WORLD TRADE
ORGANIZATION
|
WT/DS141/AB/RW
8 April 2003
(03-1917) |
|
Original: English |
EUROPEAN COMMUNITIES � ANTI-DUMPING DUTIES ON IMPORTS
OF COTTON-TYPE BED LINEN FROM INDIA
RECOURSE TO ARTICLE 21.5 OF THE DSU BY INDIA
AB-2003-1
Report of the Appellate Body
(Continued)
V. Paragraphs 1 and 2 of Article 3 of the Anti-Dumping
Agreement
A. Introduction
101. India appeals the Panel's finding that the European
Communities did not act inconsistently with paragraphs 1 and 2 of Article 3 of
the Anti-Dumping Agreement.120 India contends that the European
Communities did act inconsistently with those provisions, because the
investigating authorities of the European Communities found, for purposes of
determining injury, that all imports attributable to Indian
producers or exporters for which no individual margin of dumping was
calculated were dumped. India argues that this "determination by the EC
neither rested on positive evidence, nor was objective, and, accordingly, was
inconsistent with Articles 3.1 and 3.2 of the Anti‑Dumping Agreement."121
According to India, the European Communities was required to determine the
volume of dumped imports attributable to producers that were not
examined individually on the basis of the proportion of
imports found to be dumped from producers that were examined
individually.122 In other words, India argues that, where a certain
proportion of the
volume of the imports attributable to producers examined individually is found
to be dumped, paragraphs 1 and 2 of Article 3 require the investigating
authorities to determine the volume of dumped imports attributable to the
producers that were not individually examined in the same
proportion.
102. We begin by recalling the findings of the original panel
and the Article 21.5 Panel insofar as they are relevant for resolving this
issue. Before the original panel, India claimed that, by including import transactions for which there was no evidence of dumping in the
volume of dumped imports when determining injury, the European Communities
violated paragraphs 1 and 2 of Article 3. The European Communities contended
that the volume of dumped imports, for purposes of Article 3, includes all
imports originating in the investigated country found to be dumping.
The original panel disagreed with India, and concluded that dumping is a
determination made with reference to imports from a particular producer
or exporter, and not with reference to individual
transactions.123 In the original panel's view, if a producer or exporter
that is examined individually is found to be dumping, all import
transactions attributable to that producer or exporter may be considered as
dumped. The original panel found no violation of Article 3 in relation to the
determination of the volume of dumped imports.124 This latter finding of the
original panel was not appealed.
103. In the redetermination that gave rise to this appeal, the investigating authorities of the European Communities recalculated dumping margins for the five
Indian producers and exporters that had been examined individually in the original determination that led to the
original measure. They did so without applying the practice of "zeroing", which
had been found to be inconsistent with Article 2.4.2 in the original
proceedings.125 In this recalculation, the investigating authorities found
that three of the five Indian producers examined individually were dumping, and
two were not. It is undisputed between the parties that the two Indian
producers found not to be dumping accounted for 53 percent of all
imports attributable to the five producers which were examined individually.
Based on this recalculation, the European Communities concluded that all
imports attributable to all other Indian producers or
exporters�which were not examined individually�were dumped.
For purposes of determining injury, the investigating authorities excluded
from the volume of dumped imports the imports from the two producers that were
examined individually and found not to be dumping126, but
included all imports from Indian producers that had not been examined
individually and for which, therefore, there was no direct evidence from the
investigation.
104. Before the Article 21.5 Panel, India
claimed that the European Communities violated paragraphs 1 and 2 of Article 3
by finding, in this redetermination, that all imports attributable to
Indian producers or exporters that were not individually examined
were dumped. In reply, the European Communities contended that nothing
in the Anti-Dumping Agreement prohibits Members from including in
the volume of dumped imports, the volume of all imports from producers which
were examined individually and found to be dumping, as well as all
imports from producers which were not examined individually.
105. The Panel found that the European Communities "did not
act inconsistently with Articles 3.1 and 3.2 of the [Anti-Dumping] Agreement in
its consideration of 'dumped imports' in this case".127 The Panel's finding
was premised essentially on the argument that paragraphs 1 and 2 of Article 3
"contain no guidance whatsoever regarding the determination of the volume of
dumped imports".128 In the Panel's view, the fact that "Article 9.4 allows
anti-dumping duties to be collected on imports from producers for which
an individual determination of dumping � was not made � necessarily entails that
[imports attributed to] such producers are properly considered � as 'dumped
imports' for the purposes of Articles 3.1 and 3.2".129 The Panel concluded
"that the [Anti-Dumping] Agreement does not require an investigating
authority to determine the volume of imports from producers outside the sample
that is properly considered 'dumped imports' for purposes of injury analysis on
the basis of the proportion of imports from sampled producers that is found to
be dumped." 130 106. On appeal, India requests that we reverse this
finding. In India's view, paragraphs 1 and 2 of Article 3 do not permit a
determination of injury to be based on imports from producers for which there is
"no evidence" of dumping.131 India notes that the evidence from the sample of
examined producers indicated that only 47 percent of the imports
attributed to those producers were dumped. Therefore, according to India, the
European Communities' determination, on the basis of this evidence alone, that
86 percent of the total imports from India were dumped, and, therefore,
that this was the percentage of the "volume of the dumped imports", under
paragraphs 1 and 2 of Article 3, did not result from an "objective examination"
on the basis of "positive evidence", as required by the first paragraph of
Article 3.132 In India's view, imports from producers for which an individual
determination of dumping is not made must be presumed not to have been dumped in the same proportion as imports determined not
to have been dumped from producers for which an individual determination
of dumping was made.133
107. The European Communities requests that we uphold
the Panel's finding. The European Communities argues that it is entitled, for
purposes of paragraphs 1 and 2 of Article 3, to treat as dumped all
imports attributable to producers for which it did not make an
affirmative determination of no dumping. According to the European
Communities, this includes all imports attributable to producers that were
examined individually and found to be dumping, as well as all
imports attributable to producers that were not examined individually.134
According to the European Communities, all imports attributable to
producers that were not examined individually may be treated as dumped,
for purposes of determining injury under Article 3, because Article 9.4 permits
the imposition of the "all others" duty rate on imports attributable to non-examined
producers.135
B. Analysis
108. We recall at the outset that the Anti-Dumping
Agreement permits importing Members to counteract dumping by imposing
anti-dumping measures on imports from companies of exporting Members when an
investigation demonstrates that all the requirements of that Agreement are
fulfilled. It is useful also to recall the specific standard of review under the
Anti-Dumping Agreement that the Panel was required to follow in this
dispute. This standard of review is set out in Article 17.6 of the
Anti-Dumping Agreement.136 As to the facts, under Article 17.6(i), a
panel "shall" determine whether the establishment of the facts by the
investigating authorities was "proper" and whether the evaluation of those facts
was "unbiased and objective". If the establishment of the facts was proper and
the evaluation was unbiased and objective, then a panel "shall not" overturn
that evaluation, even though it might have reached a different conclusion. As to
the law, under Article 17.6(ii), first sentence, a panel "shall interpret the
relevant provisions of the Agreement in accordance with customary rules of
interpretation of public international law." Under Article 17.6(ii), second
sentence, where a panel finds from such an interpretation that a relevant
provision of the Anti‑Dumping Agreement "admits of more than one
permissible interpretation", the panel "shall find the [investigating]
authorities' measure to be in conformity with the Agreement if it rests upon one
of those permissible interpretations." We examine the issues raised in this
appeal with this standard of review in mind.
109. We begin our analysis with an examination of Article 3
of the Anti-Dumping Agreement, which is entitled "Determination of
Injury". Paragraphs 1 and 2 of Article 3 read as follows:
3.1 A determination of injury for purposes of
Article VI of GATT 1994 shall be based on positive evidence and
involve an objective examination of both (a) the volume
of the dumped imports and the effect of the dumped imports on
prices in the domestic market for like products, and (b) the
consequent impact of these imports on domestic producers of such
products. (emphasis added)
3.2 With regard to the volume of the dumped
imports, the investigating authorities shall consider whether
there has been a significant increase in dumped imports, either
in absolute terms or relative to production or consumption in the
importing Member. With regard to the effect of the dumped imports on prices, the investigating authorities shall consider whether there
has been a significant price undercutting by the dumped imports as compared with the price of a like product of the importing Member, or
whether the effect of such imports is otherwise to depress prices
to a significant degree or prevent price increases, which otherwise
would have occurred, to a significant degree. No one or several of these
factors can necessarily give decisive guidance. (emphasis added)
These obligations are absolute. They provide for no
exceptions, and they include no qualifications. They must be met by every
investigating authority in every injury determination.
110. In Thailand � H-Beams, we emphasized the
relevance of Article 3.1 as an "overarching provision" that informs the more
detailed obligations in the succeeding paragraphs of Article 3:
Article 3 as a whole deals with obligations of
Members with respect to the determination of injury. Article 3.1 is
an overarching provision that sets forth a Member's fundamental,
substantive obligation in this respect. Article 3.1 informs the more
detailed obligations in succeeding paragraphs. These obligations concern
the determination of the volume of dumped imports, and their effect
on prices (Article 3.2) � The focus of Article 3 is thus on substantive
obligations that a Member must fulfill in making an injury
determination.137 (original italics; underlining added)
111. It is clear from the text of Article 3.1 that
investigating authorities must ensure that a "determination of injury" is made
on the basis of "positive evidence" and an "objective examination" of the volume
and effect of imports that are dumped�and to the exclusion of the
volume and effect of imports that are not dumped. It is clear
from the text of Article 3.2 that investigating authorities must consider
whether there has been a significant increase in dumped imports,
and that they must examine the effect of dumped imports on prices
resulting from price undercutting, price depression, or price suppression.
112. Article 3.5 continues in the same vein as the initial
paragraphs of Article 3 by requiring a demonstration that dumped imports are
causing injury to the domestic industry "through the effects of dumping",
which, of course, depends upon there being imports from producers or exporters
that are dumped. In addition, Article 3.5 lists "volume and
prices of imports not sold at dumping prices" as an example of "known factors other than the dumped imports" that are injuring the domestic
industry at the same time as the dumped imports. Article 3.5 requires that this
injury not be attributed to the dumped imports. Thus, injury
caused by "volume and prices of imports not sold at dumping prices"
must be separated and distinguished from injury caused by the "dumped
imports". None of these provisions of the Anti-Dumping Agreement can be
construed to suggest that Members may include in the volume of dumped imports the imports from producers that are not found to be
dumping.
