7.25 A broader interpretation of the term "measure" as used in the DSU is also consistent with WTO and GATT practice. Clearly, the WTO Agreements impose obligations on Members which govern "measures" traditionally defined (e.g., a tariff or quantitative restriction), but many other obligations imposed by the Agreements do not apply to or are not implemented in the context of "measures". Examples of the latter include affirmative obligations that require a Member to do something, such as enact domestic law or regulations, undertake some mandatory procedure, or undertake some specified action such as submitting a notification to the WTO. In such cases of affirmative obligations on Members, the failure of a Member to effectuate the obligation by taking necessary action, such as the failure of a Member to enact certain intellectual property protections ²¹⁶, to open a procurement to public bidding ²¹⁷, or to make a required notification, can give rise to disputes. Such situations would not involve any type of "measure", and may not even involve any action by the Member. Rather, they would arise in the absence of some measure that is required, or the failure of a Member to act where required by a WTO Agreement to do so. It is difficult to imagine that the drafters chose to deliberately exclude disputes based on such situations merely by referring to "measures" in the DSU. 

7.26 It thus seems clear to us that the use of the term "measure" in the DSU should be understood as a shorthand reference to the many and varied situations in which obligations under the WTO Agreements might not be fulfilled by a Member, giving rise to a dispute, for which a resolution process is provided in the DSU. This would comport with the overall intention of the drafters of the WTO Agreements to create an integrated system governing multilateral trade relations, including an effective system for the settlement of disputes. In this context, a recommendation under Article 19.1 of the DSU to "bring the measure into conformity" with the relevant agreement would be interpreted as referring to whatever actions the Member in question should undertake to ensure that it does fulfil its obligations. ²¹⁸

7.27 In view of the above, we reject the argument that a panel may only consider a specific identified "measure" in an anti-dumping dispute. ²¹⁹ Thus, we conclude that a claim that a Member has acted in a manner inconsistent with its obligations under the ADP Agreement may be presented to a Panel for consideration, and therefore that the matters referred to in Mexico's request for establishment of a panel are properly before us. 

2. Terms of reference 

7.28 Before turning to the substantive aspects of this dispute, we consider Guatemala's arguments addressing whether certain claims are within the terms of reference of this Panel. Guatemala raises three different objections to certain of Mexico's claims: (1) that certain claims were not set forth in the request for establishment and are therefore not properly before us ²²⁰, (2) that certain claims were not raised in the request for consultations and are therefore not properly before us ²²¹, and (3) that certain new claims were raised during the course of the Panel proceedings and are not properly before us. ²²²

7.29 In this case, we do not reach the substance of the challenged claims mentioned in the previous paragraph. We therefore do not consider it either necessary or appropriate to reach any conclusions regarding whether or not those claims are within our terms of reference. ²²³

C. Failure to Notify the Exporting Government in Accordance with Article 5.5 

7.30 The relevant facts regarding this issue are not in dispute. On 11 January 1996 the Ministry published a notice of initiation of an anti-dumping investigation regarding allegedly dumped imports of grey portland cement from Cruz Azul of Mexico. The notice provided, in pertinent part: 

"An invitation is hereby issued to all importers, exporters, representatives of the Government of Mexico and any person claiming to have a legitimate interest in the outcome of this investigation, to appear before the Ministry of the Economy (8a, Avenida, 10-43 zona 1, Guatemala City) to state their legal interest in the matter and to document same within 30 days as from the publication of this notice. The same period is given to the interested parties to submit any supplementary arguments and evidence that they may consider relevant". (emphasis added). 

"DECIDES: (1) To declare the initiation of the investigation of the complaint submitted; (2) To make the corresponding notifications through the appropriate channel to Cementos Progreso Sociedad An�nima, Distribuidora Comercial Molina and Distribuidora De Leon, as well as to the Mexican company Cruz Azul S.C.L. through the Ministry of External Relations, for these enterprises, within 30 days following the notification to exercise their rights and appear in the proceedings of the investigation; (3) To give public notice of said initiation, which shall take effect as from the day on which the notice is published in the official journal". (emphasis added). 

