4. Burden of Proof

a) Claim Raised by Korea

1.224 Korea claims that by applying a revocation requirement that the company subject to an anti-dumping duty prove that it is "not likely" to dump in the future, the United States has shifted the burden of proof away from the Member imposing the duty in violation of Article 11 of the AD Agreement. The following are Korea's arguments in support of this claim:

1.225 The regulations applied by the DOC in this case allow the Secretary to revoke the anti-dumping duties if it finds that, among other things, "[i]t is not likely that [Respondents will] in the future" dump.¹⁴⁰ US courts reviewing these regulations have found that the Respondent bears the burden of proving that it is "not likely" to dump in the future (or, alternatively, that there is "no likelihood" of future dumping).¹⁴¹

1.226 This formulation unjustifiably shifts the burden of proof from the Member imposing the duty, which must justify continuing the duty, to the responding companies.¹⁴² This is contrary to the text and structure of Article 11.

1.227 First, the "no likelihood/not likely" criterion is inconsistent with the text of Paragraph 2 of Article 11. In Paragraph 2 (unlike Paragraph 3), the word "likely" does not apply to dumping, but only to injury. However, even assuming that it did apply to dumping, the United States has pushed the text of Paragraph 2 still further without support. The United States has turned the "likely" standard on its head, transmogrifying it to "not likely," and requiring Respondents to bear the burden of proving the standard even though Paragraph 2 clearly imposes the burden on Members.

1.228 Moreover, each sentence of Paragraph 2 either: (i) imposes an obligation on a Member that is maintaining anti-dumping duties (the first and third sentences); or (ii) grants a right to a Respondent company subject to such duties (the second sentence). In doing so, Paragraph 2 sets forth procedures to implement the general directive of Paragraph 1 that anti-dumping duties may be imposed by a Member only to offset dumping that is causing injury. Paragraph 2 does not allow, and cannot reasonably be interpreted to allow, a Member to impose such substantial obligations on Respondents seeking revocation.¹⁴³

1.229 Second, the DOC's shifting of the burden of proof, both in general and in DRAMs from Korea, is inconsistent with the structure of Article 11 and with US obligations under the AD Agreement. As a derogation from the general principle of free trade the WTO regime protects, the right to impose anti-dumping duties is granted, but is tightly circumscribed, by the text of the AD Agreement.¹⁴⁴ Where a party has been found to be dumping and thereby injuring a domestic industry, a Member may impose duties. However, this is the limit of the Member's discretion.

1.230 Paragraph 1 of Article 11 prohibits a Member from maintaining a duty where no dumping is occurring (or has occurred). And, if a Member is not allowed to impose or maintain a duty absent dumping, it certainly cannot do so and, then, condition revocation on a Respondent's meeting the burden of proving to the satisfaction of the Member that dumping is "not likely" to recur. Thus, where a Member's own authorities have concluded--for three consecutive years--that a Respondent has not dumped, the Member is obliged by Article 11 to revoke the duty. On its face, Article 11 does not permit a Member to force a Respondent to bear the burden of proving some speculative "fact."

1.231 The DOC's regulations, on their face and as applied, permit the DOC to shift the burden of proof to a Respondent and to employ the "no likelihood/not likely" criteria in a biased fashion. Therefore, the United States has violated and is violating Article 11 of the AD Agreement.

b) Response by the United States

1.232 The following are the United States' arguments in response to Korea's claim:

1.233 Under section 353.25(a)(2) of the DOC's regulations, an absence of dumping for three years does not entitle a Respondent to revocation.¹⁴⁵ The agency must also be satisfied that a resumption of less-than-normal-value sales to the United States by the Respondent is not likely.

