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Lawyers, other representatives, expert(s), tribunal’s secretary

Report of the Panel

I. introduction

A. Complaint of Turkey

1.1.
On 6 November 2000, Turkey requested consultations with Egypt pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes ("the DSU"), Article XXIII of the General Agreement on Tariffs and Trade 1994 ("GATT 1994"), and Article 17.3 of the Agreement on Implementation of Article VI of the GATT 1994 ("the Anti-Dumping Agreement" or "the AD Agreement"), with regard to the definitive anti-dumping measures imposed by Egypt on imports of concrete steel reinforcing bar ("rebar") from Turkey1.
1.2.
On 3-5 December 2000 and 3-4 January 2001, Turkey and Egypt held the requested consultations, but failed to reach a mutually satisfactory resolution of the matter.
1.3.
On 3 May 2001, Turkey requested the establishment of a panel to examine the matter2.

B. Establishment and Composition of the Panel

1.4.
At its meeting of 20 June 2001, the Dispute Settlement Body ("the DSB") established a panel in accordance with the request made by Turkey in document WT/DS/211/2 and Corr. 1, and in accordance with Article 6 of the DSU.
1.5.
At that meeting, the parties to the dispute also agreed that the Panel should have standard terms of reference. The terms of reference therefore are the following:

"To examine, in the light of the relevant provisions of the covered agreements cited by Turkey in document WT/DS211/2 and Corr.1, the matter referred to the DSB by Turkey in that document, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."

1.6.
On 18 July 2001, the parties agreed to the following composition of the Panel:

Chairman:Mr. Peter Palecka

Members:Mr. Daniel Moulis

Mr. Virachai Plasai

1.7.
Chile, the European Communities, Japan and the United States reserved their rights to participate in the panel proceedings as third parties.

C. Panel proceedings

1.8.
The Panel met with the parties on 27-28 November 2001 and 25-26 February 2002. The Panel met with third parties on 27 November 2001.
1.9.
On 21 May 2002, the Panel provided its interim report to the parties (See Section VI, infra).

II. FACTUAL ASPECTS

2.1.
This dispute concerns the imposition of a definitive anti-dumping measure by Egypt on imports of rebar from Turkey, imported under heading 72.14.00.00, and its subheadings, of the Harmonized Tariff Schedule of Egypt.
2.2.
On 23 and 26 December 1998, two applications were filed, by Ezz Steel Company ("Al Ezz") and Alexandria National Iron and Steel Company ("Alexandria National") with Egypt's International Trade Policy Department ("the ITPD"), the Egyptian Investigating Authority ("IA"). The applicants alleged that imports of rebar originating in Turkey were being dumped in Egypt and threatened to cause material injury to the domestic industry since the second half of 1998. On 6 February 1999, a notice of initiation of an anti-dumping investigation was published in the Official Gazette of Egypt.
2.3.
On 21 October 1999, Egypt published in the Official Gazette a notice concerning the imposition of definitive anti-dumping duties on imports of steel rebar originating in or exported from Turkey. The anti-dumping duties imposed were as follows:

Manufacturer/ExporterDuty (%)
Habas 22.63
Diler 27
Colakoglu 45
ICDAS 30
IDC 61
Ekinciler 61
Others* 61

*Egypt's published notice states that the "Others" rate was calculated according to the highest rate, and that according to Article 37.3 of the Regulation of Law No 161/1998 Concerning the Protection of the National Economy From the Effect of Injurious Practices in International Trade, should a company wish to commence exporting, the applicable rate would be the highest rate.3

III. parties' requests for findings and recommendations

A. turkey

3.1.
Turkey requests the Panel to find that Egypt's anti-dumping duty investigation and final anti-dumping determination was inconsistent with Article X:3 of the GATT 1994 and with Articles 2.2, 2.4, 3.1, 3.2, 3.4, 3.5, 6.1, 6.2, 6.6, 6.7, and 6.8, and Annex II, paragraphs 1, 3, 5, 6, and 7, and Annex I, paragraph 7 of the Anti-Dumping Agreement, and that as a result the measures nullify and impair the benefits accruing to Turkey under the GATT 1994 and the Anti-Dumping Agreement.

B. Egypt

3.2.
Egypt requests the Panel (1) to find that Egypt's anti-dumping measures on imports of rebar from Turkey are in compliance with Egypt's obligations under the GATT 1994 and the Anti-Dumping Agreement, and (2) thus to reject the claims as put forward by Turkey.

IV. ARGUMENTS OF THE PARTIES

4.1.
The arguments of the parties are set out in their submissions to the Panel. The parties' executive summaries of their submissions are attached to this Report as Annexes (See List of Annexes, page iv). Also attached as Annexes are the full texts of the parties' responses to questions posed by the Panel and by the other party.

V. ARGUMENTS OF THE THIRD PARTIES

5.1.
The arguments of the third parties, Chile, the European Communities, Japan and the United States, are set out in their submissions to the Panel, the full texts of which are attached to this Report as Annexes 9, 10, 11 and 12, respectively (See List of Annexes, page iv).

VI. interim review

6.1.
On 21 May 2002, we submitted our interim report to the parties. Both parties submitted written requests for review of precise aspects of the interim report. Neither party requested an interim review meeting, and neither party submitted written comments on the other party's request for interim review.

A. request of turkey

1. Claim under Annex II, paragraph 7

6.2.
In its request for interim review, Turkey stated that paragraph 7,300 mischaracterized the claim addressed therein as raising only the issue of the estimated rate of inflation in Turkey during the relevant period. Turkey maintains that this claim also raises the issue of arbitrary adjustments to submitted cost data in the context of facts available.
6.3.
We have modified paragraph 7,300 to indicate that the estimated rate of inflation is the main issue raised by the claim. We note that the second aspect identified by Turkey, is addressed in paragraph 7,303, which we have not modified. Finally, we have modified paragraph 7,305 to take into account the second aspect of Turkey's claim.

2. Claim under Article 2.4

6.4.
In its request for interim review, Turkey questioned our characterization in paragraph 7,384 of the significance of references in certain companies' anti-dumping questionnaire responses to the treatment of credit costs in their cost accounting records.
6.5.
We have modified paragraph 7,384 to remove the characterization referred to by Turkey.

3. Claim under Articles 2.2.1.1 and 2.2.2

6.6.
In its request for interim review, Turkey questioned the accuracy of the characterization in paragraph 7,423 of the IA's request for information concerning the issue of interest income offset, and of the responses of certain companies to that request. We have modified the punctuation of the sentence in question, and added a footnote, to clarify the nature of the information request referred to in that paragraph. We also have modified paragraph 7,426 to refer to the point in the investigation at which the question of the relationship to production of interest income arose and how it was addressed by the respondent companies.

B. request of egypt

6.7.
In its request for interim review, Egypt identified certain erroneous references, in paragraphs 7,250 through 7,252 to two of the companies that were respondents in the anti-dumping investigation. We have modified these paragraphs to correct these errors.

VII. FINDINGS

A. Introduction

7.1.
Throughout these proceedings we have found ourselves confronted by having to address the relationship between, on the one hand, what an investigating authority is obligated by the provisions of the Anti-Dumping Agreement to do when conducting an anti-dumping investigation and making the required determinations, and on the other hand, what interested parties should themselves contribute to the process of the investigation, in the way of evidence or argumentation, for issues of concern to them to be considered and taken into account during the course of the investigation and in the determinations made by the relevant authorities.
7.2.
We note in this respect that the AD Agreement appears to impose two types of procedural obligations on an investigating authority, namely, on the one hand, those that are stipulated explicitly and in detail, and which have to be performed in a particular way in every investigation, and, on the other hand, those that establish certain due process or procedural principles, but leave to the discretion of the investigating authority exactly how they will be performed. In our view, the first type of obligation must be performed by the investigating authority on its own initiative, and exactly as specified in the AD Agreement. There is no need for and no obligation on interested parties to raise these issues and obligations during the course of an investigation in order to protect their rights under the AD Agreement.

B. Preliminary objections

7.4.
Egypt raised three issues as preliminary objections, but did not request us to rule on these issues on a preliminary basis. Egypt's preliminary objections are (i) that Turkey has failed to present a prima facie case of a violation of the relevant Articles of GATT 1994 and of the AD Agreement, (ii) that Turkey is trying to lead us to conduct a de novo review of the evidence submitted to the Egyptian IA and to act contrary to the required standard of review as set out in Article 17.6(i) of the AD Agreement8, and (iii), that Turkey has introduced certain new evidence in the context of these proceedings which was not before the IA during the course of the investigation.9 Egypt also requested us to dismiss certain claims as being outside our terms of reference.

1. Alleged failure of Turkey to present a prima facie case

7.5.
Regarding Egypt's assertion that Turkey has failed to establish a prima facie case of violation, it is clear to us that whether a party raises the issue or not, in any WTO dispute the burden of proof is on the complaining party to make a prima facie case. We recall in this regard that in EC - Hormones the Appellate Body stated:

"The initial burden lies on the complaining party, which must establish a prima facie case of inconsistency with a particular provision of the SPS Agreement on the part of the defending party, or more precisely, of its SPS measure or measures complained about. When that prima facie case is made, the burden of proof moves to the defending party, which must in turn counter or refute the claimed inconsistency."10

7.6.
The Appellate Body furthermore stated in Korea - Dairy:

"We find no provision in the DSU or in the Agreement on Safeguardsthat requires a panel to make an explicit ruling on whether the complainant has established a prima facie case of violation before a panel may proceed to examine the respondent's defence and evidence."11

2. Alleged request by Turkey for a de novo review

7.9.
Article 17.6(i) of the AD Agreement provides:
7.10.
"In examining the matter referred to in paragraph 5:

(i) 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;"

3. Introduction of evidence that was not before the Investigating Authority

7.15.
The third issue is Egypt's claim that evidence that was submitted by Turkey during this proceeding in an effort to demonstrate that the IA made errors in its analysis and determinations during the rebar anti-dumping investigation, which evidence was not before the investigation authority in that investigation, may not be examined by us.15 Egypt, relying on Article 17.5(ii) of the AD Agreement, argues that we should reject this evidence as it was not made available to the Investigating Authority in the course of the investigation itself.
7.16.
Article 17.5(ii) provides:

"The DSB shall, at the request of the complaining party, establish a panel to examine the matter based upon:

(ii) the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member."

7.17.
As Turkey has confirmed that the mentioned evidence was not made available to the Investigating Authority in conformity with the appropriate domestic procedures, but was submitted for the first time in the context of the proceedings before us, Egypt argues that we should disregard it. Egypt finds support for its contention in the finding of the panel in US – Hot-Rolled Steel16 where it was held that:

"It seems clear to us that, under [Article 17.5(ii) of the AD Agreement], a Panel may not, when examining a claim of violation of the AD Agreement in a particular determination, consider facts or evidence presented to it by a party in an attempt to demonstrate error in the determination concerning questions that were investigated and decided by the authorities, unless they had been made available in conformity with the appropriate domestic procedures to the authorities of the investigating country during the investigation."

7.18.
Turkey argues, in response to a written question posed by us during the First Substantive Meeting of the Panel with the Parties,17 regarding the status of the evidence in question and the legal basis on which we should take these documents into consideration, that the reason that this evidence was not submitted during the course of the investigation was that the Turkish exporters were under the impression that the injury investigation conducted by the Investigating Authority was with regard to "threat" of material injury and not "actual" material injury.18
7.19.
Turkey also argues that if we should decide, in terms of Article 17.5(ii), that the record that we can take into account should ordinarily be limited to the facts made available to the Investigating Authority during the course of the investigation, we nevertheless should adopt the legal principle of taking "judicial notice" of certain other facts.19 We are not aware of a principle of "judicial notice" at the WTO level. Certainly, we as Panelists have an awareness of matters pertaining to life, nature and society. But the question is not what we as Panelists know or ought to accept as being known by the IA. The question is what the IA did and was expected to do under the AD Agreement at the time of the investigation.
7.20.
We note that, as the evidence proffered by Turkey and disputed by Egypt relates exclusively to the injury determination by the IA and the causal link between the injury and dumped imports, Article 3.5 of the AD Agreement also contains specific language addressing the issue of evidence. This article provides, in relevant part:

"The demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities." (emphasis added) Furthermore, we agree with the statement by the panel in US - Hot-Rolled Steel20, that:

"The conclusion that we will not consider new evidence with respect to claims under the AD Agreement flows not only from Article 17.5(ii), but also from the fact that a panel is not to perform a de novo review of the issues considered and decided by the investigating authorities."

