.4 and 2.4.2 are limited to original investigations. 9.59 Remains one last and final question: whether, under Article 17.6 of the AD Agreement, the United States is entitled to opt for a narrow interpretation of Article 2.4.2 of the AD Agreement because there is more than one permissible interpretation of this Article. 9.60 I would certainly have been tempted by such an approach in the early years after Marrakech. Since the year 2000 however, there has been a substantial and consistent body of Panel and Appellate Body jurisprudence with regard to zeroing, its nature and effects. WTO Members which were condemned have aligned their legislation or practice, without differentiating between original investigations and assessment and review proceedings. 9.61 This has created a new situation where the difference between the traditional two schools of thought on dumping467 has become a moot issue. In fact, at least for original investigations, it is generally admitted by Panels and the Appellate Body now that:
"De facto" the overall price behavior concept of dumping, generally supported by modern economists, has therefore prevailed, and it would be unconceivable to have different "schools" on dumping for different stages of anti-dumping proceedings.
9.62 Under these circumstances, I do not think that there is more than one permissible interpretation of Articles 2.4 and 2.4.2 of the AD Agreement any longer and I would accept the claims of the European Communities:
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Return to
Table of Contents 306
Supra, footnote 202.
307 EC-First Written Submission, paras. 149-150; EC-Response to
Panel Question 25; EC-Response to Questions Posed by the Panel at Second
Substantive Meeting, paras. 2-8.
308 EC-First Written Submission, para. 68.
309 EC-Response to Panel Question 27.
310 EC-Response to Panel Question 27.
311 EC-First Written Submission, paras. 152-153.
312 EC-First Written Submission, paras. 155-159.
313 EC-Oral Statement at the First Substantive Meeting of the
Panel, para. 10; EC-Response to Panel Questions 28, 33, 38 and 45; EC-Rebuttal
Submission, paras.7, 95, 101-104; EC-Oral Statement at the Second Substantive
Meeting of the Panel, paras. 44-47; EC-Response to Questions Posed by the Panel
at Second Substantive Meeting, paras. 16-27.
314 EC-Responses to Panel Questions 41, 43 and 48. EC-Oral
Statement at the Second Substantive Meeting of the Panel, paras. 38-39.
315 EC-Response to Panel Question 47.
316 EC-Response to Panel Question 47 (para. 157).
317 EC-Oral Statement at the Second Substantive Meeting of the
Panel, para. 47; EC-Response to Questions Posed by the Panel at Second
Substantive Meeting, paras. 28-34.
318 EC-Response to Panel Question 48.
319 EC-Response to Panel Question 45.
320 EC-Response to Panel Question 42.
321 EC-Rebuttal Submission, paras. 97 and 102.
322 EC-Rebuttal Submission, para. 100.
323 US-First Written Submission, paras. 61-62 and 69.
US-Responses to Panel Questions 26 and 30.
324 US-Response to Panel Question 40.
325 US-First Written Submission, para. 62. US-Response to Panel
Question 26.
326 US-Second Written Submission, para. 20.
327 US-First Written Submission, para. 63; US-Responses to Panel
Questions 44 and 48; US-Second Written Submission, paras 22-23.
328 US-First Written Submission, paras. 65-67. The United States
illustrates this point with a numerical example in which a transaction-to
transaction comparison method leads to a higher amount of AD duties than an
average-to-transaction comparison.
329 US-Response to Panel Questions 29 and 37.
330 US-Response to Panel Question 36.
331 US-First Written Submission, para. 68.
332 US-First Written Submission, para. 69.
333 US-Opening Statement at the First Substantive Meeting of the
Panel, paras. 10-14; US-Responses to Panel Questions 22 and 46; US-Second
Written Submission, para. 26.
334 US-Second Written Submission, paras. 28-29; US-Opening
Statement at the Second Substantive Meeting of the Panel, para. 6; US-Closing
Statement at the Second Substantive Meeting of the Panel, paras. 8-11.
335 Supra, footnote 202.
336 There is no disagreement between the parties on the fact that
the first sentence of Article 2.4 establishes a legally binding obligation.
