| Review of the Final Determination of the Antidumping Investigation in the matter of
Rolled Steel Plate Imports originating in or imported from Canada
DECISION OF THE PANEL
Investigation Procedure .
Chronology of the Proceedings.
Procedure Before the Panel
Chronology of the Proceedings
Motions and Orders
Resolution of Pending
Motion of July 8, 1997
STANDARD OF REVIEW AND POWERS OF THE PANEL
Legal Nature of the Binational
Nature of the Review Process Before
the Tribunal Fiscal de la Federación (Federal Fiscal Court) and Before a Binational Panel
Standard of Review to be Applied by the Panel
Legal Framework to be Applied by the Binational Panel
OF THE PANEL
ISSUES IN LITIGATION
Jurisdiction of the Dirección General
Adjunta Técnica Jurídica
Jurisdiction of the Administrative
Authorities in the Framework of the Mexican Legal System
Acts Specifically Challenged by the Companies
Legal Existence and Powers of the Unidad de Prácticas Comerciales Internacionales
Guidance from Amparo
Judgments in Recent Years
Late Issuance of the Notification of the
Initiation of the Investigation
of the Request for the Initiation of the Investigation beyond the Deadline
Late Issuance of the Notification of the Preliminary
and Final Determinations
Issuance of the Preliminary and Final Determinations
The Request for Remand by
the Investigating Authority
ORDER OF THE
exporters other than TITAN
I . INTRODUCTION
According to Article 1904 and Annex 1901(2) of the North American Free Trade Agreement
("NAFTA"), this Binational Panel was established in order to review the Final
Determination issued by the Secretaría de Comercio y Fomento Industrial (Secretariat of Industrial Trade and Industrial Promotion)
("the Investigating Authority" or "SECOFI"), published in the Diario
Oficial de la Federación (Official Gazette of the Federation, "Diario
Oficial") on December 30, 1995, as a the result of the administrative
investigation filed as 33/93 and carried out by the Unidad de Prácticas Comerciales
Internacionales (International Trade Practices Unit) ("UPCI") of the
Secretariat of Trade and Industrial Promotion.
The administrative procedure was to determine the existence of dumping on Rolled Steel
Plate imports originating in or imported from Canada, among other countries. The
merchandise ("Investigated Product") was covered by custom tariff
classifications 7208.12.01 and 7208.22.01 of the Tarifa de la Ley del Impuesto General
de Importación (Tariff Schedule Pursuant to the General Import Tax).
1. Administrative Investigation
Procedure. Chronology of the Proceedings
On August 4, 1993, the companies Altos Hornos de México,
S.A. de C.V. ("AHMSA") and Hylsa, S.A. de C.V. ("HYLSA")
("the domestic industry") through their counsel of record, appeared before
SECOFI to request the application of a compensatory quota regime and the beginning of an
antidumping and countervailing duties investigation on Rolled Steel Plate imports
originating in or imported from the Federal Republic of Brazil, Canada, the Republic of
Korea, the United States of America, the Republic of South Africa and the Republic of
On September 13, 1993, the Investigating Authority requested
the domestic industry (AHMSA and HYLSA) to submit additional information in relation to
the application for an investigation. 2
On September 27, 1993, AHMSA and HYLSA, answered the additional information
requirement, submitting more evidence, data and arguments in relation to export prices in
third countries, information on normal value and justification for the confidentiality of
the submitted information.
On October 28, 1993, the Decision accepting the application was
published in the Diario Oficial and the antidumping investigation and
countervailing duties investigation on Rolled Steel Plate was initiated. The period from
January to December of 1992 was chosen as the period of investigation. 3
On November 24, 1993 the companies The Titan Industrial
Corporation ("TITAN") of the United States of America, Algoma Steel Inc.
("ALGOMA"), Dofasco Inc. ("DOFASCO") and Stelco Inc.
("STELCO") of Canada ("the Complainants"), were notified of the
initiation of the investigation in question, requiring them to submit specific
information, as well as to complete the antidumping questionnaire, which TITAN submitted
on January 11, 1994. 4
On December 8, 1993, the domestic industry submitted to the Investigating Authority
"Document of Comments to the Resolution of the Beginning of the Investigation Against
Unfair International Trade Practices on Rolled Steel Plate".
On April 18, 1995, the Investigating Authority issued the
Preliminary Determination which was published in the Diario Oficial and decided
to continue with the administrative investigation without imposing compensatory quotas in
relation to Rolled Steel Plate originating in or imported from Canada. 5
The Complainants did not submit comments on the Preliminary Determination, within the
time granted for this in accordance with Article 53 of the Ley de Comercio Exterior
(Foreign Trade Law) ("LCE").
On June 7, 8 and 9, 1995, SECOFI carried out the in situ verification of
On June 21, 22 and 23, 1995, SECOFI carried out the in situ verification of
On July 7, 1995, the Public Hearing before SECOFI of the administrative investigation
of the investigated product was carried out.
On July 12, 1995, HYLSA submitted further allegations relating to rolled steel plate
On December 28, 1995, the Final Determination, which imposed definitive antidumping
duties on Rolled Steel Plate imports originating in or imported from Canada was published
in the Diario Oficial, as follows:
|"E. Se imponen cuotas compensatorias
definitivas a las importaciones de placa en rollo, originaria de Canadá y clasificada en
las fracciones arancelarias citadas en el primer párrafo de este punto resolutivo, en los
a. Para las importaciones de placa en rollo
procedente de cualquier empresa exportadora de Canadá: 31.08 por ciento".
compensatory quotas to Rolled Steel Plate, originating in Canada and covered by the
customs tariff classifications cited in the first paragraph of this Decision as follows:
For the Rolled Steel Plate imports originating from any exporting Canadian company: 31.08
2. Procedure Before the Panel
A. Chronology of the Proceedings
On January 29, 1996, DOFASCO, STELCO, ALGOMA and TITAN, through
their common counsel of record requested, based on Article 1904 of NAFTA and its Rules of
Procedure ("Rules of Procedure"), the review of the Final Determination of the
antidumping and countervailing duties investigations on Rolled Steel Plate imports
originating in Canada, published in the Diario Oficial on December 28, 1995. 7
On February 28, 1996, the Complainants submitted before the
Mexican Section of the Secretariat of the North American Free Trade Agreement
("Secretariat") their Complaints by presenting the notification certificate. 8
On May 13, 1996, the company Hubbell International Trading
Company ("HUBBELL"), submitted its Notification of Appearance, joining in the
allegations of fact and law argued by the Complainants. 9
The Panel did not consider HUBBELL in the present review,
since this company made no further filings or submissions in accordance with Articles
39(1) and 57(1) of the Rules of Procedure. 10
On March 8, 1996, SECOFI, through the Director General de
Asuntos Jurídicos (General Director of Legal Affairs), submitted the Notification of
Appearance, opposing each of the arguments stated by DOFASCO, STELCO, ALGOMA and TITAN in
their Complaint. 11
On March 8, 1996, through their counsel of record, HYLSA
submitted its Notification of Appearance, opposing each of the arguments stated by
DOFASCO, STELCO, ALGOMA and TITAN in their Complaint. 12
On March 12, 1996, through their counsel of record, AHMSA
submitted its Notification of Appearance, opposing each of the arguments made by DOFASCO,
STELCO, ALGOMA and TITAN in their Complaint. 13
The Complainants through their counsel of record, joined their
Complaints pursuant to Rule 57 (5) of Rules of Procedure, and filed their Brief on May 28,
On July 26, 1996, SECOFI, through the Director General de
Asuntos Jurídicos, filed its Brief. 15
On July 26, 1996, HYLSA submitted its Brief and on August 19,
1996, filed the Annexes to it. 16
On July 29, 1996, AHMSA submitted its Brief and on August 19,
1996, filed the Annexes to it. 17
On August 13, 1996, the Complainants submitted the Reply to HYLSAs Brief, the
Reply to the Investigating Authoritys Brief and the Reply to AHMSAs Brief, and
on August 23, 1996, they filed the Annexes to their Brief.
On September 10, 1996,
according to Rule 42 of the Rules of
Procedure, the Binational Panel of the case in question was established with Gustavo Vega
Cánovas as Chair, 18 Martin H. Freedman, 19 Lucía Reina Antuña, 20
Gilbert R. Winham 21 and Rodolfo Terrazas Salgado 22 as Members.
On September 24, 1996, Panelist Martin H. Freedman resigned
due to lack of time in his agenda to perform the duties of a Panelist. 23
On September 25, 1996, a Notification of Suspension of the
Panel was published, due to problems that emerged with the appointment of some Panelists.
On October 11, 1996, the Notification of Suspension of the
Panel was sent to the American and Canadian Secretaries, and was published in the
On November 8, 1996, Panelist Gilbert R. Winham withdrew due
to conflicting duties with the government of his country. 26
According to paragraph 9 of Annex 1901(2) of NAFTA, the
governments of Canada and Mexico advised on January 13, 1997, that D.M.M. Goldie and W.
Roy Hines were designated as substitute Panelists of the Panel. 27
The case in question was reactivated
when the Panel was definitively
established with Gustavo Vega Cánovas as Chair, D.M.M. Goldie, Lucía Reina Antuña, W.
Roy Hines and Rodolfo Terrazas Salgado as members. Peter N. Mantas, 28
Hernán García Corral, 29 Rocío E. Álvarez 30 y Eduarda María Días Oliveira Matos, 31
Arturo Reina Celaya, 32 Rafael Dueñas Hernández, 33 Gabriela Rodríguez Huerta 34
and Francisco J.J. Castro y Ortíz 35 were named as
assistants with access to confidential information.
After some delays, the Public Hearing took place on July 18,
1997, in which the Complainants, SECOFI and the domestic industry presented their case. 36
During the review procedure the Panel issued various orders, most of them in response
to motions made by the Parties. However, others were issued by the Panel sua sponte
in exercise of its powers. The foundation and motivation for each motion is set out below.
The Panel decided that, in addition to the specific foundation of each order, all the
orders that were issued in response to the motions were founded on Rule 63 of the Rules of
On March 14, 1997, the Panel issued an order in which the
dates of the Public Hearing and of the Final Decision of the Panel were extended, based on
Rule 20 of the Rules of Procedure, due to the delay in establishing the new Panel. The
date for the Public Hearing was set for June 15, 1997, and the date for issuance of the
Final Decision of the Panel was to be October 14, 1997. 37
The Panel ordered on April 1, 1997, that SECOFI grant within a
period not greater than 10 days after the date of the Order, access authorization to
Confidential Information, without requiring the granting of any other guarantee or
additional requirement envisaged in the Ley de Comercio Exterior or in the Rules
of Procedure, to Francisco Fuentes Ostos as counsel of record of the Complainants, in
response to the Motion concerning confidential information access put forward by them on
May 28, 1996. 38 In the same
Order, the Panel authorized the Complainants to submit documents and additional
allegations, if these resulted from the review of the confidential information. 39
On April 7, 1997, the Panel issued an
Order 40 rejecting the Motion submitted by the
Complainants on November 7, 1996, requesting that the allegations and documents the
Investigating Authority had submitted to the Panel on October 24, 1996, be rejected. 41 The Panel decided that the Investigating Authority did
not violate the Rules of Procedure 52 (2), 59 and 61 by submitting to it the Decisions of
the Panel MEX-94-1904-01 and MEX-94-1904-03, since these are not precedents according to
Article 1904 (9) of NAFTA.
That same day, the Panel issued a
Order 42 accepting the Motion submitted by the
Investigating Authority of July 12, 1996 rejecting the arguments of the Complainants in
relation to expert opinions attempting to verify that the products exported by one of the
Complainants came under the category of identical or similar merchandise classification,
since these arguments did not comply with Rules 39 and 40. Further, the Panel empowered
the Complainants to submit new arguments that emerged after the review of the confidential
information within thirty days after the issuance of the Order in question. 43
On April 18, 1997, according to Rules 2, 49 (2) and 63 (3) of
the Rules of Procedure, the Panel rejected the Motion submitted by the Investigating
Authority on April 10, 1997 in which it sought to preclude the Complainants rights
of access to confidential information or to submit new arguments. 44
On April 21, 1997, the Panel issued an Order 45
to correct the name of AHMSA in a previous Order and to reject the Motion of the
Investigating Authority requesting the Panel to reconsider its Order of April 1, 1997, in
which SECOFI was ordered to grant access to confidential information to Francisco Fuentes
Ostos as counsel of record of the Complainants.
On May 12, 1997, the Panel issued an Order by which it
accepted the Complainants Motion of April 2 requesting the Investigating Authority
to authorize access to confidential information, and allowing the Investigating Authority
until May 15, 1997, to issue this authorization. 46 The
Panel also extended the date of the Public Hearing until July 18, 1997.
On May 21, 1997, the Panel issued an Order rejecting the
Motion of the Investigating Authority of May 13, 1997, requesting the rescission of the
Panels Order of May 12, 1997. 47
On July 10, 1997, the Panel issued an Order determining the
agenda of the Public Hearing to be held on July 18 at El Colegio de México, A.C.
On September 17, 1997, the Panel issued an Order requiring the
Investigating Authority to file with the Secretariat certain information classified as
"privileged" on or before September 24, 1997, and stating that such information
was for the exclusive use of the Panelists and their assistants. It also chose November
17, 1997 as the new date to issue its Final Decision. 49
On October 17, 1997 the Panel issued an Order 50 rejecting the Motion of the Investigating Authority of
September 23, 1997, which requested the Panel to rescind its requirement of September 17,
1997 that access to the privileged information be provided to the Panel members and its
assistants, within 24 hours. The Panel warned the Investigating Authority that, in case it
did not fulfil this requirement, it would issue its Final Decision taking into account the
"best available information".