113. Although paragraphs 1 and 2 of Article 3 do not set out
a specific methodology that investigating authorities are required to
follow when calculating the volume of "dumped imports", this does not mean that
paragraphs 1 and 2 of Article 3 confer unfettered discretion on investigating
authorities to pick and choose whatever methodology they see fit for determining
the volume and effects of the dumped imports. Paragraphs 1 and 2 of Article 3
require investigating authorities to make a determination of injury on the basis
of "positive evidence" and to ensure that the injury determination results from
an "objective examination" of the volume of dumped imports, the effects of the
dumped imports on prices, and, ultimately, the state of the domestic industry.
Thus, whatever methodology investigating authorities choose for determining the
volume of dumped imports, if that methodology fails to ensure that a
determination of injury is made on the basis of "positive evidence" and involves
an "objective examination" of dumped imports�rather than imports
that are found not to be dumped�it is not consistent with paragraphs 1
and 2 of Article 3.
114. In US � Hot-Rolled Steel, we defined
"positive evidence" as follows:
The term "positive evidence" relates, in our view, to
the quality of the evidence that authorities may rely upon in
making a determination. The word "positive" means, to us, that the
evidence must be of an affirmative, objective and verifiable
character, and that it must be credible.138 (emphasis added)
In that same appeal, we also defined an "objective
examination":
The term "objective examination" aims at a different
aspect of the investigating authorities' determination. While the term
"positive evidence" focuses on the facts underpinning and justifying the
injury determination, the term "objective examination" is concerned with
the investigative process itself. The word "examination" relates, in our
view, to the way in which the evidence is gathered, inquired into and,
subsequently, evaluated; that is, it relates to the conduct of the
investigation generally. The word "objective", which qualifies the word
"examination", indicates essentially that the "examination" process must
conform to the dictates of the basic principles of good faith and
fundamental fairness.139 (footnote omitted)
We summed up in that appeal the requirement to conduct an
"objective examination" as follows:
In short, an "objective examination" requires that
the domestic industry, and the effects of dumped imports, be
investigated in an unbiased manner, without favouring the
interests of any interested party, or group of interested parties,
in the investigation. The duty of the investigating authorities to
conduct an "objective examination" recognizes that the determination
will be influenced by the objectivity, or any lack thereof, of the
investigative process.140 (footnote omitted, emphasis added)
We observe that, in response to our questions at the oral
hearing, both participants in this appeal confirmed that they agree with these
interpretations of the terms "positive evidence" and an "objective examination",
as set out in US �Hot-Rolled Steel.141
115. Moreover, at the oral hearing, none of the participants
disagreed with the findings of the original panel and the Article 21.5 Panel
relating to the treatment, for purposes of determining injury, of imports
attributed to producers or exporters that were examined individually
in an investigation. Accordingly, if a producer or exporter is found to be
dumping, all imports from that producer or exporter may be included
in the volume of dumped imports, but, if a producer or exporter is found
not to be dumping, all imports from that producer or exporter must be
excluded from the volume of dumped imports.142
116. The issue raised in this appeal, however, does not
relate to imports from producers or exporters that were examined individually
in an investigation. Rather, it relates to the appropriate treatment of imports
from producers or exporters that were not examined individually
in such an investigation. The appeal before us involves an investigation in
which individual margins of dumping have not been
determined for each Indian producer exporting to the European
Communities. It is, of course, not necessary under the Anti-Dumping
Agreement for investigating authorities to examine each producer
and exporter. The second sentence of Article 6.10 authorizes investigating
authorities, when determining margins of dumping, to limit their examination
where the number of producers or exporters of the product under
investigation is so large that the determination of an individual
margin of dumping for each of them would be impracticable. This
limited examination may be conducted in one of two alternative ways identified
in Article 6.10: the authorities may limit their examination "either to a
reasonable number of interested parties or products by using samples
which are statistically valid on the basis of information available to the
authorities at the time of the selection, or to the largest percentage of the
volume of the exports from the country in question which can reasonably be
investigated."
117. Thus, there is a right to conduct a limited examination
in the circumstances described in the second sentence of Article 6.10.
Paragraphs 1 and 2 of Article 3 must, accordingly, be interpreted in a way that
permits investigating authorities to satisfy the requirements of "positive
evidence" and an "objective examination" without having to investigate each
producer or exporter individually. This does not, however, in any way, absolve
investigating authorities from the absolute requirements in paragraphs 1 and 2
of Article 3 that the volume of dumped imports be determined on the basis of
"positive evidence" and an "objective examination".
118. We have noted that neither paragraph 1 nor paragraph 2
of Article 3�nor any other provision of the Anti-Dumping Agreement�sets
forth a specific methodology that must be followed by investigating
authorities when calculating the volume of dumped imports for purposes of
determining injury. Still, whatever methodology investigating authorities choose
for calculating the volume of "dumped imports", that calculation and,
ultimately, the determination of injury under Article 3, clearly must be made on
the basis of "positive evidence" and involve an "objective examination". These
requirements are not ambiguous, and they do not "admit of more than one
permissible interpretation" within the meaning of the second sentence of
Article 17.6(ii). Therefore, as in US � Hot-Rolled Steel, our
interpretation of these requirements is based on customary rules of
interpretation of public international law, as required by the first sentence of
Article 17.6(ii).143 This leaves no room, in this appeal, for recourse to the
second sentence of Article 17.6(ii) in interpreting paragraphs 1 and 2 of
Article 3.
119. India argues that the European Communities failed to
determine the volume of dumped imports attributable to non-examined
producers on the basis of "positive evidence" and an "objective examination".
Although the Indian producers that were examined individually and found
to be dumping accounted for only 47 percent of imports attributable to all
examined producers, the European Communities determined that all
imports attributable to non-examined producers were dumped. India
submits that an "objective examination" of the "positive evidence" from examined
producers would lead to the conclusion that the same proportion, that is 47
percent, of imports attributable to non-examined producers were dumped.
The European Communities contends that its conclusion, for purposes of
determining injury, that all imports attributable to non-examined
producers are dumped, is based on "positive evidence" and an "objective
examination", as required by paragraphs 1 and 2 of Article 3, because it is
justified by Article 9.4. Article 9.4 defines the maximum anti-dumping duty that
may be applied to imports from producers for which an individual dumping margin
has not been separately calculated�commonly referred to as the
"all others" duty rate.144 The European Communities argues that, inasmuch as
Article 9.4 does not limit the volume of imports from non-examined
producers to which the "all others" duty rate may be applied, the practice of
the European Communities must be permissible because the volume of
imports subject to anti-dumping duties under Article 9 must be the same
as the volume considered to be dumped for purposes of determining
injury under Article 3.145
120. Regarding the requirement of "positive evidence", the
European Communities maintains that it determined the volume of dumped imports
on the basis of "positive evidence" under Article 3 because its investigating
authorities calculated the "all others" duty rate under Article 9.4 on the basis
of the weighted average of the dumping margins established for the three
producers that were examined and found to be dumping. Regarding the requirement
of an "objective examination", the European Communities points to the fact that
Article 9.4 permits the imposition of the "all others" duty rate on all
imports from all non-examined producers, and argues on this basis
that the European Communities is entitled to include all imports
from non-examined producers in the volume of dumped imports, when
determining injury under Article 3.146 In the view of the European
Communities, this approach must necessarily constitute an "objective
examination" for purposes of Article 3 because, if this approach were not
"objective and unbiased"147, the drafters of the Anti‑Dumping Agreement
would not have adopted it in Article 9.4. Accordingly, the European Communities
concludes that the approach applied in this investigation satisfies the
requirements of paragraphs 1 and 2 of Article 3 to base the determination of the
volume of dumped imports and, ultimately, the determination of injury, on
"positive evidence" and an "objective examination".
121. India rejects the European Communities' interpretation
of the "volume of dumped imports" in Article 3 as including the volume of
imports subject to the application of the "all others" duty rate under
Article 9.4. India submits that the determination of the dumping "margin" is
separate and distinct from the imposition and collection of anti-dumping
"duties".148 In India's view, Article 9.4 comes into play only after
the investigating authorities have determined that all the conditions for the
imposition of anti-dumping duties (namely, dumping, injury, and causation) have
been fulfilled. According to India, Article 9.4 cannot be read to permit a
derogation from the explicit requirements of paragraphs 1 and 2 of Article 3,
namely that a determination of injury must be made on the basis of "positive
evidence" and an "objective examination" of the volume and the effect of the
dumped imports.
122. We turn now to an examination of Article 9, entitled
"Imposition and Collection of Anti-Dumping Duties". Article 9.1 confers on
Members the discretion to decide whether to impose an anti-dumping duty in cases
where all the requirements for such imposition "have been fulfilled ".149
Where these requirements "have been fulfilled "150, Article 9.4 defines the
maximum anti-dumping duty that may be applied to exports from producers not
individually examined when the investigating authorities "have limited "
their examination in accordance with either alternative provided in the second
sentence of Article 6.10.151
123. Japan contended in its third party submission, and also
in its statement at the oral hearing, that the use of the present perfect tense
in paragraphs 1 and 4 of Article 9 ("have been fulfilled" and "have limited") is
significant.152 In our view, too, the use by the drafters of the present
perfect tense is significant; it indicates that the imposition and collection
of anti-dumping duties under Article 9 is a separate and distinct phase of an
anti-dumping action that necessarily occurs after the
determination of dumping, injury, and causation under Articles 2 and 3 has been
made.153 Members have the right to impose and collect anti-dumping duties only after the completion of an investigation in which it has been
established that the requirements of dumping, injury, and causation "have
been fulfilled ". In other words, the right to impose anti-dumping duties
under Article 9 is a consequence of the prior determination of the
existence of dumping margins, injury, and a causal link. The determination, by
the investigating authorities of a Member, that there is injury caused by a
certain volume of dumping necessarily precedes and gives rise to the consequential
right to impose and collect anti-dumping duties.154
124. When examining the practice of "zeroing" in the original
dispute, we noted that the requirements of Article 9 do not have a bearing on
Article 2.4.2, because the rules on the determination of the margin of
dumping are distinct and separate from the rules on the imposition and
collection of anti-dumping duties.155 Similarly, in this
implementation dispute, we are of the view that Article 9.4, which specifies
what action may be taken only after certain prerequisites have
been determined, is of little relevance for interpreting Article 3, which sets
out those prerequisites. We do not see how Article 9.4, which authorizes the
imposition of a certain maximum anti-dumping duty on imports from
non-examined producers, is relevant for interpreting paragraphs 1 and 2 of
Article 3, which deal with the determination of injury based on the volume
of "dumped imports". Paragraphs 1 and 2 of Article 3 make no reference at all to
Article 9.4, or to the specific methodology set out in Article 9.4 for
calculating the "all others" duty rate, which comes into play only when imposing
and collecting anti-dumping duties. Likewise, Article 9.4 does not mention the
term "dumped imports" or the "volume" of such imports. In our view, the right to
impose a certain maximum amount of anti-dumping duties on imports
attributable to non-examined producers under Article 9.4 cannot be read
as permitting a derogation from the express and unambiguous requirements of
paragraphs 1 and 2 of Article 3 to determine the volume of dumped
imports�including dumped import volumes attributable to non-examined
producers�on the basis of "positive evidence" and an "objective examination".