"We sincerely regret that your country was not notified before the publication of the resolution for the initiation of the investigation, and we offer our sincere apologies in that regard. This was due to a slip on the part of the persons responsible for effecting the notifications, as they were not familiar with the provisions applicable to anti-dumping investigation procedures. Once again, please accept our apologies".  ²²⁴

7.32 Article 5.5 of the ADP Agreement provides: 

"The authorities shall avoid, unless a decision has been made to initiate an investigation, any publicizing of the application for the initiation of an investigation. However, after receipt of a properly documented application and before proceeding to initiate an investigation, the authorities shall notify the government of the exporting Member concerned". 

7.34 In our view, footnote 1 to the ADP Agreement is helpful in this regard. Footnote 1 defines the term "initiated" as follows: 

"The term "initiated" as used in this Agreement means the procedural action by which a Member formally commences an investigation as provided in Article 5". 

7.35 The 15 December 1995 decision of the Director for Economic Integration underlying the Ministry's resolution to initiate the investigation specifically states that: "The date of the initiation of the investigation shall be considered to be the date on which such notice is published in the Official Journal". The Ministry's 9 January 1996 resolution set forth its decision to "give public notice of said initiation, which shall take effect as from the day on which the notice is published in the official journal". The notice published on 11 January 1996 invites interested parties to state their legal interest in the matter within 30 days of the date of publication of that notice, and to submit any supplementary arguments and evidence within that same period. These facts in our view can only lead to the conclusion that the date of initiation was the date of publication of the notice. 

7.36 Guatemala's argument would require us to conclude that a letter from the Ministry to the Directorate-General of Customs requesting information on import volumes constitutes the "procedural action by which [Guatemala] formally commence[d]" the investigation in this case. In our view, this investigative action, taken by staff of the investigating authority, which in all likelihood was unknown to either the parties to the investigation, or to the public, cannot reasonably be interpreted to have been the formal commencement of an investigation. The notice requirements of the ADP Agreement make explicit the importance of public notice of the actions of investigating authorities, including initiation. We cannot accept that an event whose date is unknown to the public or the parties can be deemed the initiation of an investigation. Certainly, the Ministry's letter to the Directorate-General of Customs may have been the first step of the investigative process, but that is a different matter entirely from being the formal procedural action by which the investigation is commenced. 

7.37 Moreover, there are a number of factors which suggest that Guatemala may not have always held the view that it argued before the Panel. As noted above, the 15 December 1995 decision of the Director for Economic Integration underlying the Ministry's resolution to initiate the investigation specifically states that the date of publication shall be considered the date of initiation. Second, the actual published notice does not state that the investigation would not commence until some point later in time, but rather gives interested parties 30 days from the date of publication to make their interest known and to submit arguments and evidence, which can only be interpreted as indicating that the formal commencement of the investigation was the date of publication of the notice. Finally, the telefax of 26 July 1996 apologises for the belated notification, and explains that the delay was caused by a mistake. Thus, the actions of the Ministry at the time of the initiation and shortly thereafter suggest that, at that time, it had a different view of the matter than has been argued before us. While we do not find this determinative, the apparent contemporaneous interpretation of Guatemala accords with that which we have reached here. 

7.38 The argument that Guatemala could not have initiated the investigation until after it had notified Mexico, pursuant to provisions of its own Constitution and laws, does not affect our conclusion in this regard. In acceding to the WTO, Guatemala undertook to be bound by Article 5.5 when initiating anti-dumping investigations. Any failure to respect Article 5.5 may not be justified on the basis of inconsistent provisions of domestic law. Article XVI:4 of the WTO Agreement explicitly provides that each Member "shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements". That Guatemala may have felt constrained to refrain from undertaking any investigative acts until after notification, in order to comply with domestic law, does not change the nature of the acts in question so as to render them the formal commencement of an investigation. As Guatemala acknowledges, the resolution to initiate itself fixed a particular date for the initiation of the investigation, i.e. the date of publication. There is in our view no other action which can reasonably be construed as the formal commencement of the investigation in this case. 