337 If the first sentence creates an obligation that is
independent relative to the obligations contained in the remainder of the
paragraph, this simply means that a violation of that obligation is not
dependant upon a violation of one of the other requirements contained in
paragraph 4. However, this does not necessarily imply that the obligation
applies to issues other than the issue of price comparability. Thus, the issue
of the independent character of the "fair comparison" obligation vis-�-vis other
obligations in paragraph 4 is an issue distinct from the scope of application of
the obligation.
338 Article 2.6 of the Tokyo Round Anti-Dumping Code provided:
"In order to effect a fair comparison between the export price and the domestic
price in the exporting country ... the two prices shall be compared at the same
level of trade, normally at the ex-factory level, and in respect of sales made
at as nearly as possible the same time." The same language appeared in Article
2(f) of the Kennedy Round Anti-Dumping Code.
339 Infra, para. 7.256.
340 Appellate Body Report, EC - Bed Linen, para. 59.
341 In order to resolve the interpretive issue before us in this
dispute we do not need to express a view on whether the "fair comparison"
requirement in Article 2.4 applies to any aspect of Article 2 other than the
calculation of margins of dumping.
342 Panel Report, Egypt � Steel Rebar, paras. 7.333-7.334
(emphasis in original).
343 Panel Report, Guatemala � Cement I, paras. 7.65-7.66;
Panel Report, US - Stainless Steel, paras. 6.71-6.80 and 6.102-6.104;
Panel Report, Argentina - Ceramic Tiles, paras. 6.110-6.116; Panel
Report, Egypt � Steel Rebar, paras. 7.330-7.337 and 7.347-7.388; Panel
Report, EC - Tube or Pipe Fittings, paras. 7.154-7.193; Panel Report,
Argentina � Poultry Anti-Dumping Duties, paras. 7.234-7.260; Panel Report,
US � Softwood Lumber V, paras. 7.163-7.184 and 7.349-7.365.
344 We note in this respect that the issue of the relationship
between the first sentence of Article 2.4 and the requirements in the remainder
of Article 2.4 was debated by the parties in US � Stainless Steel. After
finding that USDOC had acted inconsistently with Article 2.4.1 in respect of the
conversion of currency and had acted inconsistently with the third and fourth
sentences of Article 2.4 in respect of its treatment of bad debt, the Panel
decided that it was not necessary to examine the claims of Korea that the United
States had also breached a more general "fair comparison" requirement under
Article 2.4 of the AD Agreement. Panel Report, US � Stainless Steel,
paras. 6.45 and 6.104.
345 E.g., the European Communities states in response to Panel
Question 27 that "[t]he ordinary meaning of the word 'fair' indicates a
comparison that is 'just, unbiased, equitable, impartial'; 'offering an equal
chance of success'; conducted 'honestly, impartially'; and 'evenly, on a
level'". Japan argues that the word "fair" in its ordinary meaning requires a
comparison of normal value and export price that is "unbiased", "impartial" and
"offer[s] an equal chance of success" to both domestic parties and exporters.
Japan argues that this means that a "fair comparison" must be "even-handed".
Third Party Submission of Japan, para. 33.
346 In saying this, we are not of course saying that such a
standard can only be discerned from some succinct and express formulation within
the AD Agreement. However, such a standard must at least be reliably and
specifically grounded in the AD Agreement's concepts and principles such
that it is based upon a convincing rationale.
347 Supra, paras.7.204-7.206.
348 "One of the corollaries of the 'general rule of
interpretation' in the Vienna Convention is that interpretation must give
meaning and effect to all the terms of the treaty. An interpreter is not free to
adopt a reading that would result in reducing whole clauses or paragraphs of a
treaty to redundancy or inutility". Appellate Body Report, US � Gasoline,
p. 23.
349 The European Communities, which itself refers to the second
sentence as relating to "targeted dumping" (e.g., EC-Responses to Panel
Questions 41, 43, 47-49), shares this view as to the purpose of that sentence.