Thus, we see no basis for the European Communities' view that Article 9.4
establishes a methodology for calculating the volume of dumped imports from non-examined
producers for purposes of determining injury on the basis of "positive evidence"
and an "objective examination" under paragraphs 1 and 2 of Article 3.
125. Moreover, Article 9.4, which relates to the imposition
of anti-dumping duties on imports from non-examined producers, has, by its own
terms, a limited purpose as an exception to the rule in
Article 9.3. Article 9.3 provides that "[t]he amount of the anti-dumping duty
shall not exceed the margin of dumping as established under Article 2."156
When individual dumping margins are determined for each producer or
exporter, the volume of imports attributable to producers that were
examined individually and found to be dumping will match the volume of
imports attributable to those producers for which anti-dumping duties are
collected. However, as noted earlier, where the determination of individual
dumping margins for each producer is impracticable, the second
sentence of Article 6.10 permits investigating authorities�as an exception to
the rule in the first sentence of Article 6.10157 �to limit their
examination to some�and not all�producers. In such cases, as an exception
to the rule in Article 9.3, Article 9.4 permits the imposition of a certain
maximum amount of anti-dumping duties on imports attributable to producers that
were not examined individually158, irrespective of whether those producers
would have been found to be dumping had they been examined individually. It is
likely, therefore, that this "all others" duty rate will be imposed on imports
attributable at least to some producers that, in reality, might not be
dumping. Hence, the reliance by the European Communities on Article 9.4, in
interpreting paragraphs 1 and 2 of Article 3, is misplaced.
126. In sum, Article 9.4 provides no guidance for determining
the volume of dumped imports from producers that were not
individually examined on the basis of "positive evidence" and an "objective
examination" under Article 3. The exception in Article 9.4, which authorizes the
imposition of anti-dumping duties on imports from producers for which no
individual dumping margin has been calculated, cannot be assumed
to extend to Article 3, and, in particular, in this dispute, to paragraphs 1 and
2 of Article 3. For the same reasons, we do not see why the volume of imports
that has been found to be dumped by non-examined producers, for purposes of
determining injury under paragraphs 1 and 2 of Article 3, must be
congruent with the volume of imports from those non-examined
producers that is subject to the imposition of anti-dumping duties
under Article 9.4, as contended by the European Communities and the Panel.159
127. Having concluded that Article 9.4 does not provide
justification for considering all imports from non-examined
producers as dumped for purposes of Article 3, we turn now to consider
whether the European Communities' determination of the volume of dumped imports
and, ultimately, of injury, in this investigation, was in accordance with
paragraphs 1 and 2 of Article 3. To do so, we must examine whether this
determination was made on the basis of "positive evidence" and involved an
"objective examination" of the volume of dumped imports and their effect on
prices and on domestic producers.
128. As we have already noted, it is not in dispute between the participants that the evidence from the five examined Indian
producers exporting to the European Communities shows that the producers
accounting for 47 percent of all imports attributable to all examined producers
were found to be dumping; nor is it in dispute that the evidence also shows that
the producers accounting for 53 percent of those imports were found not
to be dumping.160 The European Communities confirmed at the oral hearing that
the evidence from the five examined producers is the entirety of the evidence on
which the determination by the European Communities of the volume of dumped
imports (attributable to examined and non-examined producers) was based161; thus,
the participants agree that there is no other evidence on the record of this
investigation that could serve as "positive evidence" for determining the volume
of dumped imports. Therefore, it is undisputed that the only
available evidence for determining which import volumes can be attributed to non-examined
producers that are dumping is the evidence obtained from the five examined
producers.
129. We observe that, in other anti-dumping investigations,
there may be different and additional types of evidence that properly could be
considered as "positive evidence" and relied upon when determining, on the basis
of an "objective examination", the volume of dumped imports.162 That,
however, is not the case before us.
130. In this dispute, we agree with the participants that the
evidence on dumping margins established for the producers that were examined
individually is "positive" in the sense that we defined it in US � Hot-Rolled
Steel, namely that it is "affirmative, objective, verifiable, and
credible".163 We also agree with India that evidence on dumping
margins of more than de minimis for examined producers is relevant as
"positive evidence" in this investigation for determining which import volumes
may be attributed to non-examined producers that are dumping.164
In our view,
both these qualities of evidence are probative of the existence of dumping in
the circumstances of this investigation. Therefore, we conclude that the
European Communities met the first requirement of paragraphs 1 and 2 of
Article 3 by basing its determination on that "positive evidence".
131. Having established this, we must next assess whether the determination at issue of the volume of dumped imports attributable to non-examined producers was based on an
"objective examination" of that positive evidence. India argues that, in the light of the facts of this dispute, an "objective examination" could not have led the European
Communities to conclude that all imports attributable to non-examined
producers were dumped; nor, India argues, could an "objective examination" have
led to the conclusion in the redetermination that 86 percent of total
imports from all examined and non-examined Indian producers were
dumped.165 The European Communities contends that import volumes subject to
the "all others" duty rate under Article 9.4 may be considered as "dumped
imports" under paragraphs 1 and 2 of Article 3. As explained earlier, the
European Communities is of the view that the approach authorized under
Article 9.4 meets the "objective examination" requirement of Article 3.1.
132. We disagree with the European Communities. We recall our
statement in US � Hot-Rolled Steel that:
� the investigating authorities' evaluation of the
relevant factors must respect the fundamental obligation, in
Article 3.1, of those authorities to conduct an "objective examination".
If an examination is to be "objective", the identification,
investigation and evaluation of the relevant factors must be even-handed.
Thus, investigating authorities are not entitled to conduct
their investigation in such a way that it becomes more likely that,
as a result of the fact-finding or evaluation process, they will
determine that the domestic industry is injured.166 (emphasis
added)
The approach taken by the European Communities in determining
the volume of dumped imports was not based on an "objective examination". The
examination was not "objective" because its result is predetermined by the
methodology itself. Under the approach used by the European Communities,
whenever the investigating authorities decide to limit the examination
to some, but not all, producers�as they are entitled to do under Article 6.10�all
imports from all non-examined producers will necessarily always be
included in the volume of dumped imports under Article 3, as long as any of the producers examined individually were found to be dumping. This is so because Article 9.4 permits the
imposition of the "all others" duty rate on imports from non-examined producers, regardless of which
alternative in the second sentence of Article 6.10 is applied. In other words,
under the European Communities' approach, imports attributable to non-examined
producers are simply presumed, in all circumstances, to be dumped,
for purposes of Article 3, solely because they are subject to the imposition of
anti-dumping duties under Article 9.4. This approach makes it "more likely [that
the investigating authorities] will determine that the domestic industry is
injured"167, and, therefore, it cannot be "objective". Moreover, such an approach
tends to favour methodologies where small numbers of producers are
examined individually. This is because the smaller the number of
individually-examined producers, the larger the amount of imports
attributable to non-examined producers, and, therefore, the larger the amount of imports presumed to be dumped. Given that the Anti-Dumping
Agreement generally requires examination of all producers, and only
exceptionally permits examination of only some of them, it seems to us
that the interpretation proposed by the European Communities cannot have been
intended by the drafters of the Agreement.
133. For these reasons, we conclude that the European
Communities' determination that all imports attributable to non-examined
producers were dumped�even though the evidence from examined producers
showed that producers accounting for 53 percent of imports attributed to
examined producers were not dumping�did not lead to a result that was unbiased,
even-handed, and fair.168 Therefore, the European
Communities did not satisfy the requirements of paragraphs 1 and 2 of Article 3
to determine the volume of dumped imports on the basis of an examination that is
"objective".
134. India also challenges the Panel's finding relating to
Article 6.10.169 As we have indicated, in this investigation, the European Communities did not determine individual dumping margins for each
Indian producer exporting bed linen to the European Communities, as permitted by Article 6.10. The Panel found that the European Communities chose the second alternative in Article 6.10, and limited
its examination to producers and exporters representing the largest percentage of the volume of the exports from India that could reasonably be investigated.170 135. On appeal, India asks us to find that the European
Communities chose, instead, the first option in Article 6.10, and selected for individual
examination a "statistically valid sample" representative of all
Indian producers exporting to the European Communities.171 In India's view,
the proportion of dumped imports attributable to examined producers is
even more relevant for determining, on the basis of "positive evidence" and an
"objective examination", the volume of dumped imports attributable to non-examined
producers, when the examined producers are found to constitute a statistically
valid sample representative of all Indian producers. The European Communities
contends that the Panel's finding that the investigating authorities applied the
second alternative in Article 6.10 is a factual finding beyond appellate
review. In the alternative, the European Communities maintains that its
investigating authorities relied upon the second alternative and examined the
largest percentage of the volume of exports which could reasonably be
investigated.
136. Article 6 is entitled "Evidence", and there is no
indication in Article 6�or elsewhere in the Anti-Dumping Agreement�that
Article 6 does not apply generally to matters relating to "evidence" throughout
that Agreement. Therefore, it seems to us that the subparagraphs of Article 6
set out evidentiary rules that apply throughout the course of an anti-dumping
investigation, and provide also for due process rights that are enjoyed by
"interested parties" throughout such an investigation.
137. Turning to that part of Article 6 referred to by India,
we note that Article 6.10 deals specifically with the determination of margins
of dumping. Clearly, it does not stipulate that investigating
authorities must follow a specific methodology when determining the volume
of dumped imports under paragraphs 1 and 2 of Article 3. However, this does
not mean that evidence emerging from the determination of margins of
dumping for individual producers or exporters pursuant to Article 6.10
is irrelevant for the determination of the volume of dumped imports in
paragraphs 1 and 2 of Article 3. To the contrary, such evidence may well form
part of the "positive evidence" on which an "objective examination" of the
volume of dumped imports for purposes of determining injury may be based.