7.39 Therefore, we conclude that the act by which Guatemala "formally commenced the investigation" in this case was the publication of the notice of initiation of the investigation. We note that we are not concluding that the date of publication of the notice of initiation is, in all cases, the date of the "procedural action by which a Member formally commences" an investigation, merely that it is in this case, in view of the specific facts before us, including statements contained in the resolution of initiation and the concurrent actions of the Ministry. Consequently, by failing to notify Mexico before the date of publication of the notice of initiation, in this case Guatemala failed to act consistently with the requirements of Article 5.5 of the ADP Agreement. 

7.40 Guatemala argues that, even assuming there was a violation of Article 5.5, the Panel should conclude that any delay in notification under Article 5.5 was without adverse effects on Mexico's rights and thus constitutes harmless error under customary rules of public international law. Guatemala further argues that the alleged delay did not nullify or impair Mexico's rights under the ADP Agreement. 

7.41 We have concluded, as discussed above, that Guatemala failed to carry out its obligation under Article 5.5 to notify the government of Mexico before proceeding to initiate this investigation. Article 3.8 of the DSU provides that there is a presumption that benefits are nullified or impaired when a Member fails to carry out an obligation under a WTO Agreement: 

"In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on other Member parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge". 

7.42 In our view, having found that Guatemala failed to notify the Government of Mexico in a timely fashion, we need not determine that the failure to carry out an obligation had particular or demonstrable adverse trade effects in order to find that the benefits accruing to Mexico under the ADP Agreement were nullified or impaired. Rather, to the extent that the presumption of nullification or impairment may be rebutted in the case of the breach of a procedural obligation, it would be incumbent on the Member that has breached the obligation to demonstrate that its failure to respect the obligation could not have had any effect on the course of the investigation in question. In this case, the procedural obligation breached was the requirement to notify the exporting Member prior to proceeding to initiate an anti-dumping investigation. A key function of the notification requirements of the ADP Agreement is to ensure that interested parties, including Members, are able to take whatever steps they deem appropriate to defend their interests. Where a required notification is not made in a timely fashion, the ability of the interested party to take such steps is vitiated. We cannot now speculate on what steps Mexico might have taken had it been timely notified, and how Guatemala might have responded to those steps.²²⁸ Thus, while it is possible that the investigation would have proceeded in the same manner had Guatemala timely notified Mexico before proceeding to initiate the investigation, we cannot say with certainty that the course of the investigation would not have been different. Under these circumstances, we cannot conclude that Guatemala has rebutted the presumption that its failure to carry out its obligation under Article 5.5 consistent with the ADP Agreement nullified or impaired benefits accruing to Mexico under that Agreement. 

7.43 With respect to Guatemala's arguments regarding harmless error, the precedents cited - assuming arguendo that they reflect customary rules of public international law - relate to the consequences of a violation of a procedural rule, rather than to the existence of a cause of action. Thus, we do not consider that the assertion that an error is "harmless" should prevent us from reaching the issue whether a violation of a provision of the ADP Agreement nullifies or impairs benefits under that Agreement. However, we do not preclude that the notion of "harmless error" could be relevant to the question of what steps a Member should take in order to implement the recommendation of a panel in a particular dispute. Since we do not view the principle of harmless error as one which would prevent us from determining that there was a violation of the ADP Agreement which nullified or impaired benefits under that Agreement, we believe it would be improper for us to fail to make a recommendation under Article 19.1. However, the effects of a particular error may, we believe, be relevant in determining what remedial actions might be appropriate - that is, what if any suggestions a panel might make as to how its recommendation may be implemented. 