4. Request for dismissal of certain claims

7.22.
In addition to the above preliminary objections, Egypt also requests us to reject certain claims submitted by Turkey as Egypt asserts that these claims are not within the terms of reference of the Panel and are therefore not properly before us.21
7.23.
As there seemed to be some differences between Turkey's claims, as reflected in its Request for Establishment of a Panel22, and its claims and legal argumentation in its First Written Submission, we requested Turkey during the First Substantive Meeting of the Panel with the Parties on 28 November 2001 to "set out in summary format its legal argumentation in support of each of its claims, i.e., listing the respective provisions of the Anti-Dumping Agreement and GATT 1994, and explaining briefly in the light of the Vienna Convention on the Law of Treaties how the cited factual circumstances constitute violations of those provisions".23 Egypt, in its Rebuttal Submission, asserted that Turkey had "in its response of 7 December 2001 to the Panel's Questions, taken this opportunity to (1) introduce new claims; and (2) modify existing claims as regards injury and dumping that were not mentioned in the request for establishment of a Panel".24
7.24.
In particular, Egypt objects to the following claims as set out in Turkey's response to our question:

(a) That the IA did not consider factors affecting domestic prices under Article 3.4.

(b) That Egypt violated paragraph 6 of Annex II of the AD Agreement by sending the letter of 19 August 1999 to the Turkish respondents.

(c) That the IA violated Article 17.6(i) of the AD Agreement.

(d) That the IA violated paragraph 3 of Annex II of the AD Agreement and Article X:3 of GATT 1994 in its selection of facts as facts available.25

7.25.
In reviewing Turkey's Request for Establishment of a Panel26 and its response to our Question 1, it is clear to us that, with the exception of Article 17.6(i), Turkey has explicitly cited in its Request for Establishment of a Panel all of the above-cited provisions allegedly violated by Egypt. However, it is also clear to us that the way in which some of the provisions are cited in Turkey's "restatement" of its claims27 does not correspond to the same claims as set out in its Request for Establishment of a Panel. In light of this, we requested Egypt to provide us, in respect of each claim that it requests us to dismiss, the two-part analysis referred to in Korea – Dairy28 and EC – Bed Linen29, that is, the asserted lack of clarity in the Request for Establishment of a Panel, and evidence of any resulting prejudice to Egypt's ability to defend its interest in this dispute due to such lack of clarity.30
7.26.
In its response to our question, Egypt asserts that it was prejudiced with regard to the following claims:31,32

(a) Claims under Article 3.4 as regards "factors affecting domestic prices"

Egypt contends that Turkey presents the same arguments in relation to Article 3.4 and 3.5 and alleges a violation under Article 3.4 or 3.5 and that Turkey's claims in relation to these two provisions as stated in its Request for Establishment of a Panel at Claim 3 and 4 were not clarified in Turkey's First Submission, or subsequently. Egypt is of the view that Article 3.4 and 3.5 establish multiple obligations and if any violation with respect thereunder is not presented with sufficient clarity, the burden on the respondent becomes too onerous and both the Panel and the respondent are at risk of being misled as to which claims are in fact being asserted against the respondent. Egypt asserts that it was unclear as to which provision under Article 3 Turkey was presenting its argumentation with respect to "factors affecting domestic prices" and that Egypt was prejudiced as regards the preparation of its defence with respect to those particular factors.33

(b) Paragraph 6 of Annex II

Egypt contends that in its Request for Establishment of a Panel, Turkey claimed a violation of Annex II, paragraph 6, with respect to the deadline granted to the respondents to reply to the letter of 19 August 199934, but that Turkey, in its restatement of claims35, additionally claimed that the sheer fact of sending the letter of 19 August 1999 also constituted a violation of paragraph 6. As paragraph 6 provides that an investigating authority should grant a party an opportunity to provide further explanations within a reasonable period as to why its information should not be rejected, Egypt fails to understand the basis for Turkey's claim as it provided no further explanation or clarification. As a result of the absence of any explanation of the claim, Egypt contends that its ability to defend its interest was severely prejudiced.36

(c) Paragraph 3 of Annex II and Article X:3 of GATT 1994

Regarding the alleged violation of Annex II, paragraph 3, Egypt contends that Turkey failed to identify the obligation contained in that provision that the IA would have violated in its selection of "facts available", therefore preventing Egypt from presenting a meaningful defence, as paragraph 3 relates to the circumstances in which the data submitted by respondents must be accepted or can be rejected. Egypt argues that this provision does not address the selection of facts available once it has been decided to reject the data submitted by the respondents. As the legal basis for this claim is not clear to Egypt, and as Turkey did not provide any clarification, Egypt contends that its was severely prejudiced in respect to defending its rights.37

Regarding the alleged violation of Article X:3 of GATT 1994 is concerned, Egypt contends that the allegations of a violation were vague and unsubstantiated and that it is therefore not in a position to defend its interests.38

(d) Failure to refer to the relevant treaty article in the Request for Establishment of a Panel

(i) Whether the Final Report contains findings or conclusions sufficient to satisfy the requirements of Article 12.2

Egypt contends that an Article 12.2 claim is not before us as it was not referred to in the Request for Establishment of a Panel, and through a reference to the finding of the panel in EC – Bed Linen, para. 6.15, asserts that if a treaty article is not mentioned in the request for establishment of a panel, such a claim is not before a panel. Egypt states that as a result, it did not prepare any defence on this claim.39

(ii) Whether the Panel can disregard evidence under Article 6.4

Egypt contends that although Turkey claims in its Rebuttal Submission that we should not consider evidence that was not provided to interested parties during the course of the investigation, such as the report on Other Causes of Injury40, a violation of Article 6.4 was not claimed by Turkey and is therefore not before us.41

(iii) Article 17.6(i) of the AD Agreement

Although Turkey alleges a violation of Article 17.6(i) of the AD Agreement, Egypt contends that this provision governs the standard of review to be applied by a panel when considering whether an investigating authority's establishment of the facts was proper and the evaluation unbiased and objective – it does not govern the rights and obligations of Members under the AD Agreement. Furthermore, Egypt asserts that Article 17.6(i) was not cited in the Request for Establishment of a Panel and is therefore not before us.42

7.27.
We address the issues raised by Egypt in relation to (a) and (d) (iii) above in Sections VII.C.1 and VII.D.2, infra.
7.28.
Concerning the issues raised in (d) (i) and (d) (ii), we do not believe that Turkey has attempted to raise claims under Article 12.2 or under Article 6.4, and therefore we neither address nor dismiss such purported "claims".
7.29.
With regard to the issues relating to paragraph 6 and paragraph 3 of Annex II under (b) and (c), we are of the view that the relevant issues addressed by these two provisions are so interrelated that Egypt could not have been prejudiced in the preparation of its defence in the way in which Turkey presented its claims in this regard.
7.31.
Given Turkey's apparent abandonment of its claim that Egypt violated Article X:3 by reason of the IA's decision to resort to facts available43, we do not consider this claim further. As for Turkey's claim that the selection of particular facts as "facts available" violated Article X:3, it is clear that the Request for Establishment of a Panel makes no reference to this provision in this context. We consider significant here that, unlike paragraphs 3 and 6 of Annex II (items (b) and (c) above), Article X:3 is not related in any self-evident way to any of the other provisions cited by Turkey in paragraph 11 of its Request for Establishment of a Panel. Nor is this claim of violation of Article X:3 related in any way to Turkey's other claims of violation of this provision. We find that this claim is simply not specified in Turkey's Request for Establishment of a Panel, and that the specifications and justifications for its validity as a claim as presented by Turkey during the course of the dispute have not been clear or convincing. We therefore dismiss this claim and do not consider it further.
7.32.
As for Turkey's claim of violation of Article X:3 due to the IA's alleged refusal to schedule a meeting with certain respondents, we address this claim in Section VII.F, infra.

C. Claims relating to Injury and Causation

1. Claims under Article 3.4 of the AD Agreement

(a) Alleged failure to examine factors specifically listed in Article 3.4

7.33.
Turkey claims that Egypt violated Article 3.4 by failing to examine all of the factors listed in Article 3.4 of the AD Agreement.44 In particular, Turkey asserts that Egypt did not evaluate productivity, actual and potential negative effects on cash flow, employment, wages, growth and ability to raise capital or investments. Turkey also argues that the public versions of the Essential Facts and Conclusions Report and of the Final Report provide no evidence that there was a sufficient examination or evaluation of capacity utilisation or return on investment.
7.34.
Egypt argues that the record of the investigation makes clear that all of the factors listed in Article 3.4 were considered by the IA. In its response to a question from the Panel45 in the context of the First Substantive Meeting with the Parties46, Egypt presents a table indicating specific references in the Essential Facts and Conclusions Report and in the Final Report to the following factors listed in Article 3.4: sales, profits, output, market share, return on investments, capacity utilisation, prices, dumping margin and inventories. In its Rebuttal Submission47, Egypt further states that "growth" (one of the factors alleged by Turkey not to have been addressed at all by the IA) was addressed by the information on "sales volume" and "market share", while "ability to raise capital" (another factor identified in Turkey's claim) is addressed by pre-tax profit as a percentage of shareholders' funds. Concerning the remaining factors alleged by Turkey not to have been considered at all, Egypt refers to the Confidential Injury Analysis, a submission containing Business Confidential Information which was provided to the Panel and to Turkey in accordance with the Supplemental Procedures Concerning Business Confidential Information that were adopted by the Panel.48 According to Egypt, this Analysis forms part of the Final Determination in the rebar investigation, which must be distinguished from the Final Report. In particular, Egypt states that the Confidential Injury Analysis makes evident that the IA's analysis indeed covered "all of the factors listed in Article 3.4".49
7.35.
Article 3.4 of the AD Agreement reads as follows:

"The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance."

7.38.
Turning to its content, we note that the Confidential Injury Analysis contains data on, inter alia, cash flow, employment, wages, and productivity. Moreover, we accept, as argued by Egypt56, that by addressing in the Confidential Injury Analysis pre-tax profit as a percentage of shareholders' funds for Alexandria National and Al Ezz, the IA addressed in that Analysis "ability to raise capital". Thus, taken together, the Essential Facts and Conclusions Report, the Final Report, and the Confidential Injury Analysis demonstrate that the IA addressed, at least in some way, all of the factors listed in Article 3.4.
7.39.
As noted above, however, this is only the threshold issue for our determination of whether the IA complied with the requirement of Article 3.4 in respect of the "examination" of all of the listed factors. Here, we recall the specific wording of the relevant part of that provision:

"The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices…" (emphasis added)

Thus, in taking up the second issue raised by this claim, this language compels us to consider whether the IA's "examination" included an "evaluation" in the sense of Article 3.4 of each of the listed Article 3.4 factors that appear only in the Confidential Injury Analysis.