Indeed, in cases where the examination has been limited to a select number of
producers under the authority of the second sentence of Article 6.10, it is
difficult to conceive of a determination based on "positive evidence" and an
"objective examination" that is made other than through some form of extrapolation
of the evidence. This could be done, for example, by extrapolating from
the import volumes attributed to examined producers found to be
dumping to the import volumes attributed to non-examined producers. We
recall that we considered that evidence on dumping margins of more than de minimis for examined producers is relevant as
"positive evidence" in this investigation for determining which import volumes
may be attributed to non-examined producers that are dumping.
138. India's suggestion that the investigating authorities
should consider the same proportion of import volumes attributable to non-examined
producers as dumped, as the proportion of import volumes
attributed to examined producers that were found to be dumping, may be
one way of adducing "positive evidence" from the record of an investigation and
of conducting an "objective examination", especially if producers selected for
individual examination constitute a statistically valid sample representative of
all producers. Even if the producers selected for individual examination
account, instead, for the largest percentage of exports that could
reasonably be investigated, we do not exclude the possibility that the evidence
from those examined producers could, nonetheless, qualify as part of
the "positive evidence" that might serve as a basis for an "objective
examination" of import volumes that can be attributed to the remaining non-examined
producers. There may, indeed, be other ways of making these calculations that
satisfy the requirements of paragraphs 1 and 2 of Article 3.
139. Although Article 6.10 is relevant from an evidentiary
point of view, it is, nevertheless, as we explain below, not necessary here for
us to decide whether the Indian producers and exporters selected for individual
examination in this investigation constitute a "statistically valid sample" or
"the largest percentage of the volume of exports" within the meaning of the
second sentence of Article 6.10. In this respect, we recall the European
Communities' argument that import volumes subject to the "all others" duty rate
under Article 9.4 may be considered as dumped imports when determining injury
under Article 3. As we have explained, Article 9.4 permits the imposition of the
"all others" duty rate on imports from non-examined producers, regardless of
whether those producers were excluded from individual examination on the basis
of the first, or the second, alternative in Article 6.10. We have already
concluded that imports attributable to non-examined producers that are
subject to the "all others" duty rate under Article 9.4 cannot simply be
presumed to be dumped for purposes of determining injury under Article 3. Our
conclusion was not premised on whether producers were excluded
from individual examination on the basis of the first, or the second,
alternative in Article 6.10. Therefore, our ruling that the European Communities
failed to determine the volume of dumped imports with respect to non-examined
producers on the basis of "positive evidence" and an "objective examination", as
required by paragraphs 1 and 2 of Article 3, is not premised on which of the
alternatives in Article 6.10 for limiting the examination was chosen by the
European Communities in this investigation. For this reason, we decline to
reverse, as requested by India, the finding of the Panel, in paragraph 6.135 of
the Panel Report, that the European Communities chose here the second
alternative under the second sentence of Article 6.10, because it is not
necessary to make such a finding to resolve the issue in dispute here.
Accordingly, it is not necessary for us to decide whether that finding was
exclusively a factual one and is, therefore, beyond the scope of appellate
review.
140. Finally, we turn to the arguments of the third
participants in this dispute. Japan and Korea agree with India that the European
Communities' determination of the volume of dumped imports in this investigation
is not consistent with paragraphs 1 and 2 of Article 3. Our earlier discussion,
in particular of Article 9, addresses in detail the arguments of Japan and
Korea.172 In contrast to Japan and Korea, the United States maintains, for
its part, that the European Communities' determination of the volume of "dumped
imports" is consistent with paragraphs 1 and 2 of Article 3. According to the
United States, in addition to Article 9, Articles 2.1 and 3.3 are also
significant for interpreting the volume of "dumped imports" in paragraphs 1 and
2 of Article 3.
141. The United States asserts that "Article 2.1 � defines dumped
products '[f]or the purpose of [the AD] Agreement', on a countrywide
basis."173 In the view of the United States, "that phrase from the beginning
to the end refers only to countries and products. It does not refer to
producers."174 Therefore, according to the United States, "the references to
'dumped imports' in Articles 3.1 and 3.2 and throughout Article 3 refer to all
imports of the product from the countries subject to the investigation."175
In other words, when determining injury, "the concept of whether or not there
are dumped imports is country-specific."176
142. We do not agree. Article 2.1 reads:
Determination of Dumping
For the purpose of this Agreement, a product is to be
considered as being dumped, i.e. introduced into the commerce of another
country at less than its normal value, if the export price of the
product exported from one country to another is less than the comparable
price, in the ordinary course of trade, for the like product when
destined for consumption in the exporting country.
Nowhere in the text of Article 2.1 is there authority for
treating all imports from non-examined producers as dumped for purposes
of determining injury under Article 3. The subsequent paragraphs of Article 2
set out in detail how the export price, normal value and, thus, the margins of
dumping, are to be established for specific producers or exporters. Nowhere in
those paragraphs is there authority for treating imports from non-examined
producers as dumped for purposes of determining injury under Article 3.
143. As we have explained, under Article 6.10, dumping
margins are to be established for each producer and exporter or, if
impracticable, for some of them. We have explained that Article 9 permits the
imposition and collection of anti-dumping duties on imports from specific
producers or exporters, or groups thereof. We also recall that the original
panel confirmed that "dumping is a determination made with reference to a
product from a particular producer [or] exporter, and not with reference to
individual transactions".177 We see no conflict between the provisions
requiring producer-specific determinations and the need to calculate, for
purposes of determining injury, the total volume of dumped imports from
producers or exporters originating in a particular exporting country as a whole.
This can be done, and has to be done, by adding up the volume of imports
attributable to producers or exporters that are dumping, whether on the basis of
an individual examination or on the basis of an extrapolation. Further, we see
nothing in the text of Article 2.1 that permits a derogation from the express
requirements in paragraphs 1 and 2 of Article 3 to determine the volume of
dumped imports on the basis of "positive evidence" and an "objective
examination".
144. The United States also argues that the interpretation
that all imports attributable to non-examined producers
may be considered as "dumped" is necessary to give meaning and effect to
Article 3.3.178 This provision concerns situations where an importing country
conducts an anti-dumping investigation with respect to imports of a product from
more than one exporting country.179 Article 3.3 defines the circumstances
where the investigating authorities may cumulatively assess the
volume and price effects of imports from different exporting countries.
The United States argues that it would create an anomaly if, in multi-country
investigations, authorities are entitled to assess the effects of all
imports from the subject country, "as long as each countrywide margin was more
than de minimis", while, under India's theory, in single-country
investigations, authorities, finding no dumping for an individual company,
"would be required to disregard some of the imports covered by the countrywide
margin".180
145. India's appeal does not extend to the requirements of
Article 3.3. We do not see, however, how the cumulative assessment of the
effects of imports from different exporting countries under Article 3.3 implies
that all imports attributable to non-examined producers must be
considered as dumped for purposes of determining injury. The investigation and
the cumulation of dumped imports from different countries for
purposes of determining injury can be carried out in conformity with the
producer-specific provisions of the Anti-Dumping Agreement, even
when several countries are involved.181 The provisions regarding the
cumulative assessment of imports pursuant to Article 3.3 must be interpreted
consistently with the provisions of the Anti-Dumping Agreement that
deal with the determinations of dumping margins or the application of
anti-dumping duties with respect to specific producers or groups thereof.
Similarly, the right under Article 3.3 to conduct anti-dumping investigations
with respect to imports from different exporting countries does not absolve
investigating authorities from the requirements of paragraphs 1 and 2 of
Article 3 to determine the volume of dumped imports on the basis of "positive
evidence" and an "objective examination".
146. For these reasons, we are of the view that the Panel has
not properly interpreted paragraphs 1 and 2 of Article 3 in applying those
provisions in this implementation dispute. Therefore, we conclude that, with
respect to import volumes attributable to producers or exporters that were not
examined individually in this investigation, the European Communities
has failed to determine the "volume of dumped imports" on the basis of "positive
evidence" and an "objective examination" as explicitly required by the text of
paragraphs 1 and 2 of Article 3 of the Anti-Dumping Agreement. However,
we agree with the Panel "that the [Anti-Dumping] Agreement does not
require an investigating authority to determine the volume of imports from
producers outside the sample that is properly considered 'dumped imports' for
purposes of injury analysis on the basis of the proportion of imports from
sampled producers that is found to be dumped"182 according to the specific
methodology suggested by India in this appeal. For these reasons, we reverse
the Panel's finding, in paragraph 6.144 of the Panel Report, and find that
the European Communities has acted inconsistently with the requirements of
paragraphs 1 and 2 of Article 3 of the Anti-Dumping Agreement.
VI. Article 17.6 of the Anti-Dumping Agreement
and Article 11 of the DSU
A. Introduction
147. India claims on appeal that the Panel failed to comply
with the requirements of Article 17.6 of the Anti-Dumping Agreement
and of Article 11 of the DSU in concluding that the European Communities did
have information before it on all relevant economic factors listed in
Article 3.4 of the Anti-Dumping Agreement when making its
determination of injury.183 India alleges, in particular, that the European
Communities did not have such information, because the European
Communities failed to collect data on stocks and capacity utilization. India
requests us to conclude that the Panel did not comply with the requirements of
Article 17.6 of the Anti-Dumping Agreement and of Article 11 of the DSU,
and, consequently, to reverse the Panel's finding that the
European Communities acted consistently with paragraphs 1 and 4 of Article 3 of
the Anti-Dumping Agreement.184
148. Before examining India's arguments on appeal, we will
recall briefly the findings of the original panel and of the Article 21.5 Panel
on this issue, as far as they are relevant to the issue raised on appeal.