D. Alleged Violations in the Initiation of the Investigation 

7.44 In Resolution No. 2-95 of 15 December 1995, the Director for Economic Integration of the Guatemalan Ministry of Economy concluded that "there exists sufficient evidence to justify the initiation of the investigation into dumping and threat of injury", directed that public notice of the initiation of the investigation be given, and established the date of initiation of the investigation as the date on which such notice was published in the Official Journal. On 11 January 1996, the Ministry published the notice of initiation of the anti-dumping investigation regarding imports of grey portland cement from Cruz Azul of Mexico. Mexico claims that Guatemala violated, inter alia, Articles 5.2 and 5.3 of the ADP Agreement by initiating the anti-dumping investigation without sufficient evidence of dumping, threat of injury and causal link, to justify the initiation. 

7.45 The ADP Agreement establishes requirements for the initiation of investigations in Article 5. Article 5.1 stipulates that, except as provided in Article 5.7, an investigation "shall be initiated upon a written application by or on behalf of the domestic industry".²²⁹ Article 5.2 requires that: 

"An application under paragraph 1 shall include evidence of (a) dumping, (b) injury within the meaning of Article VI of GATT 1994 as interpreted by this Agreement and (c) a causal link between the dumped imports and the alleged injury. Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph".

 "The authorities shall examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation". 

7.46 Before proceeding to address the factual aspects of Mexico's claim, we must examine the relationship between Article 5.2 of the ADP Agreement, which requires that an application include evidence of dumping, injury, and a causal link, and sets forth in some detail the specific information regarding a series of factors which must be included, and Article 5.3 of the ADP Agreement, which governs the determination by the authorities as to whether the application contains sufficient evidence to justify initiation of an investigation. Specifically, we must determine whether Article 5.3 authorizes an investigating authority to initiate an anti?dumping investigation in any case where an application meets the requirements of Article 5.2 of the ADP Agreement, or whether, to the contrary, Article 5.3 imposes an independent obligation on the investigating authority to assess, once it has determined that the requirements of Article 5.2 are met, whether sufficient evidence exists to initiate an investigation.

7.47 Guatemala's position on this issue is clear: if the information supplied in the application is all that is reasonably available to the applicant as required by Article 5.2, the investigating authority is justified in initiating the investigation. That is, Guatemala conditions the sufficiency of the evidence to initiate on whether the information in the application was all the information reasonably available to the applicant. In response to a question from the Panel, Guatemala explicitly rejected the possibility that even if the evidence before the Ministry was all the information "reasonably available" to the applicant, it might nonetheless be insufficient to justify initiation within the meaning of Article 5.3. ²³¹

7.48 For Mexico, the fact that the evidence in the application is all the information that is reasonably available to an applicant does not necessarily mean that the evidence is sufficient to justify initiation. In Mexico's view, the evidence in an application may be insufficient to justify initiation, even though it is all that is reasonably available to the applicant. An unbiased and objective investigating authority would be justified in initiating the investigation only if it determines that the evidence is sufficient, regardless of whether or not the evidence was all that was reasonably available to the applicant. 

7.49 We cannot accept Guatemala's arguments in this regard.²³²  In our view, the fact that the applicant has provided, in the application, all the information that is "reasonably available" to it on the factors set forth in Article 5.2(i) - (iv) is not determinative of whether there is sufficient evidence to justify initiation. Rather, Article 5.3 establishes an obligation that extends beyond a determination that the requirements of Article 5.2 are satisfied. 

7.50 Article 5.2 sets forth what evidence and information must be in the application: evidence of dumping, injury, and a causal link, and such information as is reasonably available to the applicant on a series of factors. Thus, Article 5.2 is a requirement imposed on the applicant, which would, for instance, allow an investigating authority to reject an application on its face as not containing information that the authority judges is reasonably available to the applicant. Article 5.3 on the other hand sets forth what the investigating authority is to do when confronted with an application; it must examine the accuracy and adequacy of the evidence in the application "to determine whether there is sufficient evidence to justify the initiation of an investigation". Thus, Article 5.3 is a requirement imposed on the investigating authority: once it has accepted the application, that is, determined that it contains evidence on dumping, injury, and causal link, as well as "such information as is reasonably available to the applicant" on the factors set forth in Article 5.2 (i) - (iv), the investigating authority must undertake a further examination of the evidence and information in the application. If the investigating authority were to determine that the evidence and information in the application was not accurate, or that it was not adequate to support a conclusion that there was sufficient evidence to justify initiation of an investigation, the investigating authority would be precluded from initiating an investigation. Thus, the decision to initiate is made by reference to the objective sufficiency of the evidence in the application, and not by reference to whether the evidence and information provided in the application is all that is reasonably available to the applicant. 

