4.364 Guatemala asserts that there is no foundation to Mexico's claim that Guatemala violated Articles 6.1, 6.2 and 6.8 of the ADP Agreement by rejecting the self-verification report by Cruz Azul, submitted after Cruz Azul had prevented the Ministry from carrying out the verification. The technical accounting evidence of Cruz Azul was not verifiable, was not appropriately submitted and was not supplied in a timely fashion, as required by paragraph 3 of Annex II to the ADP Agreement. Guatemala recalls that, according to Mexico, Cruz Azul provided its technical accounting evidence to the Ministry on 18 November 1996. However, that information was actually dated and received by the Ministry on 18 December 1996, the day before the public hearing. Guatemala argues that the information was not submitted prior to the planned verification visit, and was not therefore amenable to verification by the Ministry. Guatemala suggests that the only reason why Cruz Azul had the information prepared for the Ministry was that it had previously prevented the Ministry from carrying out the verification. Nor was the technical accounting evidence appropriately submitted. It was neither requested by the Ministry nor supplied in a timely fashion. The technical accounting "evidence" was submitted one day before the date on which the final arguments of the parties were to be made at the public hearing. In its notice of 6 December, the Ministry had already informed Cruz Azul that the final determination would be made on the basis of the facts available in the file on that date. According to Guatemala, the submission by Cruz Azul on the eve of the cut-off date of 19 December for the presentation of final arguments effectively denied other interested parties the opportunity of expressing their views on that new information. Guatemala suggests that, in accordance with the ADP Agreement, the appropriate and timely juncture for the presentation of evidence in support of the information submitted by Cruz Azul was during the verification visit which the Ministry was prevented from carrying out. Consequently, Guatemala submits that pursuant to Article 6.8 and paragraph 3 of Annex II to the ADP Agreement, the decision by the Ministry not to accept the technical accounting evidence of Cruz Azul was correct. 

4.365 Guatemala argues that because the submission by Cruz Azul was presented the day before the public hearing, and in view of the "time-limits of the investigation", the Ministry was unable to give the reasons for the rejection of the technical accounting evidence as required by paragraph 6 of Annex II to the ADP Agreement. While Mexico asserts that during the hearing on 19 December Cruz Azul explained clearly and precisely the nature of the technical accounting evidence and its importance to the investigation, the explanations provided by Cruz Azul were not considered satisfactory by the Ministry. Guatemala submits that consequently, pursuant to paragraph 6 of Annex II to the ADP Agreement, the Ministry set forth the grounds for its rejection of the explanations by Cruz Azul in the final determination of 17 January 1997: 

"This Ministry considers that the information supplied by the exporting firm cannot be taken into account for the calculation of the normal value of the product under investigation, in view of the fact that the information could not be verified and that the technical evidence submitted by the exporting firm on 18 December 1996 (confidential information) cannot be a substitute for such verification of the information by the Guatemalan investigating authority."  

4.367 Guatemala recalls that paragraph 7 of Annex II of the ADP Agreement stipulates that if the authorities have to base their findings on information that was not provided by the exporter, they should "check the information from other independent sources at their disposal, such as published price-lists, official import statistics and customs returns, and from the information obtained from other interested parties during the investigation". The technical accounting evidence was not prepared by an "independent source", but by a private enterprise hired to verify the information that Cruz Azul considered relevant to the investigation. Nor was the technical accounting evidence obtained from "other" interested parties, i.e. parties other than the party that is unwilling to supply the information. Thus Guatemala submits that the Ministry was under no obligation to take the technical accounting evidence into consideration. 

