|
|
|
espa�ol - fran�ais - portugu�s |
Search
|
|
|
|
espa�ol - fran�ais - portugu�s |
|
Search
|
UNITED
STATES � ANTI-DUMPING MEASURES ON
Report of the Panel (Continued)
ORAL STATEMENT OF THE UNITED STATES
SECOND MEETING OF THE PANEL
(12 July 2000)
CONTENTS
I. INTRODUCTION 1. Thank you Mr. Chairman and members of the Panel. The United States is pleased once again to have the opportunity to appear before you to present its views on the issues raised in this proceeding and to address any issues on which the Panel would like further clarification. The United States has presented its views in its prior submissions and during the first panel meeting and, at this stage in the proceedings, the issues are in sharper focus.
2. There are, however, some new aspects to Korea's arguments that we would like to address. In fact, you can well imagine my surprise when I opened Korea's rebuttal brief and read that the United States had sounded a full retreat and conceded the entire case. To be precise, the word "conceded" appears 27 times in Korea's submission, not including the table of contents. Thus, you can also imagine my relief when, upon further examination, it was evident that we had only "conceded" arguments never made and retreated from positions never taken.
3. Of course, the United States has not conceded this case. We continue to be of the view that, despite the fact that Korea is unhappy with the results, the investigations at issue were conducted in complete conformity with the requirements of the Anti-dumping Agreement. As discussed in our prior submissions, all of Korea's attempts to find a basis for its complaints in the provisions of the Agreement fail.
4. Of course, one way Korea might prevail is if the United States were precluded from presenting a defense. To that end, Korea argues that, in this proceeding, any arguments made or facts cited by the United States that were not addressed in its notices and decision memoranda in the underlying investigations constitute post hoc rationalizations. Korea relies on the panel's decision in High Fructose Corn Syrup, but a review of that case reveals that it addressed an entirely different issue and does not support Korea's argument. In Corn Syrup, the panel found that there was no evidence that Mexico had made the findings and conclusions necessary to impose duties retroactively, and the panel concluded that it was not its task to attempt to discern them from the record.
5. In contrast, the United States' findings and conclusions on the issues before this Panel are set forth in its notices and decision memoranda, and we have stood by those decisions during this proceeding. Of course, as Korea has acknowledged, arguments concerning consistency with WTO obligations were not an issue in the domestic proceeding. Therefore, the absence of any arguments concerning WTO consistency in the notices is not surprising. A rationale that was never required in the first place is not post hoc . I would like to use as an example, the Article 2.3/2.4 issue. This is not an issue under domestic law. The notices and decision memoranda show that we calculated two separate adjustments, one for constructing export price for sales through POSAM and one for the circumstance of sale adjustment. Those adjustments are covered under two separate provisions of US law. In its first submission, Korea described the bad debt deduction as a single adjustment to all export prices. In response, the United States pointed out that there were two adjustments covered under different provisions of the Agreement, Articles 2.3 and 2.4, which brought us to the current discussion of those two provisions. This example demonstrates that this not a case of post hoc rationale, but merely point/counter point.
6. Moreover, as required by the Agreement, the United States discussed in the notices and decision memoranda the facts relied upon in reaching its conclusion. Nothing in the Agreement suggests that the United States is now precluded from addressing Korea's arguments, in which they re-weigh the facts and argue that the United States should have reached a different conclusion. In arguing to the contrary, Korea is essentially asking the Panel to require the United States to defend its position with one hand tied behind its back.
II. FAIR COMPARISON 7. Korea also hopes to find a cure for the flaws in its legal arguments in the first sentence of Article 2.4. Putting aside for the moment the textual problems with Korea's argument that the "fair comparison" requirement in the first sentence of Article 2.4 is a separate obligation, independent of the remainder of Article 2.4, take a moment and simply consider the issue logically. Under Korea's interpretation, the United States (or any other Member) could perform a dumping analysis that compares identical products at the same levels of trade, makes all allowances necessary to ensure price comparability, converts currencies in accordance with Article 2.4.1 and constructs weighted average export prices and normal values in accordance with Article 2.4.2 and yet would still be subject to a claim that the analysis was unfair. However, Korea has failed to explain what could possibly be unfair about a dumping analysis that meets the methodological requirements set out in Article 2.4.