On October 29, 1997, the Panel issued an Order by which it
deferred the date of issuance of its Final Decision to December 17, 1997. 51
C. Resolution of Pending Motions
a. Motion of July 8, 1997
On July 8, 1997 the Investigating Authority, in accordance with Rule 61 (1) of the
Rules of Procedure submitted a motion to the Panel requesting it to preclude the
Complainants rights to present additional arguments in the present review.
The Investigating Authority argued that the Complainants right to present a new
brief related to the confidential information, to which they had access since May 22 1997,
which expired because the Complainants did not exercise the right that was given to them
by the Panel on May 21 1997.
The motion of the Investigating Authority is valid since it is based on Rule 61 of the
Rules of Procedure. This Panel, after referring to rules 2 and 63 (1) of the Rules of
Procedure, and after having analyzed the rights and the arguments of the Parties, orders
The motion of the Investigating Authority presented on July 8 1997 is denied based on
the following considerations:
First. - The Panel considers that the facts upon which the Order of
May 21 1997 was based have been overtaken by events.
Second. - This Panel considers that given the
facts set out in the injury section 52 of this Decision,
the need to modify the order of May 21 1997 is evident in order to allow the Complainants
access to the administrative file on which the Investigating Authority will issue a
determination responding to the Panels remand. Accordingly,
the rights of the Complainants will be preserved in the event that in its response to the
remand Order, the Investigating Authority decides to supplement the administrative file. 53
b. Motion of July 18, 1997
On July 18, 1997, during the Public Hearing, the Investigating Authority, in accordance
with Rule 61 (1) of the Rules of Procedure, filed a Motion to have the issue of
accumulation, which was brought forward during the hearing, dismissed as a part of the
The Investigating Authority alleged that this Panel must dismiss the
accumulation issue because it lacked a foundation in the Rules and in NAFTA. According to
the Investigating Authority, this issue was raised by Panelist W. Roy Hines through his
questions and enlarged upon by counsel for the Complainants in their reply to that motion.
The ground to dismiss was that the accumulation issue was not alleged by the Complainants
in their Complaint or Brief and, by virtue of Rule 7(a) of the NAFTA Rules of Procedure,
could not be reviewed by this Panel.
In their reply to the Motion of the Investigating Authority, the Complainants requested
the Panel to dismiss the Motion of the Investigating Authority since they argued that each
had put forward in its Complaint or in their joint Brief the issue of accumulation. The
Complainants affirmed they had established that the issues in litigation put forward by
them in relation to TITAN-DOFASCO encompassed the calculation of injury in the Final
Determination. According to the Complainants, if the Investigating Authority had taken
into account TITANs information, it would have had to conclude the imports from
Canada should not have been accumulated for injury determination since they were
insignificant. In conclusion, the Complainants requested this Panel to include the effect
of the issue of accumulation of import volumes of rolled steel plate to Mexico from Canada
in the Final Decision.
In its rejoinder, or reply to the reply of the Complainants, the Investigating
Authority maintained that the arguments put forward by Panelist W. Roy Hines and the
Complainants regarding the accumulation of imports from Canada should be dismissed because
they did not constitute part of the litis, and because in its opinion, including
these issues would leave the Investigating Authority in a state of defenselessness and the
principle of fairness would be breached.
On August 13, the Complainants filed a reply to the rejoinder of the Investigating
Authority in which they requested its dismissal because they considered it to be a breach
of Rule 62 of the Rules of Procedure, which, according to them, does not provide any right
to rejoin or reply to the replies of a motion.
On August 20, the Investigating Authority requested the dismissal of the Complainants
reply as it considered the Complainants request unlawful since they expressly agreed that
the Panel should allow the Authority to file the reply to the rejoinder.
The Motion of the Investigating Authority is lawful as it is provided for in Rule 61 of
the Rules of Procedure. This Panel has jurisdiction to rule upon it pursuant to Rule 2, 63
(1) of the Rules of Procedure, and after analyzing the facts and arguments of the Parties,
orders as follows:
The Motion filed by the Investigating Authority on July 18 is dismissed based on the
First. - The Panel considers the arguments of
the Complainants to be well founded in the sense that SECOFIs error regarding TITAN
resulted in the Investigating Authority reaching erroneous conclusions regarding the
injury that imports from Canada caused to the domestic industry. 54
This error and the imports allegedly credited to Complainants other than TITAN have
resulted in the establishment of a price discrimination margin for all of Canada. This
directly affects the Complainants as well as any other potential Canadian exporters.
SECOFI, when recognizing its error, has introduced in the litis all aspects of the injury
determination, including accumulation, which must be made by the Investigating Authority
in its determination on remand. From this perspective, this Panel considers that it is
subsection (b) and not subsection (a) of Rule 7 of the Rules of Procedure that is
applicable in the present case, since the issue of accumulation has become a possible
substantive defense during the Panel review.
Second. - This Panel considers that the arguments of the Investigating
Authority are unfounded when claiming that the issue of accumulation was improperly
mentioned by Panelist W. Roy Hines during the public hearing in violation of Rule 7 (a) of
the Rules of Procedure. Panelist Hines neither argued in favour or against the issue of
accumulation during the Public Hearing. What he did was to formulate questions on the
Panels behalf in respect of the apparent contradictions in the Final Determination
regarding the evaluation of the data used by SECOFI. These questions were set forth in
direct relation to the Final Determination, where numerous references to accumulation can
III. STANDARD OF REVIEW AND POWERS OF THE PANEL
A NAFTA Chapter XIX binational panel, like any other arbitral or jurisdictional body,
is governed by a legal framework which endows it with specific powers, limits its
functions, standardizes the proceeding upon which it must decide, and provides the
standard of review which the Panel must follow in issuing its final decision.
The standard of review this Panel must apply, and the scope of its powers are important
for the present review, and this Panel considers that an adequate treatment of these
topics requires a careful analysis of the following issues:
1. Legal Nature of the
The Complainants argued that the legal nature of the binational panel was irrelevant
and what was important was that this Panel stood in place of the court of the importing
party, thus having to apply the legislation in the way a Court does. The Complainants even
say the Panel possesses powers to declare the absolute nullity of a challenged Final
Determination. The Investigating Authority, instead, asserted that the binational panel is
an arbitration body with limited powers that in no way can be compared to a court of the
importing party with powers to nullify the determination of the Investigating Authority.
This panel agrees with the Investigating Authority in the sense that a binational panel
has features that characterize it as an arbitration body. However, it is important to
recognize that its nature as an arbitration body is sui generis, for the
a. Without doubt, the arbitral character of a binational panel is
indisputable, since the NAFTA contracting States obliged themselves to have their
respective investigating authorities abide the jurisdiction of a Panel, in the event the
alternative dispute settlement mechanism, contained in chapter XIX of the NAFTA Agreement,
was chosen by a party with a right for them to prefer this proceeding to even the one
normally followed before jurisdictional tribunals of the importing Party.
b. There is a substantial difference in the procedure followed by a
binational panel, compared to ordinary arbitration. In the latter, parties participate in
the selection or elaboration of the procedural rules that must be applied, which in the
former, such rules are established in advance by the NAFTA contracting parties. These
rules reflect at least two different regulatory schemes: the international one, which is
composed of the provisions contained in the Agreement, and are related to multilateral
rules such as those set out in GATT and its Codes of Conduct; and the domestic one, which
reflects the legal provisions dealing with unfair trade practices, which must be followed
by binational panels.
c. Based on the foregoing, we conclude the particular characteristics
of binational panels make them seem more like jurisdictional tribunals than arbitral
tribunals. In fact, given their review powers regarding the proceedings concluded by an
investigating authority, they are much more like the relationship between a court of
appeal with respect to a first instance court. This follows from the fact that a final
decision of the Panel is provided for in paragraph 11 of NAFTA Article 1904, and a
challenge may only proceed in an extraordinary manner before a special Committee
established according to the Rules of Procedure of the NAFTA Agreement, standing out as a
special characteristic is the fact that, according to paragraph 14 of Article 1904,
provided that the NAFTA Rules, where appropriate, will be based on judicial rules
of appellate procedure. This confirms the conclusion that we are in the presence
of an arbitral body whose functions are closer to those of a jurisdictional court of
2. Nature of the Review
Process Before the Tribunal Fiscal de la Federación (Federal Fiscal Court) and
Before a Binational Panel
From the foregoing this Panel concludes that it is neither
similar to the Federal Fiscal Court nor does it have the same characteristics, attributes
and jurisdiction of that court. 55 While the jurisdiction
and attributes of the Federal Fiscal Court are governed by Mexican law, particularly by
many legal provisions of the Federal Fiscal Code, the jurisdiction and attributes of this
Panel are ruled by NAFTA in the first place, and secondly by Mexican law but only in the
way NAFTA establishes. Therefore, as a consequence a binational panel review differs from
that carried out by the Federal Fiscal Court.
Thus in order to define the characteristics of the proceedings before this Panel, which
distinguishes it from one before the Federal Fiscal Court, it is important to bear in mind
the legal provisions established in paragraph 1 of Article 1904 of NAFTA, which states:
"As provided in this Article, each party shall replace judicial review of final
antidumping and countervailing duty determinations with binational panel review."
From this paragraph it is important to point out that each one of the parties must
replace the internal judicial review of a Final Determination regarding antidumping and
countervailing duties with the review made by a binational panel. It follows that, once
the alternative dispute settlement mechanism referred to in Article 97 of the LCE is
chosen, it is evident that the proceedings and courts of the importing Party are excluded.
In other words, more than a replacement or substitution (which grammatically means the
same thing), strictly this is about what jurisprudence refers to as exclusion of the
domestic forum. This alternative mechanism constitutes a proceeding that eliminates the
jurisdiction of the domestic courts, because the signatory Parties as public law entities,
cannot be subject to any domestic jurisdiction, in order to safeguard their sovereignty.
In the same way, paragraph 11 of Article 1904, expressly prohibits the importing party
from commencing a judicial review of a Final Determination which is subject to a
proceeding before a Panel, or to establish in its internal legislation the possibility of
challenging before its tribunals a determination issued by a binational panel.
In conclusion, according to NAFTA Chapter XIX, the alternative mechanism is a legal way
to settle an international dispute originating when a review of a Final Determination
before a binational panel is requested. This Panel acts as an impartial third party
applying the standards established in Article 1904 and its Rules, and excluding the
jurisdictional proceeding and the national courts of the importing party, in order to
issue a just, inexpensive and speedy decision which is in accord with the objectives of
3. Standard of Review to be
Applied by the Panel
The standard of review
applicable to this proceeding is also determined by NAFTA. This Panel must apply the
standard of review set out in NAFTA Article 1904 (3) and Annex 1911. It is a two-part
standard review. The first part is
"the standard set out in Article 238 of the Federal
Fiscal Code (Código Fiscal de la Federación), or any successor statutes, based
solely on the administrative record". 56
Article 238 of the Federal Fiscal Code states:
| "Se declarará que una resolución administrativa es
ilegal cuando se demuestre alguna de las siguientes causales:
Incompetencia del funcionario que la haya dictado u ordenado o
tramitado el procedimiento del que deriva dicha resolución.
II. Omisión de os
requisitos formales exigidos por las leyes, que afecte las defensas del particular y
trascienda al sentido de la resolución impugrnada, inclusive la ausencia de
fundamentación o motivación, en su caso.
III. Vicios de
procedimiento que afecten las defensas del particular, y trasciendan al sentido de la
IV. Si los hechos
que la motivaron no se realizaron, fueron distintos o se apreciaron en forma equivocada, o
bien si se dictó en contravención de las disposiciones aplicadas, o dejó de aplicar las
V. Cuando la resolución administrativa
dictada en ejercicio de facultades discrecionales no corresponda a los fines para los
cuales la ley confiera dichas facultades.
El Tribunal Fiscal de la Federación podrá hacer valer de oficio, por ser de orden
público, la incompetencia de la Autoridad para dictar la resolución impugnada y la
ausencia total de fundamentación o motivación en dicha resolución."
| "An Administrative determination shall be declared
illegal when one of the following grounds are demonstrated:
Lack of competence of the official who issued, ordered, carried out
the proceeding from which the said resolution is derived.
II. Omission of the formal requirements
provided by law, which affects an individuals defences and impacts the result of the
challenged resolution, including the lack of legal foundation or reasoning, as the case
III. Procedural errors which affect an
individuals defences and impact the result of the challenged resolution.
IV. If the facts
which underlie the resolution do not exist, are different or were erroneously weighed, or
if (the resolution) was issued in violation of applicable legal provisions if the correct
provisions were not applied.
V. When an
administrative determination issued in an exercise of discretionary powers does not
correspond with the purposes for which the law confers the said powers.
The Federal Fiscal Tribunal may declare sua sponte, because it
is a matter of public order, the incompetence of the authority to render the challenged
determination and the total absence of basis or motivation of this determination." 57
Under the second part of the standard of review, we may also consider:
| "los principios generales de
derecho que de otro modo un tribunal de la Parte importadora aplicaría para revisar una
resolución de la autoridad investigadora competente".
|| "the general
legal principles that a court of the importing Party otherwise would apply to a review of
a determination of the competent investigating authority". 58
On the other hand, this Panel has
jurisdiction to grant only those remedies that are authorized by NAFTA Article 1904 (8).
This provision states:
| "El Panel podrá confirmar la resolución definitiva o
devolverla a la instancia anterior con el fin de que se adopten medidas no incompatibles
con su decisión."
|| "The Panel may uphold a Final Determination, or remand
it for action not inconsistent with the Panels decision".