1.234 The DOC's likelihood determination is case-specific. It engages in a fact-intensive, case-by-case analysis of all of the information on the record in order to determine if a resumption of less-than-normal-value sales to the United States is "not likely."¹⁴⁶

1.235 In administrative proceedings in which the parties do not submit evidence or argument concerning the likelihood of resumption of dumping, the fact that a Respondent has not dumped for three consecutive years and certified that it will not dump in the future may constitute the only evidence in the administrative record on the likelihood issue.¹⁴⁷ In such cases (which constitute the vast majority since 1980), the DOC has generally found that a resumption of dumping is not likely based upon the un-controverted record evidence.¹⁴⁸ Over the years, this practice has evolved into a de facto presumption that if a Respondent has not dumped within the prior three-year period, it is not likely to resume dumping in the future.¹⁴⁹

1.236 In contrast, in cases in which the parties raise concerns and submit evidence about the likelihood of resumption of dumping, the DOC analyzes the arguments and evidence, and decides whether or not to revoke based upon a review of all of the record evidence. Sometimes this process produces a result favorable to the petitioning industry in the United States,¹⁵⁰ and sometimes it does not.¹⁵¹

1.237 US courts have held that the burden is on the party seeking revocation to come forward with "real evidence"¹⁵² to persuade the DOC to revoke the order.¹⁵³ However, once the factual record closes, all such burdens evaporate and it falls to the DOC to make a determination that is in accordance with law and based upon substantial evidence.¹⁵⁴

1.238 The DOC closed the administrative record to new factual information on 2 May 1997. It gave all parties to the proceeding a full and fair opportunity to comment in writing upon the facts in the record. The DOC held a public hearing on 5 May 1997 which was attended by Respondents and Micron. Once all the facts and arguments were identified, the DOC analyzed everything in the administrative record which bore on the likelihood issue. It then summarized its conclusions in memoranda which contain very detailed evaluations of company-specific, confidential information provided by Respondents and several of their OEM customers.¹⁵⁵ Among other things, the DOC examined the nature of the subject merchandise, trends in the domestic and home market industries, and currency movements. The agency also conducted extensive analyses of supply and demand, price trends during all phases of the business cycle, and the importance of the US market to the Respondents.

1.239 This type of fact-intensive, case-by-case analysis was (and is) fully consistent with the DOC's long-standing practice of examining all relevant economic factors and other information on the record in a particular case.¹⁵⁶ In the instant case, it led to a determination not to revoke the order that was based upon facts which were properly established, and whose evaluation was unbiased and objective

1.240 Korea argues that the DOC's regulations, "on their face" and as applied in Final Results Third Review, permit the DOC to shift the burden of proof to a Respondent to show that a resumption of dumping is "not likely." Korea also contends that the DOC employs the "not likely" standard in its regulations in a "biased fashion." Both situations, Korea asserts, violate Article 11 of the AD Agreement.

1.241 The AD Agreement does not prevent importing countries from requiring Respondents to come forward with evidence which indicates that a resumption of dumping is "not likely." Article 11 does not prescribe the specific factors that an investigating authority must consider when determining whether anti-dumping duties are "warranted." It also does not prescribe the specific procedural steps that must be followed when conducting a review under Article 11.2. Within this framework, the "not likely" standard is a reasonable exercise of the United States' legitimate interest in ensuring that relief to those domestic industries that have been adversely affected by dumping is not withdrawn earlier than is "necessary.".

1.242 Whether it is "not likely" that dumping will resume is an issue that directly and logically relates to whether anti-dumping duties continue to be necessary or warranted. The fact that an exporter revises its prices to eliminate dumping while the anti-dumping remedy is in place does not necessarily mean that the exporter will not resume dumping once the remedy is removed. By considering such factors as trends in costs and prices, along with Respondents' pricing practices over the prior three-year period, the DOC is able to evaluate whether the anti-dumping order remains "necessary to offset dumping." In this respect, there is nothing facially invalid about the DOC's revocation standard, in general, or the "not likely" standard, in particular. The DOC's standard, therefore, reflects a "permissible" interpretation of Article 11 of the AD Agreement.