8. In effect, Korea's interpretation of the first sentence of Article 2.4 renders the remainder of Article 2.4 meaningless. It also presumes that the Members, after the painstaking process of reaching consensus on the basic rules for conducting a dumping analysis, then accepted a virtually limitless number of undefined rules that override that consensus. However, an analysis of the text of Article 2.4 and its history demonstrates to the contrary.
9. Contrary to Korea's assertion, the US is not reading "fair comparison" out of the Agreement. While the first sentence of Article 2.4 establishes an obligation to make a fair comparison, the remainder of Article 2.4 defines that comparison. As we explained in response to the Panel's question, the predecessor to Article 2.4, Article 2.6 of the Anti-Dumping Code, also defined what was required "[i]n order to effect a fair comparison" (emphasis added). However, there was no language in Article 2.6 that clearly made that comparison mandatory. "In order to effect" was ambiguous. It is not the United States' view that the provisions were discretionary, only that the language was ambiguous and the change removed that ambiguity.
10. The ambiguity was eliminated in the current Agreement by adding the first sentence of Article 2.4, in which the requirement to make a fair comparison is explicit. However, the remainder of Article 2.4, like its predecessor, defines the comparison. In fact, the version of Article 2.4 contained in what is known as the "Dunkel Draft" was specifically amended to begin the second sentence of Article 2.4 with the words "this comparison", thereby explicitly establishing that the rules that follow defined the fair comparison. Further, the first sentence of Article 2.4.2 explicitly refers to the provisions of paragraph 4 as "governing fair comparison", which is consistent with the view that Article 2.4 defines a fair comparison.
11. Thus, whether the price comparison performed by the United States in the underlying investigations was "fair" can only be judged in light of the explicit methodological requirements of Article 2.4. Because the comparison performed by the United States in the cases at issue was consistent with those requirements, Korea's claims of a violation of Article 2.4 must fail. I would like to review briefly the key points that inevitably lead to that conclusion.
III. BAD DEBT 12. With respect to the treatment of bad debt expense, the issue before the Panel boils down to two questions: (1) can you adjust for bad debt expense under Article 2.4; and (2) if an adjustment is permitted, how do you calculate it?
13. With respect to the first question, Korea has a problem because - as the United States has consistently explained - with respect to POSCO's sales through POSAM, the allocated portion of the bad debt expense was part of the deductions the United States made to construct export price pursuant to Article 2.3. This was not an Article 2.4 adjustment. However, Korea's claim concerning the United States' treatment of bad debt expense is based solely on Article 2.4. Therefore, any adjustments for bad debt made pursuant to Article 2.3 of the Agreement are not before the Panel. Korea's attempts to overcome this problem are transparent and the fallacies in their arguments obvious.
14. First, Korea argues that Article 2.3 is within the Panel's terms of reference. As a general matter, that argument is, without question, inconsistent with the DSU and prior panel decisions. More specifically, it is inconsistent with the terms of reference established by this Panel. The terms of reference for this proceeding state that the Panel is to examine this matter "in the light of the relevant provisions of the covered agreements cited by Korea" (emphasis added). Therefore, the Panel may only consider the United States' treatment of bad debt expense in light of Article 2.4 because that is the only provision cited by Korea as the basis for its claim.
15. Korea does not dispute the fact that the United States constructed export price for POSCO's sales through POSAM and that in doing so the United States deducted an allocated portion of the bad debt expense. Moreover, Korea does not claim that Article 2.4 governs the construction of export price. Rather, Korea argues that by virtue of the fact that we have noted that the construction of export price is addressed in Article 2.3, the United States has, in effect, amended the terms of reference to include Article 2.3.