The Complainants have argued before this Panel
that we must consider Article 239 of the Federal Fiscal Code as an integral part of the
standard of review. It is noteworthy that a binational panel in a previous case accepted
this point of view. 59 Nevertheless, this Panel respectfully
disagrees with that position,
because the inclusion of Article 239 in the standard of review would constitute an undue
amplification of its jurisdiction and powers. This Panel is subject to the jurisdiction
and powers established by Article 1904(8) of NAFTA, which empowers it to confirm
SECOFIs Final Determination, or to remand it. It does not empower it to nullify that
resolution, a power which Article 239 specifically gives to the Federal Fiscal Court.
Therefore, this Panel dismisses the arguments presented to it that Article 239 of the
Federal Fiscal Code should be included in the standard of review of this Panel. If the
governments of Mexico, the United States and Canada had intended to empower during the
review proceeding, in the same way that the Federal Fiscal Court is under Article 239,
they would have included that Article in the standard of review, and would have drafted
Article 1904 (8) of NAFTA, in a different manner.
In other words, this Panel is convinced that the present text
of NAFTA does not give it the same jurisdiction conferred upon the Federal Fiscal Court,
so it must act according to the express limits of the jurisdiction conferred on it.
Therefore, this Panel believes the intention of the negotiating parties of NAFTA was to
establish Article 238 of the Federal Fiscal Code as the only standard of review in the
case of Mexico. This does not mean --as the Investigating Authority presumes-- that
binational panels cannot interpret the legal content of that Article. While it is true
that paragraph 2 of Article 1904 of NAFTA establishes that Panels must perform their
duties in the same way as a Court of the importing party, this does not lead to the
conclusion that they must apply, in a mechanical way, the causes of illegality included in
Article 238. On the contrary, the application of this Article in an antidumping
investigation is a complex procedure that raises issues that affect the national economy
as a whole, commercial relations between two countries, national producers and workers,
and importers of foreign products. This Panel cannot apply the
standard of review as if it were dealing with administrative resolutions related to tax
and other fiscal measures which consist, generally speaking, in matters of the State
versus a person regarding with that persons fiscal obligations. 61
In other words, a binational panel is always in a position to
interpret the legal framework that governs it. When intepreting NAFTA, the Rules of
Procedure or any other international legal instrument, the panel must follow the criteria
included in Section 3, entitled INTERPRETATION OF TREATIES of the Vienna Convention on the
Law of Treaties. 62
This contains three general rules of interpretation:
- good faith;
- the literal sense of the provisions, and;
- the object and ends of the corresponding treaty.
Focusing on this last rule, the objectives of NAFTA are made
clear in its Article 102. Paragraph 1, which establishes that NAFTAs objectives must
be developed in relation to its general principles which include those of national
treatment, most favoured nation treatment and transparency. In addition, among those
objectives is the following found in subrule e), to create effective proceedings for the
implementation and application of this Agreement, for its joint administration and for the
resolution of disputes.
On the other hand, if the legal provisions on antidumping and
countervailing duties of the Importing Party must be interpreted, as established by
paragraph 2 of Article 1904, the binational panel must follow the interpretive rules that
are commonly used by the jurisdictional bodies of the country in question. If this is not
done, the principle of legal certainty of a state of law would be violated. 63
4. The Applicable Legal Framework to be Applied by
The legal provisions that the Panel must apply in order to
issue its decision according to paragraph 2 of Article 1904 in the matter of
countervailing and antidumping duties, consist of the relevant statutes, legislative
history, regulations, administrative practice and judicial precedents, 64 to the extent that a court of the importing party
would rely on such materials in reviewing a Final Determination.
As was already pointed out in a previous paragraph, this Panel
notes that in the Mexican legal system includes two regulatory schemes: the international,
consisting of the provisions of NAFTA and other related provisions such as GATT and its
Codes of Conduct; and the domestic, which consists of special legal provisions such as the
Ley de Comercio Exterior 65
and its regulation, the Organic Law of the Federal Public Administration (Ley
Orgánica de la Administración Pública Federal ["LOAPF"]) that relates in matters of jurisdiction of the
authorities, as well as the internal regulations of SECOFI and the delegatory directives
that derive from these regulations.
As well, this Panel believes that the legislative history
contained in the archives of the Congress of the Union, including the reasons for the
initiatives and decisions of the Houses, and the debates of the Members of Congress should
be considered. Also to be considered are the administrative practices of the Executive
branch pursuant to its delegated powers. These consist in the execution of material acts,
or acts that decide individual legal cases. These are defined by the Mexican writer of
treatises Gabino Fraga, 66 who
refers to the administrative acts carried out by the State in the exercise of its powers,
applicable to a specific case.
Judicial precedents that a Panel in
Mexico may or must apply are understood in two ways: those that imply a simple precedent
or illustration, but do not bind the tribunal and cannot govern the determination of
specific cases but rather may be cited as a persuasive reference, that have not attained
the status of jurisprudencia. 67 In the opinion of Dr.
Ignacio Burgoa, 68 "Jurisprudencia
can be explained as the interpretation and
construction of uniform legal considerations carried out by a judicial authority,
empowered to this effect by the law, and regarding one or several special and determined
points of law, that arise from a certain number of specific cases that are alike,
considering that interpretations are binding on the hierarchical subordinates of the
mentioned authorities, as are expressly mentioned by the law". This jurisprudencia
is a source of Mexican Law, 69 since the Mexican legal system grants the thesis,
presented in the determinations of certain judicial authorities, a binding character that
should be observed by other judicial authorities of lower rank. For example,
the jurisprudencia of
the Supreme Court of Mexico which might be created by both the entire court or its
chambers, compels the court itself, as well as the lower courts and that of the
Fiscal de la Federación that is
created by the Superior Chamber. 70 In antidumping and countervailing cases, there is binding jurisprudence
issued by the circuit courts, and the Tribunal Fiscal de la Federación
by it superior chambers. In Mexico, jurisprudencia may provide law where there is a
vacuum or lacuna in the law, but only to the extent that it
fulfils the purpose of occupying the vacuum of law or lacuna.
Finally, concerning the orders and final decisions issued by other Panels, it is clear
from paragraph 9 of NAFTA Article 1904, that while these cannot be invoked as binding
precedents, they may be referred to a useful guide in order to clarify certain issues.
In summary, this is the legal framework that in accordance to paragraph 2, Article 1904
of NAFTA, a binational panel is obligated to apply in the same measure as a court of the
importing party would do in order to decide if the determination of the investigating
authority was issued in accordance to legal provisions in antidumping an countervailing
In the following paragraphs of this opinion, the Panel examines each one of the issues
raised by the Complainants or arising in the review as well as the responses to these
issues. The Panel has applied the standard of review in the terms defined above to each
one of these issues and defences, and examines the way in which the intermediate acts of
the Investigating Authority and the Final Determination would be declared illegal
according to the standard of review, and will issue its decision in the terms allowed by
Article 1904(8) of NAFTA.
IV. JURISDICTION OF THE PANEL
The Panel has jurisdiction to review the Final Determination issued by the
Investigating Authority based on Articles 1904 and 1906 of NAFTA, and Articles 97 and 98
of the Ley de Comercio Exterior.
V. ISSUES IN
1. JURISDICTION OF THE DIRECCIÓN
GENERAL ADJUNTA TÉCNICA JURÍDICA
TITAN, ALGOMA, STELCO and DOFASCO raised issues of competence individually through
their Complaints in this Panel proceeding. These Complainants say that the Dirección
General Adjunta Técnica Jurídica ("DGATJ") performed certain administrative acts in the
conduct of the proceeding, despite the fact that it lacked competence to carry out those
acts. They claim that under Article 16 of the Mexican Constitution the administrative unit
carrying out those actions must have had competence to do so. Under Article 16, that
competence requires that the acting authority be legally created by law or regulation and
that the entity must only act in accordance with the express authority granted by Mexican
law. They argue further that since these requirements were not fulfilled in this
situation, the Final Determination should be declared illegal under paragraph I of Article
238 of the Federal Fiscal Code. The Investigating Authority, in turn, in its response and
during the public hearing, argued that the DGATJ had legal existence, in terms of Mexican
law, and was legally empowered to carry out its acts during the proceeding.
The Panel believes that the issues of competence presented to it require a detailed
analysis of the applicable legal provisions and the arguments raised by the parties. The
main elements of this analysis will be reviewed in the following order
- Jurisdiction of the
Administrative Authorities in the Framework of the Mexican Legal System
- Acts Specifically Challenged by the Companies
- Legal Existence and Powers of the Unidad de
Prácticas Comerciales Internacionales
- Guidance from Amparo Judgments in
A. Jurisdiction of the Administrative Authorities in the Framework
of the Mexican Legal System
The LOAPF, which establishes the different
departments and ministries, including SECOFI, specifies the jurisdiction and powers of
subordinate entities within each ministry and secretariat. Articles 14, 16 and 18 of this
law stated, at the relevant time:
| Artículo 14.
"Al frente de cada Secretaría habrá un Secretario de Estado,
quien para el despacho de los asuntos de su competencia se auxiliará por los
subsecretarios, oficial mayor, directores, subdirectores, jefes y subjefes de
departamento, oficina, sección, mesa, y por los demás funcionarios que establezca el
reglamento interior respectivo y otras disposiciones legales."
"Corresponde originalmente a los titulares de las Secretarias de
Estado y Departamentos Administrativos el trámite, y resolución de los asuntos de su
competencia, pero para la mejor organización del trabajo podrán delegar en los
funcionarios a que se refieren los artículos 14 y 15, cualesquiera de sus facultades,
excepto aquellas que por disposición de la ley o del reglamento interior respectivo,
deban ser ejercidas precisamente por dichos titulares...
Los propios titulares de las Secretarías de Estado y Departamentos también podrán
adscribir orgánicamente las unidades administrativas establecidas en el reglamento
interior repectivo, a las subsecretarías, oficialía mayor, y a las otras unidades de
nivel administrativo equivalente que se precisen en el mismo reglamento interior. Los
acuerdos por los cuales se deleguen facultades o se adscriban unidades administrativas
se publicarán en al Diario Oficial de la Federación."
"En el reglamento interior de cada una de las
Secretarías de Estado y Departamentos Administrativos, que será expedido por el
Presidente de la República, se determinarán las atribuciones de sus unidades
administrativas, así como la forma en que los titulares podrán ser suplidos en sus
| Article 14.
"At the head of each Ministry, there shall be a Minister of
State who will be assisted in matters under his jurisdiction by under secretaries, a chief
of staff, directors, deputy directors, and directors and subdirectors of areas, offices,
sections and subsections, and all other authorized persons mentioned in the appropriate
internal regulation and in other legal provisions."
Secretaries of State and the heads of the Administrative Departments are responsible for
the processing and resolution of matters within the jurisdiction of their respective
ministries and agencies. However, in order to better organize their work, they may
delegate any of their powers to the officials referred to in Articles 14 and 15,
except for those powers that by law or in accordance with the respective internal
regulation must be exercised personally by the Secretaries of State and the heads of the
The Secretaries of State and the heads of the Administrative Departments may allocate
organically the administrative units established in their respective internal regulations
to the Under-secretaries, Chief of Staff, and other administrative units at an
administrative level equivalent to those set out in such internal regulations. The
agreements through which the powers are either delegated or granted to administrative
units shall be published in the "Diario Oficial de la Federación."
"The functions of the administrative units of the
Ministries and administrative departments, together with the manner in which they can be
substituted during absences, are determined by the internal regulations of each
Ministry or Administrative Department, which will be issued by the President of the
Republic." (Emphasis added)
Thus, if an
administrative unit within SECOFI is exercising powers, the functions of the unit must
come from a "law" or from an "internal regulation" or
"decree" issued by the President of the Republic. 71 A delegation
of powers to an administrative unit must be published in the
Diario Oficial de la Federación. 72
Secretaries of State may delegate their powers,
except those that must be exercised personally, to the heads of administrative units that
have been lawfully created, and to other officials within those same units.
The LOAPF is based on, and implements, Article 90 of the Federal Constitution of
Mexico, which states:
| Artículo 90.
"La Administración Pública Federal será centralizada y
paraestatal, conforme a la ley orgánica que expida el Congreso, la cual distribuirá los
negocios del orden administrativo de la Federación que estarán a cargo de las
Secretarías de Estado..."
|| Article 90.
"Federal Public Administration shall be centralized and
decentralized according to the Organic Law issued by Congress, which shall distribute the
business of the administrative order of the Federal Government, which shall be under the
charge of the Secretaries of State..."
In addition, Article 89 of the Constitution
confers related powers on the President of the Republic:
| Artículo 89.
"Las facultades y obligaciones del Presidente son las siguientes:
I. Promulgar y ejecutar
las leyes que expida el Congreso de la Unión, proveyendo en las esfera administrativa a
su exacta observancia; ..."
| Article 90.