1.243 Lastly, Korea's position, if taken to its logical extreme, would preclude importing countries from imposing any type of evidentiary burden on Respondents during the course of a proceeding under Article 11. This would be inconsistent with numerous provisions in the AD Agreement. For example, Article 6 of the agreement reflects the long-standing practice of national investigating authorities to solicit information on sales and costs by means of a questionnaire and to allow interested parties otherwise to submit information on the record in support of their positions regarding the issue of dumping.¹⁵⁷ The solicitation of comparable information in the context of a proceeding under section 353.25(a) of the DOC's regulations is by no means unfair or unusual. Finally, in the instant case, the DOC did not demand that Respondents prove a negative (or the impossible) -- that they would not dump if the order was revoked. Instead, the DOC established a procedure "at the request of the parties" for the submission of factual information regarding market conditions, coincidence of dumping with downturns, and related matters.¹⁵⁸

c) Rebuttal Arguments Made by Korea

1.244 Korea makes the following arguments in rebuttal to the United States responses:

1.245 The US revocation scheme, on its face and as applied, violates Article 11 of the AD Agreement. Because the US revocation regime, on its face and as applied, shifts the burden of proof to Respondents, the Panel should find that the United States has violated Article 11.

1.246 The US first submission ostensibly takes issue with Korea's demonstration, but actually contains several statements that confirm that the US regime does, indeed, place the burden of proof on Respondents. For example, the United States declares:

1.247 Thus, by its own admission, the United States' revocation regime shifts the burden of proof to respondents. The United States improperly imported the "likely" standard from injury reviews under Paragraph 2 to dumping reviews, thereby expanding the burden of proof applied in dumping reviews. Then, the United States turned the standard on its head, transmogrifying it to "not likely," and requiring Respondents to bear the burden of proving the standard even though Paragraph 2 clearly imposes the burden on Members. This extension and shifting of the burden of proof violates Article 11 of the AD Agreement, which places the burden squarely on the administering authorities.

1.248 The United States several times has stated that there will be dire consequences if the Panel accepts Korea's interpretation of Article 11. For example, the United States asserts that Korea's position, "if taken to its logical extreme," would preclude a Member from imposing any evidentiary burden on a Respondent seeking revocation. This might be true if one took Korea's position to its illogical extreme, but nothing which Korea has advanced even suggests this.

1.249 Under the US system, the Korean Respondents demonstrated for three consecutive reviews that they were not dumping. That is an exceedingly substantial evidentiary burden. It required Respondents to comply with US dumping laws and to submit voluminous data, all of which the DOC verified, to demonstrate their compliance.

1.250 But, having done so, the United States was required to revoke the definitive duty, unless it initiated reviews under Paragraph 2 and found that "continued imposition of the duty is necessary to offset dumping" and that the "injury would be likely to continue or recur if the duty were varied."

d) Rebuttal Arguments Made by the United States

1.251 The United States makes the following arguments in rebuttal:

1.252 In its first written submission, Korea states that section 353.25(a) of the DOC's regulations, "on its face and as applied," improperly requires Respondents to bear the burden of showing that a resumption of dumping is "not likely." At no time since then has Korea ever explained how section 353.25(a), "on its face," places the burden of proof on Respondents to show anything. Korea does try to elicit support for its position by emphasizing the negative phraseology of the not-likely standard, and even characterizing the standard as "transmogrified." However, whether the standard is "transmogrified", it is still just a standard and nothing on "the face" of the regulation speaks to allocation of the burden of proof.

1.253 In its first written submission, the United States demonstrated that the DOC did not place the burden of proof (in the sense of a burden of persuasion) on the Korean Respondents. At the first meeting of the Panel, Korea attempted to rebut this demonstration by pointing to the fact that in the Final Results Third Review, the DOC cited to several court decisions that, according to Korea, stand for the proposition that a party seeking revocation of an anti-dumping order in the United States bears the burden of proving that a resumption of dumping is "not likely." The answer to Korea's arguments is that (i) the court decisions do not stand for the proposition claimed by Korea, and (ii) the DOC's reliance on the court decisions was appropriate.

1.254 Unfortunately, the term "burden of proof" is often used with imprecision in GATT/WTO jurisprudence. It tends to carry with it excess baggage that more often than not creates confusion on the part of observers and practitioners, alike.

1.255 In general, "burden of proof" is used to describe two different concepts. The first is the "burden of persuasion" (otherwise know as the necessity of establishing a fact) which never shifts from one party to the other at any stage of a proceeding in which the relevant rules establish such a burden. The second concept is the "burden of going forward with the evidence," which may shift back and forth between the parties as a proceeding progresses.¹⁶⁰ The DOC imposed a burden of proof on the Respondents in the sense of a burden of going forward with the evidence once the US industry (represented by Micron Technology, Inc. ("Micron")) came forward with evidence suggesting that dumping would recur if the anti-dumping order were revoked. Korea, however, asserts that the DOC imposed a burden of proof in the sense of a burden of persuasion.