4.368 Mexico asserts that the technical accounting evidence forms the basis of the facts available as mentioned in Article 6 of the ADP Agreement, as well as being part of the best information available within the meaning of Article 6.8. Mexico submits that the technical accounting evidence constitutes the type of information from independent sources envisaged by Annex II(7) of the ADP Agreement, which is to be used for checking information from secondary sources (such as applications). Mexico recalls that the evidence, including a detailed explanation of the methodology used in its compilation, was presented in writing, as required by Article 6.1 of the ADP Agreement. Mexico submits that the ADP Agreement does not establish any other condition for determining whether the technical accounting evidence was presented properly or was not presented in time. Mexico recalls that after the presentation of this evidence by Cruz Azul, Cementos Progreso submitted in writing a document requesting the Ministry to change the investigation from threat of injury to present injury (Mexico contends that the date of Cementos Progreso's document may be inferred from the fact that the claim concerning present injury did not appear in the file before 6 December 1996). According to Mexico, these are all reasons why the technical accounting evidence should have been taken into account by the Ministry. 

4.369 Mexico notes Guatemala's argument that the evidence presented by Cruz Azul was not timely because it was submitted only one day before the final arguments of the parties were to be put forward in public, and that in its notice of 6 December 1996 the Ministry had informed Cruz Azul that the final determination would be made on the basis of the facts available in the file on that date. In this respect, Mexico argues that the Ministry took a biased and inconsistent position since, on the one hand, it gave the reasons mentioned above as valid grounds for not taking Cruz Azul's evidence into account and, on the other hand, it allowed Cementos Progreso to submit arguments and information during the public hearing. Mexico submits that the Ministry took a decision of the utmost importance on the basis of the information submitted by Cementos Progreso at the hearing, namely to change from a finding of threat of injury to a finding of present injury. According to Mexico, this shows that the Ministry modified its criteria in favour of the interests of its domestic industry. The Ministry cannot, on the one hand, consider evidence presented before the hearing not to be in time and, on the other, accept information submitted during the hearing.  

4.370 Guatemala notes Mexico's argument that the fact of having accepted the report submitted by Cementos Progreso for the hearing and rejected the technical accounting evidence of Cruz Azul was evidence that the Ministry was biased. Guatemala suggests that, in making the above argument, Mexico is referring to two different moments in the investigation: the public hearing of 19 December 1996, and Cementos Progreso's earlier allegation of present injury. Guatemala recalls that Cruz Azul's technical accounting evidence was submitted one day before the hearing, when the period for the submission of evidence had ended and the file was closed, with only the arguments to be presented on the day of the hearing still pending. According to the instructions of the Ministry dated 6 December 1996, and in strict compliance with Guatemalan law governing hearings, this hearing was not to be a forum for discussion between the parties or for the examination of new evidence; it was to be confined, rather, to providing the last opportunity for the parties to present their conclusions. According to Guatemala, therefore, the Ministry neither accepted nor requested the presentation of additional facts at the hearing. Cementos Progreso presented its conclusions on the basis of the said instructions and the relevant legal provisions. Guatemala denies that Cementos Progreso changed its claim from threat of injury to present injury at the hearing. Cementos Progreso had already alleged that it suffered present injury caused by Cruz Azul's dumped imports before the hearing, as shown by the evidence of present injury supplied by Cementos Progreso on 17 May 1996 in its questionnaire response. In short, Guatemala asserts that there has been no bias: on the basis of the instructions given to all interested parties in accordance with the law, the Ministry rejected the technical accounting evidence. 

4.371 Mexico notes Guatemala's argument that the technical accounting evidence was not admissible because, inter alia, it was not requested by the Ministry. Mexico considers this to be unacceptable since it seeks to disregard the provisions of Article 6.1 of the ADP Agreement. According to Mexico, this argument would mean that only evidence requested by an investigating authority can be taken into account during an anti-dumping investigation, thereby imposing unacceptable limits on the right of all parties to have ample opportunity to defend their interests. 