"The power and duties of the President are the following:
To promulgate and execute the laws enacted
by the Congress of the Union providing for their exact observance in the administrative
Mexico's Supreme Court has ruled that only a
law, or the President of Mexico, acting through an Internal Regulation or a decree, may
create or establish legal organisms of public administration, as can be seen in the
| "FACULTAD REGLAMENTARIA. INCLUYE LA
CREACION DE AUTORIDADES Y LA DETERMINACION DE LAS QUE ESPECIFICAMENTE EJERCITARAN LAS
Está dentro de la facultad
concedida al Presidente de la República por el artículo 89, fracción I, de la
Constitución, crear autoridades que ejerzan las atribuciones asignadas por la ley de la
materia a determinado organismo de la administración pública; igualmente, se encuentra
dentro de dicha facultad el determinar las dependencias u órganos internos especializados
a través de los cuales se deben ejercer las facultades concedidas por la ley a un
organismo público... Además, al tratarse de un organismo que forma parte de la
administración pública, aun cuando sea un organismo descentralizado, es precisamente el
Presidente de la República, titular de esa administración pública, quien
constitucionalmente está facultado para determinar los órganos internos que ejercerán
las facultades otorgadas por la ley, a efecto de hacer posible el cumplimiento de
| "THE REGULATORY POWER ENCOMPASSES THE POWER TO
CREATE AUTHORITIES AND TO DETERMINE WITH PRECISION THOSE THAT WILL EXERCISE GIVEN POWERS.
is within the regulatory power bestowed by Article 89 Section 1 of the Constitution on the
President of the Republic, to create authorities which exercise the powers assigned by an
applicable law to a particular organ of public administration. Similarly, it is within
that power to determine the entities or specialized internal bodies through which the
powers given to public bodies are to be exercised. . . . Furthermore,
where a body which is part of the public administration is involved, even if it is a
decentralized entity, it is precisely the President of the Republic, head of public
administration, who is empowered by the Constitution to determine the internal organs
which will exercise the powers granted by the law, in order to carry out such law."
According to this thesis, there is a serious question whether the DGATJ
had legal existence as an independent legal entity within SECOFI. The DGATJ is not
expressly mentioned in any law or in any internal regulation or decree issued by the
President of the Republic.
The Investigating Authority argues, however, that according to
Mexican law, general directorates can be created in generic form in the laws issued by
Congress, especially by the LOAPF in Article 14. 75
This Panel disagrees with this argument by the Investigating Authority, because the
Supreme Court and other Mexican courts have clearly established the requirement that the
existence of an administrative authority must be provided expressly in a law, internal
regulation or decree of the President. It is incorrect to conclude that administrative
authorities can be created in a generic form.
This requirement has been ratified in recent years in several amparo
proceedings by the Fourth Federal District
Judge of the Federal District. The federal judge granted protection under the
amparo law to several US steel exporters against
a Final Determination issued by SECOFI in an antidumping investigation. 76 In these
the companies argued the lack of competence of two administrative units of SECOFI (the
General de Prácticas Comerciales Internacionales ["DGPCI"] and the
Dirección de Cuotas
In his decisions the federal judge confirmed the lack of competence of both units because
they were not expressly contained in a legal document. 77
SECOFI, however, also argued in its brief and in the public
hearing that all the
acts challenged by the Complainants were acts carried out by the International Trade
Practices Unit or UPCI, the administrative unit with competence to conduct antidumping
investigations, and that the director of the DGATJ acted on behalf of UPCI with express
delegation of powers by UPCI. 78
The Complainants argued that no official or administrative unit could act on behalf of
another administrative unit, or be delegated powers to act on its behalf, unless it
expressly had legal existence in some legal provision.
Regarding this issue, this Panel believes that an interpretation of Articles 14 and 16
of the LOAPF permit it to reach the conclusion that an administrative unit, lawfully
established and with competence to act in certain areas can validly delegate certain
powers to officials (funcionarios) who belong to the same administrative unit which
delegates. To this extent it is possible for the director of the DGATJ to have acted
lawfully as a delegate of UPCI.
In support of this conclusion this Panel will examine:
B) the specific acts challenged by the
companies; C) the
legal existence and powers of the Unidad de Prácticas Comerciales
Internacionales (UPCI); and D) guidance from past amparo
decisions in recent years.
B. Acts Specifically Challenged by the Companies
The specific acts as shown in the administrative record are of the following types:
- Resolutions accepting the petition of the
domestic industry and several notifications informing of the initiation of the antidumping
- Resolutions acknowledging the receipt of various pleadings and
submissions from the Complainants, AHMSA, HYLSA, and other interested parties;
- Notices sent to the exporters informing them of the
initiation of the antidumping proceeding, and enclosing an antidumping questionnaire. In
addition, these notifications purported to state a deadline by which a response to the
questionnaire was required and warned of certain consequences if responses were not
- Resolutions granting a deferral for submitting
- Resolutions requiring additional information;
- Resolutions giving notification of the Preliminary
- Notifications regarding access to confidential information;
- Notifications regarding the treatment and classification of
privileged information, and several resolutions refusing to grant the treatment of
privilege to information submitted; 86
- Notifications informing all interested parties of the date for
the public hearing; 87 and
- Notifications informing all the interested parties of the Final
All of the above documents in these categories begin by identifying the following entity:
"UNIDAD DE PRÁCTICAS COMERCIALES INTERNACIONALES".
In some of these documents, the following name is added to the Unidad de
Prácticas Comerciales Internacionales:
"DIRECCIÓN GENERAL ADJUNTA TÉCNICA JURÍDICA"
In all of the notifications regarding the Final Determination, the following name is
added to the name of the two former administrative entities:
"DIRECCIÓN DE PROCEDIMIENTOS Y PROYECTOS"
Existence and Powers of the Unidad de Prácticas Comerciales Internacionales
After carefully analyzing all of the above documents, this Panel
believes that they can be considered as acts carried out by UPCI, and that this entity
delegated to the official that signed them, the legal powers to issue them as well.
Our position is based upon the following:
First, Article 33 section 1 of the
April 1, 1993, internal regulation of SECOFI gives to UPCI the express powers, "to
investigate, carry out and determine the investigation and administrative procedures on
unfair international trade practices..." Likewise, paragraph IV of the same article
gives UPCI the power to "request documents from the ... exporters".
all of these documents appear as documents of UPCI. This is the
first administrative entity that is mentioned in each one of these documents. Immediately
after the date of each document, there is a code number identifying the verification order
as an UPCI document. For example, the verification order of November 5, 1993, to Productos
Estampados de México, S.A. de C.V., is identified as Document No. UPCI.211.93.3741. Also,
the two officials mentioned in these documents are described as officials of UPCI.
there were two legally valid provisions during the time of the investigation that
delegated power to the Directors of UPCI and its officials to "sign requests for
information, data and documents, and in general to issue official administrative documents
related to the activities that are under their responsibility". The first was the
Acuerdo [Agreement] que Adscribe Unidades Administrativas y
Delega Facultades en los Subsecretarios, Oficial Mayor, Directores Generales y Otros
Subalternos de la SECOFI, dated September 12, 1985, and
the second was the Acuerdo que Adscribe Orgánicamente unidades Administrativas
y Delega Facultades en los Subsecretarios, Oficial Mayor, Jefes de Unidad, Directores
Generales y Otros Subalternos de SECOFI, published in the Diario
Oficial on March 29, 1994. The first of the previously
mentioned "Acuerdos" contained an Article 6 which established that:
| "A fin de agilizar el
despacho de los asuntos dentro de las unidades administrativas competentes,
se faculta a los Directores y Subdirectores de Area, Jefes y Subjefes de Departamento,
Jefes de Oficina, Delegados, Subdelegados y Jefes de Departamento de las Delegaciones
Federales, para que firmen las formas en que se
determinan los derechos que se causen; las órdenes de inspección y visitas
domiciliarias; los requerimientos de informes, datos, documentos y, en general, los
oficios de trámite relacionados con las actividades que tengan a su cargo."
|| "In order
to facilitate matters pertaining to the competent administrative units,
powers are bestowed upon Area Directors and Subdirectors, Departmental Chiefs and
Subchiefs, Office Chiefs, Delegates, Subdelegates and Departmental Chiefs of Federal
Delegations, in order for them to sign the forms that establish any fees to be charged, orders regarding
inspections and domiciliary visits, requests for information, data and documents, and
in general to issue official administrative documents related to the activities that are
under their responsibility." 90 (Emphasis added).
At the same
time the validity of this agreement was ratified by the Acuerdo de Adscripción
Orgánica y de Delegación de Facultades published in the Diario Oficial on
April 3, 1989. 91 The latter Acuerdo states (in
the second transitional provision):
| "Los Acuerdos publicados en
el Diario Oficial de la Federación los días 12 de septiembre de 1985 y 5 de abril de 1988, los que respectivamente
delegan facultades en los Subsecretarios, Oficial Mayor, Directores Generales y otros
subalternos de la Secretaría de Comercio y Fomento Industrial y determinan la
Organización de las Delegaciones Regionales y Federales de la Secretaría de Comercio y
Fomento Industrial y establecen sus facultades, seguirán en vigor en lo que no se opongan
al Reglamento Interior de esta Secretaría y al presente Acuerdo..."
|| "The Agreements published in
the Diario Oficial on September 12, 1985, and April 5, 1988, which respectively delegate authority to the Subsecretaries, Chiefs
of Staff, General Directors and others from the Secretaría de Comercio y Fomento
Industrial and determine the organization of the Federal and Regional Delegations of
SECOFI and establish their powers, will continue to be in force as long as they do not
contravene the Internal Regulation of this Secretariat and the present Agreement..."
The 1985 Acuerdo Delegatorio
remained in effect until it was superseded
by the second transitional provision of the Acuerdo Delegatorio of SECOFI, published in the
Diario Oficial de la
Federación on March 29, 1994:
| "Se abroga el Acuerdo que adscribe Unidades
Administrativas y delega facultades en los Subsecretarios, Oficial Mayor, Directores
Generales y otros Subaltemos de la Secretaría de Comercio y Fomento Industrial, publicado
en el Diario Oficial de la Federación el 12 de
septiembre de 1985, y sus reformas."
|| "This abrogates the Agreement
that assigned Administrative Units and delegated powers to Subsecretaries, Chiefs of
Staff, Directors General and other lower ranking officials of the Secretariat of Commerce
and Industrial Development, published in the Official Gazette of the Federation on the
12th of September, 1985, and its amendments." 92
This same Acuerdo of 1994, however,
established in Article 5, Section VIII, that all the powers granted to the Chief Officer
of UPCI were delegated to the Director General Adjunto Técnico Jurídico, and in his absence, in the
Director de Procedimientos y
Consequently, according to the Acuerdo
1985 and its reforms, and of the Acuerdo of 1994, the Director General Adjunto Técnico Jurídico
and the Director de Procedimientos y Proyectos had the power to issue the acts challenged by the Complainants in
The language of the September 12, 1985 Acuerdo Delegatorio, and of the 1994
important. These texts expressly delegate the power to:
| "los requierimientos de informes, datos, documentos y,
en general, los oficios de trámite relacionados con las asctividades que tengan a su
|| "sign requests for information, data and documents, and
in general to issue official administrative documents related to the activities that are
under their responsibility",
| "expedir los oficios, notificaciones, acuerdos y
comunicaciones relacionados con el trámite y resolución de los procedimientos
administrativos de investigación en materia de prácticas desleales de comercio
|| "issue the notifications,
resolutions and communications related to the conduct and resolutions of the
administrative proceedings on matters of unfair trade practices...",
respectively, in the Directors of UPCI as its officials. In addition, the
text does not delegate the authority to other administrative units such as Directorates
(Direcciones). Instead, the delegation is made to individuals such as Directors
(Directores) and Chiefs (Jefes) and, in the case of the 1994 Acuerdo,
Director General Adjunto Técnico Jurídico y en su ausencia al Director de Procedimientos
|| "to the General Adjunct Legal
Technical Director, and in his absence to the Director of Procedures and Projects". (Emphasis
One can argue that according to the Acuerdo
Delegatorio of 1985, which was confirmed by that of 1994
one, the Officials authorized to conduct the investigation were the Area Director and
Subdirector, and that Mr. Velázquez Elizarrarás, in conducting the investigation during
April 1993, the time when the Interior Regulations of SECOFI appeared, and March 1994, the
time in which the new Acuerdo Delegatorio was
published, acted as Director General Adjunto and
not Area Director. In this respect, it is important to take into account the third
transitional provision of the Internal Regulation of SECOFI of April 1993, which provides:
| "en aquellos casos en que algún ordenamiento haga
referencia a unidades administrativa cuya denominación haya sido cambiada o haya sufrido
alguna fusión o modificación en los términos del presente reglamento, la competencia
específica se entenderá a favor de la unidad administrativa con la denominación
establecida en dicho reglamento o de la que conforme al mismo asuma la función
|| "in those cases in which any legal provision makes
reference to an administrative entity whose name has been changed, or has undergone a
merger or reorganization in terms of the present regulation, the specific competence will
be understood to have been adopted by the new administrative entity with the new name
established in the present internal regulation, or to the one which, according to this
regulation, will carry out the corresponding functions".
It is clear that before the appearance of this internal regulation, the
administrative unit with competence to investigate unfair trade matters delegated the
authority to conduct proceedings to Area directorates or Subdirectorates. When UPCI
appeared, it began to delegate authority in officials whose name changed to Directores
Generales Adjuntos, and these assumed the roles of the former Area Director. This
interpretation is confirmed if we take into account that when the new Acuerdo
Delegatorio of 1994 appeared, it clearly established that
the legal powers of the Chief Officer of UPCI were delegated to the Directores
While it is true that, normally, a Director is the person in charge of a separate
administrative unit, such as a Directorate (Dirección) or a Department (Departmento), we are not, however, aware of any jurisprudence that requires that
a delegation from one lawfully established unit be made only to a second lawfully established entity. Instead, it appears that a proper delegation may
also be made by a lawfully established unit to any official who is also
that same administrative unit. The LOAPF thus
| Artículo 14.