16. That argument turns the DSU on its head. Under Korea's theory, the terms of reference are no longer defined by the claims asserted, but rather by the defences raised. That position is inconsistent with Articles 6.2 and 7.1 of the DSU. In accordance with the DSU, the issue before the Panel is whether Korea can establish that the deduction of an allocated portion of bad debt expense made to construct the export price was inconsistent with Article 2.4, which is the only provision cited by Korea. To decide that issue, it is unnecessary and inappropriate to consider Article 2.3. A simple reading of Article 2.4 demonstrates that nothing in that provision precludes the United States from deducting the allocated bad debt expense in constructing export price.
17. That brings me to Korea's fallback argument. Korea argues that Article 2.3 is irrelevant, even in the case of the constructed export price sales through POSAM. The logic of this argument is essentially as follows: the United States adjusts for differences in direct selling expenses under Article 2.4; therefore, because the United States considers bad debt a direct selling expense, any adjustment for bad debt must be justified under Article 2.4. This is analogous to arguing that all houses are buildings; therefore, because we are now in a building we must be in a house.
18. As explained in our prior submissions, the United States, in fact, made two different types of adjustments. The difference in the adjustments was based on the difference in the types of transactions being examined, i.e., POSCO's sales through its affiliate POSAM and POSCO's sales directly to independent US buyers. In the case of the sales through POSAM, an allocated portion of the bad debt expense was part of the adjustments made to construct export price, as provided for in Article 2.3.; no further adjustment for bad debt was made for these transactions. Only in the case of POSCO's direct sales to independent buyers was an allocated portion of the bad debt expense made part of the adjustment to account for differences in conditions and terms of sale, as required by Article 2.4.
19. The fact that there were two different adjustments made pursuant to two different provisions of the Agreement is a problem for Korea because, as discussed previously, the Panel can only review the consistency of the measures at issue with respect to one of those provisions, Article 2.4. To overcome this problem, Korea attempts to convert the Article 2.3 adjustment to construct export price into an Article 2.4 adjustment.
20. In that regard, Korea searches for some help in the statement in the fourth sentence of Article 2.4 that certain adjustments should "also" be made in constructing export price. Korea states that the term "also" makes it evident that adjustments to construct export price are not a replacement for adjustments to account for differences affecting price comparability.
21. The United States agrees that adjustments made to construct export price in accordance with Article 2.3 serve a different purpose than Article 2.4 adjustments. In fact, the fifth sentence of Article 2.4 recognizes that the Article 2.3 adjustments can render prices incomparable, whereas Article 2.4 adjustments establish comparability. Because the two types of adjustments are separate and distinct, it is obvious that Article 2.3 adjustments do not replace Article 2.4 adjustments. By the same token, Article 2.4 adjustments do not replace Article 2.3 adjustments. In fact, it is necessary to make the Article 2.3 adjustments - that is, to construct export price - before determining what Article 2.4 adjustments are necessary.
22. The real key to Korea's attempts to resolve its Article 2.3 problem is its theory that there can be only one adjustment - what they consistently refer to as "the" adjustment - for what Korea appears to view as a total, indivisible bad debt expense. Based on that premise, Korea argues that, because the United States included bad debt expense in the Article 2.4 adjustment made for the comparison of POSCO's direct sales, all adjustments for bad debt expense must be justified under Article 2.4. The adjustment made to construct export price is thereby, in Korea's view, converted into an Article 2.4 adjustment, rendering Article 2.3 irrelevant, which would solve their problem.
23. The fundamental flaw in this argument is that the premise is false - the total bad debt expense is not indivisible. In a dumping analysis, first the amount of selling expenses for each transaction is determined, then appropriate adjustments are made based on those expenses, as necessary. Because the necessary adjustments may vary, depending on whether the transaction at issue is a direct export sale or a resale through an associated importer, the treatment of the selling expenses may also vary, depending on the type of transaction. In other words, it is not only the type of expense that determines how that expense is taken into account; it also depends on the type of transaction.
24. As the United States discussed in its prior submissions, the bad debt at issue was allocated to all US sales of the subject merchandise. Once the allocated expense for each transaction was determined, the United States made the adjustments appropriate for each particular type of transaction. Accordingly, the portion of the bad debt expense allocated to POSCO's sales through POSAM fell within the Article 2.3 adjustments to construct export price - as discussed in paragraph 17 of our response to the Panel's questions - and only the portion allocated to POSCO's direct sales fell within the Article 2.4 adjustment for differences in conditions and terms of sale.