5. Essential facts 

4.372 Mexico submits that the Ministry violated Article 6.9 of the ADP Agreement by failing to inform Cruz Azul of the essential facts that would form the basis for the final injury determination, thus undermining its rights of defence. In its submission of 30 October 1995, Cruz Azul requested the Ministry to comply with Article 6.9 of the ADP Agreement by making the essential facts available. As the investigating authority failed to respond to that request, Cruz Azul repeated its request in a letter of 6 November 1996, and in the public hearing of 19 December of that same year. Mexico recalls that on 6 December 1996 the Ministry replied that the essential facts referred to in Article 6.9 of the ADP Agreement would be determined in a technical study to be prepared and made available to Cruz Azul, although the Ministry did not specify when the firm would receive that technical report. Cruz Azul did not receive the technical report until 30 January 1997, 17 days after the final determination was issued. ¹¹¹  Therefore, Mexico concludes that the Ministry did not comply with the provisions of Article 6.9 of the ADP Agreement.  ¹¹²

4.373 Guatemala considers that it complied with Article 6.9 of the ADP Agreement by informing all interested parties of the essential facts under consideration which would form the basis for the imposition of definitive duties by Guatemala. According to Guatemala, in a decision of 6 December 1996 the Ministry notified all the parties that DIACO would carry out a technical study of the evidence in the file and that certified copies of the file itself, which was to be used for the study in question, would be made available to the parties upon request. In other words, the essential facts on which the final determination was to be based were those contained in the file at 6 December, and the file was available to parties wishing to obtain copies. Guatemala asserts that the parties had the opportunity to present their final arguments regarding those essential facts at the hearing on 19 December 1996. Consequently, Guatemala submits that the Ministry complied with Article 6.9 of the ADP Agreement by informing the parties of the essential facts under consideration in sufficient time for the parties to defend their interests. Guatemala notes that Cruz Azul did not request a certified copy before the final determination was made. Moreover, the Ministry had given the parties notice of its preliminary determination. Following a practice similar to that of Mexico when making determinations, Guatemala asserts that the preliminary determination contained the essential facts forming the basis for the Ministry's decision to impose definitive anti-dumping duties. According to Guatemala, therefore, the Ministry complied with Article 6.9 of the ADP Agreement. 

4.374 Mexico notes Guatemala's statement that it intended to carry out a technical study of the evidence in the file and that certified copies of the file itself, which was to be used for the study in question, were available to the parties upon request. Mexico suggests that two possible conclusions can be drawn from this. First, the essential facts to which the Ministry referred were in a technical study which would be made available to the parties before the final determination was published. Second, the Ministry considered that the essential facts were already in the file and that by granting access to the file, it was complying with the provisions of Article 6.9 of the ADP Agreement. The first hypothesis is not tenable since it was not until 30 January 1997, i.e. 17 days after the final determination, that the exporter obtained the technical study to which the Ministry referred in its decision of 6 December 1996. Mexico also rejects the second hypothesis, since the Ministry appears to be in some confusion with respect to the text of Article 6.9.

4.375 Mexico argues that the aim of Article 6.9 of the ADP Agreement is that the investigating authority should make known the specific facts which it is going to take into account in drawing up its determination, and that this should be more than merely granting access to the administrative file of the investigation, since this might otherwise be confused with the obligation in Article 6.4 of the ADP Agreement to grant access to all information that is relevant to the presentation of a party's case. Notwithstanding Guatemala's argument, and assuming, without conceding the fact, that Guatemala's assertions were true and that the essential facts were those contained in the administrative file at 6 December 1996, Mexico asks how it was possible - on the basis of the essential facts as at 6 December 1996 - to change the finding from threat of injury to present injury in the final determination when this argument had not been made by any party before the public hearing on 19 December 1996.  

4.376 Mexico contends that the Ministry's failure to notify Cruz Azul of the essential facts denied the latter an adequate defence of its interests, since it is not possible to defend against something of which you are not aware. Not having made known the essential facts also meant denying the opportunity to present counter-evidence, which constitutes a violation not only of Article 6.4 of the ADP Agreement but also of the rules of evidence and due process which should govern any proceeding. 