149. India claimed before the original panel that the
European Communities did not examine all relevant economic factors having a
bearing on the state of the industry and, therefore, failed to act consistently
with its obligations under Article 3.4 of the Anti-Dumping Agreement.185
The original panel stated that it appeared from the European Communities'
regulation imposing provisional anti-dumping measures that data had not been
collected for all relevant economic factors listed in Article 3.4, and that,
"[w]hile some of the data collected � may have included data for the factors not
mentioned, we cannot be expected to assume that this was the case without some
indication to that effect in the determination."186 The original panel then
found that:
� where factors set forth in Article 3.4 are not even
referred to in the determination being reviewed, if there is nothing in
the determination to indicate that the authorities considered them not
to be relevant, the requirements of Article 3.4 were not satisfied.187
150. The European Communities did not appeal this finding of
the original panel. In the redetermination�EC Regulation 1644/2001�the European
Communities addressed the relevant economic factors listed in Article 3.4,
including stocks and capacity utilization, on the basis of information that it
had collected during the original investigation. It is undisputed between the
participants that the European Communities did not collect additional data for
purposes of the redetermination.188
151. Before the Article 21.5 Panel, India alleged that the
European Communities had "never" collected data on stocks and capacity
utilization, and also that the European Communities had not properly carried out
an overall re-evaluation of those factors.189 The Panel rejected both
arguments. India has not appealed the Panel's finding with respect to the
adequacy of the evaluation.
152. In rejecting India's claim that the European Communities
had not collected information on all relevant economic factors listed in
Article 3.4, the Panel found that:
It is thus apparent to us, on the face of the
redetermination, that the EC did, in fact, have information on the
Article 3.4 factors, which is specifically addressed. Thus, we find this
no basis as a matter of fact for this aspect of India's claim.190
153. In reaching this conclusion, the Panel first stated that
India had misunderstood the "import" and "context" of the statement of the
original panel that, in India's view, suggested that data had not been
collected.191 The Panel then went on to clarify the meaning of that statement
as follows:
Contrary to India's understanding, the original Panel
did not find, as a matter of fact or law, that no
information had been collected on certain of the Article 3.4 factors.
Rather, as alluded to by the EC, the Panel was making an observation as
to the lack of any basis, on the face of the provisional and definitive
Regulations, for a conclusion that certain of the factors had actually
been considered by the EC authorities in making their determination.
Indeed, the Panel specifically went on to note that, in the absence of
any reference to the relevant information in the Regulations, it was not
willing to assume that such data had been considered.192 (original
boldface; footnote omitted)
154. The Panel concluded that it was clear that the European
Communities had "in its record" information on stocks and capacity
utilization�the two factors India had focused on�and that "unlike the original
determination, the EC's consideration of these factors is clearly set out on the
face of the redetermination."193
155. India appeals from this finding of the Panel, arguing,
first, that the Panel failed to meet its obligations under Article 11 of the DSU
by incorrectly applying the rules on burden of proof that we set out in US � Wool
Shirts and Blouses.194 India argues that it had presented a prima
facie case that data on a number of injury factors had never been
collected and that, therefore, the Panel should have shifted the burden of proof
to the European Communities to rebut that prima facie case.195
156. In the alternative, India submits that the Panel
distorted the evidence by accepting for a fact the "mere" assertion by the
European Communities, in EC Regulation 1644/2001, that it had collected data on
all relevant economic factors, including stocks and capacity utilization.196
India argues that this constitutes a failure by the Panel to make an objective
assessment of the matter, including an objective assessment of the facts of the
case, as required by Article 11 of the DSU.197
157. Regarding Article 17.6 of the Anti-Dumping Agreement,
India argues that the Panel failed to "actively" review the facts, pursuant to
subparagraph (i) of that provision, as we interpreted it in US � Hot-Rolled Steel.198 India asserts that, by refusing India's
request for the Panel to use its investigative powers under Article 13 of the
DSU, and by concluding that the European Communities had the data in the record
of the investigation without offering any real proof or reasoning to support
such a conclusion, the Panel failed to comply with Article 17.6(i) of the Anti-Dumping
Agreement.199
158. In reply, the European Communities contends that the
Panel properly discharged its duties under Article 11 of the DSU and
Article 17.6 of the Anti-Dumping Agreement in concluding that the
European Communities did have information before it on all the relevant economic factors listed in Article 3.4 of the Anti-Dumping
Agreement, including stocks and capacity utilization, when making its
injury determination. The European Communities asserts that the Panel correctly
applied the rules on the burden of proof.200 The European Communities denies
that EC Regulation 1644/2001 contains "mere" assertions and notes that, although
India alleges that the Panel distorted the evidence, India concedes that the
Panel has not committed an egregious error calling into question its good faith.201
The European Communities also contends that the Panel could not have failed to
comply with Article 17.6 of the Anti-Dumping Agreement by
exercising its discretion pursuant to Article 13.2 of the DSU.202
B. Analysis
159. India does not challenge directly the Panel's finding on
Article 3.4 of the Anti-Dumping Agreement. Rather, India argues on
appeal that the Panel did not discharge its duties under Article 11 of the DSU
and Article 17.6 of the Anti-Dumping Agreement in its examination of
India's claim that the European Communities did not have information before it
on stocks and capacity utilization when making its injury determination. India
requests that, in the event that we agree with India regarding Article 17.6 and
Article 11, we reverse the Panel's finding that the European
Communities acted consistently with paragraphs 1 and 4 of Article 3 of the Anti-Dumping
Agreement.
160. Article 11 of the DSU defines generally a panel's
mandate in reviewing the consistency with the covered agreements of measures
taken by Members. The provision reads, in relevant part:
The function of panels is to assist the DSB in
discharging its responsibilities under this Understanding and the
covered agreements. Accordingly, a panel should make an objective
assessment of the matter before it, including an objective assessment
of the facts of the case and the applicability of and conformity
with the relevant covered agreements, and make such other findings as
will assist the DSB in making the recommendations or in giving the
rulings provided for in the covered agreements. (emphasis added)
161. We recently explained that Article 11 of the DSU:
� requires panels to take account of the evidence put
before them and forbids them to wilfully disregard or distort such
evidence. Nor may panels make affirmative findings that lack a basis in
the evidence contained in the panel record. Provided that panels'
actions remain within these parameters, however, we have said that "it
is generally within the discretion of the Panel to decide which evidence
it chooses to utilize in making findings" , and, on appeal, we "will not
interfere lightly with a panel's exercise of its discretion".203
(footnotes omitted)
162. Article 17.6 of the Anti-Dumping Agreement,
for its part, "clarif[ies] the powers of review of a panel established under the
Anti-Dumping Agreement ."204 Subparagraph (i) of Article 17.6
"place[s] limiting obligations on a panel, with respect to the review of the
establishment and evaluation of facts by the investigating authority."205 The
provision reads, in relevant part:
in its assessment of the facts of the matter, the
panel shall determine whether the authorities' establishment of the
facts was proper and whether their evaluation of those facts was
unbiased and objective. If the establishment of the facts was proper and
the evaluation was unbiased and objective, even though the panel might
have reached a different conclusion, the evaluation shall not be
overturned.
163. In US � Hot-Rolled Steel, we stated that
"[a]lthough the text of Article 17.6(i) is couched in terms of an obligation on
panels � the provision, at the same time, in effect defines when
investigating authorities can be considered to have acted inconsistently
with the Anti-Dumping Agreement".206 We further explained that the
text of Article 17.6(i) of the Anti-Dumping Agreement, as well as
that of Article 11 of the DSU, "requires panels to 'assess' the facts and this �
clearly necessitates an active review or examination of the pertinent facts."207
164. Turning specifically to India's claim that the Panel did
not discharge its duties under Article 11 of the DSU and under Article 17.6(i)
of the Anti-Dumping Agreement, we are mindful that we have found
previously that there is no "conflict" between Article 11 of the DSU and
Article 17.6 of the Anti-Dumping Agreement; rather, the two
provisions complement each other.208 We begin
our analysis here with India's argument relating to Article 17.6(i), because
this provision, which sets out the standard of review that panels must follow in
reviewing the establishment of the facts
by investigating authorities in anti-dumping investigations, is particularly
relevant to the appeal
before us.209
165. India asserts that the Panel failed to review the facts
actively, as we required in US � Hot-Rolled Steel, because "[i]t
neither used its powers under Article 13 [of the] DSU nor reviewed these facts
otherwise."210 Although India recognizes that a panel's power to seek information under Article 13 of the DSU is discretionary, India
argues that the Panel was required to seek information from the European
Communities as part of the Panel's obligation to "actively review or examine
the facts" pursuant to Article 17.6 of the Anti-Dumping Agreement.211
Consequently, we understand India's claim to relate to the first part of the
first sentence of Article 17.6(i), namely to the Panel's task of determining
"whether the authorities' establishment of the facts was proper".212
166. We have previously stated that a panel's right to seek information pursuant to Article 13 of the DSU is discretionary and not mandatory, as India itself
recognizes.213 Furthermore, in EC � Sardines, where a claim was brought under Article 11 of the
DSU, we concluded that:
[a] contravention of the duty under Article 11 of the
DSU to make an objective assessment of the facts of the case cannot
result from the due exercise of the discretion permitted by
another provision of the DSU, in this instance Article 13.2 of the DSU.214
(emphasis added)
167. Similarly, a panel's duty to "actively review the pertinent facts" in order to comply with Article 17.6(i) of the Anti-Dumping
Agreement does not, in our view, imply that a panel must
exercise its right to seek information under Article 13 of the DSU, which
explicitly states that the exercise of that right is discretionary.
Indeed, there is nothing in the texts of Article 17.6(i) of the Anti-Dumping
Agreement or Article 13 of the DSU to suggest that a reading of
these provisions, in combination, would render mandatory the exercise of a panel's discretionary power under Article 13 of the
DSU. At the oral hearing, India sought to draw a distinction between the case
before us and our ruling in EC � Sardines by arguing that, in
the present case, the Panel's exercise of its discretion was not "due" because
"there was no exercise at all".215 We do not agree. In our view, it is for
panels to decide whether it is necessary to request information from any
relevant source pursuant to Article 13 of the DSU. The mere fact that the Panel
did not consider it necessary to seek information does not, by itself, imply
that the Panel's exercise of its discretion was not "due". We, therefore, reject
India's allegation that the Panel failed to comply with the requirements of
Article 17.6 of the Anti-Dumping Agreement by not seeking
information from the European Communities pursuant to Article 13 of the DSU.
168. In addition to its argument relating to the Panel's
right to seek information under Article 13 of the DSU, India argues that the
Panel failed to "review[] these facts otherwise".216 In support of this
argument, India asserts that the "Panel merely stated that it was 'clear' to it
that the EC had the data in its record", without offering any proof or reasoning
other than what was stated in EC Regulation 1644/2001 itself.217
169.