350 At the First Substantive Meeting of the Panel, the European
Communities asserted that the use of an average-to-average methodology and an
average-to-transaction methodology both without zeroing, would not necessarily
produce the same result. We asked the European Communities to elaborate on this
statement. From the response to Panel Question 49, we conclude that the European
Communities no longer contests that, without zeroing, these two methods will
produce the same result. ("By the use of the "weighted average to individual
methodology", the European Communities referred to the legitimate use of such
method in cases of targeted dumping as defined in the second sentence of Article
2.4.2. The fact that the two methods may lead to different results is provided
for in the text of this sentence itself when it says that the "differences
[among purchasers, time period or regions] cannot be taken into account
appropriately by the use of a weighted average-to-weighted average or
transaction-to-transaction comparison." Evidently, this means that the two
methods give different margins as a result of zeroing or some other method
considered appropriate to address targeting. The European Communities notes
however that the United States does not claim that in assessment proceedings it
applies the third method of comparison in conformity with the second sentence of
Article 2.4.2.")
351 The European Communities itself does not, as discussed below,
deny that zeroing is permitted in the context of the alternative comparison
methodology set forth in the third sentence.
352 Supra Section VI.E.3.
353 Supra, paras. 7.204-7.206
354 EC-Responses to Panel Questions 47-48.
355 EC-Response to Panel Question 41.
356 Supra, paras. 7.30-7.31
357 Appellate Body Report, EC � Bed Linen, para. 55
(footnotes omitted, emphasis in original)
358 Appellate Body Report, US � Corrosion-Resistant Steel
Sunset Review, paras. 127-130.
359 Appellate Body Report, US � Corrosion-Resistant Steel
Sunset Review, paras. 134-135 (footnotes omitted)
360 Appellate Body Report, US � Corrosion-Resistant Steel
Sunset Review, paras. 137-138
361 Supra, para. 7.260.
362 Appellate Body Report, US - Softwood Lumber V, paras.
63, 77 and 104-105.
363 Appellate Body Report, US - Softwood Lumber V, para.
76.
364 Appellate Body Report, US � Softwood Lumber V, paras.
104-105.
365 Appellate Body Report, US � Softwood Lumber V, para.
105 (emphasis added).
366 Supra, paras. 7.177-7.179.
367 Contrary to what is alleged in the dissenting opinion, our
approach to the interpretation of the "fair comparison" requirement in no way
negates the legal effect of this provision as an independent legal obligation.
In particular, we have not suggested that a violation of the "fair comparison"
requirement can only be the result of a violation of Article 2.4.2 of the AD
Agreement. Rather, our approach is that the meaning of the "fair comparison"
requirement must be rooted in the concept of dumping and that in determining
what fair comparison means with respect to the determination of margins of
dumping, it is necessary to take into account the manner in which specific rules
contained in the AD Agreement address that particular issue. Thus, for example,
if in a transaction-to-transaction comparison between export price and normal
value an authority deliberately selects only those domestic transactions with
the highest prices, this may well be inconsistent with the "fair comparison"
requirement even though it is not prohibited by Article 2.4.2. By contrast, if a
particular methodological approach is specifically permitted by Article 2.4.2,
it can in our view not be found to be unfair. In this respect, we note that the
dissenting opinion posits that the "fair comparison" requirement must, in case
of conflict, prevail over Article 2.4.2. We consider that the correct approach,
consistent with the principle of a presumption against conflict in the
interpretation of treaty provisions, is to interpret fair comparison in a manner
that avoids conflict with other provisions of the AD Agreement.
368 E.g., EC-Rebuttal Submission, para. 95.
369 EC-Second Oral Statement, para. 47.
370 EC-Response to Questions Posed by the Panel at the Second
Meeting, para. 33.
371 We note that while the European Communities in discussing the
second sentence of Article 2.4.2 uses the term "distinct markets", the text of
this provision does not make any mention of that concept.