4.377 Guatemala notes that Article 6.9 of the ADP Agreement requires investigating authorities to supply the "essential" facts and not the "specific" facts, as alluded to by Mexico. In the case of a complex investigation involving a large number of domestic producers, several foreign exporters and foreign like products or domestic like products, or involving collection of facts that are not easily available when consulting the file of the investigation or facts that are not relevant and are not therefore taken into consideration, Guatemala agrees that the investigating authorities should identify the essential facts in a separate document. However, Guatemala suggests that the investigation in question was not complex. It only involved one domestic producer, one foreign exporter, one foreign like product and one domestic like product. The essential facts considered were confined to those provided in the responses to the questionnaires and in the investigation reports by DIACO and the Ministry. According to Guatemala, all the facts collected were relevant. Consequently, in the present case, the file of the investigation at 6 December 1996 was the best indicator of the essential facts under consideration at that time. A separate list of the facts was thus not required. According to Guatemala, to the extent that Article 6.9 requires a separate document identifying the essential facts, the Ministry observed this requirement by listing the essential facts under consideration in its preliminary determination and by providing the parties with copies of this determination, a procedure that Mexico also applies in its own investigations. 

4.378 Guatemala states that the "technical study" that was completed on 15 January 1997 is referred to in the decision of 6 December 1996, and is not identical to the investigation file. The Ministry intended the "technical study" to be the final determination of the investigation. The study is almost identical to the final determination issued on 17 January 1997. The Ministry gave Cruz Azul a copy of the "technical study" on 30 January 1997. Guatemala submits that, according to Article 6.9 of the ADP Agreement, the "essential facts", on which the technical study and final determination were based, were the facts contained in the administrative file, including the facts established in the preliminary determination which were made available to the parties. Guatemala argues that on 6 December 1996 the Ministry informed the interested parties that authenticated copies of the administrative file were available. The final arguments of the parties were submitted on 19 December 1996. According to Guatemala, the interested parties were therefore informed of the "essential facts" studied, and had sufficient time to defend their interests pursuant to Article 6.9 of the ADP Agreement. 

4.379 Guatemala notes that Mexico cites United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in France, Germany and the United Kingdom ¹¹³ to support its argument that Cruz Azul was denied an adequate opportunity to provide relevant evidence during the investigation. According to Guatemala, this citation shows that Mexico is making another claim relating to the final stage of the investigation, without challenging the final determination itself. In the above-mentioned steel products case, the Panel concluded that the investigating authority had not given the respondents an adequate opportunity to submit factual information "relevant to the issue of whether or not the subsidies should be allocated over domestic production only". ¹¹⁴ Guatemala notes, however, that Mexico does not raise specific questions concerning its claim that it was not given an adequate opportunity to submit factual information. Moreover, Mexico could not in fact raise such questions, since it failed to challenge the final determination where such questions were definitively settled. In any event, Guatemala submits that Cruz Azul was given ample opportunity to present relevant evidence concerning all matters essential to the issuance of the final determination. Accordingly, Guatemala asserts that United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in France, Germany and the United Kingdom ¹¹⁵ is irrelevant in the present case. 

4.380 Mexico restated its position that the United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating  in France, Germany and the United Kingdom report should be taken into account since it is further proof that in any investigation concerning unfair international trade practices, the respondents should be given an adequate opportunity to provide relevant evidence. 