7.51 That compliance with the requirements of Article 5.2 does not ipso facto mean that there is sufficient evidence to justify initiating an investigation under Article 5.3 can be readily demonstrated by consideration of the following example. With respect to dumping, Article 5.2(iii) requires that an application contain such information as is reasonably available to the applicant regarding "prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export ... and ... on export prices". Assume that the application contains all the information reasonably available to the applicant regarding these prices, and that the information is accurate. However, assume further that the information on its face demonstrates that the export price is equal to the normal value. It could be said that the requirements of Article 5.2(iii) are satisfied. Nevertheless, it could not reasonably be concluded that there was sufficient evidence to justify initiation of an investigation, as the evidence clearly shows no dumping.  ²³³

7.52 The object and purpose of the initiation requirements of Article 5 as a whole, and of Article 5.3 in particular, is in our view to establish a balance between the competing interests of "the import competing domestic industry in the importing country in securing the initiation of [an] investigation and the interest of the exporting country in avoiding the potentially burdensome consequences of [an] investigation initiated on an unmeritorious basis". ²³⁴ Considering the question in light of the object and purpose of these provisions, we conclude that Guatemala's interpretation would undermine the balancing of competing interests in initiation and non-initiation established in Article 5. This can be seen by considering the situation that would entail under Guatemala's interpretation in an extreme factual scenario. Assume a factual situation where an application contains no information on normal value. Under Guatemala's interpretation if the investigating authority concluded that the application contained the information on normal value reasonably available to the applicant, it could properly determine that there was sufficient evidence to justify initiation. However, in our view, in the absence of information on normal value, an investigating authority could not properly determine that there is sufficient evidence of dumping, and therefore an investigation should not be initiated. 

7.53 We have concluded that the question whether there is "sufficient evidence" to justify initiation is not answered by a determination that the application contains all the information "reasonably available" to the applicant on the factors specified in Article 5.2 (i) - (iv). This does not, however, mean that investigations may not be initiated in cases where "sufficient evidence" is not "reasonably available" to the applicant. In particular, there is nothing in the Agreement to prevent an investigating authority from seeking evidence and information on its own, that would allow any gaps in the evidence set forth in the application to be filled. We do not suggest that such action by the investigating authority is in any case required by the ADP Agreement. However, if, as in this case, an authority chooses to refrain from such action, the "reasonably available" language in Article 5.2 does not permit the initiation of an investigation based on evidence and information which, while all that is "reasonably available" to the applicant is not, objectively judged, sufficient to justify initiation. Indeed, in this case the applicant requested that the Ministry obtain certain information on import volumes which it was unable to obtain itself. This the Ministry did not do, however, until after it had initiated the investigation based on the information in the application. 

7.54 What constitutes "sufficient evidence" to justify the initiation of an anti-dumping investigation is not defined in the ADP Agreement. In this case, of course, we are bound by the requirements of Article 17.6(i) of the ADP Agreement as the standard of review applicable to our examination of the Ministry's decision to initiate. Article 17.6(i) provides: 

"in its assessment of the facts of the matter, the panel shall determine whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective. If the establishment of the facts was proper and the evaluation was unbiased and objective, even though the panel might have reached a different conclusion, the evaluation shall not be overturned". 