We have said previously that panels must not, under
Article 17.6(i) of the Anti-Dumping Agreement, "engage in a new and
independent fact-finding exercise".218 Furthermore, in our view, the
discretion that panels enjoy as triers of facts under Article 11 of the DSU219
is equally relevant to cases governed also by Article 17.6(i) of the Anti-Dumping
Agreement. Thus, as under Article 11 of the DSU, we "will not interfere
lightly with [a] panel's exercise of its discretion" under Article 17.6(i) of
the Anti-Dumping Agreement.220
170. An appellant must persuade us, with sufficiently compelling reasons, that we should disturb a panel's assessment of the facts or interfere with a panel's discretion as the
trier of facts. As India points out, the Panel stated that it was apparent to the Panel from "the face of the redetermination" that the investigating authority did have
information on the relevant economic factors listed in Article 3.4.221 The
Panel, however, also noted that "it is clear that the EC had, in its record,
information on stocks and utilisation of capacity".222 In the light of this
statement, we conclude that, contrary to India's contention, the Panel did not
arrive at an affirmative conclusion that information on these two factors was
before the investigating authorities based exclusively "on the face" of the
redetermination.
171. We observe, in this regard, that the Panel also had
before it explanations as to how the European Communities had collected
information on stocks and capacity utilization. According to the European
Communities, it had collected information on both factors through the
questionnaire sent to the domestic industry and during the on-site verification
visits.223 Moreover, the European Communities explained that it obtained additional information
on stocks from audited accounts that were either annexed to the questionnaire
replies, or verified during the on-site visits.224 The European Communities
added that data on stocks could also be derived by comparing verified data on
production and sales volume.225 As for capacity utilization, the European
Communities stated that it had received information on production capacity from
Eurocoton�the complainant in the anti-dumping investigation.226 In the light
of these observations, we are not persuaded that we should interfere with the
Panel's finding of fact on this matter. Therefore, we reject India's argument
that the Panel "otherwise" failed to review the facts actively under
Article 17.6(i) of the Anti-Dumping Agreement.
172. We turn next to the arguments submitted by India in
support of its claim that the Panel failed to meet its obligation under
Article 11 of the DSU to examine the facts of the case objectively. India's
first argument is that the Panel misapplied the rules on the allocation of the
burden of proof that we set out in US � Wool Shirts and Blouses.227
173. The Panel discussed the principles regarding burden of
proof at the outset of the Panel Report. The Panel stated:
We recall that the general principles applicable to
burden of proof in WTO dispute settlement require that a party claiming
a violation of a provision of the WTO Agreement by another Member must
assert and prove its claim. In these Panel proceedings, we thus observe
that it is for India, which has challenged the consistency of the EC
measure, to bear the burden of demonstrating that the measure is not
consistent with the relevant provisions of the AD Agreement. We also
note, however, that it is generally for each party asserting a fact,
whether complainant or respondent, to provide proof thereof. In this
respect, therefore, it is also for the EC to provide evidence for the
facts which it asserts. We also recall that a prima facie case
is one which, in the absence of effective refutation by the other party,
requires a panel, as a matter of law, to rule in favour of the party
presenting the prima facie case. In addition, we consider that
both parties generally have a duty to cooperate in the proceedings in
order to assist us in fulfilling our mandate, through the provision of
relevant information.228 (footnotes omitted)
174. India is not alleging that, on this particular issue,
the Panel should have allocated the burden of proof differently. Instead, India
asserts that the Panel should have shifted the burden to the
European Communities once India had established a prima facie case.229
There is nothing in the Panel's reasoning, however, to suggest that the Panel
premised its ultimate conclusion on whether or not India had presented a prima
facie case. From our perspective, the Panel assessed and weighed all the
evidence before it�which was put forward by both India and the European
Communities�and, having done so, ultimately, was persuaded that the European
Communities did, in fact, have information before it on all relevant economic
factors listed in Article 3.4 of the Anti-Dumping Agreement.
175. We agree, therefore, with the European Communities'
assertion that India's argument is, for all practical purposes, one related to
the Panel's weighing and appreciation of the evidence.230 As the European
Communities pointed out, we have previously stated that the "[d]etermination of
the credibility and weight properly to be ascribed to (that is, the appreciation
of) a given piece of evidence is part and parcel of the fact finding process and
is, in principle, left to the discretion of a panel as the trier of facts."231
176. We have, furthermore, explained that:
In assessing the panel's appreciation of the
evidence, we cannot base a finding of inconsistency under Article 11
simply on the conclusion that we might have reached a different factual
finding from the one the panel reached. Rather, we must be satisfied
that the panel has exceeded the bounds of its discretion, as the trier
of facts, in its appreciation of the evidence. As is clear from previous
appeals, we will not interfere lightly with the panel's exercise of its
discretion.232 (footnote omitted)
177. India has not persuaded us that the Panel in this case
exceeded its discretion as the trier of facts. In our view, the Panel assessed
and weighed the evidence submitted by both parties, and ultimately concluded
that the European Communities had information on all relevant economic factors
listed in Article 3.4. It is not "an error, let alone an egregious error"233, for
the Panel to have declined to accord to the evidence the weight that India
sought to have accorded to it. We, therefore, reject India's argument that, by
failing to shift the burden of proof, the Panel did not properly
discharge its duty to assess objectively the facts of the case as required by
Article 11 of the DSU.
178. We reach now India's alternative argument on this issue,
which is that, even if the Panel properly applied the rules on the burden of
proof, the Panel failed to meet its obligations under Article 11 of the DSU
because it "distorted the evidence [b]y accepting for a fact a mere assertion
contained in the EC Regulation 1644/2001�while India had submitted prima
facie evidence on the absence of data collection".234 India
contends that, in doing so, "the Panel attached greater weight to the mere
assertion" of the European Communities, while failing to explain why the Panel
considered the assertion "sufficient to rebut the prima facie
evidence of India that the EC had not collected such data."235
179. In EC � Hormones, we described how a panel
could fail to make an objective assessment of the facts by "distorting" the
evidence:
The deliberate disregard of, or refusal to consider,
the evidence submitted to a panel is incompatible with a panel's duty to
make an objective assessment of the facts. The wilful distortion or
misrepresentation of the evidence put before a panel is similarly
inconsistent with an objective assessment of the facts. "Disregard" and
"distortion" and "misrepresentation" of the evidence, in their ordinary
signification in judicial and quasi-judicial processes, imply not simply
an error of judgment in the appreciation of evidence but rather an
egregious error that calls into question the good faith of a panel.
A claim that a panel disregarded or distorted the evidence submitted to
it is, in effect, a claim that the panel, to a greater or lesser degree,
denied the party submitting the evidence fundamental fairness, or
what in many jurisdictions is known as due process of law or natural
justice.236 (emphasis added; footnote omitted)
180. India expressly states that "it does not assert that the
Panel committed an egregious error calling into question its good faith."237
At the oral hearing, India argued that, in disputes where we have found a
violation of Article 11 of the DSU, "it has not always been the situation that
the panel had made an egregious error calling into question its good faith".238
Indeed, we have found a violation of Article 11 of the DSU when panels have
failed to ensure that a competent authority evaluated all relevant economic
factors and that the authority's explanation of its determination is reasoned
and adequate.239 In those instances, the error related to the evaluation
conducted by the competent authorities. We also found that a panel
exceeded its mandate under Article 11 by considering evidence that was not in
existence at the time of a Member's determination imposing a safeguard measure
on imports of textiles.240 In another case, we determined that the panel had
not made an objective assessment of the matter before it
because it examined a claim that had not been raised by the complainant.241 181.
In our view, none of these examples assists India with the
claim it raises on appeal. India does not appeal the Panel's conclusion with
respect to the evaluation by the investigating authorities of the
European Communities of the relevant economic factors listed in Article 3.4.242
India directs its arguments on appeal to the Panel's assessment of the facts
of the case, and does not argue that the Panel failed otherwise to
make an objective assessment of the matter before it.
Specifically, India argues that the Panel did not make an objective assessment
of the facts of the case because the Panel distorted the evidence by
placing greater weight on the statements made by the European Communities than
on those made by India.243 As we stated earlier, the weighing of the evidence
is within the discretion of the Panel as the trier of facts, and there is no
indication in this case that the Panel exceeded the bounds of this discretion.244
We thus reject India's argument that the Panel distorted the evidence before it.
182. For all these reasons, we find that the Panel properly discharged its duties under Article 17.6 of the Anti-Dumping
Agreement and Article 11 of the DSU. We, therefore, uphold the
Panel's finding, in paragraph 6.169 of the Panel Report, that the European
Communities had information before it on the relevant economic factors listed in
Article 3.4 of the Anti-Dumping Agreement
when making its injury determination.
VII.
Findings and Conclusions
183. For the reasons set out in this Report, the Appellate
Body:
(a) (i) upholds the Panel's finding, in
paragraph 6.53 of the Panel Report, that India's claim under Article 3.5
of the Anti-Dumping Agreement�that the European Communities
failed to ensure that injuries caused by other factors was not
attributed to the dumped imports�was not properly before the
Panel; and, consequently,
(ii) declines to rule on the issue of
whether the Panel erred, in its alternative finding, in paragraph 6.246
of the Panel Report, that the European Communities acted consistently
with Article 3.5 of the Anti-Dumping Agreement;
(b) (i) reverses the Panel's finding, in
paragraph 6.144 of the Panel Report, that the European Communities did
not act inconsistently with paragraphs 1 and 2 of Article 3 of the Anti-Dumping
Agreement, and finds that the European
Communities acted inconsistently with paragraphs 1 and 2 of Article 3 of
the Anti-Dumping Agreement in determining the volume of dumped
imports for purposes of making a determination of injury; and
(ii) declines to rule on the Panel's
finding, in paragraph 6.135 of the Panel Report, that the European
Communities applied the second alternative in the second sentence of
Article 6.10 for limiting its examination in this investigation; and
(c) finds that the Panel properly
discharged its duties under Article 17.6 of the Anti‑Dumping
Agreement and Article 11 of the DSU and, therefore, upholds the
Panel's finding, in paragraph 6.169 of the Panel Report, that the
European Communities had information before it on the relevant economic
factors listed in Article 3.4 of the Anti-Dumping Agreement
when making its injury determination.
184. The Appellate Body recommends that the DSB request the
European Communities to bring its measure, found in this Report to be
inconsistent with its obligations under the Anti-Dumping Agreement,
into conformity with that Agreement.
Signed in the original at Geneva this 24th day of March 2003
by:
_________________________
Georges Abi-Saab
Presiding Member
_________________________ |
_________________________
|
James Bacchus
Member
|
Yasuhei Taniguchi
Member
|
120 India's appellant's submission, para. 84; Panel Report, para.
6.144.