"Al frente de cada Secretaría
habrá un Secretario de Estado, quien para el despacho de los asuntos de su competencia se
auxiliará por los subsecretarios, oficial mayor, directores, subdirectores, jefes y
subjefes de departamento, oficina, sección, mesa, y por los demás
funcionarios que establezca el reglamento interior respectivo y otras disposiciones
originalmente a los titulares de las Secretarías de Estado y Departamentos
Administrativos el trámite, y resolución de los asuntos de su competencia, pero para la
mejor organización de trabajo podrán delegar en los funcionarios a que se
refieren los articulos 14 y 15, cualesquiera de sus
facultades, excepto aquellas que por disposición de la ley o del reglamento interior
respectivo, deban ser ejercidas precisamente por dichos titulares..."
| Article 14.
"At the head of each Ministry, there shall be a Minister of
state who will be assisted in matters under his jurisdiction by under-secretaries, a chief
of staff, directors, deputy directors, and by directors and subdirectors of areas,
offices, sections and subsections, and all other authorized persons
mentioned in the appropriate internal regulation and in other legal provisions."
"The Secretaries of State and the heads of the Administrative
Departments are responsible for the processing and resolution of matters within the
jurisdiction of their respective ministries and agencies. However, in order to better
organize their work, they may delegate any of their powers
to the officials referred to in
Articles 14 and 15, except for those powers that by
law or in accordance with the respective internal regulation must be exercised personally
by the Secretaries of State and the heads of the Administrative Departments..."
Both Articles 14 and 16 contemplate a
delegation to individuals as well as to administrative units. There is no
requirement that an official to whom powers are delegated must be in a different
administrative unit. Rather, the official may be in the same administrative unit, as is
the case here with UPCI.
In summary, Mr. Velázquez and Mr. Saldaña were
officials of UPCI , and had been delegated by UPCI the authority to carry out acts
challenged by the Complainants.
D. Guidance From Amparo Judgments in Recent Years
In a preceding paragraph the Panel made reference to the
amparo decisions of a federal judge that declared
the incompetence of two administrative units of SECOFI. This Panel does not consider these
decisions as applicable to the present case, since the challenged acts in those cases came
from officials within administrative units that lacked legal existence. In the present case, the challenged acts were carried out by a legally
established administrative entity (UPCI), which delegated authority, clearly established
in two Acuerdos Delegatorios, to two officials
working within UPCI. We believe this interpretation is consistent with a principle of
interpretation expressly recognized by the Mexican courts, which requires that whenever
there are two possible contradictory principles of interpretation, the court shall use the
one that results in the least legal uncertainty. If one is to
accept that the delegation of powers can only take place between two independent
administrative units, 94
then one would be forced to accept that the Acuerdos Delegatorios lacked legal rationale,
since precisely what they do is to establish delegation of powers on officials within the same
administrative unit and thus it could not actually be applied. 95
2. LATE ISSUANCE OF THE NOTIFICATION OF THE
INITIATION OF THE INVESTIGATION
At paragraph 6.A.(1) of the Allegations of Errors of Fact or Law presented by the Complainants, 96 they state
that the Investigating Authority violated Constitutional Articles 14 and 16, 97 LCE
Article 53 98 and
Article 142 of its Regulations, 99 and GATT Antidumping Code Article 6.6, 100 by not notifying the Complainants on time
of the decision to initiate the investigation, and by omitting formal requirements that
substantively affected their defences.
The Complainants stated, in their Brief, that "the
Investigating Authority was obliged to notify them within thirty days following the
publication of the Initial Determination." 101
Notwithstanding the foregoing, in the Reply to the
Investigating Authoritys Brief, and to one of the Petitioners Brief (AHMSA),
the Complainants stated that they "do not allege the illegal notification of the
Initial Determination, and therefore they ask the Panel members to not consider such
They then set forth that, "if
the notification of the Initial Determination was not changed as illegal, it is because
the Complainants considered it legal". 103
Finally, they argued that, "It is important for the
Complainants to draw to the attention of the Panel members that they never alleged the
illegality of the notification of the Initial Determination, therefore, the Panel must not
take into account the arguments of AHMSA 104
in relation to this issue.
The Panel believes
that, as was stated by the Investigating Authority, 105
and by one of the Petitioners (AHMSA), 106
the Authority published the Initial Determination of the
Investigation in the Diario Oficial on October 28, 1993, prior to the
notification given to the Complainants, and thus complied with all of the provisions
related to procedures regarding notifications in this investigation as required by LCE
Articles 52, Paragraphs I 107
and 53. It also
complied with the principles of certainty and legality as set forth in Constitutional
Articles 14 and 16, since, as was demonstrated in the administrative record, the
Complainants 108 had the opportunity to file arguments and evidence, in defence of their
interests. Accordingly, paragraph II of Article 238 109 of the FFC, invoked by the Complainants, was not breached.
If the Complainants considered the notification of the Initial Determination an
irregularity, they could have raised this defence within thirty days following the
publication of the Initial Determination in the Diario Oficial, as set forth in LCE Article 53. By not doing so, the notifications
were presumably agreed to, and therefore, are valid.
Finally, as indicated above, the Complainants considered the Initial Determination to
be legal, and thus, contradicted themselves in their original Claim and in their Brief.
Accordingly, the Panel has concluded that the allegation of the Complainants is not
legally founded, and that the Investigating Authority complied with the formal
requirements set forth by the LCE, by adequately giving notification of the Initial
Determination. Therefore, paragraph II of Article 238 of the FFC was not breached.
3. ACCEPTANCE OF THE REQUEST FOR THE INITIATION OF THE INVESTIGATION
BEYOND THE DEADLINE
In the Allegations of Errors of Fact or Law presented by the Complainants
in their Claims, 110
they state that the Investigating Authority, by untimely accepting the request of the
initiation of the investigation filed by the Petitioners, infringed LCE Article 52, GATT
Antidumping Code Article 1 111 and the NAFTA principle of
transparency established for any procedure.
The Complainants stated that on August 4, 1993, the Petitioners, through their legal
counsel, appeared before the Investigating Authority to request the application of an
antidumping duty regime, and of the initiation of antidumping and countervailing duty
investigations over the imports of plate originating and coming from, among other
On October 28, 1993, the decision accepting the request and declaring the initiation of
the antidumping and countervailing duty investigation over the imports on plate was
published in the Diario Oficial ("Initial Determination").
The Complainants state that by calculating time pursuant to the terms established in
the relevant LCE article, the error of the Investigating Authority was clear, because it
accepted the Petitioners request when it was out of time. The deadline to issue the
Initial Determination was on September 15, 1993, and it was in fact issued on October 28,
1993. Therefore, the Complainants argue that they were left defenseless, because they did
not know of the existence or result of the request.
By virtue of the foregoing, the Complainants argue that the
Investigating Authority, by admitting beyond the time limit the request for investigation
filed by the Petitioners, did not comply with the formal applicable legal requirements,
and thus seriously affected the defence of the Complainants, and moreover, breached
paragraph II of Article 238 of the FFC.
In the reply to the Investigating
Authoritys Brief, 112 and to the Petitioners Briefs,
113 the Complainants reserved their
right to verify the facts described in pages 12 and 13 of AHMSAs Brief, 25 of
HYLSAs Brief, and 91 and 92 of the Investigating Authoritys Brief, upon
receipt of access to the confidential information.
Regarding confidential information,
the Panel notes that the Investigating Authority granted access to the Complainants to see
the confidential information. Legal counsel of the Complainants did not examine the
confidential information, as expressly stated during the public hearing 114
and, accordingly, the
Complainants lost the opportunity to verify the facts contained in the pages set forth at
the above paragraph of the Investigating Authoritys Brief and of the
Petitioners Briefs. 115
Notwithstanding the foregoing, this Panel reviewed in detail the administrative record
and accepts what was argued by the Investigating Authority and by the Petitioners; namely,
that the Initial Determination was within the time limits. The Complainants made an
incorrect interpretation of LCE Article 52 and of GATT Antidumping Code Article 1. Even though the petition was not accepted within the 30 days
established in Article 52, the Complainants did not take into consideration paragraph II
of Article 52, 116
which states that the Investigating Authority can request the Petitioners to provide
additional proof or data, and that this must be provided within a 20 day period, and if
the Petitioners provide such information, the Investigating Authority then has another 20
day period to accept the request, and to declare the initiation of the investigation
through a decision that must be published in the Diario Oficial.
In fact, the Petitioners,
first, filed the petition of the initiation on August 4, 1993. 117
Secondly, the Investigating Authority, by means
of the official letters UPCI.93.211.2983 and UPCI.93.211.2984 dated September 13, 1993,
118 required from the Petitioners additional information related
to the application of the reconstructed value as a normal value. This requirement was fulfilled within the 30 day
period set forth in Article 52 of the Foreign Trade Law. Thirdly, the Petitioners provided
the information mentioned on September 27, 1993. 119
Fourthly, the 20 day period to comply with the stated
requirements expired on October 12, 1993. Fifthly, the
Investigating Authority issued the Initial Determination on October 15, 1993,
which was published in the Diario
Oficial on October 28, 1993, 120
i.e., within the 20 business days stated in LCE Article 52.
Taking into account the foregoing, the time that can elapse
between the request for additional information and the publication of the initiation may
extend to 70 business days. If the request for the initiation of the investigation was
submitted on August 4, 1993 and on October 28, 1993, the Initial Decision was published in
the Diario Oficial the time period was 60 days.
The Panel concludes that the allegation raised by the Complainants has no legal
foundation and is therefore invalid. The Investigating Authority complied with the formal
requirements set forth in LCE Article 52 and GATT Antidumping Code Article 1. Therefore,
paragraph II of Article 238 of the FFC relied on by the Complainants was not breached.
ISSUANCE OF THE NOTIFICATION OF THE PRELIMINARY AND FINAL DETERMINATIONS
In their Brief, the Complainants state that the Investigating Authority
violated Constitutional Articles 14 and 16, LCE Articles 57 and 59
121 and Article 142 of its Regulations, and GATT Antidumping Code
Article 7.7, 122 by serving the notifications of the
Preliminary and Final Determination to the Complainants beyond the time deadline, and by
omitting the formal requirements that substantively affected their defences.
The Preliminary and Final Determination were published in the
on the following dates:
- On April 18, 1995, the Preliminary Determination was
published and in that, determination the Investigating Authority decided to continue with
the investigation, without imposing an antidumping duty related to the imports of the
investigated product originating in and coming from, among other countries, Canada.
- On December 28, 1995, the Final Determination regarding the
imports of the investigated product originating in and coming from, among other countries,
Canada, was published.
The Investigating Authority notified the Complainants of the
Preliminary and Final Determinations on April 20, 1995, and on January 9, 1996,
The Preliminary and Final Determinations must be published in the Diario
Oficial according to Articles 52, 57 and 59 of the LCE.
The Claimants state that according to Articles 57 and 59, the Investigating Authority is
obliged to give personal Notification of the Preliminary and Final Determination to the
Parties before publication in the Diario Oficial.
Nevertheless, in accordance with Articles 57 and 59 of the LCE, this Panel concludes
that the publication of the respective Determinations in the Diario Oficial is
enough for them to enter into legal force, independent of whether
the notification of them (personal notification is not compulsory) is done before of after
It is worth noting that the notifications were done on time and in form to all Parties,
and as such the Complainants were never left in a state of legal defenselessness. If the
Complainants believed the notification of the Preliminary Determination was an
irregularity, this could have been raised within thirty days following the publication of
this Determination, as set forth in its paragraph 357. By not doing so, the notifications
were presumably consented to and therefore are valid.
Therefore, paragraph II of Article 238 of the FFC was not breached. The Investigating
Authority complied with all the formal requirement of the LCE and its Regulations, and the
defence of the Complainants was not affected.
LATE ISSUANCE OF THE PRELIMINARY AND FINAL DETERMINATIONS
The Complainants stated in their Claims 123 that the Investigating
Authority seriously infringed Constitutional Articles 14 and 16,
FTL Articles 57 and 59, 124 and GATT Antidumping Code
Articles 5.5 and 6.7, 125
by not issuing the Preliminary and Final Determinations on time. They
also argued that the Investigating Authority also infringed paragraph III of Article 215
of the Criminal Code 126 because the competent officer of the
Investigating Authority abused his authority
by not issuing the Preliminary and Final Determinations on time.
The Complainants stated that between the date of the notice of the initiation of the
investigation published in the Diario Oficial
on October 28, 1993, and the date of issuance and publication of the Preliminary
Determination on April 18, 1995, more than 130 days elapsed. They also stated that more
than 260 days elapsed between the date of the decision to initiate the investigation and
the issuance and publication of the Final Determination on December 28, 1995.
The Investigating Authority in its Brief
127 noted that the reason for exceeding the time
limits set forth in LCE Articles 57 and 59 was
because GATT Antidumping Code Article 5.5 permitted the extension of time limits to issue
the Preliminary and Final Determinations in exceptional circumstances. Notwithstanding the
foregoing, during the Public Hearing, counsel for the Investigating Authority recognized
that such exceptional circumstances were not brought to the Complainants attention.
Moreover, the Investigating Authority and the domestic industry stated that the
investigation due to unfair legal practices of the investigated product was characterized
as a complex process for the following reasons:
- It was a dumping and countervailing duties
- The process was carried out jointly with two other steel
investigations (cold rolled steel and hot rolled steel plate).
- In the three steel investigations, several exporters from
nine countries were investigated.
- There were about twenty importers involved.
- There was a need to obtain numerous documents of various
types of subsidies from the governments of the United States of America, Venezuela and
- The end of the investigation was affected by two more events
following the public hearing; an expert proof applied for by the enterprise Hogoverns
Groep B.V. and SIDOR; and the submission and analysis of price commitments promoted by the
Under these conditions, the investigation of price
discrimination and subsidies could not be subject to the regular time limits of a normal
investigation and, given the extraordinary characteristics of the investigation procedures
carried out, this procedure was subject to Article 5.5. of the GATT Antidumping Code.