25. Since there were, in fact, two distinct adjustments that involved an allocated portion of the bad debt expense, and only one of those adjustments was made pursuant to Article 2.4, the issue before the Panel is whether that adjustment - and only that adjustment - was consistent with Article 2.4. The issue of the adjustment for bad debt made to construct export price is outside the Panel's terms of reference.
26. With respect to the Article 2.4 adjustment made to normal value for comparison to direct export sales, Korea's claim must also fail. In prior submissions, the United States has explained at length why it believes that differences in direct selling expenses, such as bad debt and warranty, constitute differences in the "conditions and terms of sale", within the meaning of Article 2.4. At this point, I would like to assure Korea that we have not abandoned our analogy to warranty expenses. In asserting that bad debt is not a condition and term of sale, Korea argued that a delayed payment term does not authorize non-payment. By the same token, selling under warranty does not authorize the seller to provide defective merchandise. A warranty term creates the possibility of a warranty expense and a delayed payment term creates the possibility of bad debt expense. Even Korea agrees, in response to question 7 from the Panel concerning unpaid sales, that the conditions and terms of sale include payment terms and that some adjustment for differences in expenses related to payment terms, including bad debt, may be consistent with Article 2.4. It is now apparent that the crux of Korea's claim is not that an adjustment for bad debt is per se inconsistent with Article 2.4, but rather how the United States measured that adjustment in these cases.
27. The Agreement does not provide any guidance on the measurement of differences that affect price comparability. In the case of bad debt, in Korea's view, the United States should have measured any difference in bad debt risk on the basis of any difference in insurance premiums, although there is no evidence in these investigations that POSCO had insurance against bad debt. Korea also seems to accept that using the exporter's bad debt experience could provide a reasonable measurement as well.
28. As discussed in response to the Panel's questions, it is the view of the United States that a reasonable method - and in fact the only practical method - for calculating an adjustment for differences in conditions and terms of sale is to use the expenses reflected in the exporter's normal accounting records. However, in the case of contingent expenses such as warranty and bad debt, it is reasonable to factor into that measurement the seller's experience. Therefore, in the case of warranty expense, the United States does request information concerning past experience to determine whether the actual warranty expenses incurred during the period of investigation were normal for the particular exporter being examined. In the case of bad debt, companies normally recognize bad debt expense on a reserve account basis, which is based on prior bad debt experience. Therefore, because reported bad debt expense normally reflects the exporter's experience, the United States does not normally request historical information.
29. POSAM did not maintain a bad debt reserve - a fact that POSCO did not point out until the verification in the plate case. Now, by saying that, Korea claims that the United States is trying to pass the buck. We are not passing the buck, we are simply stating a fact. The antidumping questionnaire requests everything we would normally expect to need in a dumping analysis. We had no way of knowing that POSAM used unusual accounting methods. POSAM recognized ABC company's entire bad debt as an expense during the period of the investigations. Moreover, POSCO did not argue that the bad debt expense recognized during the period of investigation should be adjusted to reflect its experience, and did not propose any methodology for making such an adjustment. Again, I am sure Korea will say that the US is passing the buck. However, it is standard in a dumping investigation, when an exporter has a problem meeting the normal reporting requirements, to propose a reporting methodology. In fact, there is a provision of US law that requires parties to promptly notify the Department if there is a problem and propose an alternative. Since we had no forewarning and no proposed methodology, in accordance with its established practice, the United States relied on the expense reflected in the company's accounting records.
30. It is only now - in this proceeding - that Korea has argued that it was incumbent upon the United States to decipher some means of calculating the bad debt adjustment on the basis of information never submitted by POSCO, despite the fact that all of the relevant information was in POSCO's control. We disagree.
31. POSCO knew from the outset of these investigations that ABC Company's bad debt would be a factor in the dumping analysis. Rather than provide a basis for adjusting this bad debt expense to reflect experience - based on POSCO's knowledge of its own accounting practices (not ours) - POSCO opted to argue that the sales should be treated as "atypical" and excluded from the analysis. As the United States explained in its final determinations and prior submissions in this proceeding, there was nothing atypical about these transactions. Thus, the only issue was how to measure the bad debt expense in light of the information provided by POSCO.