F. Violations in the Course of the Investigation 

1. Access to file 

4.381 Mexico asserts that the Ministry violated Articles 6.1.2, 6.2 and 6.4 of the ADP Agreement by denying Cruz Azul total or partial access to the administrative file during the course of the investigation. Mexico submits that it does not claim that the Ministry refused or definitively prevented access to the file, but that access to the file was not timely or adequate. According to Mexico, on 28 September 1996 Cruz Azul requested the investigating authority to be allowed to review the case file. However, the file was provided only partially, as it was lacking inter alia several documents and much essential information such as decisions, spreadsheets for the calculation of the margin of dumping, the public version of the complainant's information and the summary of its confidential information. Moreover, on several occasions Cruz Azul requested access to the complete file, but this was denied by the Ministry under the pretext that there was only one copy available and that was being used by Ministry officials. According to Mexico, the many occasions when the file was withheld from Cruz Azul, despite numerous requests, included 4 November 1996, when a notary appeared before the Ministry to place on record the fact that access to the file was being denied. At the same time a request was made for a date on which to examine the file, and this was denied on the grounds that it was first necessary to evaluate and review the documents presented. According to Mexico, the requests for access to information and to the file, which were either not entertained or at best granted with considerable delays, are contained in Cruz Azul's written communications of 14 November 1996, 12 December 1996, the record of the public hearing of 19 December 1996, and in communications of 20 and 27 December 1996. Mexico also refers to several oral requests for access that, it states, were not acted upon. 

4.382 Mexico states that an interested party should have access to the file at all times during an investigation, consistent with Articles 6.2 and 6.4 of the ADP Agreement, which concern the rights of defence of interested parties. According to Mexico, interested parties can only defend their interests if they receive the information that should be found in the file in time to allow them to put forward their arguments. Failing to act in conformity with this procedure would be the same as denying interested parties an opportunity to defend themselves, contrary to all the principles laid down in the ADP Agreement. 

4.383 Guatemala denies that Article 6.4 of the ADP Agreement requires access to the file at all times. Guatemala stresses that Article 6.4 requires access "whenever practicable", and not at all times during the investigation. 

4.384 Mexico argues that in the public hearing of 19 December 1996, the Ministry denied the right of Cruz Azul to review the final pleadings submitted in writing on that same day by Cementos Progreso, under the pretext that it did not know whether the content of the document was confidential. Mexico submits that this argument makes no sense, considering the hearing was public. Assuming purely for the sake of argument that the information may have been confidential, Mexico asserts that under Articles 6.5 and 6.5.1 of the ADP Agreement the complainant should have made a reasoned request to the authorities to treat it as such, at the same time supplying non-confidential summaries of the information. This was not the case, as recorded in the record of the public hearing drawn up by the investigating authority itself. According to Mexico, it was only on 8 January 1997 (seven days before the publication of the final determination) that Cruz Azul gained access to the final written submission presented by Cementos Progreso at the public hearing. Mexico notes that the submission did not contain any confidential information. According to Mexico, it is not reasonable to attempt to justify the refusal of access to that submission on the pretext that the Ministry had reason to think that Cementos Progreso's written submission might have contained confidential information which should not be disclosed to Cruz Azul. If this submission had contained confidential information, Mexico submits that it would have been Cementos Progreso's responsibility (and not that of the Ministry) to have made this known and, where appropriate, to have provided a non-confidential summary of information contained therein. The fact is that the above-mentioned written submission was never classified as confidential information by Cementos Progreso. This assumes special importance when it is considered that it was in this submission (a copy of which was delivered to Mexico one week after the final determination) that Cementos Progreso alleged for the first time the existence of present injury, and that on the basis of this argument the Ministry decided to change its determination from threat of injury to present injury. 

4.385 Guatemala denies that Cementos Progreso invoked present (as opposed to threat of) injury for the first time on 19 December 1996. According to Guatemala, the file shows that the first time Cementos Progreso complained of present injury was in its reply to the original questionnaire of 17 May 1996. Question 14 of Guatemala's original questionnaire asked whether Cementos Progreso considered that "it had suffered injury in any form during the period under examination". Cementos Progreso answered "yes", and provided information on present injury, including data on prices, profitability, decrease in sales and market share, and other negative factors. Although for the purposes of the preliminary determination Guatemala did not consider that there was sufficient evidence of present injury, when it issued the final determination it concluded that the additional information supplied after the preliminary determination was sufficient to show present injury. According to Guatemala, Mexico had ample opportunity to refute the claims made by Cementos Progreso concerning present injury. Thus, Guatemala submits that the Panel should reject Mexico's complaint. 