This Panel considers that although the Investigating
Authority in its Brief invoked GATT Antidumping Code Article 5.5., such argument is
dismissed by this Panel. In the view of the Panel, the Investigating Authority had to base
its Final Determination in Article 5.5 and it failed to do so.
The Panel concludes that there was always certainty with respect to the legal situation
of the Complainants.
Regarding the Initiation decision, the Complainants were notified of the initiation of
the investigating procedure, and they were given the opportunity to appear before the
Investigating Authority to support their interests and rights.
In paragraph 112 of the Initiation decision a 30 day period, from the date upon which
that decision took effect, was allowed the importers, exporters, foreign juridical persons
that had an interest in the result of the investigation to appear before SECOFI to argue
their interests and file their questionnaires.
Notwithstanding the foregoing, the Complainants ALGOMA, STELCO and DOFASCO did not
appear before the Authority, and only TITAN completed the questionnaire requested by
Regarding the Preliminary Determination issued on April 18, 1995, it is also clear the
Complainants had legal certainty, as the Investigating Authority decided not to impose
provisional countervailing duties, but continued with the administrative investigation. At
paragraph 357 of the Preliminary Determination, the Complainants were granted a 30 day
period, counted from the publication in the Diario Oficial so that the interested
parties could submit additional evidence and
arguments. None of the Complainants did this. Thus, it is clear the Complainants were not
This Panel notes that by giving timely notice to the
Complainants of the Initiation decision and Preliminary Determination, these firms were
able to appear before SECOFI. The legal counsel of record for the Complainants, Mr.
Francisco Fuentes Ostos, who, notwithstanding his appearance before SECOFI, considered it
unnecessary for his clients to answer the questionnaires directed to ALGOMA, STELCO and
DOFASCO. He expressly stated this at the Public Hearing held on July 18, 1997. 128
Since, Mr. Francisco Fuentes Ostos appeared at the hearing before SECOFI during the
administrative investigation, and as he is and has been the legal representative of all
the Complainants throughout, it cannot be said that the Complainants other than TITAN were
left in a state of legal defenselessness.
The Investigating Authority timely notified in writing the
interested parties of the Initiation, and Preliminary Determination, as appears from the
administrative record and gave the opportunity to the parties to file their defences
before it. Regarding the Final Determination, although it was not notified within time,
the Complainants were not left in a state of legal uncertainty as they possessed
sufficient knowledge to elect the review which resulted in this proceeding. In summary,
this Panel concludes that the Complainants were not left in a degree of legal uncertainty
that would constitute a breach of paragraph III of Article 238 of the FFC. 129
Notwithstanding that the Panel considers that, in this
particular case, the defences of the Complainants were not affected by the Investigating
Authority, this Panel notes that Article 5.5. of GATT Antidumping Code provides that
"Investigations shall, except in special circumstances, be concluded within one year
after their initiation." In opinion of this Panel, the inclusion of Article 5.5 in
the Code was intended to ensure that administrative authorities in member countries did
not unduly extend investigations as a means of mitigating potential negative impacts on
NAFTA Article 1904(2) specifically provides that for the purpose of Panel reviews
"the antidumping and countervailing duties statutes of the Parties, as those statutes
may be amended from time to time, are incorporated into and made part of this
Agreement." Further, Article 1904(15), concerning amendments to domestic laws, is
particularly important in respect of the requirements to be adopted by each Signatory
Party to fulfil their NAFTA commitments. Paragraph (f) of the schedule for Mexico is most
significant in this instance since it required Mexico to amend its
antidumping/countervailing duties statutes to provide "explicit and adequate
timetables for determinations of the competent investigating authority ..." The time frames set out in Articles 52, 53, 57 and 59 of the LCE
appear to be consistent with this requirement. It is relevant to note in this connection
that the timeframes provided for in the NAFTA essentially mirror comparable provisions
found in the laws of both Canada and the United States and would appear to be in keeping
with one of the underlying objectives of NAFTA (Article 1902(2) (d) (ii). 131
The investigation of imports of steel plate from Canada was initiated in the fall of
1993, shortly after the time limits were adopted in the NAFTA (July 27, 1993) and just
prior to the coming into force of NAFTA on January 1, 1994. Moreover, the maximum time
limit for investigations provided for in the new WTO Agreement appears to be applicable
only to investigations initiated after January 1, 1995. As it seems clear that since this
investigation was initiated before these new international agreements took effect, their
time limits do not apply in this case. The first indication that the Investigating
Authority intended to rely on GATT Code Article 5.5 rather than in NAFTA to justify
its lengthy investigation was only provided in response to the Brief submitted by
the Complainants on July 26, 1996.
This Panel believes that in the absence of legislated and mandatory time limits on the
investigation process, uncertainty, risk, excessive costs and lost business can result for
all parties involved in a case. While the interests of domestic producers in any
particular case may be opposed to those of the importers/exporters, all parties seek
prompt decisions. The domestic industry, which is allegedly suffering injury from the
dumped/subsidized imports, clearly seeks an early decision in order to protect its
domestic production from future damage. Importers and exporters likewise want an early
decision in the investigation so that they can market their goods free of concerns about
unexpected import penalties being imposed in order to remove uncertainty and minimize the
very heavy costs now associated with bringing and defending antidumping and countervailing
duties cases in many countries. Lengthy antidumping investigations often had the effect of
a non-tariff barrier due to the uncertainty created for importers and exporters of the
products concerned especially since the allegations of dumping and injury, in many
instances, were not supported by the facts. On a more general level, lengthy
investigations can have a negative effect at the economy of the importing country as a
whole by mitigating the competitive advantages associated with freer trade.
In summary, we consider it important to emphasize that in this case the Complainants
did not prove they suffered any economic or legal injury because of the late issuance by
the Investigating Authority of the Preliminary and Final Determinations. We are aware that
such injury may be caused to other Complainants in future administrative investigations if
time limits are not met, and this Panel considers that it is the obligation of the
Investigating Authority to adhere to the time limits established in the Articles of the
LCE mentioned above. In case of special circumstances requiring the extension of time
limits, express mention of the reasons should be made known during the investigating
Regarding the Complainants invocation of the negative
answer principle in Article 37 of the FFC, 132
this Panel considers that such is not well founded. Negativa ficta in Mexican law is considered as a legal fiction in the sense that if
the tax authority is silent regarding a formal request from an individual or juridical
person for three months, the interested party may treat that silence as the
authoritys denial of the request. Thereupon a remedy is
available. In this proceeding, the Complainants did not file any request nor were they
ever in a position to claim the benefit of negativa ficta. 133
It is evident that Complainants elected to wait until the Investigating Authority had
issued its determinations before taking any steps.
Finally, regarding the Complainants argument that the
Investigating Authority is subject to the application of the provisions of Article 215 of
the Criminal Code for the Federal District, 134
which establishes the offences against the administration of justice committed by public
officers, this Panel considers that it has no jurisdiction to investigate offences
committed by public officers, since Article 21 Constitution establishes the Public
Prosecutor as the primary authority for the prosecution of such offences. This argument is
dismissed as it was not filed before the competent authority.
The investigation by SECOFI of injury
attributable to imports of rolled steel plate from Canada was based on the assumption that
all such imports, with the exception of those shipped by ALGOMA to AHMSA, were dumped 135 and,
when accumulated with imports from other sources, were determined to be injurious to
domestic producers. It is important to note that this
investigation was concerned with actual injury caused by imports during the investigation
period, i.e., 1992, and not a threat of injury. 136
In making its determination, SECOFI proceeded on what it
considered to be the best information available. This approach was adopted since the
Complainants ALGOMA, STELCO and DOFASCO had not responded to the questionnaires, or
provided any other relevant information, and because the information that had been
received from TITAN was not taken into account. SECOFI decided that the margin for this
"trading company" must be the same as that estimated for the producer of the
goods. 137 In fact, the data used to support the decision on price discrimination
against Canadian producers was obtained from the domestic industry. 138
In their brief, and at the public hearing, the Complainants argued, among other things,
that SECOFI mistakenly assessed the relationship between TITAN and DOFASCO, did not
adequately assess the similarity of the imported and domestic products, and omitted to
take into account in their injury evaluations the increases in installed capacity and
production of rolled steel plate by domestic producers, the effects of the devaluation of
the peso exchange rate in 1994, the investment activities of the domestic producers, and
certain developments in the domestic economy after the period of investigation.
The Panel has reviewed each of these allegations and
SECOFIs responses to them.
The Panel concurs with the view of SECOFI that the peso devaluation and the economic
situation that prevailed subsequent to 1992 are not relevant to the injury decision taken
in this instance. Under the law, discretion is provided to SECOFI to decide in any
particular case if the facts warrant a determination of injury alone, or whether it should
also include the "threat of injury". As indicated above, the decision in this
case related to actual injury not a threat of injury and, as such, the injury assessment
due to the dumped imports must be limited to the period of investigation, i.e., 1992.
At paragraphs 509 and 510 of the Final Determination, it is noted that more than 50% of
the rolled steel plate imports from Canada were purchased by firms who were direct clients
of the domestic industry. Based on this data and an examination of the tariff
classifications applied to the imported goods, it was concluded by SECOFI that the
imported product was similar to the domestic product, and that it was marketed through the
same channels of distribution. Further, at paragraph 533, it is stated that during the 10
months of 1992, imports from Canada increased 13%, amounting to 14% of total imports and
4% of the apparent domestic consumption. As a result, SECOFI in
accordance with Article 67 of the Foreign Trade Regulations determined that imports
originating in Canada were significant during this period, and that they should be
accumulated with imports of similar products from Brazil, USA and Venezuela for the
purposes of assessing injury. 139
Paragraphs 549 to 627 of the Final Determination provide a detailed report on the
factors taken into account by SECOFI in its decision on injury. In this regard, the Panel
notes that the issues of domestic production, installed capacity and inventories,
employment, profits, prices together with other relevant factors were all examined by
SECOFI in the process of making the Final Determination. Further, it is noted that SECOFI
in its written response to the Complainants brief and orally at the public hearing
addressed each of the points raised by the Complainants, arguing that its analysis took
these points into account.
The Panel notes that the law and the regulations requires that a decision on injury
must be based on an examination of the impact of a variety of factors on domestic
production and, in this context, the significant requirement is that the investigating
authorities evaluate all of the relevant factors. As a result of
its analysis, SECOFI concluded that imports originating in the four countries caused
damage to domestic production of rolled steel plate due to a considerable growth of dumped
imports, in both absolute and relative terms, and substantially lower import prices than
domestic prices which, in turn, caused a decrease in domestic price levels, a loss of
clients and domestic industry´s participation in the market, and adverse effects on
domestic industry production, income, profits and inventories during the investigation
In the Panels view, SECOFI complied with the provisions of Article 39 of the LCE
in concluding that injury was caused to domestic production due to the accumulated imports
carried out under conditions of price discrimination.
The main outstanding issue raised by the Complainants in this context which, in the
Panels view, has a direct bearing on the injury decision against Canadian exporters,
relates to the position of TITAN, and the admission by SECOFI that it erred in not
establishing a specific margin of price discrimination for this firm.
In this connection, the Panel sought clarification at various points in the public
hearing in relation to the statistics covering imports from Canada during the
investigation period. Faced with incomplete statistical data, the Panel undertook a
careful examination of the figures included in the administrative record. Based on this
analysis, the Panel has concluded the following:
- There is no information in the administrative record to indicate that ALGOMA,
STELCO or DOFASCO exported rolled steel plate directly to Mexico in 1992.
- The Commercial Information System indicates that steel plate imports from Canada in 1992
amounted to approximately 14,400 tons of which 711 tons were imported by AHMSA from
- An examination of the actual invoices covering TITANs shipments to Mexico in 1992
revealed an amazing coincidence of volumes between its shipments and those attributed by
SECOFI to Canada as a whole. Indeed, based on the administrative record, the Panel has
concluded that the total volume of imports claimed by SECOFI as originating in Canada
could only have been exported by Titan and not other Canadian suppliers.
- Some of the Titan invoices clearly indicate that some of the goods shipped were
"seconds" rather than first quality goods.
Accordingly, as the Panels examination of the administrative record indicates
that the only supplier of rolled steel plate from Canada to Mexico in 1992 was TITAN, a
new decision by SECOFI relating to the margin of price discrimination, if any, for TITAN
may also result in a major change in the Final Determination as it relates to injury and
the margin, if any, appropriate for other potential Canadian suppliers.
In this regard, it is relevant to note that a dumping/injury determination can only be
made against goods which are, in fact, found to be dumped. All other imports must be
ignored by the authorities in assessing this crucial causal relationship. Thus, the
existence of dumping, the dumping margins involved, and the volume of dumped imports are
inextricably linked in all injury determinations. In this case, SECOFI admitted an error
in not establishing a price discrimination margin for TITAN in the Final Determination.
Whatever margin is established for this firm must, of course, be based on the
administrative record and, at this stage, the Panel has no way of knowing whether all or
any of the imports from TITAN were, in fact, dumped. Some of these goods may not have been
dumped, some may only have a de minimis margin, and others may require differentiated treatment because they
were second quality goods. By extension, the volume of dumped goods from TITAN that was
factored by SECOFI into its decisions relating to accumulation, whether the imports from
Canada were significant, and the injury determination per se may well have been incorrect.
This situation is further compounded by the fact that the
Panels review of the administrative record confirms that subject goods from Canada
were only supplied by TITAN during 1992. Counsel at the public hearing implied that other
Canadian producers also shipped product to Mexico during the period of investigation 141 and, as
a result, a country-wide margin of price discrimination was established at 31.08%. Given
that only exports from TITAN were involved, and as SECOFI did not establish acceptable
volume and value calculations for this firm, it appears to the Panel that all calculations
relating to imports of rolled steel plate from Canada are also suspect.