1.256 Turning to the court decisions referred to by Korea and cited by the DOC in Final Results Third Review, a review of these decisions establishes that the courts did not impose a burden of persuasion on exporters seeking the revocation of an order.¹⁶¹ Instead, the courts were discussing the "burden of proof" in the sense of the burden of coming forward with evidence. This fact can best be understood by discussing the decisions in reverse chronological order.

1.257 The most recent cases were Sanyo and Toshiba, which were issued within a few weeks of each other.¹⁶² In both decisions, the US Court of International Trade ("CIT") stated that it was for the party seeking revocation to come forward with real evidence to persuade the DOC to revoke the order.¹⁶³ In both decisions, the court cited to Manufacturas Industriales De Nogales, S.A. v. United States, 666 F. Supp. 1562, 1566 (Ct. Int'l Trade 1987) (Ex. USA-60). Manufacturas Industriales, in turn, cited to the decision of the US Court of Appeals for the Federal Circuit ("Federal Circuit") in Matsushita Electric Industrial Co. v. United States, 750 F.2d 927 (Fed. Cir. 1984) (additional views of Nichols, J.), for the proposition that it was for the proponent of revocation to come forward with real evidence to persuade the DOC to revoke an order.¹⁶⁴

1.258 In Matsushita,¹⁶⁵ the ITC conducted a review of an anti-dumping order and determined that injury was likely to recur if the order were revoked. The CIT overturned the ITC's determination, ruling that the ITC had inappropriately placed the burden of proof (as in burden of persuasion) on the parties seeking revocation. On appeal, the Federal Circuit reversed the decision of the lower court, thereby sustaining the ITC's determination. Among other things, the Federal Circuit held that the ITC had not placed the burden of proof on the parties seeking revocation:

In his separate views, Judge Nichols elaborated on this point:

1.259 Thus, Matsushita distinguished between the burden of persuasion and the burden of coming forward with evidence, finding that it was permissible for the ITC to impose a burden of coming forward on the proponent of revocation. Manufacturas Industriales relied on this proposition, as did Sanyo and Toshiba, in turn, through their reliance on Manufacturas Industriales. Thus, when the DOC cited to Matsushita, Sanyo, and Toshiba in its discussion of the evidentiary burden placed on the Korean Respondents in the Final Results Third Review, it was referring only to the burden of coming forward with evidence and not, as asserted by Korea, the ultimate burden of persuasion.¹⁶⁸

1.260 Further support for this view can be found in the DOC's practice under section 353.25(a) of its regulations. The DOC actually places the burden initially on the petitioning US industry to come forward with evidence relevant to the "not likely" issue. If the petitioning industry fails to present evidence, the DOC typically revokes the underlying anti-dumping order even though the concerned Respondent(s) may have presented no evidence directly bearing on the "not likely" criterion. If, as Korea asserts, the burden of proof (as in the burden of persuasion) truly were on the Respondent to show that a resumption of dumping was "not likely," the DOC could not revoke an order if the Respondent did not present any evidence directly bearing on the not-likely criterion. As a matter of law, a party that bears the burden of persuasion cannot prevail if that party presents no evidence.

1.261 In sum, Korea is wrong, as a factual matter, when it claims that the DOC imposed a burden of persuasion on the Korean Respondents.¹⁶⁹ Once Micron presented a prima facie case against revocation, the burden effectively shifted to Respondents to come forward with evidence to rebut Micron's evidence. However, the ultimate burden of persuasion always remained with the DOC.¹⁷⁰

1.262 With the facts thus clarified as to what the DOC actually did, the United States does not understand Korea to be complaining about the fact that the Korean Respondents were required to present evidence relating to the likelihood of future dumping once Micron had submitted evidence establishing a prima facie case against revocation. If Korea is complaining of such a requirement, then the United States simply notes that the imposition of such a burden is reasonable and is not precluded by anything in the AD Agreement.