7.40.
We note Egypt's basic argument that the Confidential Injury Analysis is proof that the IA "examined" all of the factors listed in Article 3.4 that are not reflected in the Essential Facts and Conclusions Report and in the Final Report, and that the IA thus satisfied the requirements of that Article. To recall, Turkey alleges that Egypt failed to "examine" productivity, actual and potential negative effects on cash flow, employment, wages, growth and ability to raise capital or investments, because these factors are not referred to in the Essential Facts and Conclusions Report or the Final Report. Turkey further argues that to the extent that data are included on some of these factors in the Confidential Injury Analysis, this "Analysis" consists of data only, and thus is not sufficient to constitute an "evaluation" in the sense of Article 3.4.
7.41.
In this regard, we posed two very similar questions to Egypt concerning where in the record of the investigation the IA's consideration could be found or discerned of the factors identified by Turkey and which are not addressed in the Essential Facts and Conclusions Report and/or in the Final Report (actual and potential negative effects on cash flow, employment, wages, productivity, and ability to raise capital or investment)57,58. Both times, Egypt referred us exclusively to the Confidential Injury Analysis.59. We emphasize that while (as we have found above) the Confidential Injury Analysis refers to and contains data on all of the factors listed in Article 3.4 (including those that are the subject of this claim), it contains no narrative, but rather consists only of tables of data concerning the various factors, for the domestic industry as a whole, and individually, for the two domestic producers (Al Ezz and Alexandria National)60. Egypt could not, or did not, provide any document of record other than the Confidential Injury Analysis in respect of the factors identified by Turkey. We therefore assume that these tables of data are the only documents of record reflecting or representing the IA's consideration of these factors.
7.43.
We first consider the ordinary meaning of the word "evaluation". The Oxford English Dictionary defines "evaluation" as follows:

"(1) The action of appraising or valuing (goods, etc.); a calculation or statement of value. (2) The action of evaluating or determining the value of (a mathematical expression, a physical quantity, etc.), or of estimating the force of (probabilities, evidence)."61(emphasis added)

The Merriam-Webster's Collegiate Dictionary defines "evaluation" as follows:

"(1) To determine or fix the value of. (2) To determine the significance, worth, or condition of usually by careful appraisal or study."62(emphasis added)

The Merriam-Webster's Thesaurus lists as synonyms for "evaluation" the following:

"(1) appraisal, appraisement, assessment, estimation, valuation (with related words: interpreting; judging, rating); (2) appraisal, appraisement, assessment, estimate, judgement, stock (with related words: appreciation; interpretation; decision)."63

7.46.
Our interpretation of the requirement of Article 3.4 to "evaluate" the factors and indices is consistent with that of panels in a number of past disputes. The panel in Thailand – H-Beams found in regard to the examination of the factors listed in Article 3.4 that:

"Article 3.4 requires the authorities properly to establish whether a factual basis exists to support a well-reasoned and meaningful analysis of the state of the industry and a finding of injury. This analysis does not derive from a mere characterization of the degree of "relevance or irrelevance" of each and every individual factor, but rather must be based on a thorough evaluation of the state of the industry and, in light of the last sentence of Article 3.4 [footnote omitted], must contain a persuasive explanation as to how the evaluation of relevant factors led to the determination of injury."64

7.47.
In U S – Hot-Rolled Steel, the issue was whether the US investigating authority had violated Article 3.4 by failing to explicitly discuss, in its determination, certain factors for each year of the period of investigation. In that case, according to the panel, the authority had discussed each of the factors for the final two years of the three-year period of investigation, and only some of them for the first year of that period. The panel found that the determination explained the particular relevance of the second and third years of the period, and that the authority's failure to explicitly address each factor in its discussion of the first year of the period did not constitute a violation of Article 3.465. That is, the panel found, inter alia, that each of the listed Article 3.4 factors was explicitly discussed in the authority's determination, and given the explanations provided in that determination for the particular emphasis on a part of the period of investigation, the evaluation of the facts was deemed adequate by the panel.
7.48.
This contrasts sharply with the situation in the present case, where the Egyptian Investigating Authority appears to have gathered data on all of the listed Article 3.4 factors, as reflected in various documents of record (including the Essential Facts and Conclusions Report, the Final Report and the Confidential Injury Analysis). Egypt has been unable, however, to adduce sufficient evidence to the Panel, in response to our specific requests, of the IA's evaluation of all of those factors in its written analyses.66
7.50.
Nor do we consider, as suggested by Egypt68, that the requirement of a written analysis of the Article 3.4 factors is exclusively governed by Article 12 of the AD Agreement (public notice and explanation of determinations). While Article 12 contains a requirement to publish, and to make available to the interested parties in the investigation, some form of a report on the investigating authority's determination, this is, as the Appellate Body has noted, a procedural requirement having to do with due process69, rather than with the relevant substantive analytical requirements (which in the context of this claim are found in Article 3.4).
7.52.
We turn finally to Turkey's argument that Article 3.4 was further violated because the IA's evaluation of "capacity utilisation" and of "return on investment" was inadequate. In respect of capacity utilisation, the IA's Final Report indicates, in sections 4.3.1 (sales), and 4.3.2 (production), respectively, that sales increased because domestic prices were reduced to compete with dumped imports, and that domestic production also increased, as the companies "attempt[ed] to increase production in order to reduce costs to be able to compete with the low-priced Turkish imports". The report also notes that the IA "concluded that the increase in production is attributed partly to starting new production lines in steel mills". Then, in Section 4.3.6 (production capacity), the Final Report states that "[n]o effect on industry capacity utilisation has been found". This statement that capacity utilisation was unaffected, although short, is consistent with the above-quoted statements that sales and production had increased, along with capacity. Given this context, we do not find that the IA failed to adequately evaluate capacity utilisation, and thus we do not find that Egypt violated Article 3.4 in this respect.
7.53.
Concerning return on investment, the IA's Final Report notes in section 4.3.7 (return on investment) that there was "a decline in return on investment during the period of investigation". We note that this finding, although brief, is consistent with the longer discussion concerning net profits and losses in section 4.3.5 (profits). Given this context, we do not find that the IA failed to adequately evaluate return on investment, and thus we do not find that Egypt violated Article 3.4 in this respect.

(b) Alleged failure to examine "all relevant economic factors and indices having a bearing on the state of the industry"

7.54.
Turkey claims a further violation of Article 3.4 by reason of the alleged failure by the Investigating Authority to examine "all relevant economic factors and indices having a bearing on the state of the industry", including, in particular, various factors allegedly affecting domestic prices and affecting profits.70
7.55.
The factors identified by Turkey in this regard are:

(a) "The dramatic capacity expansion at the two major Egyptian rebar producers and its likely temporary effects on their cost structures";

(b) "The effects of the capacity expansions, which started production at the end of 1998, on competition between the Egyptian producers as they attempted to fill newly expanded order books";

(c) "Sharpening competition between Al Ezz and Alexandria National as Al Ezz sought to increase market share by capitalizing on its cost advantages over Alexandria National";

(d) "Falling prices for steel scrap, the primary raw material input at Al Ezz";

(e) "A sharp contraction in demand in January 1999, the very month in which prices for rebar fell";

(f) "The effect of comparably priced, fairly traded imports".71

7.56.
According to Turkey, factor (a) has a bearing on cost of production and is therefore a "relevant factor" to the state of the industry. Factors (b) -(e) are, in Turkey’s view, factors "affecting domestic prices" which either were not mentioned, or their effects on prices were not examined, or were not given any weight, in the investigating authority's analysis of why prices fell. Factor (f), Turkey states, may or may not have had an effect on prices, but Turkey argues that there was no support for a finding that dumped imports had a materially different effect on domestic prices than did other imports. In other words, Turkey claims that these are factors other than dumped imports that caused any injury experienced by the domestic industry72. In response to a question, Turkey clarified that factors (b) and (c) are subsumed in factor (a), in that they were alleged adverse effects of the capacity expansion, and that arguably, factor (d) was so subsumed as well.
7.57.
Egypt argues that this claim by Turkey is misplaced and thus should be rejected, as in Egypt's view, it raises arguments concerning causation, and in particular has to do with the requirement not to attribute to dumped imports injury caused by other factors. According to Egypt, causation is exclusively regulated by Article 3.5, while Article 3.4 has to do exclusively with the existence of injury and not with its causes. Furthermore, Egypt argues, the investigating authority did examine a range of "other factors" in its investigation, but concluded that there were "'no other causes of injury' sufficient to break the causal relationship between the dumped imports and the injury to the domestic industry"73. In addition, Egypt argues that Turkey did not, either in the Request for Establishment of a Panel, its first oral submission or its first written submission, refer to "factors affecting domestic prices", and asks us to dismiss this aspect of this claim. Egypt further argues that, in any case, the IA considered as "factors affecting domestic prices", demand and raw material costs.
7.59.
Turning to the substance of this claim, we note the text of the relevant part of Article 3.4:

"The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including … profits, …; factors affecting domestic prices, …." (emphasis added)

7.61.
Another listed element is "factors affecting domestic prices". Here again, we note that contrary to Turkey's argument, the text does not read "all factors affecting domestic prices". Rather, what is required is that there be an evaluation of factors affecting domestic prices. This requirement is clearly linked to the requirements of Articles 3.1 and 3.2 for an "objective examination" of "the effect of dumped imports on prices in the domestic market for like products", which must involve a consideration of:

"whether there has been a significant price undercutting by the dumped imports when 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."74

In our view, this means that in its evaluation of the state of the industry, an investigating authority must in every case include a price analysis of the type required by Articles 3.1 and 3.2. Turkey has raised no claim that the IA failed to conduct such an analysis in the rebar investigation. In addition, in our view, an investigating authority must consider generally the question of "factors affecting domestic prices". In this regard, we note that in the rebar investigation, the IA considered the potential price effects of imports from third countries75, and noted as well that the market for rebar was price-driven, rather than technology- or specification-driven76.

7.65.
Moreover, even if we were to assume, arguendo, that Article 3.4 does require a causation and non-attribution analysis, the question would remain whether the IA was legally obligated to evaluate the particular "factors affecting profits" and "factors affecting domestic prices" referred to by Turkey before the Panel. Here we note simply that there is no such specific requirement in the text of Article 3.4. Whilst "factors affecting domestic prices" must be evaluated, there is no requirement to evaluate "all" such factors. Whether or not an evaluation of such factors was sufficient from the causal view point in any given case depends upon a consideration under Article 17.6 of the investigating authority's compliance with Article 3.5. We address causation issues generally, and the specific factors (a) -(f) asserted by Turkey, in Sections VII.C.4, VII.C.5 and VII.C.6, infra, which address Turkey's claims under Article 3.5.
7.66.
For the foregoing reasons, we find that the IA was not required under Article 3.4 to examine and evaluate factors (a) -(f) listed above, and that Egypt thus did not act inconsistently with Article 3.4 on that basis.

2. Claim under Articles 3.1 and 3.2 – Alleged failure to base the finding of price undercutting on positive evidence

7.67.
Turkey claims that the IA's finding of price undercutting was not based on positive evidence as required by Article 3.1, because the IA failed to make a proper determination of price undercutting in accordance with Article 3.2. On price undercutting, Turkey's argument is that Egypt failed to accurately determine whether there was price undercutting by imports of rebar from Turkey because the Investigating Authority failed to make price comparisons on delivered-to-the-customer basis. Turkey elaborates that the Essential Facts and Conclusions Report does not reveal the channels of distribution for the domestic and imported product or where in the chain of distribution any actual price competition between those products takes place. Without knowing these facts, according to Turkey, it is impossible to ascertain whether the IA measured the price competition at the correct level of trade, thus violating the Article 3.2 requirement that an investigating authority "consider whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product in the importing country …".
7.68.
Turkey further argues, on the basis of its examination of the Confidential Injury Analysis, that the price undercutting analysis is further flawed by the fact that the prices used for the domestic side were the weighted-average revenue per unit of domestic rebar producers, and for the import side, were the weighted-average unit customs entered value. According to Turkey, in addition to being flawed due to the level of trade at which it was made, this comparison was flawed, because the IA did not look at "prices" or ensure that it was comparing prices for the same product. According to Turkey, rebar prices vary by size, with thinner rebar commanding a higher price per unit due to higher production cost. Given this, comparing one weighted average "basket" to another, without knowing whether the composition of each basket is the same, cannot, according to Turkey, yield an accurate assessment of price undercutting.
7.69.
Egypt responds79 that contrary to Turkey's claim, the Essential Facts and Conclusions Report makes clear that the price comparison was made at the same level of trade (ex-factory for domestic goods, and ex-importer's store for the dumped imports). Egypt states that Turkey would prefer that the comparison be done at a different level of trade (delivered to the customer), but that there is no such legal requirement. Egypt further argues that such a comparison would ignore the fact that importers and exporters do not sell on a delivered basis. Thus, according to Egypt, the undercutting analysis was performed properly and on the basis of positive evidence, such that Egypt complied with Articles 3.1 and 3.2.
7.70.
We understand the legal basis of Turkey's claim to be that, to satisfy the requirements of Article 3.2, a price undercutting analysis must be made on a delivered-to-the-customer basis, as it is only at that level that any such undercutting can influence customers' purchasing decisions, and that in addition, and in any case, for such an analysis to be based on positive evidence as required by Article 3.1, an investigating authority must justify its choice of the basis for the price comparison it makes. In Turkey's view, the IA used the wrong basis for price comparison, and did not adequately explain and justify its choice of that basis in the Essential Facts and Conclusions Report80, in violation of Articles 3.1 and 3.2. Turkey finds further support for its claim that the price undercutting finding violated Article 3.1 in the fact that the average unit customs value of imports was compared with the unit revenue of domestic rebar sales.
7.71.
We recall that Article 3.1 provides in relevant part that:

"A determination of injury … shall be based on positive evidence and involve an objective examination of … the effect of the dumped imports on prices in the domestic market for like products, …."