4.386 Mexico suggests that throughout the investigation the Ministry failed to keep the file available or in complete form. As of May 1997, Cruz Azul has not had access to the complete file, even though this was requested in good time. Furthermore, on the day the final determination was published (17 January 1997), Cruz Azul requested a certified copy of the complete administrative file. Mexico asserts that, as of May 1997, this certified copy has not been received. 

4.387 Mexico states that the failure to obtain full access to the file of the investigation, and the fact that the Ministry did not number each page on the file, has been and continues to be a source of concern to Cruz Azul, as it has no assurance that the file will not be tampered with or that documents unknown to Cruz Azul or Mexico, and potentially harmful to their interests, may not be added to it. Mexico considers that the shortcomings it has identified harm and impair its own interests and those of Cruz Azul, as they were not given an opportunity to familiarize themselves with all the information, the arguments and the alleged evidence submitted by Cementos Progreso, so as to be able to respond adequately to Cementos Progreso and to the Ministry. 

4.388 Guatemala maintains that it complied with Articles 6.1.2, 6.2 and 6.4 of the ADP Agreement by giving Cruz Azul and all interested parties an opportunity to review the information, arguments and evidence put forward during the course of the investigation. Guatemala submits that Mexico's claims regarding shortcomings in the access to the administrative file are without foundation. 

4.389 Guatemala submits that it was only obliged to allow interested parties sufficient access to the administrative file to satisfy its obligations under the ADP Agreement, including inter alia the obligation to provide the parties with a full opportunity to defend their interests. Guatemala gave both Cruz Azul and Mexico sufficient access to the file to meet all its obligations under the ADP Agreement. Cruz Azul was allowed timely access to the public documents in the administrative file during the investigation. Guatemala notes that, in Guatemala, neither the law nor administrative practice require that there should be an entry in the file whenever a particular document is consulted by the parties. For that reason, in the present case no record was made of instances of consultation by the interested parties. However, the many submissions made by Cruz Azul referring to the evidence in the file show that it had ample access to the file and was granted ample opportunity to refer to the relevant information, arguments and evidence at the corresponding stages of the proceedings. Guatemala submits that in a decision dated 6 December 1996, the Ministry informed all interested parties that they could obtain copies of all the documents in the file. However, Cruz Azul did not request a certified copy of any document. Furthermore, in its last submission of 19 December 1996, Cruz Azul did not claim that it had been denied access to any document in the file. Guatemala suggests that, on the contrary, Cruz Azul put forward its arguments relating to the evidence that had been provided, indicating that Cruz Azul had access to all the information needed to defend its case. 

4.390 Guatemala suggests that even if, on 4 November 1996 or on any other date, the Ministry had been prevented from making the file available (quod non), Cruz Azul had ample access to the file on many other occasions. On 6 December the Ministry notified Cruz Azul of its final opportunity to request copies of any documents in the file which it did not yet have in its possession. However, Cruz Azul requested no copies of any document. Guatemala contends that the reason why Cruz Azul requested no copies at that stage of the proceeding was that it had already inspected the file and had also been provided with separate copies of individual documents contained in the file throughout the investigation. 