"In analyzing further what was meant by the term "sufficient evidence," the Panel noted that the quantum and quality of evidence to be required of an investigating authority prior to initiation of an investigation would necessarily have to be less than that required of that authority at the time of making a final determination. At the same time, it appeared to the Panel that "sufficient evidence" clearly had to mean more than mere allegation or conjecture, and could not be taken to mean just "any evidence". In particular, there had to be a factual basis to the decision of the national investigative authorities and this factual basis had to be susceptible to review under the Agreement. Whereas the quantum and quality of evidence required at the time of initiation was less than that required to establish, pursuant to investigation, the required Agreement elements of subsidy, subsidized imports, injury and causal link between subsidized imports and injury, the Panel was of the view that the evidence required at the time of initiation nonetheless had to be relevant to establishing these same Agreement elements".  ²³⁶

"The Panel considered that in reviewing the action of the United States authorities in respect of determining the existence of sufficient evidence to initiate, the Panel was not to conduct a de novo review of the evidence relied upon by the United States authorities or otherwise to substitute its judgment as to the sufficiency of the particular evidence considered by the United States authorities. Rather, in the view of the Panel, the review to be applied in the present case required consideration of whether a reasonable, unprejudiced person could have found, based upon the evidence relied upon by the United States at the time of initiation, that sufficient evidence existed of subsidy, injury and causal link to justify initiation of the investigation".  ²³⁷

Notes:

216. India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/R, 5 September 1997, para. 8.1. In this case, the Panel determined that India had failed to comply with its obligation under Article 70.8 of the TRIPS Agreement to establish a mechanism that preserves the novelty of applications for pharmaceutical and agricultural chemical product patents during the TRIPS transition period.

217. Agreement on Government Procurement, Article VII. See Norway - Procurement of Toll Collection Equipment for the City of Trondheim, GPR.DS2/R, adopted 13 May 1992, para. 5.1. In this case, the Panel concluded that the Government of Norway had not complied with its obligations under the Tokyo Round Agreement on Government Procurement in its conduct of the procurement in question in that the single tendering of the procurement in question was not justified under the Agreement.

218. Thus, for instance, in the India Patents dispute, the Panel recommended that the DSB should "request India to bring its transitional regime for patent protection of pharmaceutical and agricultural chemical products into conformity with its obligations under the TRIPS Agreement". In the Trondheim Toll Equipment case, the Panel recommended that the Tokyo Round Committee on Government Procurement request Norway to "take the measures necessary to ensure that [the relevant Norwegian entities] conduct government procurement in accordance with" the findings of the Panel.

219. In light of our decision regarding the issue of sufficient evidence to justify initiation, we consider it unnecessary to address the parties' arguments regarding whether the preliminary measure is properly before us, including the arguments concerning "significant impact", as we do not reach the consistency of the preliminary measure with the requirements of the ADP Agreement. As the Appellate Body remarked in United States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, 25 April 1997, pg. 19, "A panel need only address those claims which must be addressed in order to resolve the matter in issue in the dispute."

220. Guatemala's objections in this regard relate to the following claims:

- that Guatemala failed to give adequate consideration to the increase in imports from Cruz Azul;

- that Guatemala failed to give adequate consideration to the fall in the price of the domestic product;

- that Guatemala failed to give adequate consideration to the loss of customers;

- that Guatemala failed to give adequate consideration to the likelihood of an imminent increase in Mexican exports to Guatemala;

- that Guatemala violated Articles 6.1, 6.2 and 6.8 of the ADP Agreement by not accepting the technical accounting evidence regarding the normal value and the export price charged by the exporter during the original investigation;

- that Guatemala violated Articles 6.5.1 and 6.5.2 of the ADP Agreement by accepting confidential information from Cementos Progreso without demanding a public version thereof, or the reasons why confidential treatment was required; and

- that Guatemala violated Articles 6.1 and 6.2 of the ADP Agreement by failing to establish specific time?limits for Cruz Azul to submit information in defence of its interests.