In the circumstances, it is the view of the Panel that any new price discrimination
margin decision relating to TITAN must clearly indicate the precise volume of TITANs
exports that were dumped in 1992, the volume of seconds involved, and the dumping margins,
if any, applicable to both. Once this determination has been made, SECOFI must proceed to
factor this new data into its decision as to whether the dumped imports continue to be
"significant", and whether their accumulation with imports from other sources
continues to be appropriate for the purpose of determining injury. Further, since TITAN
was the sole supplier of these goods to Mexico in 1992, and since its margin must be
recalculated, it seems obvious that the need for a country-wide determination, and the
level of the margin of price discrimination appropriate to other Canadian exporters,
should be reassessed.
It will be apparent from the foregoing that, in the Panels view, all aspects of
injury during the period of investigation are open to question given the Investigating
Authoritys request for a remand to determine a margin for TITAN.
1. The Request for a Remand by the Investigating Authority
With regard to the request for a remand by the Investigating Authority, the Panel notes
- The Investigating Authority in its Final
Determination dated December 19, 1995, declined to establish a specific price
discrimination margin for the complainant TITAN, arguing that it played a similar role to
the sales department of the producer of the goods.
- TITAN and the other three Complainants (ALGOMA, DOFASCO and
STELCO each timely filed on December 28, 1995, a complaint under Rules 35 and 39 of the
Rules of Procedure alleging errors of fact and law by the Investigating Authority in
failing to establish a specific antidumping margin for TITAN.
- The Complainants timely filed on May 28, 1996, a joint brief
with grounds and arguments supporting the allegations in their complaints. The issue
regarding the relationship between TITAN and DOFASCO was stated as follows:
"4. RELATIONSHIP BETWEEN DOFASCO AND
SECOFI mistakenly understood the facts. Since the answer to the Initial Determination
filed on January 11, 1994 TITAN proved that it was a corporation incorporated in the USA
and that it was independent from DOFASCO. Therefore, TITAN answered in time the
questionnaire and argued (and proved) that the reconstructed value principle that
respondents requested to be applied was not right, due to the provision of Article 32 of
the law. All TITAN's operations were done so to "allow it to cover the cost of
production and general expenses incurred during the normal course of business". Based on the above, normal value of TITAN's operations must had
been determined based on the second paragraph of Article 31 of the Law, as requested by
TITAN in its answer to the Initial Determination". 142
- SECOFI, in its brief timely filed on July
26, 1996, in reply, accepted as an issue its failure to determine a specific price
discrimination (antidumping) margin for TITAN and stated:
"On the other hand, the
Investigating Authority admits that it erred in the Final Determination by not assessing
TITAN with a specific antidumping duty. Therefore, it respectfully requested that the
Panel remand the administrative file according to Article 1904.8 of NAFTA [...] in order
to analyze the information contained within the administrative file, and in due course, to
determine a specific antidumping duty for TITAN". 143
- SECOFI also requested the following in
concluding its Brief
"PART V. POINTS OF REQUEST:
[...] FIFTH. - To remand the Final Determination to the Investigating Authority in
order to proceed to assess the information and evidence in the administrative file, and to
determine a specific antidumping duty for TITAN.
SIXTH. - In
accordance with Article 1904.8 NAFTA to uphold all other points
of the Final Determination for imports of rolled plate from Canada". 144
With respect to the above two points of the Request, the
Panel notes that the purpose of the Rules is to secure the just, speedy and inexpensive
review of Final Determinations in accordance with the objectives and provisions of Article
1904. Since July 26, 1996, SECOFI has wished to correct the Final Determination as it
relates to TITAN. However, it has not told the Panel or the Complainants what its mistake
was, how it would correct that mistake, and what effect the correction would have.
Nevertheless, it asks that the Panel uphold all other points of the Final Determination.
It would thus be allowed to change the Final Determination but leave the Complainants with
no real right of reply. This would amount to a denial of due process, a fundamental rule
of procedure. The Panel cannot agree to grant a remand on these terms.
Moreover, the administrative record to which SECOFI refers is defined in Article 1911
"Article 1911. Definitions
For the Purposes of this Chapter:
administrative record means, unless otherwise agreed by the Parties and the other
persons appearing before a Panel:
- all documentary or other information presented to or obtained by the competent
investigating authority in the course of the administrative proceeding, including any
governmental memoranda pertaining to the case, and including any record of ex parte
meetings as may be required to be kept;
- a copy of the Final Determination of the competent investigating authority, including
reasons for the determination;
- all transcripts or record of conferences of hearings before the competent investigating
- all notifications published in the official journal of the importing Party in connection
with the administrative proceeding;"
Therefore, the administrative record is widely defined to include documents or other
information from the public domain (non-confidential), documents or other information of a
proprietary character (confidential), documents or other information that are privileged
(privileged), and sources of which a complainant has no knowledge.
SECOFI may consult all four of these components of the administrative record in
correcting its mistake. Equality of treatment entitles the Complainants to access the same
sources of information.
VII. ORDER OF THE PANEL
In view of the foregoing and pursuant to the NAFTA Article 1904(8), the Final
Determination is hereby remanded for action by the Investigating Authority so that it may
issue a new Final Determination, within 60 days from the notification of this Order, not
incompatible with the following:
1. REGARDING TITAN
In making a new Final Determination, the Investigating Authority shall:
- Establish, based solely on the information contained in the administrative
record, whether Titan was the only exporter of Canadian made
rolled steel "plate" to Mexico in 1992;
- Establish definitively the volume of rolled steel plate exports attributable to
TITAN during 1992 and indicate how much, if any, were second quality goods;
- Assess, based on the analysis resulting from (A) and (B), whether the total
import from Titan were significant for the purposes of
accumulation in accordance with paragraph 2 of Article 67 of the Foreign Trade Law
- Evaluate, based on the results of the foregoing and the administrative record
including any accumulation considerations involved, the injurious impact of TITANs
1992 exports from Canada on producers in Mexico; and,
- Substantiate the conclusions respecting points (A) to (D) through the
identification of the relevant supporting evidence in the administrative record.
Consistent with the request received from the Investigating
Authority in its brief dated July 26, 1996, the Panel remands the Final Determination to
enable the Investigating Authority to assess the information and evidence in the
administrative record and, taking into account the results of its examination of the
points raised in points A) to E) above, to establish, if
appropriate, a specific margin of price discrimination in respect of imports from TITAN.
2. REGARDING CANADIAN EXPORTERS OTHER THAN TITAN
As indicated above, except for the specific shipment of steel plate from ALGOMA to
AHMSA, the Panel could find no evidence in the administrative record of exports of rolled
steel plate to Mexico from these producers, or any other Canadian producers during 1992.
All the evidence indicates that TITAN was the sole supplier of these goods to Mexico
during the period of investigation. Accordingly, we order that the countrywide price
discrimination margins against Canadian producers must be reassessed.
3. REGARDING THE COMPLAINANTS
If the Investigating Authority supplements the administrative record on remand and the
Complainants wish to challenge the Determination on remand, pursuant to Rule
73(2)(b) of the Rules of Procedure, the Complainants may do so without re-opening their
case, and by filing a written submission in accordance with Rule 73(2)(b), and for this
purpose may have access to the confidential record. The Panels Order of May 21,
1997, is amended accordingly.
Issued on December 17, 1997.
Signed in the original by:
| December 17, 1997
|| Gustavo Vega Cánovas, Chairman of the Panel.
| December 17, 1997
|| D.M.M. Goldie
| December 17, 1997
|| Lucía Reina Antuña
| December 17, 1997
|| W. Roy Hines
| December 17, 1997
|| Rodolfo Terrazas Salgado
Attaching a concurring opinion regarding
Part III of this Final Decision.
1 Administrative Record,
Confidential Version ("CV"), Vol.s 1-11, Nº 1, File 9303690.
2 Administrative Record, CV,
Vol. 12, Nº 8, Folio 9304369.
3 Administrative Record, CV,
Vol. 10, Nº 14, Folio 35-93/RIP.
4 Administrative Record, CV,
Vol. 14, Nº 158, Folio 9400178.
5 Administrative Record, CV,
Vol. 18, Nº 470, File RESP.PRELI.PR.
6 Administrative Record, CV,
Vol. 25, Nº 751, File 35-93/RFP.
7 Application of a Review
Before a Panel, Administrative Record, CV, Vol. 1.
8 Complaints, Administrative
Record, CV, Vol. 1, Doc. Nº 14.
9 Brief of the Investigating
Authority, July 26, 1996, p. xxii.
11 Administrative Record, CV,
Vol. 1, Doc. Nº 16.
12 Administrative Record, CV,
Vol. 1, Doc. Nº 15.
13 Administrative Record, CV,
Vol. 1, Doc. Nº 18.
14 Administrative Record, CV,
Vol. 4, Doc. Nº 31.
15 Administrative Record, CV,
Vol. 4, Doc. Nº 42.
16 Administrative Record, CV,
Vol. 4, Doc. Nº 43.
18 Administrative Record, CV,
Vol. 4, Doc. Nº 70.
19 Administrative Record, CV,
File Nº SMSTLC-1996-J-520.
23 Administrative Record, CV,
Vol. 6, Doc. Nº 58.
24 Administrative Record, CV,
Vol. 6, Doc. Nº 61.
25 Administrative Record, CV,
Vol. 6, Doc. Nº 62.
26 Administrative Record, CV,
Vol. 6 Doc. Nº 65.
27 SECOFI, Subsecretaría
de Negociaciones Comeciales Internacionales (Sub-secretary of International
Commercial Negotiations), File Nº 511.04.01.97.
28 Administrative Record, CV,
Vol. 6, Doc. Nº 71.
29 Administrative Record, CV,
Vol. 9, Doc. Nº 113.
30 Administrative Record, CV,
Vol. 6, Doc. Nº 72.
31 Administrative Record, CV,
Vol. 9, Doc. Nº 119.
32 Administrative Record, CV,
Vol. 6, Doc. Nº 71.
33 Administrative Record, CV,
Vol. 12, Doc. Nº 155.
34 Administrative Record, CV,
Vol. 6, Doc. Nº 71.
35 Administrative Record, CV,
Vol. 6, Doc. Nº 71.
36 Administrative Record, CV,
Vol. 6, Doc. Nº 71.
37 Administrative Record, CV,
Vol. 6, Doc. Nº 73.
38 Administrative Record, CV,
Vol. 3, Doc. Nº 30.
39 Administrative Record, CV,
Vol. 6, Doc. Nº 75.
40 Administrative Record, CV,
Vol. 7, Doc. Nº 77.
41 Administrative Record, CV,
Vol. 6, Doc. Nº 64.
42 Administrative Record, CV,
Vol. 7, Doc. Nº 79.
43 Administrative Record, CV,
Vol. 7, Doc. Nº 79.
44 Administrative Record, CV,
Vol. 7, Doc. Nº 87.
45 Administrative Record, CV,
Vol. 8, Doc. Nº 89.
46 Administrative Record, CV,
Vol. 8, Doc. Nº 97.
47 Administrative Record, CV,
Vol. 9, Doc. Nº 105.
48 Administrative Record, CV,
Vol. 10, Doc. Nº 125.
49 Administrative Record, CV,
Vol. 12, Doc. Nº 151.
50 Administrative Record, CV,
Vol. 12, Doc. Nº 154.
51 Administrative Record, CV,
Vol. 12, Doc. Nº 164.
52 See: the implications of
the request for remand of the Investigating Authority developed in the injury section of
53 See: Section VII of this
Final Decision, regarding the Panels Order related to the Complainants, infra.
54 See: the implications of
the Investigating Authoritys error, which this Panel addresses in the injury section
of this Decision.
55 According to paragraph XI
of article 11 of the Ley Orgánica del Tribunal Fiscal de la Federación
published in the Diario Oficial de la Federación on December 15, 1995, the
internal judicial review of the final determination on compensatory quotas corresponds to
56 NAFTA, Annex
57 This last
paragraph of Article 238 was inserted through ammendment published in the Diario
Oficial on December 5, 1995, and entered into force on January 1, 1996.
Article 1904 (3).
59 See: the
Final Decision MEX-94-1904-02.
60 For similar
reasons, Article 237 of the Federal Fiscal Code is not part of the standard of review that
this Panel must apply.
61 As an
example, recall the economic implications that can be found in paragraph II of Article 238
of the Federal Fiscal Code, implications to which this Panel refers in section V on Issues
in Litigation, subsection 5, which corresponds to "Extemporaneiety of the Issuance of
the Preliminary and Definitive Resolutions".
important instrument of international law is part of Mexican positive law, since,
according to the applicable constitutional and legal provisions, was adopted by Mexico on
May 23, 1969, was ratified on September 25, 1974, and was published in the Diario
Oficial on February 14, 1975. It entered into force on January 27, 1980.
63 The criteria
or methods of legal interperetation most commonly used in Mexico are: the logical, the
systematical, the authentical and the causal teleological. For more details See: Ignacio
Burgoa, Las Garantías Individuales, México, Porrúa, 1991, pp. 575 y 576.
64 It is
evident that article 1904 excludes the Constitution of each country, that consequently
cannot be an applicable provision in matters of countervailing and antidumping duties,
since article 1911 contains it in the definition of internal law, but it is only
established for the purposes of article 1905.1, this means it is invoked only for the
effects of the safeguard of the review system. So the Constitution should not be a direct
source of the grounds that the Panel uses to issue its final decision.