7.72.
Article 3.2 provides in relevant part that:

"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 …."

7.74.
In respect of the claim of violation of Article 3.1, we take note of the following passage in the Essential Facts and Conclusions Report81 (repeated verbatim in the Final Report82):

"In considering price undercutting, the Investigating Authority will normally seek to compare prices at the same level of trade (the ex-factory and ex-importers' store levels), to ensure that differences in distribution costs and margins do not confuse the impact of dumping. Accordingly, the Investigating Authority's position is generally to compare importers' prices, which involve similar cost elements to those in the Egyptian manufacturer's ex-factory price, but do not include cost elements relating to the distribution of goods.

With regard to price undercutting, the Investigating Authority compared prices at the same level of trade. …."

7.75.
While we need not, and do not, opine on the exact nature of the "positive evidence" requirement of Article 3.1, we note that even if we accept, arguendo, Turkey's interpretation thereof, the above-quoted passage from the Essential Facts and Conclusions Report makes clear that the IA's reports are not, as Turkey implies, devoid of any explanation for the choice of the level of trade at which prices were compared. Moreover, we note that there are any number of bases on which a price undercutting analysis could be performed, and we do not find the IA's justification of the basis that it used to be illogical on its face or not objective, nor do we see in it any evidence of bias. Concerning the undercutting-related information in the Confidential Injury Analysis, Turkey has pointed to no record evidence to substantiate its arguments concerning the existence or nature of any product differentiation of rebar generally or as between imports and the domestic product, or any effect thereof on prices. Indeed we note in this regard the statement by three of the respondents in their 28 September 1999 letter to the IA that "as the [IA] well knows, respondents do not break out costs by diameter"83, suggesting that diameter differences had an immaterial effect on costs.
7.76.
On the basis of the foregoing considerations, we find that Turkey has not established that an objective and unbiased investigating authority could not have found price undercutting on the basis of the evidence of record. We therefore find that Turkey has not established that the IA's price undercutting finding was not based on "positive evidence" in violation of Article 3.1.

3. Claim under Articles 6.1 and 6.2 – Alleged violation due to "change" in the "scope" of the injury investigation from threat to present material injury

7.77.
Turkey alleges that Egypt changed the "scope" of the injury investigation from threat of material to present material injury, without informing Turkey and after the deadline for submitting factual information in the investigation. Turkey claims that by doing so, Egypt violated Article 6.1 by failing to give Turkey notice of the information required by the IA, and Article 6.2 by failing to give Turkey a full opportunity to defend its interests.84
7.78.
Turkey asserts, in particular, that the Initiation Report referred exclusively to threat of injury, and did not mention present material injury. Turkey argues that on that basis, Turkish companies provided evidence and arguments only in respect of the question of threat (i.e., the factors and considerations referred to in AD Article 3.7). Turkey argues that the IA then changed the scope of the injury investigation, after the deadline for submitting factual information and arguments had passed, meaning that the Turkish companies did not have an adequate opportunity to submit information and comment on the question of present material injury, in violation of Articles 6.1 and 6.2.
7.79.
Egypt responds85 that the IA presented in sufficient detail in the Essential Facts and Conclusions Report its findings and conclusions with respect to material injury, but that this is not the issue raised by this claim. Rather, according to Egypt, the issue is whether the IA was under an obligation to inform the Turkish respondents that it had changed the scope of the injury investigation from threat to present material injury during the course of the investigation. Egypt cites the panel report in Guatemala – Cement II in support of the proposition that no such obligation exists. According to Egypt, the issue raised by Turkey's claim is nearly identical to that addressed in Guatemala – Cement II. Egypt argues that in that case, Mexico claimed that Guatemala had violated Articles 6.1, 6.2 and 6.9 of the AD Agreement by changing the basis of the injury determination from a preliminary determination of threat of material injury to a final determination of present material injury without informing the respondents. Egypt notes that the panel found that "[n]o provision of the AD Agreement requires an investigating authority to inform interested parties, during the course of the investigation, that it has changed the legal basis for its injury determination."86
7.80.
Egypt also argues that the Notice of Initiation,87 which was published in Egypt's Official Gazette, referred to evidence of material injury starting to occur as of that time, and that in addition, the fact that the investigation covered present material injury was reflected in a facsimile dated 17 July 1999 from the IA to counsel for three of the respondents.88
7.81.
Article 6.1 provides in relevant part:

"All interested parties in an anti-dumping investigation shall be given notice of the information which the authorities require and ample opportunity to present in writing all evidence which they consider relevant in respect of the investigation in question."

7.82.
Article 6.2 provides in relevant part:

"Throughout the anti-dumping investigation all interested parties shall have a full opportunity for the defence of their interests."

7.83.
As we understand Turkey's claim, the alleged violation of the Article 6.2 obligation to provide interested parties with a full opportunity for the defence of their interests is at least partially dependent on its claim that Article 6.1 was violated. That is, the alleged failure to be given notice of the information required by the authorities meant, according to Turkey, that the respondents did not have a full opportunity for the defence of their interests.
7.84.
We start therefore by considering whether, as a factual matter, it is clear that the scope of the investigation was limited to threat of injury initially, but was thereafter changed, as alleged by Turkey, to an investigation relating to present material injury. We note in this regard first that the published Notice of Initiation89 states that as of the time of initiation, there was evidence that injury was occurring. Furthermore, the (foreign) manufacturers' and exporters' questionnaires90, which were sent by the IA shortly after the investigation was initiated, state explicitly that "the investigation of injury will cover the period from 1996 to 1998. As for the threat of injury, it will cover the period from 1999 to 2000". While these questionnaires then went on to pose specific questions to the foreign manufactures and to the exporters concerning some of the factors and issues addressed by Article 3.7, this is not in itself determinative. Indeed, it is logical, given that these factors have primarily to do with the likelihood of further increases in dumped imports, which is information in the hands of the foreign producers and exporters, that the requests for data on these factors would be directed to those foreign producers and exporters. By the same token, it is logical that requests for data on the Article 3.4 factors, information which is in the hands of the domestic industry, would be directed at the domestic producers, rather than the foreign producers and exporters.91 The IA's Final Report alludes to this point as well, quoting from the fax sent to counsel for three of the respondents on 17 July 199992 in connection with the scope of the injury investigation which stated:

"At initiation, it is normal practice to cover both whether injury has commenced or whether it is threatened through the imports. Because of the requirements on threat of injury, it is also normal practice to include questions on this matter in the questionnaire sent to overseas exporters or producers."93

7.85.
Thus it is clear to us that a possible determination based on present material injury was, from the outset, within the scope of the investigation. For all of the foregoing reasons, we do not find that Turkey has established as a factual matter that the scope of the investigation was changed.
7.86.
Nor do we find that Turkey has established as a factual matter that the IA failed to inform the Turkish respondents of the information required of them, or denied them the opportunity for the full defence of their interests. As noted, the questionnaires sent to the foreign producers and the exporters indicated that the injury investigation covered both present material injury and threat thereof, and identified the particular injury-related information requested of those interested parties by the IA. Three of the respondents then subsequently, and in addition, submitted a written brief, after the due date for responses to questionnaires, which presented various legal and factual arguments concerning injury issues.94 There is no evidence to suggest, nor does Turkey claim, that the IA refused to consider this submission or objected to it in any way. To the contrary, the IA appears to have accepted this submission without objection or difficulty.95
7.87.
Furthermore, while counsel for these same respondents complained in comments on the Essential Facts and Conclusions Report about the alleged change in the scope of the investigation, implying that the respondents had learned only in that report that present material injury was at issue, ("For ITPD to assert, now, long after the Notice of Initiation was issued, that this case concerns injury rather than threat is to move the goalposts while the game is underway"96 (emphasis added)), in fact these respondents were explicitly informed by the IA in the fax dated 17 July 199997, in response to an inquiry that had been made at verification, that the injury investigation covered both present material injury and threat.98 These respondents implicitly confirmed their awareness of this fact in their 15 September 1999 submission on cost99, in which they stated that "…[g]iven the clear fact that the Egyptian industry is not materially injured by Turkish exports, coupled with our earlier evidence concerning threat…we urge the ITPD to terminate these proceedings with a negative determination of material injury or threat thereof" (emphasis added). We note that this assertion that the industry was not materially injured was accompanied by no argumentation or evidence, however. Nor had these respondents made any attempt, upon receiving on 17 July 1999 explicit confirmation that the injury investigation covered present material injury as well as threat, to submit any such pertinent argumentation or evidence. We find significant that these respondents did not themselves take the initiative to try to protect their interests by requesting an opportunity to submit argumentation and evidence, or by simply presenting a submission, as they had done, apparently successfully, in respect of threat of material injury.100 In short, we find no evidence that the respondents were "denied" the opportunity to present pertinent arguments on present material injury, nor that they ever attempted to do so.
7.89.
We must stress that the foregoing factual analysis of the record evidence concerning the scope of the injury investigation accepts, arguendo, Turkey's implicit interpretation of AD Article 3.7. In particular, Turkey's legal premise appears to be that where an injury investigation is limited to threat of material injury, the factors and considerations referred to in AD Article 3.7 are the only ones that must be examined by the IA.
7.90.
Article 3.7 of the Anti-Dumping Agreement provides as follows:

"A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. [footnote omitted.] In making a determination regarding the existence of a threat of material injury, the authorities should consider, inter alia, such factors as:

(i) a significant rate of increase of dumped imports into the domestic market indicating the likelihood of substantially increased importation;

(ii) sufficient freely disposable, or an imminent, substantial increase in, capacity of the exporter indicating the likelihood of substantially increased dumped exports to the importing Member's market, taking into account the availability of other export markets to absorb any additional exports;

(iii) whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports; and

(iv) inventories of the product being investigated.

No one of these factors by itself can necessarily give decisive guidance but the totality of the factors considered must lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, material injury would occur."

7.92.
This logic-based conclusion finds explicit support in the plain text of the AD Agreement. In particular, the title of Article 3, "Determination of Injury", carries footnote 9 which provides that:

"Under this Agreement, the term 'injury' shall, unless otherwise specified, be taken to mean material injury to a domestic industry, threat of material injury to a domestic industry, or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article." (emphasis added)

In other words, where the unmodified term "injury" appears in the AD Agreement, it encompasses all forms of injury – present and threatened material injury as well as material retardation of the establishment of an industry.