121 India's appellant's submission, para. 18.
122
Ibid., para. 31.
123 Original Panel Report, para. 6.136.
124
Ibid., para. 6.142.
125 The original panel found that the European Communities had
acted inconsistently with Article 2.4.2 by establishing the margins of dumping
based on a methodology which included zeroing negative price differences
calculated for some models of bed linen. (Ibid., para. 6.119) We upheld
this finding on appeal. (Appellate Body Report, EC � Bed Linen, para. 66)
126 Panel Report, para. 6.117. The European Communities made
alternative calculations of the volume of dumped imports from India; one
calculation included imports attributable to the producers that were found not
to be dumping, while the other did not. Under both alternative calculations, the
European Communities found that the domestic industry was suffering injury. (EC
Regulation 1644/2001, recital (22))
127 Panel Report, para. 6.144.
128
Ibid., para. 6.127.
129
Ibid., para. 6.137. (original boldface)
130
Ibid., para. 6.144. (original boldface)
131 India's appellant's submission, para. 44.
132
Ibid., para. 47. The figure of 86 percent was derived
from deducting from the total amount of imports the volume of imports
attributable to the two Indian companies that were examined individually and
found, in the redetermination, not to be dumping.
133 India emphasizes that the results from the producers that
were examined individually are representative of all
Indian producers exporting bed linen to the European Communities, because those
examined producers constituted a "statistically valid sample" within the meaning
of the second sentence of Article 6.10. We return to Article 6.10 later in this
Report, infra, paras. 134 ff.
134 The European Communities argues that the Indian exporters
that were examined individually are not necessarily
representative of the non-examined exporters. In other words, the five
Indian exporters examined individually were not a statistically valid sample, as
India has claimed. Rather, according to the European Communities, the five
exporters accounted for the largest percentage of the export volume
that could be reasonably investigated, within the meaning of the second sentence
of Article 6.10.
135 The "all others" duty rate refers to the duty applied to
imports from producers or exporters for which an individual margin of dumping is
not established. (See Appellate Body Report, US � Hot-Rolled Steel,
para. 115)
136 Appellate Body Report, Thailand � H-Beams, para. 114.
Article 11 of the DSU defines generally a panel's mandate in reviewing the
consistency with the covered agreements of measures taken by Members. In our
Report in US � Hot-Rolled Steel, we found that there is no "conflict"
between Article 11 of the DSU and Article 17.6 of the Anti-Dumping Agreement;
rather, the two provisions complement each other. (Appellate Body Report, US
� Hot-Rolled Steel, para. 55)
137 Appellate Body Report, Thailand � H-Beams, para. 106.
138 Appellate Body Report, US � Hot-Rolled Steel, para.
192.
139
Ibid., para. 193.
140 Appellate Body Report, US � Hot-Rolled Steel, para.
193.
141 These requirements of paragraphs 1 and 2 of Article 3, as
well as the requirements of Article 17.6(i), that investigating authorities
establish the facts of the matter properly and evaluate those
facts in an unbiased and objective manner, are mutually supportive
and reinforcing. In US � Hot-Rolled Steel, we explained in respect
of Article 17.6(i) that:
� panels must assess if the establishment of the
facts by the investigating authorities was proper and if the
evaluation of those facts by those authorities was unbiased
and objective. (original italics)
(Ibid., para. 56)
142 Original Panel Report, paras. 6.138-6.140; Panel Report,
paras. 6.121 and 6.131.
143 Appellate Body Report, US � Hot-Rolled Steel, para.
130.
144 Article 9.4 of the Anti-Dumping Agreement
reads:
When the authorities have limited their
examination in accordance with the second sentence of paragraph 10 of
Article 6, any anti-dumping duty applied to imports from exporters
or producers not included in the examination shall not exceed:
(i) the weighted average margin of dumping
established with respect to the selected exporters or producers
or,
(ii) where the liability for payment of
anti-dumping duties is calculated on the basis of a prospective
normal value, the difference between the weighted average normal
value of the selected exporters or producers and the export prices
of exporters or producers not individually examined,
provided that the authorities shall disregard for the
purpose of this paragraph any zero and de minimis margins and
margins established under the circumstances referred to in paragraph 8
of Article 6. The authorities shall apply individual duties or normal
values to imports from any exporter or producer not included in the
examination who has provided the necessary information during the course
of the investigation, as provided for in subparagraph 10.2 of Article 6.
(emphasis added)
145 European Communities' statement at the oral hearing.
146 Consistent with Article 9.4, the investigating authorities
excluded from the calculation of that weighted average the negative or zero
dumping margins established for the two examined producers that were found not
to be dumping.
147 European Communities' statement at the oral hearing.
148 India's appellant's submission, para. 32. India also argues
that the European Communities and the Panel confuse the imposition of dumping duties
with the calculation of dumping margins. (See Panel Report, paras.
6.137-6.138)
149 Article 9.1 of the Anti-Dumping Agreement reads
in relevant part:
The decision whether or not to impose an anti-dumping
duty in cases where all requirements for the imposition have been
fulfilled, and the decision whether the amount of the anti-dumping
duty to be imposed shall be the full margin of dumping or less, are
decisions to be made by the authorities of the importing Member.
(emphasis added)
150 Article 9.1 also entitles Members to decide whether to impose
an anti-dumping duty in the full amount of the margin of dumping, or a "lesser
duty".
151 Appellate Body Report, US � Hot-Rolled Steel, para.
116.
152 Japan's third participant's submission, paras. 4 ff.
153 According to Article 33.3 of the Vienna Convention on the
Law of Treaties, where treaties have been authenticated in two or more
languages, "[t]he terms of the treaty are presumed to have the same meaning in
each authentic text." The Spanish terms ("se han cumplido" and "hayan
limitado"), in paragraphs 1 and 4 of Articles 9, have the same temporal meaning
as the English terms ("have been fulfilled" and "have limited"). The French
terms ("sont remplies" and "auront limit�") can also accommodate this temporal
meaning.
154 Korea too rejects the European Communities' interpretation
that all imports from non-examined producers subject to the "all others" duty
rate under Article 9.4 may be treated as dumped imports for purposes of Article
3. (Korea's statement at the oral hearing)
155 In EC � Bed Linen, we noted that:
� Article 2.4.2 is not concerned with the collection
of anti-dumping duties, but rather with the determination of "the
existence of margins of dumping". Rules relating to the "prospective"
and "retrospective" collection of anti-dumping duties are set forth in
Article 9 of the Anti-Dumping Agreement. The European
Communities has not shown how and to what extent these rules on the "prospective" and "retrospective" collection of anti-dumping duties
bear on the issue of the establishment of "the existence of dumping
margins" under Article 2.4.2.
(Appellate Body Report, EC � Bed Linen, footnote 30 to
para. 62)
156 As a result, the amount of the anti-dumping duty collected
from the individually-examined producer will correspond to the
individually-calculated dumping margin. Pursuant to Article 9.1, the
investigating authorities may decide, however, that it is sufficient to apply a
duty of less than the dumping margin.
157 The first sentence of Article 6.10 requires, "as a rule",
that individual dumping margins be established for each producer or
exporter.
158 According to Article 9.4(i), this so-called "all others" duty
rate for non-examined producers may be based on the weighted average
of more than de minimis dumping margins of producers and
exporters selected for individual examination pursuant to the second sentence of
Article 6.10. Margins established under the circumstances referred to in Article
6.8 shall also be disregarded in calculating this weighted average.
Article 9.4(ii) provides for a different calculation method for cases where the
liability for payment of anti-dumping duties is calculated on the basis of a
prospective normal value.
159 European Communities' statement at the oral hearing; Panel
Report, para. 6.141.
160 However, the European Communities believes that Article 9.4
entitles it in any event to treat all imports subject to the "all others" duty
rate as "dumped imports" for purposes of Article 3.
161 European Communities' responses to questioning at the oral
hearing.
162 In response to questioning at the oral hearing, the United
States referred, for example, to evidence such as witness testimony and
different types of documentary evidence about critical aspects of the market,
conditions of competition, production characteristics, and statistical data
relating to the volume, prices, and effects of imports. In the circumstances of
a specific investigation, such categories of evidence may qualify as
affirmative, objective, and verifiable, and thus form part of the "positive
evidence" that an investigating authority may properly take into account when
determining, on the basis of an "objective examination", whether or not imports
from non-examined producers are being dumped.
163 India's and the European Communities' responses to
questioning at the oral hearing; Appellate Body Report, US � Hot-Rolled Steel,
para. 192.
164 India's appellant's submission, para. 31.
165 In their alternative calculation, the European Communities'
investigating authorities deducted from the volume of dumped imports
the imports attributable to the two Indian producers that were examined
individually and found not to be dumping. (EC Regulation
1644/2001, recital (22)) According to India, the result of this deduction was
that 86 percent of total imports from India by examined and
non-examined producers and exporters were found to be dumped. The European
Communities has not challenged this calculation by India. It believes, however,
that the calculation is irrelevant, because Article 9.4 entitles it to subject
all imports from non-examined producers to the "all others" duty rate and to
treat the same import volumes as dumped for purposes of determining injury under
Article 3.
166 Appellate Body Report, US � Hot-Rolled Steel, para.
196.
167 Appellate Body Report, US � Hot-Rolled Steel, para.
196.
168
Ibid., paras. 193-194 and 196.
169 Article 6.10 reads in relevant part:
The authorities shall, as a rule, determine an individual
margin of dumping for each known exporter or producer concerned
of the product under investigation. In cases where the number
of exporters, producers, importers or types of products involved is so
large as to make such a determination impracticable,
the authorities may limit their examination either to a
reasonable number of interested parties or products by using samples
which are statistically valid on the basis of
information available to the authorities at the time of the selection,
or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated.
(emphasis added)
170 Panel Report, para. 6.135.
171 India's appellant's submission, paras. 27-29.
172 See supra, paras. 123 ff.
173 United States' third participant's submission, para. 2.
(original italics; underlining added)
174 United States' response to questioning at the oral hearing.
175 United States' third participant's submission, para. 2.
176 United States' response to questioning at the oral hearing.
177 Original Panel Report, para. 6.136. Thus, we agree with the
United States' argument that import transactions attributable to a particular
producer or exporter need not be separated into two categories�dumped and
non-dumped transactions. (United States' third participant's submission, para.