- Guatemala violated Article 5.2 of the ADP Agreement by initiating the investigation without having received information on imports from the Directorate-General of Customs; and

- Guatemala violated Article 6.1.3 of the ADP Agreement by failing to provide either Cruz Azul or Mexico with a copy of the full text of the application as soon as Guatemala initiated the investigation.

- that the Ministry had improperly made the preliminary affirmative determination of threat of njury because it did not take into account the fact that from 1994 to 1995 the value of Cementos Progreso's sales increased by 21.9% and its net profits rose by 22.8% in nominal Quetzales, not adjusted for inflation.

224. Guatemala argues that we should not take this statement into account because it is not included in the administrative file of the investigation. While we accept that the telefax was sent as a gesture of good faith, due to Guatemala's concern at not having observed the courtesy of notifying before publication of the resolution on initiation of the investigation, we do not agree that the telefax has no bearing on the question of whether Guatemala's actions constituted a violation of Article 5.5 of the ADP Agreement. Therefore, while we do not consider it by any means determinative of whether or not there was a violation - it is conceivable that a Member might apologize for some legitimate action - we do not consider it appropriate to simply ignore the existence of a document of this nature.

225. We note that the Agreement does not specify the contents of that notice. Mexico has not argued that the substance of the notice given by Guatemala was inadequate. Thus, we reach no conclusions concerning this issue.

226. In United States - Taxes on Petroleum and Certain Imported Substances, L/6175 (Adopted 17 June 1987), BISD 34S 136, 157-58, the Panel reviewed previous disputes in which parties had claimed that a measure inconsistent with the General Agreement had no adverse impact and therefore did not nullify or impair benefits accruing under the General Agreement to the contracting party that had brought the complaint. The Panel concluded from its review that,

227. Japan - Taxes on Alcoholic Beverages, WT/DS8, DS10, DS11/AB/R, 4 October 1997. We note also the decision of the Panel in Brazil - Imposition of Provisional and Definitive Countervailing Duties on Milk Powder and Certain Types of Milk from the European Economic Community, SCM/179, adopted 28 April 1994 at para. 271:

229. Article 5.7 allows the authorities, in special circumstances, to initiate an investigation without having received a written application by or on behalf of a domestic industry.

230. The elements identified in Article 5.2 are:

"(i) the identity of the applicant and a description of the volume and value of the domestic production of the like product by the applicant. Where a written application is made on behalf of the domestic industry, the application shall identify the industry on behalf of which the application is made by a list of all known domestic producers of the like product (or associations of domestic producers of the like product) and, to the extent possible, a description of the volume and value of domestic production of the like product accounted for by such producers;

(ii) a complete description of the allegedly dumped product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question;

(iii) information on prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export (or, where appropriate, information on the prices at which the product is sold from the country or countries of origin or export to a third country or countries, or on the constructed value of the product) and information on export prices or, where appropriate, on the prices at which the product is first resold to an independent buyer in the territory of the importing Member;

(iv) information on the evolution of the volume of the allegedly dumped imports, the effect of these imports on prices of the like product in the domestic market and the consequent impact of the imports on the domestic industry, as demonstrated by relevant factors and indices having a bearing on the state of the domestic industry, such as those listed in paragraphs 2 and 4 of Article 3".

233. We also note that the second sentence of Article 5.8 of the ADP Agreement requires an investigation to be terminated if the margin of dumping is de minimis, or if the volume of imports or the injury is negligible. If an investigation must be terminated if the margin of dumping is de minimis, or if the volume of imports or injury is negligible, how can an investigation be initiated when there is not sufficient evidence to justify investigating whether there is a margin of dumping greater than de minimis, or whether the volume of imports or injury is more than negligible?

234. United States - Measures Affecting Softwood Lumber from Canada, SCM/162, adopted 27 October 1993, BISD 40S/358, para 331.

235. SCM/162. While the Softwood Lumber report analyzed the sufficiency of evidence for the initiation of a countervailing duty investigation, these aspects of the report are equally applicable to anti-dumping investigations.

236. Id., para. 332.

237. Id., para. 335.