4.391 Guatemala notes Mexico's argument that, at the public hearing of 19 December 1996, the Ministry unfairly denied Cruz Azul the opportunity to review the written presentation made that same day by Cementos Progreso. According to Guatemala, the Ministry had good reason not to allow Cruz Azul immediate access to that document. Indeed, in its determination of 6 December 1996, the Ministry laid down the rules for public scrutiny. Specifically, the Ministry stated that "the hearing is not envisaged as a debate between the parties, nor will additional evidence be dealt with or received, so that it will be confined to giving an opportunity to each of the parties to set forth its conclusions concerning the facts investigated, and no additional information will be requested by the investigating authority". Even if Guatemala had supplied Cruz Azul with a copy of Cementos Progreso's submission, replies to the conclusions presented would have been neither requested nor accepted at the hearing. Thus, Guatemala suggests that Mexico is unable to refute the justification offered by Guatemala for the alleged delay in supplying a copy of Cementos Progreso's submission of 19 December 1996. According to Guatemala, the instructions for the public hearing also authorized written presentations, but did not specify whether such presentations would be made public or whether they could include confidential information. However, written presentations were necessarily the only means available to the parties to present their final arguments on confidential information previously supplied. Thus, the Ministry had evidence to support the reasonable conclusion that the written presentation by Cementos Progreso of 19 December 1996 could have contained confidential information that should not be revealed to Cruz Azul. Moreover, Guatemala asserts that the fact that Cruz Azul had no access to the written presentation by Cementos Progreso of 19 December 1996 did not deprive it of the opportunity to give its opinion on the factual information in the file. As was stated in the notice of 6 December 1996, the purpose of the pleadings to be presented by the parties in preparation for 19 December 1996 was merely to summarize the arguments of the parties, not to provide new information. In accordance with the Ministry's instructions, the final written pleadings of Cementos Progreso, dated 19 December 1996, contained no new information. The Ministry informed Cruz Azul at the hearing that it would supply it with a copy of Cementos Progreso's submission after it had checked whether it contained confidential information. Mexico has not provided any legal basis for considering that it is necessary for the interested party to justify requiring an additional confidential treatment request for information already treated as confidential by the investigating authority, either at the time of the submission or subsequently. Mexico received a copy of Cementos Progreso's submission one week after the final determination. Guatemala recalls that neither Cementos Progreso nor Cruz Azul were allowed replies to the final arguments submitted at the hearing of 19 December 1996 since, with reference to Article 6.4 of the ADP Agreement, such presentations were not "practicable" in the context of the investigation. 

Continue on to IV. Main Arguments of the Parties, Section 4.392

Notes:

111. Mexico refers to United States - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products originating in France, Germany and the United Kingdom (SCM/185, not adopted, dated 15 November 1994), stating that the panel concluded that the United States had acted inconsistently with Article 1 when the DOC allocated subsidies to Usinor Sacilor over domestic production only without providing the respondents, in the investigation preceding the imposition of countervailing duties, an adequate opportunity to provide relevant evidence in the countervailing duty investigation.

112. Mexico refers to Korea - Anti-Dumping Duties on Imports of Polyacetal Resins from the United States, ADP/92, para. 209, adopted 26 April 1993:

"In analysing this question, the Panel was guided by the provisions in Articles 3 and 8:5 of the Agreement. Article 3 of the Agreement required investigating authorities to consider certain factors and to make a determination based on positive evidence with regard to these factors. In the view of the Panel, effective review under Article 15 of an injury determination against the standards set forth in Article 3 required an adequate explanation by the investigating authorities of how they had considered and evaluated the evidence with regard to the factors provided for in that Article. Interpreted in conjunction with Article 8:5, such an explanation had to be provided in a public notice. An explanation of how in a given case investigating authorities had evaluated the factual evidence before them pertaining to the factors to be considered under Article 3 clearly fell within the scope of the requirement in Article 8:5 that authorities articulate in a public notice "the findings and conclusions reached on all issues of fact and law considered material by the investigating authorities, and the reasons and basis therefor." This provision served the important purpose of transparency by requiring duly motivated public decisions as the basis for the imposition of anti-dumping duties. In the view of the Panel, the purpose of this provision would be frustrated if in a dispute settlement proceeding under Article 15 of the Agreement a Party were allowed to defend a challenged injury determination by reference to alleged reasons for such determination which were not part of a public statement of reasons accompanying that determination. The Panel therefore did not accept Korea's argument that the Agreement did not limit an investigating authority's ability to demonstrate that it considered all of the required factors, and to demonstrate that dumped imports caused material injury, to the text of the public notice which announced its determination."

114. Ibid, para. 600.

115. Ibid.