65 It is
important to note that the Código Fiscal de la Federación might eventually
become a part of the legislation whose compliance must be safeguarded by the Panel, to the
extent that article 85 of the Ley de Comercio Exterior recognises in it a
supplementary character in the following terms: "In the absence of an express
provision in this law in what relates to administrative procedures in the matter of unfair
international trade practices and safeguard measures, supplementary the Código Fiscal
will be applied, in accordance with the nature of this proceeding. This provision will not
be applied in what relates to notices and verification visits".
Gabino, Derecho Administrativo. Mexico, Porrúa, 1968, at 62.
is to be distinguished from the principle in the common law known as stare decisis.
Jurisprudencia, when established, is binding on a court of coordinate or lower
rank in the judicial hierarchy. When established, it is also a source of Mexican law. Jurisprudencia
is established when a certain number of specific decisions of a judicial authority
designated by law to have the effect, are alike with respect to one or more points of law.
Ignacio, El Juicio de Amparo. Mexico, Porrúa, 1981, at 819.
69 See: García
Maynez, Eduardo. Introducción al Estudio del Derecho. Mexico, Porrúa, 1992. at
70 Art. 260 of
Article 16, 18.
Article, 14, 16.
Sala. Semanario Judicial de la Federación. 8a. época, tomo III, primera parte, p.
277. Amparo en revisión 6458/85. Francisco Javier Vázquez Balderas. 10. de
febrero de 1989. 5 votos. Ponente: Manuel Gutiérrez de Velasco. Secretaria: Rosalba
Becerril Velázquez. Amparo en revisión 1129/88. Compañía Mexicana de
Ingeniería, Sociedad Anónima. 8 de junio de 1988. Unanimidad de votos. Ponente: Atanasio
González Martínez. Secretaria: Alicia Rodríguez Cruz de Blanco (8a. época, tomo I,
primera parte 1, p. 223). Amparo en revisión 480/84. Compañía Minera Río
Colorado, S. A. 23 de agosto de 1984. Unanimidad de 4 votos. Ausente: Santiago Rodríguez
Roldán. Ponente: Carlos del Río Rodríguez. Secretaria: Diana Bernal Ladrón Guevara
(7a. época, vols. 187-192, tercera parte, p. 65)
75 This same
position was adopted by the Binational Panel in Case MEX-96-1904-03. For the reasons
offered above, this panel respectfully disagrees with this opinion.
76 See:, Amparos
193/93; 194/93 y 195/93
77 One of these
amparo decisions has recently been upheld on appeal. The court in this appeal upheld an amparo
based on the lack of competence of the administrative unit because it was not listed
in the applicable Internal Regulation of SECOFI. Quinto Tribunal Colegiado en Materia
Administrativa del Primer Circuito. Amparo en revisión 3005/94 (Amparo Decision
No. 194/93), June 24, 1996
78 See: the
English version of the transcript of the Public Hearing, pp. 74, ff.
Administrative Record, CV, Nos. 15, 17, 19, 20, 22, 24, 25, 28, 30, 32, 35, 36, 38, 40,
42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 61, 62, 63, 64, 66, 68, 72, 74, 75, 76, 77, 78,
79, 81, 82, 84, 85, 87, 89, 90, 92, 93, 95, 97, 98, 99, 100, 101, 102, 103, 104, 105, 107,
110, 112 y 114.
Nos. 118, 148, 150, 151, 154, 156, 157, 161, 162, 164, 167, 168, 171, 173, 176, 178, 180,
184, 186, 187, 188, 190, 193, 196, 197, 199, 201, 203, 205, 207, 210, 214, 215, 235, 247,
248, 251, 253, 255, 256, 261, 263, 265, 268, 272, 304, 306, 313, 316, 318, 320, 480, 482,
505, 514, 565, 567, 584, 618, 630, 634, 635, 638, 676, 679, 687, 689, 691, 693, 698, 702,
704, 706, 711, 742, 745 y 747.
Nos. 213, 218, 220, 221, 222, 223, 225, 227, 229, 232 y 233.
115, 179 y 213.
83 See: the
Administrative Record, Public Version ("PV"), Nos. 302, 303, 308, 309, 310, 352,
354, 356, 358, 360, 362, 364, 366, 369, 373, 375, 377, 379, 383 and 384.
Nos. 418, 419, 420, 421, 422, 423, 424, 426, 428, 430 and 432.
Administrative Record, CV, Nos. 238 and 241.
Nos. 243, 244 and 245.
87 See: the
Administrative Record, PV, Nos. 644, 646, 648, 650, 652, 654, 662 and 663.
713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727, 728, 729, 730,
731, 732, 733, 734, 735, 736, 737, 738, 739, 740 and 741.
Velázquez Elizarrás is the one who signs all the Doc.s, with the exception of the
notifications of the Final Determination, which is signed by Mr. Juan Saldaña.
90 See: Acuerdo
que adscribe unidades administrativas y delega facultades en los Subsecretarios, Oficial
Mayor, Directores Generales y otros subalternos de la Secretaría de Comercio y Fomento
Industrial, published in the Diario Oficial, on Thursday, September 12,
1985, p. 19.
91 See: Acuerdo
por el que se adscriben orgánicamente las unidades administrativas de la Secretaría de
Comercio y Fomento Industrial, published in the Diario Oficial on Monday April 3,
1989, p. 22.
92 See: Diario
Oficial, 29 de marzo de 1994, p. 12.
93 And in
general, all other powers bestowed in the Chief Officer of UPCI. See: Acuerdo
Delegatorio of 1994, article 5, section VIII, subsections a) to r).
principle was cleary recognised by the majority of the Binational Panel in case
MEX-94-1904-02. For the reasons mentioned above, this Panel respectfully disagrees with
95 See: the Ejecutoria:
"Seguro Social. Notificaciones en el recurso de inconformidad ante él". Instancia:
segunda sala. Fuente: Semanario Judicial de la Federación. Época: 6 A. Vol.n:
XIV - página: 74.
96 Claims of
TITAN, ALGOMA, DOFASCO and STELCO, p.. 3.
14.- "[...] Nobody may be deprived from life, freedom, properties,
possessions or rights, but by means of a suit filed before the established courts, in
which the essential formalities of procedure are fulfilled, and according to the laws
issued before the fact."
Article 16. - "Nobody may be disturbed in his
person, family, domicile, papers or possessions, but by virtue of a written notice given
by a competent authority, that grounds and motivates the legal cause of the
53. "From the date in which the Initial Determination of the Investigation
is published at the Federal Official Gazette, the Ministry must notify interested parties
know to it, so that they may appear before it and present their position. To this end, the
interested parties shall be granted a thirty day term, counted from the date of
publication of the Initial Decision at the Federal Official Gazette, to submit their
defence and the Doc.s upon wich they shall rely.
Along with the notice, the authority shall send a copy of the submitted
application, and the attachments that do not contain confidential information or, as the
case may be, the corresponding Doc.s related to investigations".
142. "The Ministry must notify on time and in writing to the interested
parties the determination regarding the procedures referred herein."
6.6. "When the competent authorities are satisfied that there is sufficient
proof to justify the commencement of an antidumping investigation according to Article 5,
it shall notify the party or parties whose products will be subject to investigation, the
interested exporters, importers that the investigating authority is aware of and the
petitioners, and it shall publish the corresponding notice."
Complainant´s Brief, p. 24.
to the Investigating Authoritys Brief, p. 20.
cit., p. 21.
to AHMSAs Brief, p. 7.
Investigating Authoritys Brief, p.s 72, 73 and 74.
AMHSAs Brief, p.s 11, 12 and 13.
52. "Within a thirty day term from the filing of the petitions, the Ministry
I. Accept the petition and shall declare the beginning
of the investigation through the corresponding decision that shall be published at the Diario
footnote at the Investigating Authoritys Brief, p. 73.
238. "An administrative decision shall be declared illegal when one of the
following causes is demonstrated:
[...] II. Omission of the formal requirements obliged
by law that affects the defences of the persons and goes beyond the sense of the disputed
decisions including, as the case may be, the absence of foundation and motivation."
of TITAN, ALGOMA, DOFASCO and STELCO, p. 5.
1. "The establishment of an antidumping right is a measure that only has to
be adopted in the circumstances set forth in Article VI of the General Agreement by virtue
of the beginning of an investigation carried out according to the provisions of this Code.
The following provisions shall rule the application of Article VI of the General Agreement
provided that they take measures according to the antidumping laws or regulations."
to the Investigating Authoritys Brief, p.s 28 and 29.
to HYLSAs Brief, p. 8 and Answer to AHMSAs Brief, p. 7.
Version of the Public Hearing, p. 134.
115 With the
exceptions expressed by this Panel in the Resolution of the Pending Motion of July 8,
1997. See: supra, Section on Resolution of Pending Motions.
52. "Within a thirty day term from the filing of the petitions, the Ministry
I. Accept the petition and shall declare the beginning
of the investigation through the corresponding Decision that shall be published at the
Federal Official Gazette.
II. Require to the petitioner more evidentiary or data
elements, which should be furnished within a term of 20 days counted from the reception of
the request. If the request is satisfactorily complied with, in a twenty day term the
Ministry shall proceed pursuant to the above mentioned fraction. If the elements are not
furnished in abandoned time and manner required, the petition should be considered as
abandoned and the petitioner shall be personally notified, or..."
Administrative Record, CV, Vols. 1-11, Nº 1, Folio 930690.
Administrative Record, CV, Vol. 12, Nº 6.
Administrative Record, CV, Vol. 12, Nº 8, Folio 9303 690.
Administrative Record, CV, Vol. 10, Nº 14.
57. - [last paragraph] "The Preliminary Determination must be notified to
the interested parties and must be published at the Federal Official Gazette."
Article 59. - [last paragraph] "The Final
Determination must be notified to the interested parties and must be published in the
Federal Official Gazette."
7.7. "When according to what it is set forth in paragraph 1 of this Article
an antidumping investigation is suspended or concluded or when a commitment expires, this
fact shall be officially noticed and shall be published. In the corresponding notices, at
least the basic conclusions should be stated and a summary of the reasons that justify
of TITAN, ALGOMA, DOFASCO and STELCO, p. 4.
57. Within 130 days term, counted from the date following the publication of the
initial Decision of the investigation at the Federal Official Gazette, the Ministry shall
issue the preliminary Decision, by means of which it may: ..."
"Article 59. Within 260 days term, counted from
the date following the publication of the initial Decision of the investigation at the
Federal Official Gazette, the Ministry shall issue the final Decision ..."
5.5. Except for exceptional circumstances, the investigations must be concluded
within a year counted from the date of its initiation."
215. Official servants commit the offence of abusing of their authority when they
incur in some of the following infractions:
[...] III. When they unduly retard or deny the
particulars the protection or the service that they are obliged to grant them or hinders
the submittal or the course of a petition;"
Investigating Authoritys Brief, pp. 74-80.
version of the transcript of the Public Hearing, p. 133.
238. An administrative Decision shall be declared illegal when one of the
following causes is demonstrated:
[...] III. Vices of procedure that affect the defences
of the private person and goes further in the sense of the disputed Decision."
provision was reinforced in the negotiation of the WTO Uruguay Round that regulates the
application of GATT Article VI of 1994. Article 5.10 of this Agreement establishes a term
of 18 months during which the antidumping investigations shall be concluded. This
Agreement is effective as of January 1, 1995.
Article 1902 (2) (d) (ii) states that "the object and the purpose of this Agreement
and this Chapter, which is to establish fair and predictable conditions for the
progressive liberalisation of trade between the Parties to this Agreement while
maintaining effective and fair disciplines on unfair trade practices, such object and
purpose to be ascertained from the provisions of this Agreement, its preamble and
objectives, and the practices of the Parties."
"The Petitions made before the Fiscal Authorities must be resolved in a period of
three months; after that period, without the Resolution being notified, the interested
Party may consider that the Authority resolved against, and thus may interpose any defence
at any time after that period, even if the Resolution has not been issued; or she may wait
until the Resolution is issued."
133 See: Negativa
Ficta y Negativa Expresa. See: Contradicción de tesis 27/90. Suscitada
entre el Sexto y Primer Tribunales Colegiados en Materia Administrativa del Primer
Circuito y los Tribunales Cuarto y Quinto en Materia Adminstrativa del mismo Circuito. 16
de junio de 1995. Cinco votos. Ponente: Juan Díaz Romero. Secretario: Jacinto Figueroa
Salmorán. Tesis de Jurisprudencia 26/95. Aprobada por la Segunda Sala de este alto
Tribuanl, en sussión pública de dieciséis de junio de mil novecientos noventa y cinco,
por unanimidad de cinco votos de los señores Ministros: Presidente Juan Díaz Romero,
Genaro David Góngora Pimentel, Mariano Azuela Güitrón, Guillermo I. Ortiz Mayagoitia y
Sergio Salvador Aguirre Anguiano. Segunda Sala, Semanario Judicial de la Federación y su
Gaceta, Novena Época, 11, julio, 1995, Tesis 2a./J.26/95, página 77.
Claimants Brief, p.s 41 and 42.
Uruchurtu, p. 66, Transcript of Public Hearing, English version.
Uruchurtu, p. 84, Transcript of Public Hearing, English version
paragraph 110, Final Determination.
paragraph 114, Final Determination and Mr Uruchurtu, p. 67 Transcript of Public Hearing,
Paragraphs 534 and 543, Final Determination
Paragraph 633, Final Determination
141 P. 152,
Transcript of Public Hearing, English version
Complainants Brief of May 28, 1996, Spanish version, p. 25.
143 See: the
Investigating Authoritys Brief of July 26, 1996, pp. 86-87.