To continue with Impossibility to Meet the DOC's Revocation Standard

¹⁴⁰ See 19 C.F.R. � 353.25(a)(2)(ii) (1996).

¹⁴¹ See, e.g., Sanyo Electric Co. v. United States, 15 C.I.T. 609 (Ex. ROK-50); Toshiba, 15 C.I.T. at 600 and 603 (Ex. ROK-5); Manufacturas Industriales, 666 F. Supp. at 1566 (Ex. ROK-7).

¹⁴² As the CIT has stated: "The regulation does not present an objective criterion for determining whether there is no likelihood of resumption of LTFV sales. Instead, the petitioner [the Respondent before the DOC] must establish this fact to the satisfaction of the Secretary." See Toshiba, 15 C.I.T. at 600 (Ex. ROK-5).

¹⁴³ This is particularly true where, as here, the authority found in three consecutive years that Respondents were not dumping (and, thus, perforce were not causing injury). Moreover, where, for three years, a Respondent has been found not to be dumping, Article 11 requires the Member to revoke the anti-dumping duties.

¹⁴⁴ See United States-Anti-Dumping Duties on Imports of Stainless Steel Plate from Sweden (24 February 1994), ADP/117 (unadopted).

¹⁴⁵ 19 C.F.R. � 353.25(a)(2) (1997) (Ex. USA-24). In its first submission, Korea mistakenly claims that three consecutive years of no dumping "satisfied the requirements for revocation set out in 19 C.F.R. � 353.25(a)(2) (1996)."

¹⁴⁶ 19 C.F.R. � 353.25(a)(2) (1997) (Ex. USA-24).

¹⁴⁷ Tatung Co. v. United States, 18 CIT 1137, 1144 (1994) (Ex. USA-37).

¹⁴⁸ See, e.g., Red Raspberries From Canada; Final Results of the Anti-dumping Duty Administrative Review, and Revocation in Part of the Anti-dumping Duty Order, 57 Fed. Reg. 49686, 49686-88 (1992); Final Results of Anti-dumping Duty Administrative Reviews: Fishnetting of Man-made Fibers From Japan, 56 Fed. Reg. 49456, 49457 (1991); Elemental Sulphur From Canada; Final Results of Anti-dumping Duty Administrative Review and Revocation In Part, 56 Fed. Reg. 16068 (1991) ("Sulphur from Canada"); Spun Acrylic Yarn From Japan; Final Results of Anti-dumping Duty Administrative Review and Revocation in Part, 52 Fed. Reg. 43781, 43782 (1987); Clear Sheet Glass From Japan; Final Results of Administrative Review and Revocation of Anti-dumping Finding, 47 Fed. Reg. 14506 (1982). These administrative determinations appear in the order cited at Ex. USA-38 through Ex. USA-42.

¹⁴⁹ See New AD Regulations, 62 Fed. Reg. at 27326 (Ex. USA-43). But see, e.g., Certain Circular Welded Carbon Steel Pipes and Tubes from Taiwan; Final Results of an Anti-dumping Duty Administrative Review and Determination not to Revoke in Part, 56 Fed. Reg. 8741, 8742 (1991) (Ex. USA-44); and Final Results of Anti-dumping Duty Administrative Review; Large Power Transformers From Italy, 53 Fed. Reg. 29367, 29370 (1988) (Ex. USA-45). In both of these cases, the DOC was not satisfied that future dumping was unlikely, despite the apparent absence of any comment or argument from the petitioning industry.

¹⁵⁰ See, e.g., Brass Sheet and Strip From Germany; Final Results of Anti-dumping Duty Administrative Review and Determination Not To Revoke in Part, 61 Fed. Reg. 49727, 49732 (1996) ("Brass Sheet from Germany"); Television Receivers, Monochrome and Color, From Japan; Final Results of Anti-dumping Duty Administrative Review and Determination Not To Revoke in Part, 54 Fed. Reg. 35517, 35518-19 (1989) ("Televisions from Japan"); Impression Fabric of Man-Made Fiber From Japan; Final Results of Anti-dumping Duty Administrative Review, 52 Fed. Reg. 41601, 41602 (1987); High Power Microwave Amplifiers and Components Thereof From Japan; Final Results of Anti-dumping Duty Administrative Review, 51 Fed. Reg. 43402, 43403 (1986); Cadmium From Japan; Final Results of Administrative Review of Anti-dumping Finding and Determination Not To Revoke, 46 Fed. Reg. 50815, 50816 (1981); Canned Bartlett Pears From Australia; Final Results of Administrative Review of Anti-dumping Finding and Determination Not to Revoke, 46 Fed. Reg. 43224, 43224-25 (1981). These administrative determinations appear in the order cited at Ex. USA-46 through Ex. USA-51.