32. With respect to the measurement of the bad debt expense, the only argument made by POSCO in the underlying investigations was that the bad debt expense should be allocated over a broader category of sales. In this proceeding, Korea originally argued that the United States should have allocated the expense only to the unpaid sales. Korea now asserts that it should be allocated over either the unpaid sales or all of POSCO's credit sales in all markets. Thus, Korea has acknowledged that it would be appropriate to allocate the bad debt expense beyond the unpaid sales.
33. The positions expressed by POSCO and Korea demonstrate that reasonable minds may differ concerning what constitutes an appropriate allocation of bad debt expense. As we discussed in prior submissions, the market-specific allocation of bad debt expense made by the United States in its dumping analysis was reasonable. There is no basis in the Agreement for Korea's "all or nothing" allocation argument. Moreover, as the United States explained in its first submission, to the extent that argument suggests that POSCO may exploit its domestic market to sell at lower prices in the United States - that is dumping.
34. In sum, including an allocated portion of POSCO's bad debt expense in the adjustment to account for differences in the conditions and terms of sale was entirely consistent with Article 2.4. Moreover, the United States made a reasonable calculation of that adjustment in the cases at issue, based on the evidence provided by POSCO.
IV. MULTIPLE AVERAGING PERIODS 35. I will now turn to the issue of the use of multiple averaging periods in response to the sudden devaluation of the Korean won.
36. After sorting through Korea's various arguments on the issue, and with the assistance of the insightful questions from the Panel, it is now evident that there is one and only one relevant question with respect to this issue: whether the United States permissibly determined not to compare sales made prior to and after a 50 percent devaluation of the won, based on its conclusion that such sales were not "comparable" within the meaning of Article 2.4.2.
37. The term "comparable" is not defined in the context of Article 2.4.2. Further, the period of sales to be covered by the averages described in Article 2.4.2 is also not defined. However, the term "comparable" cannot be understood outside of its context in the Agreement. In a broad sense, it is possible to compare any two sales regardless of how far apart in time they have been made, and regardless of any other differences between them; in other words such sales are "comparable" in a general sense. However, the results of such a comparison would not be particularly meaningful for the purpose of determining whether dumping exists. Thus, the United States fully agrees with the statement by Korea that "the meaning of the term 'comparable transactions' must be understood in light of the rules concerning 'comparisons' established by the anti-dumping agreement".
38. The only relevant guidance the Agreement gives to investigating authorities on this particular issue is the statement in Article 2.4 that the comparison shall be made "in respect of sales made at as nearly as possible the same time". In the cases before the Panel, two sub-periods within the period of investigation were separated by a severe devaluation of the home market currency relative to the currency of export price sales. Due to this situation, although the nominal home market prices in won remained relatively stable, sales at the end of the period of investigation were worth only half as much when compared to the export sales, as the sales at the beginning of the period. In light of this fact, and in accordance with the guidance provided in Article 2.4, the United States chose to compare sales made closer in time, rather than sales made more distant in time.
39. Korea continues to argue that the plain language of Article 2.4.2 requires a single weighted-average. However, Korea's position that multiple averages are permitted for different levels of trade and physical characteristics reveals that the dispute in this case is not the issue of multiple averages per se, but rather over the interpretation of the term "comparable," a term the panel in Tobacco found to be "susceptible of a range of meanings."
40. Korea begins its discussion of the meaning of the term "comparable" with the statement that "the meaning of the term 'comparable transactions' must be understood in light of the rules concerning 'comparisons' established by the anti-dumping agreement", but then Korea quickly loses sight of its own principle. The Agreement explicitly states that comparisons shall be made in respect of sales made at as nearly as possible the same time. Korea advances the novel interpretation of this language that, so long as the average of the dates covered by the relevant periods are the same, all sales within the period should be considered to have been made at the same time, and thus are "comparable" for purposes of averaging under Article 2.4.2.