372 Supra, footnote 202.
373 It might also usefully be observed that the concept of
dumping, as defined in Article VI: of the GATT and Article 2.1 of the AD
Agreement in terms of a product that is being introduced into the commerce
of another country has not historically been understood as referring exclusively
to average conduct. Thus, for example, the second report of the group of experts
on anti-dumping and countervailing duties adopted in May 1960 observed that "the
ideal method" to ensure that anti-dumping duties are not used for ordinary
protective purposes and are applied only when a product is dumped and found to
be causing injury "was to make a determination in respect of both dumping and
material injury in respect of each single importation of the product concerned"
BISD 9S/195.
374 In EC � Bed Linen, the Appellate Body observed that
Article 2.4.2 explains how authorities must proceed in establishing that there
is dumping and that Article 2.1 made it clear in this regard that the margins of
dumping to which Article 2.4.2 refers are margins of dumping for a product.
Appellate Body report, EC � Bed Linen, para. 51. Similarly, in US �
Softwood Lumber V, the Appellate Body's ruling that dumping and margins of
dumping can be found only for the product under investigation as a whole was
part of an analysis of the meaning of the terms "dumping" and "margins of
dumping" in Article 2.4.2 of the AD Agreement. Appellate Body Report,
US � Softwood Lumber V, paras. 90, 93 and 96. The relevant section of the
Appellate Body's Report is entitled "Interpretation of Article 2.4.2".
375 Supra, footnote 202.
376 EC-First Written Submission, paras. 183-210.
377 Supra, paras. 7.223 and 7.284.
378 EC-First Written Submission, paras. 212-224. As part of these
"as such" claims, the European Communities challenges the use of
importer-specific assessment rates. EC-First Written Submission, para. 224.
379 Supra, para. 7.69.
380 EC-First Written Submission, para. 225.
381 Supra, para. 7.69.
382 Supra, para. 7.32.
383 Supra, para. 7.69.
384 Supra, para. 7.106.
385 Supra, para. 7.223.
386 Supra, para. 7.284.
387 Supra, para. 7.288.
388 Supra, para. 7.291.
389 Supra, para. 7.294.
390 Supra, paras. 7.33 and 7.34.
391 Supra, paras. 7.108 and 7.109.
392 EC-First Written Submission, p. 1.
393 Panel Report, EC � Bed Linen, para. 6.102; cf.
Panel Report, US � Softwood Lumber V, para. 7.213.
394 Art VI:1 GATT: "�dumping by which products of one country are
introduced into the commerce of another country at less than the normal
value of the products� (emphasis added).
395 "2.4 A fair comparison shall be made between the export price
and the normal value. This comparison shall be made at the same level of trade,
normally at the ex‑factory level, and in respect of sales made at as nearly as
possible the same time. Due allowance shall be made in each case, on its merits,
for differences which affect price comparability, including differences in
conditions and terms of sale, taxation, levels of trade, quantities, physical
characteristics, and any other differences which are also demonstrated to affect
price comparability. In the cases referred to in paragraph 3, allowances for
costs, including duties and taxes, incurred between importation and resale, and
for profits accruing, should also be made. If in these cases price comparability
has been affected, the authorities shall establish the normal value at a level
of trade equivalent to the level of trade of the constructed export price, or
shall make due allowance as warranted under this paragraph. The authorities
shall indicate to the parties in question what information is necessary to
ensure a fair comparison and shall not impose an unreasonable burden of proof on
those parties.
2.4.1 When the comparison under paragraph 4 requires
a conversion of currencies, such conversion should be made using the
rate of exchange on the date of sale, provided that when a sale of
foreign currency on forward markets is directly linked to the export
sale involved, the rate of exchange in the forward sale shall be used.
Fluctuations in exchange rates shall be ignored and in an investigation
the authorities shall allow exporters at least 60 days to have adjusted
their export prices to reflect sustained movements in exchange rates
during the period of investigation. (footnote omitted) 2.4.2 Subject to the provisions governing fair
comparison in paragraph 4, the existence of margins of dumping during
the investigation phase shall normally be established on the basis of a
comparison of a weighted average normal value with a weighted average of
prices of all comparable export transactions or by a comparison of
normal value and export prices on a transaction‑to‑transaction basis. A
normal value established on a weighted average basis may be compared to
prices of individual export transactions if the authorities find a
pattern of export prices which differ significantly among different
purchasers, regions or time periods, and if an explanation is provided
as to why such differences cannot be taken into account appropriately by
the use of a weighted average‑to‑weighted average or
transaction‑to‑transaction comparison."