¹⁵¹ See, e.g., Steel Wire Rope From the Republic of Korea; Final Results of Anti-dumping Duty Administrative Review and Revocation in Part of Anti-dumping Duty Order, 62 Fed. Reg. 17171, 17173-74 (1997) ("Steel Rope from Korea"); Certain Forged Steel Crankshafts From the United Kingdom; Final Results of Anti-dumping Duty Administrative Review and Revocation of Anti-dumping Duty Order, 62 Fed. Reg. 16768, 16771 (1997); Fresh Cut Flowers From Mexico; Final Results of Anti-dumping Duty Administrative Review and Revocation in Part of Anti-dumping Duty Order, 61 Fed. Reg. 63822, 63825 (1996) ("Flowers from Mexico"); Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Italy; Final Results of Anti-dumping Duty Administrative Reviews and Revocation In Part of an Anti-dumping Duty Order, 60 Fed. Reg. 10959, 10967 (1995); Flowers From Colombia, 59 Fed. Reg. at 15167 (Ex. USA-30); Final Results of Anti-dumping Duty Administrative Review and Revocation in Part: Titanium Sponge From Japan, 57 Fed. Reg. 557, 557 (1992) ("Sponge from Japan"); FCOJ from Brazil, 56 Fed. Reg. at 52511 (Ex. USA-31); Color Television Receivers, Except for Video Monitors, From Taiwan; Final Results, 55 Fed. Reg. 47093, 47097 (1990); Printed Vinyl Film From Brazil; Final Results of Administrative Review of Anti-dumping Finding and Revocation in Part, 49 Fed. Reg. 33158, 33158 (1984).

These administrative determinations appear in the order cited at Ex. USA-52 through Ex. USA-58. In Sponge from Japan, the notice states that "[t]he petitioner indicated that they had no objection to this revocation." 57 Fed. Reg. at 557. However, in an earlier, related notice, the petitioner's objection to revocation on various grounds was made evident. See Titanium Sponge From Japan; Final Results of Anti-dumping Duty Administrative Review and Tentative Determination To Revoke in Part, 54 Fed. Reg. 13403, 13405 (1989) (comment 9) (Ex. USA-59).

¹⁵² Sanyo Elec. Co. v. United States, 15 CIT 609, 614 (1991) ("the investigation was conducted at Sanyo's request, and it was for Sanyo to come forward with real evidence to persuade Commerce to revoke the order"), citing Manufacturas Industriales De Nogales, S.A. v. United States, 666 F. Supp. 1562, 1566 (Ct. Int'l Trade 1987) (hereinafter "Manufacturas") (Ex. USA-60).

¹⁵³ The DOC, in practice, actually places the burden initially on the petitioning US industry to come forward with evidence relevant to the "not likely" issue. It is only after the petitioner has satisfied this requirement that the burden, in effect, switches to the Respondent to come forward with evidence which indicates that a resumption of dumping is "not likely."

This is not to say, however, that the DOC must deny revocation under these circumstances if a Respondent fails to put evidence on the record (beyond three years of no dumping) regarding the likelihood issue. The ultimate question in every proceeding is whether the weight of the evidence justifies maintenance of the order. In this regard, under US law, it is incumbent upon the DOC to render a decision that is based upon substantial evidence and in accordance with law. 19 U.S.C. � 1516a (1998) (Ex. USA-62). Moreover, the DOC may, quite apart from evidence introduced by the parties, exercise its investigatory powers (as it did in the instant case) to collect public information on its own to help it decide the "not likely" issue. See, e.g., Televisions Receivers, Monochrome and Color, From Japan; Determination Not To Revoke in Part, 55 Fed. Reg. 11420, 11422 (1990) (Ex. USA-61).