41. That interpretation would lead to the conclusion that it was appropriate to investigate sales made over a five-year or ten-year period, so long as the periods for the export price and normal value sales were the same, and thus the average date the same. Yet it seems clear to the United States that sales made five or ten years apart should not be considered to have been made at the same time. Moreover, the averages which the United States constructed in these cases meet Korea's test: the average date of each home market sub-period is the same as the average date of the US sub-period. Thus, Korea's test for whether sales have been made at the "same time" does not establish that a single average must be created for a year-long period of investigation. Korea's test could be met with much longer averages, and is also met by the multiple averages created in these cases. I would also note with respect to Korea's argument that transactions in two different periods are closer in time than some transactions within the same period, that is a fact inherent in determining an average period based on time. Obviously, if you create, for example, monthly averages in a hyperinflationary period, some sales in different averaging groups are separated by only a day, while some sales within the same group are separated by as much as 30 days. However, this is normal whenever averaging groups are used. The issue is whether you have defined a reasonable averaging group that reflects different conditions in the market at different times.
42. The United States notes the statement in Korea's second submission that "the sales prior to the depreciation of the Korean won would not be 'comparable transactions' to sales after the won's depreciation only if there were some provision of the Agreement that would prohibit the comparison of such transactions." However, as discussed above, Article 2.4 does contain a provision which presumes changes over time may affect comparability, and thus that comparisons between sales closer in time are preferable to comparisons between sales further apart in time.
43. Korea also argues that any issue related to currency must be addressed under Article 2.4.1 or not at all. However, Article 2.4.1 does not have such a broad purpose as that suggested by Korea. On its face, Article 2.4.1 only provides guidance with respect to which exchange rate an investigating authority should apply. It does not address the comparability of sales included in the averages being compared; rather, this issue is addressed in Article 2.4.2.
44. In an even less tenable position, Korea argues that because prices in won remained roughly even, they should be considered comparable, even though their values in dollars, which is the currency in which the comparison was made, are sharply different. The problem with this argument is that the home market prices are stated in dollars before they are compared with the export prices. By separating the sales made prior to the devaluation from those made after the devaluation, the United States has ensured that comparability of the prices in dollar terms is maintained.
45. Finally, Korea's reliance on statements by the panel in Cotton Yarn is misplaced. In that case, Brazil argued that the EC should have excluded from normal value sales made during a period in which the Government of Brazil held exchange rates stable, or should have adjusted the prices of those sales. Thus, the panel in Cotton Yarn was addressing the question of whether a "due allowance" or "compensatory adjustment" under the second sentence of Article 2.6 of the Antidumping Code must be made to certain exchange rates. Brazil did not argue that sales during the period of fixed exchange rates were not made "at the same time" as other sales. Therefore, the effect of time on comparability was not before the panel. Nor was the panel presented with the question of whether separate averages could be created in light of a severe devaluation of the home market currency for the simple reason that the concept of average-to-average comparisons did not exist under the Code.
46. In light of the fact that the United States permissibly concluded that a 50 percent devaluation in the home market currency rendered sales before and after the devaluation not comparable within the meaning of Article 2.4.2, the Panel should find the measures taken by the United States to be in conformity with the Agreement with respect to this issue.
V. LOCAL SALES 47. Finally, I will address the issue of local sales.
48. A review of the submissions confirms that there is no real disagreement over the meaning of the relevant provisions of Article 2.4.1. Korea and the United States agree that if the sales used to establish normal value are in a different currency than the export price sales, conversion at the rate in effect on the date of sale was appropriate, and if the sales are in the same currency, no conversion is necessary or appropriate.
49. In these investigations, the United States found, based on the evidence provided by POSCO, that the local sales were made in won. Therefore, Korea's claim rests on whether that finding was based on an unbiased and objective assessment of the facts. In this regard, there is a dispute about the finding of fact. The United States concluded that the sales were in won. Korea's premise is that these sales are dollar sales, based on its review of the facts. Thus, there is a dispute about the finding of fact, which Korea confuses with the underlying data. Korea's legal argument starts from its finding of fact that these were dollar sales, then applies the US reasoning that starts from a different factual premise, that these were won sales. Korea then concludes that the US' argument fails. That conclusion is not surprising since they start from a different factual premise. Thus, notwithstanding Korea's assertion that there are no facts in dispute, this issue is primarily a question of fact.