7.94.
This indeed is the reasoning applied and the conclusion reached by the panel in Mexico – Corn Syrup.101 There, the allegation by the United States was that the Mexican investigating authority considered the Article 3.7 factors to the exclusion or near exclusion of the Article 3.4 factors. The panel found that:

"The text of the AD Agreement requires consideration of the Article 3.4 factors in a threat determination. Article 3.7 sets out additional factors that must be considered in a threat case, but does not eliminate the obligation to consider the impact of dumped imports on the domestic industry in accordance with the requirements of Article 3.4" (emphasis added)."102

7.95.
Thus, no matter what the initial or final scope of the injury investigation is, the Article 3.4 factors would need to have been examined in either a case of present material injury or of threat of material injury. The only difference would have been that the information and argumentation relating to the Article 3.7 factors would have become less relevant or non-relevant if the basis for the injury investigation was changed from threat to present material injury.
7.96.
It may indeed be the case that an investigating authority so clearly misleads interested parties on the relevance to its investigation of the issues of present material injury and threat, or denies them opportunities to address these issues, as to provides the basis for a claim of violation of Articles 6.1 and 6.2. The circumstances of this case fall short of that possibility. On the basis of the foregoing considerations, we find that Turkey has not established that Egypt violated Articles 6.1 and 6.2, in respect of the scope of the injury investigation and the notice thereof provided to the Turkish respondents.

4. Claim under Articles 3.5 and 3.1 – Alleged failure to develop specific evidence linking imports to adverse volume and price effects upon the domestic industry, and consequent failure to base the finding of a causal link on positive evidence

7.97.
Turkey argues that the principal indicator of injury relied upon by Egypt in its affirmative injury determination was falling prices and profitability in 1998 and 1999, and that the price decline was attributed to price underselling by imports from Turkey. According to Turkey, however, the IA failed to develop "positive evidence" that dumped imports had an effect on domestic prices, or any impact on the domestic industry. According to Turkey, this constituted a violation of the "positive evidence" requirement of Article 3.1, which in turn meant that Egypt also violated the requirement of Article 3.5 to demonstrate that the dumped imports were, through the effects of dumping, causing injury within the meaning of the AD Agreement.103
7.98.
Turkey argues that the specific positive evidence that imports caused domestic prices to fall would include evidence that purchasers considered Turkish imports to be the price leaders in the market, evidence of specific sales lost by the domestic industry to Turkish imports, or evidence that domestic producers dropped their prices, or had to retract planned price increases, because customers cited, in price negotiations with the domestic producers, availability of rebar from Turkey at lower prices. According to Turkey, the mere existence of increases in the volume of dumped imports is insufficient evidence of an injurious impact on the domestic industry, as is the existence of some price underselling, where the domestic industry is increasing its sales volume and market share.
7.99.
Egypt argues that on the basis of the data and information available, the IA determined that the volume of dumped imports increased over the period and that this had a significant effect on the price of the domestic rebar, and that the IA also examined the consequent impact on the domestic producers and found inter alia that because the industry is sensitive to volume changes, it had to lower prices to meet the competition from the dumped imports and to retain sales. Egypt further argues that there is no requirement in any provision of the AD Agreement that the particular kinds of evidence referred to by Turkey be gathered and analyzed.
7.100.
To recall, Article 3.1 provides as follows:

"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."

7.101.
Article 3.5 provides in relevant part as follows:

"It must be demonstrated that the dumped imports are, through the effects of dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement. The demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities. …." (emphasis added)

7.102.
We note that neither of the provisions cited above refers to any of the particular kinds of evidence that Turkey argues should have been gathered and examined, or indeed to any kind or type of evidence at all. It is clear that Article 3.1 provides overarching general guidance as to the nature of the injury investigation and analysis that must be conducted by an investigating authority. Article 3.5 makes clear, through its cross-references, that Articles 3.2 and 3.4 are the provisions containing the specific guidance of the AD Agreement on the examination of the volume and price effects of the dumped imports, and of the consequent impact of the imports on the domestic industry, respectively. Thus, any reference in the AD Agreement to the particular kinds of evidence referred to by Turkey in respect of the volume and price effects of the dumped imports presumably would be found, if anywhere, in Article 3.2. This provision contains no such reference, which may explain why Turkey does not also allege a violation of Article 3.2 in respect of this claim.
7.103.
In this connection, while Turkey objects to the nature of the price undercutting analysis performed by the IA104, Turkey does not claim that the IA failed entirely to consider whether there had been price undercutting. Similarly, while Turkey questions the accuracy of some of the data concerning the volume of imports that was relied upon by the IA105, Turkey does not challenge the IA's basic finding that the imports of rebar from Turkey increased in volume.
7.106.
On the basis of the foregoing considerations, we find that Turkey has not established that Egypt violated the "positive evidence" requirement of Article 3.1 by virtue of the IA's not developing certain specific kinds of evidence, nor has Turkey established that, as a consequence, Egypt violated the requirement of Article 3.5 to demonstrate a causal relationship between the dumped imports and the injury to the domestic industry.

5. Claim under Article 3.5 – Alleged failure to take account of, and attribution to dumped imports of, the effects of other "known factors" injuring the domestic industry

7.107.
Turkey claims that Egypt violated Article 3.5 by failing to take account of, and by attributing to dumped imports, the effects of other "known factors" that were at the same time injuring the domestic industry.
7.108.
The particular "known factors" identified by Turkey are the same as those identified in connection with its claim under Article 3.4106), namely:

(a) "The dramatic capacity expansion at the two major Egyptian rebar producers and its likely temporary effects on their cost structures";

(b) "The effects of the capacity expansions, which started production at the end of 1998, on competition between the Egyptian producers as they attempted to fill newly expanded order books";

(c) "Sharpening competition between Al Ezz and Alexandria National as Al Ezz sought to increase market share by capitalizing on its cost advantages over Alexandria National";

(d) "Falling prices for steel scrap, the primary raw material input at Al Ezz";

(e) "A sharp contraction in demand in January 1999, the very month in which prices for rebar fell";

(f) "The effect of comparably priced, fairly traded imports".

We recall, as noted above, Turkey's clarification that factors (b), (c) and arguably (d) are subsumed in (a) as adverse effects of capacity expansion.107

7.109.
Egypt argues that throughout the course of the investigation, the IA examined all evidence that was provided by interested parties, including evidence concerning capacity expansion, competition between domestic producers, falling prices for raw materials, domestic demand, and the effect of non-dumped imports. On the basis of this examination, Egypt argues, the IA found that there were "no other causes of injury" sufficient to break the causal relationship between the dumped imports and the injury to the domestic industry.108
7.110.
Before turning to the substance of this claim, we note that in response to a request from the Panel for certain documents, Egypt submitted a document which it identified as being part of the public file of the investigation, and which, according to Egypt, contains some of the detailed analysis performed by the IA in respect of a number of the "other factors" that it considered during the investigation. According to Egypt, this document was available for inspection upon request during the investigation (27 January 1999-21 October 1999).109 The document contains sections on "shrinkage of demand", "non-dumped imports", "costs and administrative expenses", and "competition", in addition to several others.110
7.111.
This document was not given to Turkey during the course of the investigation111, (although Egypt claims that it was in the Public File to which Turkey could have had access during that period), and Turkey states that it did request information from the Public File during the consultations that began this dispute, but was informed that as the investigation was closed, no further access to the Public File was possible.112
7.112.
It is not within our terms of reference to consider issues that arose in the context of dispute settlement consultations, and therefore we do not pursue that question further. We do take note, however, that the published Notice of Initiation113 specifically refers to the public file to which all interested parties could have access, and we further note that Turkey does not assert that any Turkish respondents ever sought access to that file during the investigation and was denied such access.
7.113.
Turkey considers that the Panel should not rely on the public file document as evidence of the IA's consideration of certain other factors possibly causing injury. While Turkey acknowledges, in the light of the Appellate Body ruling in Thailand – H-Beams that Egypt can rely on evidence not referred to in the IA's published reports, it nevertheless maintains that Egypt can rely only on documents that were shared with or otherwise made available to the respondents114. It is not clear to us what distinction Turkey is making here, as our reading is that Thailand – H-Beams addresses and resolves both of these issues, to the effect that we can take into account the public file document.
7.114.
Turning to the substance of the issue raised by this claim, we first recall the relevant language of Article 3.5:

"The authorities shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped imports. Factors which may be relevant in this respect include, inter alia, the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, trade-restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry."

7.116.
We start by considering whether, as a factual matter, Turkey is correct that the IA failed to examine the "other" factors identified by Turkey in this dispute. Turning to the first of these factors, capacity expansion, we note that both the IA's Essential Facts and Conclusions Report115 and the Final Report116 mention the fact of the industry's capacity expansion, although not its magnitude, and states that the industry did not reduce production to meet import competition, but rather reduced its prices to maintain capacity utilisation, and to try to cover its costs. The reports then conclude that there was "no effect" on capacity utilisation (i.e., that there was no change in capacity utilisation). Thus, it appears that the IA found the industry's capacity expansion to be a neutral factor in its injury and causation analysis. Moreover, we note that while the issue of the industry's capacity expansion was raised by certain respondents during the investigation, the only detailed arguments that were presented in this regard, which were in the submission on threat of material injury of Habas, Diler and Colakoglu, were to the effect that even after the industry's capacity expansion, the industry had insufficient capacity to meet domestic demand.117 The only other reference by any respondent to the capacity expansion, which can be found in the Turkish Government's comments on the Essential Facts and Conclusions Report, consists of a simple assertion to the effect that the new investments made by the Egyptian producers were largely responsible for the decline in those producers' profits and return on investment.118
7.117.
Concerning Turkey's argument that the capacity expansion would have had a large effect on the industry's costs of production, which should have been pursued by the IA during the investigation, we note that the data on the industry's costs, as contained in the Confidential Injury Analysis, the source for the data referred to in the IA's Essential Facts and Conclusions Report and its Final Report, shows in fact that unit costs of production declined consistently over the period of investigation. Thus, the record evidence does not seem to bear out factually the hypothesis posed by Turkey.119
7.118.
In respect of the decline in scrap prices, in its Final Report, the IA acknowledges the arguments made on this point during the investigation, but implies that one comment is illogical and notes that the other is not supported by the evidence. In particular, the Government of Turkey stated in its comments to the IA on the Essential Facts and Conclusions Report that the IA had failed to comply with the requirement to properly analyze known factors other than imports because it did not:

" … take into consideration decreasing international market prices of scrap in 1998, while establishing a causal relationship between the domestic market prices in Egypt and the export prices of goods originating in Turkey. In fact, as the prices of scrap – which establishes the majority of the rebar costs – decreased so did the prices of rebars in the Egyptian market, as in most of other countries.