396 Supra, para. 7.212.
397 Even the United States administration, when implementing the
AD Agreement into United States law, felt the need, in the SAA, to
comment on the term "investigations" with the explanatory addition "not
reviews". See EC-Rebuttal Submission, para. 217.
398 Articles 2.2.1, 2.2.2 and 2.4.1 of the AD Agreement.
399 Normally reserved for refinement of calculations.
400 Article 2, para. 11, OJ No L 56 of 6.3.1996, p.1.
401 Except for cases of targeted dumping.
402 Thus, Reg. 384/96 refers to the existence of dumping during
the "investigation period".
403 See discussion of this problem in EC-Response to Panel
Question 50, para 163.
404 WTO Agreement, Art XVI:6.
405 At the end of Article 2.4.1 of the AD Agreement
406 E.g., Articles 2.2.1; 2.2.1.1; 9.5.
407 Contrary to what the Panel posits (supra, para. 7.192)
such a reading would be perfectly reasonable. Under the AD Agreement,
dumping must necessarily exist during a certain period "of investigation". This
period varies from one phase of the proceeding to the other, but dumping outside
an investigation period cannot justify the imposition of measures.
408 Supra, paras. 7.142 et seq.
409 Supra, paras. 7.156 et seq. It is however
interesting to note that, when examining the textual similarity between Articles
2.4.2 and 5.1 of the AD Agreement, the Panel systematically refers to
"the existence of dumping during the investigation phase".
410 The term "proceedings� used in Article 8.1 is a souvenir left
in the AD Agreement of the futile efforts of negotiators to agree on a
more precise definition.
411 I note however that the terminology used by the United States
administration under United States law varies and that, under EC law, reviews
and refund procedures are "investigations". See for the United States practice
supra, para. 7.120 and quotations made in paras. 123-126 of the EC-Second
Written Submission; and for the EC�s legislation, see Article 11.9 of Reg. No
384/96 of 22. 12. 1995, OJ No L 56 of 6.3.1996, p.1.
412 Cf. Appellate Body Report, US � Corrosion-Resistant
Steel Sunset Review, para 111: "Art. 11.3" (concerning reviews) "makes it
clear that it envisages a process combining both investigatory and
adjudicatory aspects. In other words, Art. 11.3 assigns an active rather than a
passive decision-making role to the authorities." The Appellate Body therefore
concluded that the prohibition of zeroing in Article 2.4.2 also applies to
sunset reviews, cf. para. 127.
413 I note that the same view has been expressed by China (Oral
Statement of 17.3.2005, para. 14); Hong Kong, China (supra, para. 7.136);
Korea (Oral Statement of 17.3.2005, para. 11 et seq.); Mexico (Oral
Statement of 17.3.2005); Norway (Oral Statement of 17.3.2005, paras. 5 and 6)
and Turkey (Oral Statement of 17.3.2005, paras. 10 et seq).
414 EC-Second Written Submission, paras. 168-170.
415 Paras. 7.173 et seq.
416 Paras. 58-97.
417 Para. 107.
418 Para. 279.
419 Supra, paras. 7.153 et seq.
420 The Panel, supra, para. 7.196, argues that, in a
pre-initiation investigation, no margin calculations have to be made and that,
therefore there was no need to highlight in Article 2.4.2 AD Agreement
that this proviso should refer to post-initiation formal proceedings only. The
Panel errs: no prima facie case can be established without comparing
normal value and export prices in the pre-initiation phase, and zeroing can have
a significant effect on the outcome of even summary investigations.
421 This is confirmed by the following reflection: Article 2.4.2
of the AD Agreement second sentence admits asymmetry, i.e. zeroing, where
there is targeted dumping. There is no reference to any "investigation phase" in
this sentence. Therefore, if the first sentence were to be interpreted narrowly,
prescribing symmetry and thus prohibiting zeroing for the investigation period
only, which would then be the regime applicable after the original
investigation? Since the second sentence entitles authorities to use zeroing in
the presence of targeted dumping only, and this in all phases of the proceeding,
it seems logical that, absent targeted dumping, symmetry and no zeroing should
be prescribed in all phases of the proceedings too. This excludes a narrow
interpretation of the first sentence limiting its validity to original
investigations only. The term "during the investigation phase� must have another
meaning.