50. In analyzing that issue, the Panel should examine how the facts were presented by POSCO in the investigations - not how they were presented by Korea in this proceeding. It is also important to keep in mind that Korea's claim is asserted with respect to two separate investigations conducted over different time periods and on the basis of different evidentiary records. Thus, the United States' assessment of the facts in each case must be reviewed independently.
51. The facts and arguments presented in each of these investigations are set out in detail in paragraphs 36-59 of the United States response to the Panel's questions. Again, I emphasize, if you review that analysis of the facts in the record, it is readily apparent that how the facts were presented by POSCO differs significantly from how the facts have been presented by Korea here. To summarize, in the plate case, POSCO originally reported these sales prices in won and stated that the sales were paid in won, and the invoices reflected the won amounts reported by POSCO. POSCO subsequently claimed that these sales were made in dollars and reported dollar amounts that were also reflected on the invoices. At verification, the United States confirmed that the reported invoiced won amounts were consistent with the amounts recorded in POSCO's accounts receivable. There was no evidence in that case that the won amounts reported were different from the won amounts actually paid and POSCO did not make such a claim.
52. The sales at issue were sales made in Korea, between two Korean companies, for consumption in Korea. In light of the fact that the sales were invoiced, paid and recorded in won, it was not only reasonable for the United States to determine that the sales were made in won, it is difficult to image how it could have reached a contrary conclusion.
53. In the sheet case, POSCO also reported these sales in won and stated that the sales were paid in won, and that the amounts reported were "the actual invoice price per metric ton in Korean won." Once again, POSCO claimed later in the proceeding that these sales were made in dollars and reported dollar amounts that were also reflected on the invoices. In that case, POSCO also provided evidence at verification that the won amounts actually paid differed from the amounts on the invoices. The verification report indicates that a local sale was examined and POSCO provided accounting entries showing that the won amount paid for that sale differed from the won price on the invoice.
54. Korea's suggestion that the statements in the verification report constitute findings of fact is incorrect. Verifiers do not make findings of fact or conclusions of law. The verification report records what the verifier saw and what she was told by POSCO. After verification, the United States weighed all of the evidence and again concluded that the local sales were made in won, as explained in the notice of final determination. I would like to point out that the United States is not passing the buck. Korea has failed to point to one piece of information that we did not ask POSCO to provide. We addressed the record as POSCO presented it.
55. Was there conflicting evidence on that record? Yes. Nevertheless, based on the record, an unbiased and objective person could reach the conclusion that these Korean sales were made in won. Therefore, the United States' determination was consistent with its obligations under the Agreement. The fact that Korea may now sift through the record, re-weigh the facts, and argue that it would have reached a different conclusion is irrelevant.
56. Given that the United States determined, based on an unbiased and objective assessment of the information provided by POSCO, that these local sales were made in won, the conversion of the won prices into dollars was consistent with the Agreement and Korea's claim to the contrary must fail.
VI. CONCLUSION 57. In sum, the United States has amply demonstrated that Korea's claims are unfounded. The dumping analyses in the cases at issue were consistent with Agreement. In closing, I believe it is appropriate to return briefly to the topic with which I began. It is important to recognize that the fair comparison requirement of Article 2.4 is not one-sided. One purpose of the Agreement is, of course, to establish rules to govern the conduct of anti-dumping proceedings, and the particular purpose of Article 2.4 is to establish rules for how to measure - fairly - the existence of dumping. However, the fundamental purpose of the Agreement is to implement Article VI of the GATT in which "the contracting parties recognize that [injurious] dumping. . . is to be condemned", and establish that a Member whose domestic industry is injured by dumping has a right to take a remedial measure. Thus, the requirement to make a fair comparison exists not only for the benefit of the exporters alleged to be dumping, but also for the benefit of the domestic industries alleged to be injured by dumped imports.
|
|