The decline in domestic producers' profits and return on investment cannot be related to Turkish exports, either. Other than the decrease of scrap prices, this decline can only be associated with the new investments made by the Egyptian producer in the recent years, which ITPD mentioned in paragraph 4.3.2.4 of the Report."120 (emphasis added)

7.122.
Concerning the effects of intra-industry competition, Turkey's argument appears to be somewhat inconsistent, in that Turkey seems to be arguing both that the new capacity would have brought about cost increases at both domestic producers that would have increased their price competition with each other, and that Al Ezz was the lower-cost producer and thus was simply out-competing Alexandria National. While this factor does not seem to be explicitly referred to in the IA published reports, it is mentioned in the document identified as being from the Public File of the investigation, and in that context the IA notes that there was virtually no difference in the prices charged by the two companies. Moreover, it is not clear to us which data in the Confidential Injury Analysis would necessarily signify "the effects of intra-industry competition" as such. Indeed, as noted above, overall the industry's costs declined steadily over the period of investigation, and yet industry profits declined as unit revenues declined. Here we recall that, pursuant to the AD Agreement, the IA must evaluate the condition of the domestic industry overall.122
7.123.
Concerning the alleged sharp contraction in demand in January 1999, which according to Turkey exactly coincided with falling rebar prices, we note that the IA considered the first calendar quarter of 1999 as a whole, rather than month-by-month. There is no requirement the AD Agreement concerning how the time periods within a period of investigation should be broken out analytically. Given that economic data frequently are prone to short-term fluctuations, in our view it could be imprudent for investigating authorities to base significant aspects of their findings and conclusions on data for extremely short periods. Indeed, this seems to have been the point of view, during the investigation, of the respondents that made a separate threat of injury submission. In particular, in that submission's discussion of "other economic factors", in respect of domestic rebar sales data, these respondents restated published government data on a "three-month rolling average basis (to smooth out some of the seasonal fluctuation, such as the annual dip in December) …"123. In addition, as noted above, these respondents' general argument, made in their submission of 20 May 1999 (i.e., four months after the asserted decline in demand) was that rebar demand in Egypt was "booming". The data in the Confidential Injury Analysis show that demand in the first quarter of 1999 was running at a level comparable to that in 1998, and considerably higher than that in 1996 and 1997, and that at the same time imports from Turkey and domestic sales were increasing. Furthermore, the document from the Public File shows that the IA did examine whether there had been a contraction in demand during the period of investigation and concluded on the basis of the record evidence that there had not been. Thus, in our view, an unbiased and objective investigating authority could have reached the conclusion that was reached by the IA in the rebar investigation on the basis of the facts of record on this issue.
7.124.
Finally, concerning the effects of "comparably-priced, fairly-traded imports", Turkey argues that the imports from Saudi Arabia and Libya were similar in volume, and comparable in price, to the imports from Turkey. Turkey asserts that given this situation, there was no basis for the IA to conclude that the imports from Turkey were causing injury while those from Saudi Arabia and Libya were not. The relevant passage from the Final Report states:

"Market share of the domestic rebar industry declined in 1998 and increased in the first quarter of 1999 due to reduction in the price to combat dumped prices. All of this had a negative impact on the profitability of the domestic producers. The market share of third country imports declined and Turkish rebar imports replaced the market share of third country imports."124

The import data contained in the IA's published reports appear to be consistent with the above description. In particular, the volume of imports from third countries, taken as a whole, declined from roughly 700,000 tons per year in 1996-1998 to 43,400 tons in the first quarter of 1999 (extrapolated to an annual level of roughly 174,000 tons), while the imports from Turkey, which had dropped from 145,000 tons in 1996 to zero in 1997, rebounded to 210,000 tons in 1998 and stood at 73,600 tons in the first quarter of 1999, an annual extrapolated rate of 294,000 tons. Thus, by the end of the period of investigation, the volume of dumped imports was considerably greater than the total volume of imports from all other sources. Given these statistics, and in particular the fact that as of the end of the period of investigation, the imports from Turkey had risen to a significantly higher level than the imports from all other countries combined, which were sharply declining, the factual basis for Turkey's argument is not clear to us. Furthermore, the document from the Public File indicates that the IA did consider, and rejected, the more detailed arguments concerning the alleged effects of the imports from Saudi Arabia and Libya that had been raised by the three respondents in their threat of injury submission.125

7.125.
To summarize, we have taken careful note of the factors asserted by Turkey to have been "other known factors" in the sense of Article 3.5. We also have taken note of the discussions of those factors by the IA in the investigation in its published reports and in the document from the public file, and compared those discussions with the related underlying data of record. As a factual matter, as discussed above, we find that the IA did in fact explicitly discuss in its published reports most of the "other factors" identified by Turkey, a number of which are identified by Turkey as being essentially the same, and covered the remainder of these factors (namely possible effects of intra-industry competition and of any contraction in demand) in the document from the Public File. On the basis of the data of record, we find no evidence that the IA's consideration of those factors, including its conclusions about them, were biased or not objective.
7.126.
It is clear that Turkey has reached different conclusions than the IA concerning certain evidence of record, and Turkey invites us to do the same. We recall, however, that we are bound by the requirements of Articles 17.5 and 17.6 of the AD Agreement to consider, on the basis of the evidence that was before the investigating authority during the investigation, whether the establishment of the facts in respect of any factor was improper, and whether the evaluation of any factor was biased or non-objective. That is, we are precluded from basing our findings on our own de novo review of the record evidence, and our own conclusions about each factor and the existence of injury and causation overall. We are, rather, to consider whether the conclusions reached in the investigation could have been reached by an objective and unbiased investigating authority on the basis of its analysis of the evidence of record at the time of the determination. For the reasons discussed above, we find that this standard has been met, and thus that Turkey has not established that the IA's evaluation of the possible causation of injury by factors other than the dumped imports was inconsistent with Article 3.5.

6. Claim under Articles 3.5 and 3.1 – Alleged failure to demonstrate that the imports caused injury "through the effects of dumping"

D. Claims relating to the Dumping Investigation – "facts available"

1. Factual background

7.133.
The dumping-related claims in this dispute all turn on one key event in the dumping investigation, namely a request sent by the IA to all respondents on 19 August 1999129 ("the 19 August request") for certain cost-related information. The chronology of events was that in its questionnaires sent to foreign manufacturers and exporters in late January or early February 1999, the IA requested certain information pertaining to the cost of producing rebar.130 In June 1999, subsequent to receiving the questionnaire responses, the IA conducted on-the-spot verifications at the respondents' premises in Turkey. The verifications covered only the price data, and not the cost data, reported in those responses. Then on 19 August 1999, the IA sent each of the respondents that had submitted a questionnaire response131 a letter indicating that the IA had certain concerns about the accuracy of the cost data reported in the questionnaire responses, in particular about whether the cost data fully reflected the effects of the hyperinflation then prevailing in Turkey. The IA informed the respondents that it therefore intended to adjust the reported costs to reflect the monthly rate of inflation, and to perform the profitability test on the basis of the adjusted costs, unless the respondents provided, by 1 September 1999 (i.e., 13 days later), certain specified additional cost-related information and explanations. The respondents all requested extensions of time, of varying lengths, to respond. In response to these requests, the IA extended the deadline for all of the respondents by 14 days, i.e., to 15 September 1999. No follow-up or other requests for further extensions were made by any respondent.

2. Claim under Article 17.6(i)

7.134.
Turkey claims that the IA's determination of the facts in the rebar investigation was not "proper", nor was its evaluation of the facts "objective" and "unbiased" within the meaning of Article 17.6(i).
7.135.
We recall that the full text of Article 17.6(i) of the AD Agreement provides:

"[I]n 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."

7.136.
Turkey's specific claim in this context is that the IA's findings that the respondents' cost of production did not include the effects of hyperinflation in Turkey, which was put by the IA at 5 per cent per month, were speculative and contrary to all the facts on the record.132 Turkey asserts that:

"The only support for the Investigation Authority's supposition in this regard is the undisputed fact that Turkey's economy was experiencing high inflation during the period of investigation. However, hyperinflation in the economy as a whole certainly does not mean that each sector and product group is experiencing inflation at the same rate. This is particularly true of industries, like the Turkish rebar industry, that import most of their raw materials and where the raw material input is a commodity product subject to significant swings in price.

The Investigating Authority's findings that respondents' costs did not include the effects of inflation, which the Investigating Authority put at 5 % per month, were contrary to all of the facts on the record. For this reason, the Investigating Authority's determination of the fact was not "proper," nor was its evaluation of the facts "objective" and "unbiased" within the meaning of Article 17.6(i)."133

7.137.
Egypt contends that Article 17.6(i) of the AD Agreement governs the standard of review to be applied by a panel when considering whether the Investigating Authority's establishment of the facts was proper and the evaluation unbiased and objective. Egypt further asserts that Article 17.6(i) does not govern the rights and obligations of Members under the AD Agreement. Egypt also contends that this claim was not cited in the Request for Establishment of a Panel134 and as a consequence, this claim is not within the terms of reference of the Panel and must be rejected.135
7.138.
Turkey contests Egypt's view by referring to the Appellate Body finding in US – Hot-Rolled Steel where it states that Article 17.6(i) imposes certain substantive obligations upon investigating authorities:

"Article 17.6(i) of the Anti-Dumping Agreement also states that the panel is to determine, first, whether the investigating authorities "establishment of the facts was proper" and, second, whether the authorities' "evaluation of the facts was unbiased and objective." Although the text of Article 17.6(i) is couched in terms of an obligation on panels – panels "shall" make these determinations – the provision, at the same time, in effect defines when investigating authorities can be considered to have acted consistently with the Anti-Dumping Agreement in the course of their "establishment" and "evaluation" of the relevant facts. In other words, Article 17.6(i) sets forth the appropriate standard to be applied by panels in examining the WTO consistency of the investigating authorities' establishment and evaluation of the facts under other provisions of the Anti-Dumping Agreement."136

7.139.
Turkey also refers to Claim 1 in its Request for Establishment of a Panel where it stated that "the Egyptian investigative authority … rendered determinations of injury and dumping in its investigation without proper establishment of the facts and based on an evaluation of the facts that was neither unbiased nor objective" and to Claim 9 where it stated that "[t]he factual basis cited by the [Investigating Authority] for seeking large amounts of supplemental cost information late in the anti-dumping proceeding were unfounded …. The [Investigating Authority's] subsequent decision to rely on 'facts available' was based on an improper determination of the facts in the investigation and on an evaluation of the facts that was neither unbiased nor objective. Thus, Turkey asserts that contrary to Egypt's views, Turkey put a violation of Article 17.6(i) squarely in issue in its request for this Panel"137 and that the claim is properly before us.
7.140.
Turkey further argues that:

"It is not clear, under the Agreement, that Turkey must allege violation of a separate substantive obligation under the Agreement in order to make this claim. Turkey believes there is a violation of the Agreement if, in reaching its final determination on any issue, the investigating authorities' establishment of the facts is improper or its evaluation of the facts fails to meet the test of objectivity and lack of bias.

However, to the extent that the panel considers that it may only review a violation of Article 17.6(i) in the context of a separate substantive claim, we note that in Section II.D of the restatement of our claims, where reference to Article 17.6(i) is made, Turkey's claim is that Egypt's decision to apply "facts available" was a violation of both Article 6.8 and Article 17.6(i) of the Agreement because that decision was based on an improper determination of the facts and upon an evaluation of the facts that was neither unbiased nor objective. Thus to the extent that the Panel considers that Article 17.6(i) merely sets forth a standard of review for Panel consideration of other substantive violations, then we invite the Panel to consider this claim in connection with our claimed violation of Article 6.8."138

7.141.
Turning first to whether a claim of violation of Article 17.6(i) is properly before us, we note first that Article 17.6(i) is not listed in Turkey's Request for the Establishment of a Panel139, either in the list of Articles allegedly violated, or in Claims 1 or 9, as referred to by Turkey140, as an article of the AD Agreement which was alleged by Turkey to be violated by Egypt. While certain language similar to that in Article 17.6(i) is contained in certain paragraphs of the Request for Establishment of a Panel, that provision is never mentioned. It is well-established that in WTO dispute settlement, it is always necessary, at a minimum, for the particular Articles of an agreement which are the subject of any claim to be cited explicitly in the request for establishment of a panel.141 Given the absence of any such explicit citation, we dismiss this claim as being outside our terms of reference.