¹⁵⁴ 19 U.S.C. � 1516a (1998) (Ex. USA-62). See also 2 Charles H. Koch, Jr. Administrative Law and Practice � 5.51 at 169 (2d ed. 1997) ("In reality then the burden of persuasion always rests with the agency.") (Ex. USA-63).

¹⁵⁵ See, e.g., Charts from Agency Analyst to File ("Prelim. Analysis") (Ex. USA-13); Analysis Memorandum from Program Manager to Deputy Assistant Secretary of Import Administration, 16 July 1997 ("Final Analysis") (Ex. USA-34).

¹⁵⁶ See, e.g., Steel Rope from Korea, 62 Fed. Reg. at 17173-74 (Ex. USA-52); Brass Sheet from Germany, 61 Fed. Reg. at 49730-32 (Ex. USA-46); FCOJ from Brazil, 56 Fed. Reg. at 52511 (Ex. USA-31).

¹⁵⁷ AD Agreement, art. 6.

¹⁵⁸ Final Results Third Review, 62 Fed. Reg. at 39810 (Ex. USA-1).

¹⁵⁹ For example, instead of "must also be satisfied," the United States could have used "must determine" or "must conclude" or "must find."

¹⁶⁰ See, e.g., Black's Law Dictionary, 6th ed. (West Publishing Co., 1990), p. 196 ("burden of proof" describes two different concepts) (Ex. USA-85).

¹⁶¹ The court decisions in question are cited in Final Results Third Review, 62 Fed. Reg. at 39812 (Ex. USA-1).

¹⁶² Sanyo Elec. Co. v. United States, 15 CIT 609 (1991) (Ex. USA-60); Toshiba Corp. v. United States, 15 CIT 597 (1991) (Ex. USA-69).

¹⁶³ Sanyo, 15 CIT at 614 (Ex. USA-60); Toshiba, 15 CIT at 603 (Ex. USA-69).

¹⁶⁴ 666 F. Supp. at 1566 (Ex. USA-60).

¹⁶⁵ In the judicial hierarchy of the federal court system in the United States, the Federal Circuit is superior to, and reviews the decisions of, the CIT. In this particular instance, Judge Nichols' views were issued separately as an appendix to the decision (rather than as a concurring opinion) because, according to the court, "they read so well as separately stated." Matsushita, 750 F.2d at 936, n. 14 (Ex. USA-60).

¹⁶⁶ Id. at 933 (citations omitted).

¹⁶⁷ Id. at 937.

¹⁶⁸ The DOC could not have been referring to the burden of persuasion, as claimed by Korea, because the cited court decisions dealt with the burden of proof in the sense of the burden of coming forward with evidence.

¹⁶⁹ Thus, Korea has failed to meet the burden placed on it by customary international law to prove, before this Panel, the truth of the fact asserted. United States - Measures Affecting Imports of Woven Wool Shirts and Blouses From India, WT/DS33/AB/R, Report of the Appellate Body adopted 23 May 1997, at 16 (hereinafter "Wool Shirts"). I is an accepted principle of public international law that municipal law and practice is a fact to be proven before an international tribunal, such as the present one. Case Concerning Certain German Interests in Polish Upper Silesia, [1926], PCIJ Rep., Series A, No. 7, at 19 (Ex. USA-6); Case Concerning the Payment in Gold of Brazilian Federal Loans Contracted in France, [1929], PCIJ Rep., Series A, No 15, at 124-25 (hereinafter "Brazilian Loans") (Ex. USA-7). See also Brownlie, pp. 40-42 (Ex. USA-8).

¹⁷⁰ Although the DOC did not impose a burden of persuasion on the Korean Respondents, it must be noted that nothing in the AD Agreement prevents an investigating authority from imposing such a burden on a Respondent. Indeed, the very fact that Article 11.2 does not require revocation of an anti-dumping order unless and until an investigating authority makes certain findings, and given the broad standard set forth in Article 11.2 (which only requires revocation if the relief provided by an order is no longer "warranted"), it is hard to imagine how the imposition of such a burden could rest upon an impermissible interpretation of Article 11.