422 Supra, para. 7.156.
423 Supra, para. 7.200.
424 Supra, para. 7.201.
425 Supra, para. 7.168.
426 "In order to effect a fair comparison between the export
price and the domestic price in the exporting country (or the country of origin)
or, if applicable, the price established pursuant to Art. VI:1(b) of the General
Agreement, the two prices shall be compared at the same level of trade�.�
427 Appellate Body Report, EC � Bed Linen, para 59.
428 Supra, para. 7.253.
429 Supra, para. 7.252.
430 Supra, para. 7.254.
431 Supra, para. 7.254.
432 Supra, para. 7.258.
433 Appellate Body Report, EC � Bed Linen, para. 59.
434 Supra, para. 7.259.
435 Appellate Body report, EC � Bed Linen, para. 55,
emphasis added.
436 Appellate Body Report, US � Corrosion Resistant Steel
Sunset Review, para. 135, emphasis added.
437 Appellate Body Report, US � Softwood Lumber V,
para. 101, emphasis added.
438 This position is also taken also by the following third
parties in this dispute: Argentina, Brazil; Hong Kong, China; India; Japan;
Korea; Mexico and Norway.
439 Supra, para. 7.270.
440 Appellate Body Report, EC � Bed linen, para. 55.
441 Appellate Body Report, US � Corrosion Resistant Steel
Sunset Review, paras. 134 and 135.
442 Supra. para. 7.273.
443 Appellate Body Report, US � Corrosion Resistant Steel
Sunset Review, para. 135.
444 A possibility which the Appellate Body denies.
445 Supra, para. 7.273.
446 Appellate Body Report, US � Softwood Lumber V, para.
101.
447 Supra, paras. 7.260 et seq.
448 Supra, para. 7.253.
449 The Panel, in its rebuttal comments on my dissenting opinion
posits that its interpretation of the "fair comparison" requirement in no way
negates the legal effect of this provision as an independent obligation and that
"the meaning of the 'fair comparison' requirement must be rooted in the concept
of dumping and that � it is necessary to take into account the manner in which
specific rules contained in the AD Agreement address that particular
issue". This again ignores the fact that, due to the "subject to" provision,
Article 2.4.2 is subordinated to the fairness principle in Article 2.4 first
sentence. This clearly establishes a predominance and requires that, in order to
avoid conflict, Article 2.4.2 is applied and interpreted in a manner compatible
with Article 2.4.
450 Appellate Body Report, EC � Bed Linen, para. 59.
451 Appellate Body Report, EC � Bed Linen, para. 59.
452 Supra, para. 7.260.
453 Articles 1 and 2.1 of the AD Agreement.
454 Articles 1, 2 and 3 of the AD Agreement.
455 Articles 11.4 and 12.3 of the AD Agreement.
456 Articles 11.5 of the AD Agreement.
457 Supra, para. 7.212.
458 WTO doc. No ADP/N/126/USA, dated 8 March 2005.
459 Articles 6.9 and 12.1 of the AD Agreement.
460 Article 7.2 of the AD Agreement.
461 Supra, para 7.260.
462 Supra, para. 7.201, double negative turned into the
positive.
463 Appellate Body Report, US �Carbon Steel, para. 58 - 97
464 Supra, para. 7.204
465 Article 9.
466 Supra, paras. 7.208 et seq.
467 It should be noted also that Article 2.2.1 regarding sales
below cost is based on the average behaviour over time concept of dumping.
468 Technically speaking, there is no claim of the European
Communities in respect of review proceedings. The legal situation is the same
however, and this is the reason why I have generally mentioned assessment and
review proceedings together.
469 Fed. Reg. Vol. 62, No 96 of 19.5.1997, p. 27415. |
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