3. Claim under Article 6.8 and Annex II, paragraphs 5 and 6 - Resort to "facts available"

7.143.
Turkey claims that "[b]ecause the basis for initially questioning and then rejecting Turkish respondents' costs was unfounded", the IA’s resort to facts available was unjustified. According to Turkey, the Turkish respondents provided all 'necessary information' and certainly did not 'impede' the investigation".142 Turkey argues that the rationale for requesting the additional cost data – namely that the originally-reported data did not appear to reflect the high inflation the prevailing in Turkey – was purely speculative, in that hyperinflation in an economy does not necessarily mean that each sector or group experiences inflation at the same rate, in particular industries like the rebar industry which import most of their raw materials and where those materials are commodity products subject to significant swings in price. According to Turkey, the respondents demonstrated in their responses to the IA's 19 August request for cost information that there was nothing "missing" from the respondents' reported costs. Moreover, Turkey states, the Government of Turkey had provided official inflation statistics that showed that inflation did not increase by 5 per cent per month in 1998, but that in a number of months, inflation did not exceed 2.5 per cent. Thus, according to Turkey, because the basis for requesting and then rejecting the cost data was factually unfounded, the IA's resort to "facts available" was unjustified under Article 6.8. Turkey further claims that resort to "facts available" was inconsistent with Annex II, paragraphs 5 and 6, in that the respondents had acted to the best of their ability, in that the IA had failed to inform certain respondents that their information was being rejected, and had failed to give them an opportunity to provide further explanations.143
7.144.
Egypt argues, first, that Turkey is requesting the Panel to perform a de novo review of the evidence that was before the IA, in that, according to Egypt, Turkey's arguments essentially reproduce those made by the respondents during the investigation in respect of cost of production and hyperinflation. Egypt states that the standard of review set forth in Article 17.6(i) does not allow panels to engage in such de novo review. According to Egypt, the Panel must limit its review of the decision to rely in part on "facts available" to whether the facts were properly established and whether the conclusions reached were unbiased and objective. Further, Egypt argues, the decision to partially use "facts available" was in compliance with Article 6.8 and Annex II of the AD Agreement. In this regard, Egypt argues that the cost data as originally reported were incomplete and unusable, and that the respondents failed to submit the additional information, in particular supporting evidence and reconciliation sheets, requested by the IA on 19 August, and that in addition, three of them subsequently refused to submit any further information when they were informed that their responses to the 19 August request were deficient. Finally, Egypt argues, the data and allegations presented by the respondents concerning costs were contradicted by the evidence on the record.

(a) Article 6.8 and Annex II

7.145.
Article 6.8 of the AD Agreement governs the use of "facts available" by an investigating authority and provides:

"In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. The provisions of Annex II shall be observed in the application of this paragraph."

7.147.
It is clear to us that according to the wording of Article 6.8, an investigating authority may disregard the primary source of information and resort to the facts available only under the specific conditions of Article 6.8. An IA may therefore resort to "facts available" only where a party: (i) refuses access to necessary information; (ii) otherwise does not provide necessary information within a reasonable period; or (iii) significantly impedes the investigation.
7.148.
Egypt does not assert, nor do we find an indication in the record, that the IA considered that any of the Turkish respondents "significantly impede[d]" the investigation. In fact, Egypt states that its reasons for resort to facts available in respect of Habas, Diler and Colakoglu were that these companies "refused access to necessary information" and "failed to provide necessary information", and that in respect of Icdas and IDC, the reason was that these companies "otherwise failed to provide necessary information".144 We will thus have to consider whether, as indicated by Egypt, the Turkish respondents refused access to necessary information, and/or failed to provide necessary information.
7.149.
The IA explained its decision to resort to facts available in paragraph 1.6.5 of the Final Report, as follows:

"Because parties did not provide all the data required, the Investigating Authority decided to proceed with the investigation procedures and calculate margins of dumping in accordance with Article 6.8 of the Anti-dumping Agreement which provides that:

[quotation of Article 6.8 omitted]

Article 27 of the [Egyptian Anti-Dumping] Regulation provides that:

In case of absence of the data required, failure to submit data within the time-limit or non-cooperation with the Investigating Authority, the Investigating Authority may proceed in the investigation procedures and come to conclusions according to the best information available …'

And Article 35 of the Regulation states that:

In cases where there is no sufficient data to determine the export price or the normal value, the Investigating Authority may determine them on the basis of the best information available'."145

7.150.
These statements appear to confirm that the IA based its decision to resort to "facts available" in terms of Article 6.8 on respondents' "not provid[ing] … necessary" information. We therefore start our analysis by examining the concept of "necessary information" in the sense of Article 6.8, and then consider whether necessary information in that sense was requested by the IA, but not provided by the respondents.
7.152.
In this regard, we find significant the specific wording of that cross-reference: "[t]he provisions of Annex II shall be observed in the application of this paragraph" (emphasis added). In other words, the reference to "this paragraph" indicates that Annex II applies to Article 6.8 in its entirety, and thus contains certain substantive parameters for the application of the individual elements of that article. The phrase "shall be observed" indicates that these parameters, which address both when facts available can be used, and what information can be used as facts available, must be followed.
7.153.
Our view of the relationship of Annex II to Article 6.8 is consistent with that of the Appellate Body in United States – Hot-Rolled Steel. In that case, the Appellate Body stated that Annex II is "incorporated by reference" into Article 6.8,146 i.e., that it forms part of Article 6.8. In similar vein, the Appellate Body also referred to the "collective requirements" of Article 6.8 and certain provisions of Annex II.147 The panel in Argentina – Ceramic Tiles came to a similar conclusion.148
7.156.
Having concluded that, subject to the requirements of Annex II, paragraph 1, it is left to the discretion of the investigating authority to specify what information is "necessary" in the sense of Article 6.8, we now consider what provisions of Annex II are relevant in respect of determinations that an interested party has "refused access to" or "otherwise has failed to provide" such information. In terms of the issues raised in the present claim, we find that two of the key such provisions are paragraphs 3 and 5 of Annex II.
7.157.
Annex II, paragraph 3 provides:

"All information which is verifiable, which is appropriately submitted so that it can be used in the investigation without undue difficulties, which is supplied in a timely fashion, and, where applicable, which is supplied in a medium or computer language requested by the authorities, should be taken into account when determinations are made. If a party does not respond in the preferred medium or computer language but the authorities find that the circumstances set out in paragraph 2 have been satisfied, the failure to respond in the preferred medium or computer language should not be considered to significantly impede the investigation."

7.158.
Annex II, paragraph 5 provides:

"Even though the information provided may not be ideal in all respects, this should not justify the authorities from disregarding it, provided the interested party has acted to the best of its ability."

7.160.
We consider that in the present dispute, the determining factor in the IA's decision to resort to facts available, and thus the central aspect of Turkey's claim in respect of this decision, is the "verifiability", in the sense of paragraph 3, of the cost information submitted by the respondents, and note in this regard Turkey’s objection to what it sees as the IA’s conducting a "mail-order verification".152 That is, there seems to be no issue in respect of appropriateness of the manner in which the information was submitted or whether thereby using it would involve undue difficulties, nor is there an issue in respect of the medium or computer language. We note that, in regard to the quality of the information, paragraph 5 provides that information that may not be "ideal in all respects" nevertheless should be used provided the submitter has acted to the best of its ability. We address Turkey’s claim in respect of the language "to the best of its ability" in paras. 7,239, et seq., infra, and focus here rather on the relationship of the phrase "not... ideal in all respects" to the concept of "verifiability" in paragraph 3.
7.161.
As we have noted, paragraphs 3 and 5, in addition to some of the other provisions of Annex II, have to do with assessing whether the information submitted by interested parties must be used. Thus, paragraph 5 is a complement to paragraph 3 and the two must be read together in considering the IA’s obligations in respect of submitted information. In particular, we believe that under the pertinent phrases in these two paragraphs taken together, information that is of a very high quality, although not perfect, must not be considered unverifiable solely because of its minor flaws, so long as the submitter has acted to the best of its ability. That is, so long as the level of good faith cooperation by the interested party is high, slightly imperfect information should not be dismissed as unverifiable.153
7.162.
In the context of this dispute, we find the provisions of paragraph 1 also to be relevant as to the "verifiability" of the information ultimately submitted by each respondent. In particular, the factual issue that culminated in the IA's resort to facts available began with the IA's doubts as to the accuracy of the cost data as originally submitted, and its 19 August request for "source data and [] audited financial data establishing the accuracy of the summary data that you supplied".154 In other words, the IA specified in detail in the 19 August letter what information it considered necessary in order to be able to verify the cost data as reported in the respondents' questionnaire responses.
7.163.
In assessing whether Article 6.8 was violated in this case, we also must consider whether the IA complied with paragraph 6 of Annex II. In particular, Turkey claims that the IA failed to notify two of the respondents, IDC and Icdas, that their information was being rejected, and failed to given them an opportunity to provide further explanations, as required by this provision. According to Turkey, for this reason as well, the IA's resort to facts available in respect to these respondents violated Article 6.8.
7.164.
In sum, to understand in this dispute whether the IA was justified in relying on facts available for cost of production and constructed normal value, pursuant to Article 6.8, we will need to consider whether the information provided by each of the five respondents concerning their costs of production was "verifiable" in the sense of Annex II, paragraphs 3 and 5, and whether the IA provided the notice and opportunity for explanation required by Annex II, paragraph 6. To determine this, we will consider the following questions. In the first instance, did the IA clearly specify the information that it needed in order to satisfy itself as to the accuracy of the respondents’ cost of production data (i.e., did the IA specify what it needed to verify the reported cost data) ? Did each respondent provide the information that had been specified? In doing so, what were the nature and extent of any flaws in the information that was provided? Did each respondent, in providing information in response to the requests, act to the best of its ability? Finally, was each respondent informed that its information was being rejected, and given an opportunity to provide further explanations?
7.165.
We now turn to a detailed review of the facts of the rebar investigation, including the nature of the information submitted by each of the Turkish respondents and the actions of those respondents and the IA. Only by applying the analytical framework that we have set out above to the specific facts of this case can we make a judgement as to whether for each respondent the IA respected the requirements of Article 6.8 in conjunction with the cited paragraphs of Annex II.

(i) Colakoglu, Diler and Habas

7.166.
Colakoglu, Diler and Habas responded to the Manufacturers Questionnaire and on 7 April 1999 submitted to the IA their responses, through the same legal counsel.155 Their responses to Appendix 2 of the Manufacturer's Questionnaire relating to sales in the domestic market to independent customers during the period 1 January 1998 to 31 December 1998 contained information relating only to those sales that were identical in physical characteristics, closest in time and closest in quantity to the Egyptian sales. Furthermore, these producers also reported in their responses monthly average costs of production of rebar only for the months in which they had sales to Egypt, in response to the information requested in Annex 9 to the Manufacturers Questionnaire.156
7.167.
On 10 May 1999 counsel for these three producers sent a fax to the IA regarding procedural issues, enquiring, inter alia, "[i]f there will be supplemental questions, when such questions would be issued".157 The IA responded on 20 May 1999 that:

"Before the visit (verification), each company will be advised of the items which the Egyptian Authority wishes to verify and further information that will be sought. In general, the information which is missing is the supporting documentation on which claims for adjustments are based. It is usual for this type of information and explanations to be provided during the verification visit, where the information in the industry response has been sufficient, as it has in this case. Without the supporting data which is requested in the questionnaire however adjustments are not normally allowed."

7.168.
The on-site verification of the information submitted by the three producers in response to the Manufacturer's Questionnaire was conducted in Turkey from 11 to 18 June 1999.158 In the verification reports relating to these three producers, no discrepancies between the information submitted and the verified information were noted by the IA.159 It is common cause that the verification was limited to export sales and domestic sales and that the reported data on cost of production were not verified.160
7.169.
On 12 August 1999 the IA sent faxes to all five respondents, including Habas, Diler and Colakoglu, regarding certain adjustments to their export prices and home market prices. These three producers responded to this fax and provided certain requested information and explanations, as well as comments, on 13 August 1999.161
7.170.
On 19 August 1999 the IA sent letters by fax, the operational parts of which were identical, to all five Turkish producers.162 In these letters the IA informed the producers that:

"The Investigating Authority has reviewed the cost and sales data that [name of company] has submitted thus far in this proceeding. In reviewing this data, the Investigating Authority has identified a number of concerns that are identified below.

As a threshold matter, the Investigating Authority is aware that during the period of investigation, Turkey was experiencing hyperinflation on the order of roughly 5 percent per month. The Investigating Authority would, therefore, expect to see in the data submitted by [company name] a substantial increase during the period of investigation both in the home market sales prices and in the cost of production. The Investigating Authority has reviewed the data submitted by [company name], and it appears that the data is not consistent with the inflationary conditions experienced in Turkey during the subject period. [The IA then gives details of cost data of materials, labour, manufacturing overhead and selling, general and administrative costs ("SG&A") as submitted by the three producers and noted that these cost elements all showed a decrease during the subject period, despite the inflationary conditions.] The costs reported included no finance cost, yet the income statement that [company name] supplied indicated significant financing expenses. The costs reported include a deduction for "interest expense", the Investigating Authority would need an explanation for this cost and why it is deducted from cost of production.