3)
178 United States' third participant's submission, para. 17.
179 Article 3.3 of the Anti-Dumping Agreement
reads:
Where imports of a product from more than one country
are simultaneously subject to anti-dumping investigations, the
investigating authorities may cumulatively assess the effects of such
imports only if they determine that (a) the margin of dumping
established in relation to the imports from each country is more than de
minimis as defined in paragraph 8 of Article 5 and the volume of
imports from each country is not negligible and (b) a cumulative
assessment of the effects of the imports is appropriate in light of the
conditions of competition between the imported products and the
conditions of competition between the imported products and the like
domestic product.
180 United States' third participant's submission, para. 18.
181 Accordingly, as explained earlier, imports attributable to
producers or exporters who were individually examined and for
which, consistently with the Anti-Dumping Agreement, a positive
dumping margin (more than de minimis) was found, may be included
in the calculation of the volume of dumped imports; imports attributable to
individually-examined producers or exporters for which no such
dumping margin was found must be excluded from that calculation.
182 Panel Report, para. 6.144. (original boldface)
183 India's appellant's submission, para. 130.
184
Ibid.
185 Original Panel Report, para. 6.145.
186
Ibid., para. 6.167. The Regulation which imposed
provisional anti-dumping duties is Commission Regulation (EC) No 1069/97, 12
June 1997, imposing a provisional anti-dumping duty on imports of cotton-type
bed linen originating in Egypt, India and Pakistan, published in the Official
Journal of the European Communities, 13 June 1997, L-series, No. 156
("EC Regulation 1069/97"). Council Regulation (EC) No 2398/97, 28 November 1997,
imposing a definitive anti-dumping duty on imports of cotton-type bed linen
originating in Egypt, India and Pakistan, published in the Official Journal of
the European Communities, 4 December 1997, L-series, No. 332 ("EC Regulation
2398/97"), refers, in part, to the findings contained in EC Regulation 1069/97.
187 Original Panel Report, para. 6.168.
188 Panel Report, para. 6.165.
189
Ibid., paras. 6.146-6.150.
190
Ibid., para. 6.169.
191 Panel Report, para. 6.164. The full paragraph containing the
original panel's statement at issue is reproduced below. India relies on the
sentence in italics:
It appears from this listing that data was not even
collected for all the factors listed in Article 3.4, let alone evaluated
by the EC investigating authorities. Surely a factor cannot be
evaluated without the collection of relevant data. While some of the
data collected for the factors that are mentioned in the Provisional
Regulation by the EC authorities may have included data for the factors
not mentioned, we cannot be expected to assume that this was the case
without some indication to that effect in the determination. Nor is the
relevance or lack thereof, as assessed by the EC authorities, of the
factors not mentioned under the heading "Situation of the Community
industry" at all apparent from the determination.
(Original Panel Report, para. 6.167) (emphasis added)
192 Panel Report, para. 6.164.
193
Ibid., para. 6.167.
194 Appellate Body Report, US � Wool Shirts and Blouses,
at 335.
195 India alleges that it had established a prima facie
case by: (i) pointing to the statement made by the original panel to the effect
that the panel could not assume that data on certain injury factors was
collected where it was not mentioned in the final determination; (ii) showing
that the non-confidential replies to the questionnaires sent by the European
Communities to its domestic producers did not contain such
data; (iii) indicating that EC Regulation 1644/2001 does not contain facts
or data concerning stocks and capacity utilization; and (iv) requesting
that the European Communities provide this information during the Article 21.5
proceedings and by the European Communities' failure to do so. (India's
appellant's submission, paras. 112-113)
196 India's appellant's submission, para. 124.
197
Ibid.
198 Appellate Body Report, US � Hot-Rolled Steel, para.
55.
199 India's appellant's submission, paras. 128-129.
200 European Communities' appellee's submission, para. 105.
201
Ibid., para. 108.
202 European Communities' appellee's submission, para. 114.
203 Appellate Body Report, US � Carbon Steel, para. 142.
204 Appellate Body Report, Thailand � H-Beams, para. 114.
205 Appellate Body Report, Thailand � H-Beams, para. 114.
206 Appellate Body Report, US � Hot-Rolled Steel, para.
56. (original italics)
207
Ibid., para. 55.
208 In our Report in US � Hot-Rolled Steel, we stated:
� Article 17.6(i) requires panels to make an "assessment
of the facts ". The language of this phrase reflects closely the
obligation imposed on panels under Article 11 of the DSU to make an "objective
assessment of the facts ". Thus the text of both provisions
requires panels to "assess" the facts and this, in our view, clearly
necessitates an active review or examination of the pertinent facts.
Article 17.6(i) of the Anti-Dumping Agreement does not
expressly state that panels are obliged to make an assessment of the
facts which is "objective". However, it is inconceivable that
Article 17.6(i) should require anything other than that panels make an objective
"assessment of the facts of the matter". In this respect, we see no
"conflict" between Article 17.6(i) of the Anti-Dumping Agreement
and Article 11 of the DSU.
(Appellate Body Report, US � Hot-Rolled Steel, para. 55) (original italics; underlining added) Both the European Communities and India agree with
this interpretation of the relationship between Article 17.6 of the Anti-Dumping Agreement and Article 11 of the DSU. (India's and
the European Communities' responses to questioning at the oral hearing)
209 Appellate Body Report, US � Lead and Bismuth II, para.
47.
210 India's appellant's submission, para. 128.
211
Ibid., para. 127. (original italics)
212 India's claim on appeal is limited to the Panel's finding
that the European Communities did in fact collect and have information before it
on stocks and capacity utilization before making its injury determination.
India's appeal does not encompass the Panel's conclusion with respect to the
European Communities' evaluation of these factors. (Ibid.,
para. 130)
213 Appellate Body Report, EC � Sardines, para. 302.
Article 13 of the DSU reads:
Right to Seek Information
1. Each panel shall have the right to seek
information and technical advice from any individual or body which it
deems appropriate. However, before a panel seeks such information or
advice from any individual or body within the jurisdiction of a Member
it shall inform the authorities of that Member. A Member should respond
promptly and fully to any request by a panel for such information as the
panel considers necessary and appropriate. Confidential information
which is provided shall not be revealed without formal authorization
from the individual, body, or authorities of the Member providing the
information.
2. Panels may seek information from any relevant
source and may consult experts to obtain their opinion on certain
aspects of the matter. With respect to a factual issue concerning a
scientific or other technical matter raised by a party to a dispute, a
panel may request an advisory report in writing from an expert review
group. Rules for the establishment of such a group and its procedures
are set forth in Appendix 4.
214 Appellate Body Report, EC � Sardines, para. 302.
215 India's response to questioning at the oral hearing.
216 India's appellant's submission, para. 128.
217
Ibid. (footnotes omitted)
218 Appellate Body Report, Mexico � Corn Syrup (Article 21.5 �
US), para. 84. In the context of cases brought under the Agreement on
Safeguards, we have also said that, in making an objective assessment
of the facts pursuant to Article 11 of the DSU, panels may not conduct a de
novo review of the evidence nor substitute their judgement for that of the
competent authorities. (Appellate Body Report, US � Lamb, para. 106;
Appellate Body Report, US � Cotton Yarn, para. 74)
219 For example, in EC � Hormones, we stated that "it is
generally within the discretion of the Panel to decide which evidence it chooses
to utilize in making findings." (Appellate Body Report, EC � Hormones,
para. 135)
220 Appellate Body Report, US � Wheat Gluten, para. 151.
221 Panel Report, para. 6.169.
222
Ibid., para. 6.167. (emphasis added)
223 Section VI.A of the questionnaire sent by the investigating
authorities of the European Communities to its domestic industry reads:
Please describe the effects of the imports
under consideration on your own business of producing the types of bed
linen covered by the investigation, [e.g.] on market share, sales,
prices, production, capacity utilisation, stocks, employment,
profitability, ability to invest[,] etc. (emphasis added)
(European Communities' Anti-dumping Questionnaire, attached
to India's oral statement to the Panel) See also, European Communities' response
to Question 18 posed by the Panel during the Panel proceedings; Panel Report,
Annex E-2, p. 37, para. 8.
224 European Communities' response to Question 18 posed by the
Panel during the Panel proceedings; Panel Report, Annex E-2, p. 37, para. 8.
225
Ibid., p. 38, para. 11.
226 European Communities' appellee's submission, para. 100,
quoting excerpts from the European Communities' first written submission to the
Panel.
227 In that case, we stated that:
� it is a generally-accepted canon of evidence in
civil law, common law and, in fact, most jurisdictions, that the burden
of proof rests upon the party, whether complaining or defending, who
asserts the affirmative of a particular claim or defence. If that party
adduces evidence sufficient to raise a presumption that what is claimed
is true, the burden then shifts to the other party, who will fail unless
it adduces sufficient evidence to rebut the presumption.
(Appellate Body Report, US � Wool Shirts and Blouses,
at 335) (footnote omitted)
228 Panel Report, para. 6.7.
229 India's response to questioning at the oral hearing.
230 European Communities' appellee's submission, para. 93.
231 Appellate Body Report, EC � Hormones, para. 132.
232 Appellate Body Report, US � Wheat Gluten, para. 151.
We note, moreover, that in Korea � Alcoholic Beverages, we refused
to "second-guess" the panel's appreciation of certain studies submitted into
evidence or "review the relative weight" ascribed to the evidence. (Appellate
Body Report, Korea � Alcoholic Beverages, para. 161) In Australia �
Salmon, we concluded that "[p]anels � are not required to accord to
factual evidence of the parties the same meaning and weight as do the parties."
(Appellate Body Report, Australia � Salmon, para. 267)
233 Appellate Body Report, Korea � Alcoholic Beverages,
para. 164.
234 India's appellant's submission, para. 124. (original italics)
235
Ibid.
236 Appellate Body Report, EC � Hormones, para. 133.
237 India's appellant's submission, para. 87.
238 India's response to questioning at oral hearing.
239 Appellate Body Report, US � Wheat Gluten, paras.
161-162; Appellate Body Report, US � Lamb, para. 149.
240 Appellate Body Report, US � Cotton Yarn, para. 80.
241 Appellate Body Report, Chile � Price Band System,
para. 177.
242 See supra, footnote 212 to para.165.
243 In response to questioning at the oral hearing, India
explained that "[i]f there is a heavy balance on one side and nothing on the
other side, and the panel nevertheless finds it is the other way around, then we
feel [it] is a distortion of the evidence".
244 See supra, para. 177.
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