The above data reported by [company name] indicate that your reported costs do not reflect the inflation in effect. The Investigating Authority, therefore, intends to adjust the cost data reported by [company name] and eliminate those home market sales that are determined to be not in the ordinary course of trade.

In the event you disagree with the proposed course of action, we require that you supply the Investigating Authority with source data and with audited financial data establishing the accuracy of the summary data that you supplied. We also require that you provide a full and complete explanation regarding the issues set forth above. In addition, you must reconcile the costs that you submitted to the audited financial statement. Attached hereto is a list of the data required by [company name] in the event you propose a modification of the Investigating Authority's approach.

The Investigating Authority intends to conclude this investigation in the near future. Therefore, any response to this letter must be accompanied by the data identified in the attached list and must be received by the Investigating Authority no later than September 1st, 1999. Any response received after that date may be rejected by the Investigating Authority.

List of supplemental materials required accompanying any response to this letter.

1. Basic Source Documents.

[Company's name] audited financial statements, including all footnotes, covering full calendar years 1997 and 1998, and any draft or interim financial statements and footnotes covering [different periods for different companies].

The annual or semi-annual submissions made to the Turkish tax authorities for full calendar years 1997 and 1998.

A chart of accounts for full year 1998 and the first half of 1999.

Cost of production data prepared in accordance with app. 9A for the months [different months for the different companies].

2. Accounting Practices

Provide a written summary of the basic books used in your accounting system. Use a diagram if possible.

Provide a review of the accounting system using the basic books summary, chart of accounts, and the financial statements. Show how sales and expenses are posted to the various ledgers and statements (i.e., demonstrate the manner in which source documents for sales and expenses flow into the financial statements via accounting vouchers, journals, subsidiary ledgers, and general ledger accounts).

Provide a complete list of the types of computer reports generated and/or available in the ordinary course of business. Provide samples of each of these reports.

3. Merchandise

Provide a complete list of all products sold during the period of investigation, and a list of the internal accounting codes for these products that were used to record costs, sales, or expenses.

4.Materials

A. Provide the material inventory ledgers for the subject merchandise showing the raw materials, work in process, and finished goods inventory showing the balance and activity in the accounts for each month during 1998 and an explanation of whether and how inventory values are adjusted for inflation in [company name] accounting records.

B. Reconcile the total value from the inventory ledgers for the months of [different months for each company] to [company name] general ledger and financial statement.

C. Provide a copy of all material purchase orders placed during the months of [different months for each company]. A copy of the appropriate pages from the payments ledger showing payment for those purchases.

D. A worksheet reconciling the materials costs that you submitted in your summary to the Investigating Authority to the company’s audited financial statement.

5.Labour

A. Explain whether any adjustments have been made in [company name] accounting records to recognize the inflation that occurred during this time.

B. Explain the basis on which labour was allocated to the subject merchandise.

C. Reconcile the labour costs reported for [different months for each company] to the general ledger and to the financial statement, and provide supporting documents, including bank statements for those months.

6.Overhead

A. Explain whether any adjustments have been made to account for the inflation that occurred during this time.

B. Provide a complete list of all expenses included in the category "overhead" which you provided in your summary to the Investigating Authority.

C. Provide a complete list of all depreciation expenses and reconcile those expenses to the summary which you provided to the Investigating Authority for the months of [different months for each company].

D. Specifically explain whether your recorded depreciation expenses take into account the inflation that occurred during this time.

7.Complete sales listing

A. Provide the complete sales journal for the subject merchandise for the months of [different months for each company]. Provide a worksheet for [different months for each company] which reconciles the monthly sales total to the financial statement sales total.

B. Using the worksheets developed for the previous step, reconcile the total reported export and home-market sales to sales journal(s), summary entries in the general ledger based on sales journals, and the financial statements for [different months for each company]. Show how the sales listing flows to subsidiary ledgers, the general ledger, and the financial statements for 1998."163

7.171.
Counsel representing these three producers requested on 23 August 1999 an extension of 51 days, to 22 October 1999, of the time-period of 13 days originally provided for the submission of responses to the IA's letter. The stated reasons for requesting the extensions were that Turkey had suffered a major earthquake on 17 August 1999, with consequent absence of key employees attending to their families or helping with relief efforts, as well as the fact that these companies were scheduled to undergo verifications in EU and Canadian antidumping investigations within the following 35 days.164 Icdas requested on 26 August 1999 an extension of 40 days, until 11 October 1999, and IDC requested an extension until 15 October 1999. The IA informed all five producers, on 26 August 1999, that an extension had been granted to 15 September 1999, that is, an extension of 14 days.
7.172.
On 15 September 1999 the counsel for the three producers, Habas, Diler and Colakoglu, submitted their responses to the 19 August 1999 letter.
7.173.
The IA informed these producers by letter dated 23 September 1999 that certain requested information and underlying documents had still not been submitted. In all three cases, for example, concerning material costs, for which the IA in the 19 August letter had requested data and supporting documents (purchase orders, payment ledgers, etc.) regarding raw material purchases, the respondents had submitted only information relating to billets, i.e., providing their internal transfer prices of the billets they themselves had produced, rather than the requested information on the raw materials used to make the billets.165
7.174.
In the 23 September 1999 letters, the IA requested the three producers to address the deficiencies in the responses they had submitted on 15 September 1999.
7.175.
Specifically, with respect to Habas the IA requested the following:

"1. Basic data:" The IA requested Habas to provide the total monthly quantity of billets/rebars produced during the period of investigation.

"2. Materials:" According to the IA no information was submitted for auxiliary materials used in the production process in attachment no 4 (to the 15 September response) and the IA requested a complete monthly list of all raw materials used to produce rebars and the percentage each represent of the finished product. The information requested was set out in an annex. According to the annex, the information to be submitted under the heading "materials used" was to be broken down into scrap, graphite, ferro alloys, electrodes etc, and "labour" into sub-headings "From scrap to billet" and "From billet to rebar" and the same with regard to "overhead". The other cost items requested were the same as in the format attached to the original Manufacturer's Questionnaire."

7.176.
The IA also requested that supporting documents such as purchase orders, purchase invoices, and production line documents that show the total cost of producing billets as well as rebars, be submitted and that all these documents should also be fully translated.
7.177.
The IA requested that the allocation base of material used for each size, should also be submitted.

"3. Labour:" The IA requested that the costs of goods sold (COGS – attachment no. 10 to the response of 15 September) be translated and that supporting documents like sample payroll records or time cards be furnished. These documents should also be translated.

"4. Overhead:" The IA requested that the total amounts of factory overhead (item by item) and how they were allocated to each size, be provided.

"5. SG & A:I" The IA requested that the total amount of SG & A (item by item) and the allocation basis of these amounts to each size, be submitted.

"6. Complete sales listing:" The IA requested the total sales quantity for each size.

"7. Interest expense:" The IA requested a list identifying separately interest expense from interest income."

7.178.
The IA also informed Habas that:

"Generally speaking, most documents provided were in Turkish. A full translation should be attached to each document, for example, a detailed manufacturing cost and packing cost reconciliation.

Please provide us with a full explanation demonstrating how and where the high inflation rate is already included in all cost elements during the POI.

The above-mentioned items no. 4,7 should be submitted within 2 days."

7.179.
The information other than items 4 and 7 was to be submitted within five working days from 23 September 1999. The IA did not indicate what the consequences would be if these deadlines were not met.
7.180.
With respect to Colakoglu, the IA requested almost exactly the same information. The only difference was that under the heading "Overhead", Colakoglu was also requested to furnish a translation of documents that it had submitted in Turkish.
7.181.
In the case of Diler, almost exactly the same information as that requested from Colakoglu, was requested, except that under the heading "Basic data", Diler was requested to provide the total monthly quantity of scrap purchased (domestic listed separately from imported scrap), billets produced, billets sold (domestic listed separately from exported billet) and rebars produced during the period of investigation (by size).
7.182.
In response to the IA's requests, counsel to these three producers informed the IA on 28 September 1999 that:

"The previously submitted responses of Colakoglu, Diler and Habas to the ITPD questionnaire are complete and accurate. ….

Responses which were entirely complete in April 1999 remain so today.

….

The documents provided on 13 September in response to the questionnaire of 19 August 1999 are translated in sufficient detail to enable ITPD to ascertain their contents. Many of these documents had been previously given and translated in full; for example, financial statements had been previously given in full translation, so we did not provide duplicative translation. Similarly, the packaging cost reconciliations sought in the 23 September letter were in fact provided during the verification, when ITPD fully verified packing costs and inspected, translated, and copied original documents.

If ITPD remains unable to locate the original translations or to identify the pages of the 15 September response where translations are provide, or if ITPD requires any additional explanations, we will be pleased to come to Cairo to review these documents with ITPD. Such a meeting could be arranged after the third week of November, if desired. Before that time, counsel's time is fully booked, but we would expect ITPD to afford us this scheduling courtesy in view of the events herein since verification was concluded.

With reference to ITPD's request for additional information in the ITPD letter of 23 September, we note that ITPD is requiring responses to the letter 'within 2 days' for certain items and 'no later than 5 working days' for other items.

International courier service from Turkey to Egypt requires 2 days. Therefore it is physically impossible to provide documentation within 2 days. Furthermore, even a 5-day time-limit is unreasonable; no respondent could possibly provide factual responses in such a period of time. Thus the time limits set for this questionnaire response are unreasonable and impossible to meet, and hence in violation of GATT AD Code [sic], Art 2.4 ('unreasonable burden of proof') and Art 6.1 (respondents shall be given 'ample opportunity to present evidence …').

In particular, with reference to 'Attachment 1' of ITPD's 23 September letter,: ITPD has not previously requested this type of information. It thus amounts to a new cost questionnaire. The question is extremely burdensome; respondents estimate that, if the questions were properly posed(sic), it would take at least a month to provide the answers. ….

….. Colakoglu, Diler and Habas object to what is blatantly a mail order verification. …

If ITPD does not understand any of our submissions or wants more explanation, we are willing to meet with ITPD in Cairo to explain anything about which ITPD has questions.

Colakoglu, Diler and Habas have answered every question of the questionnaire, …

As of the end of the verification, the factual record is complete.

In short, Colakoglu, Diler and Habas stand by their responses and demand a calculation based on their responses as submitted."

7.183.
On 28 September 1999, the IA responded to this letter, informing the counsel for the three respondents that "we note that you did not fully respond to the following items: materials, labour, overhead, SG&A, interest expense and detailed cost sheet. Therefore, the ITPD will use other data provided by your clients which were satisfactory, but will use facts available for the above-mentioned items."166
7.184.
On 28 September 1999, counsel for these three companies responded to the IA's letter of 28 September, informing the IA that they:

"reiterate that they are absolutely entitled to a decision based on their own data. They answered the questionnaire, received no supplemental questions, and successfully underwent verification. Questionnaires subsequent to verification are ultra vires and cannot be the basis for facts available. …. Furthermore, respondents' submissions of 15 September fully support and verify the accuracy of respondents' reported costs. … Colakoglu, Diler and Habas are therefore entitled to a margin calculation based on their own numbers, as submitted. Any other outcome – in particular, any 'facts available' outcome – would be unlawful."167

7.185.
In a letter dated 5 October 1999 to counsel for these three producers, the IA referred to that counsel's previous suggestion of a "possible" meeting in Cairo to explain the data submitted by Colakoglu, Diler and Habas and stated that "any further comments or explanations regarding the request of ITPD for supplemental information should have been included in your responses, the deadline for which has passed. We will consider any further information to be untimely. …."
7.186.
Concerning the three respondents as a group, in the IA's Essential Facts and Conclusions Report of October 1999168 under the heading: "The IA's Request for Supplemental Information", the IA stated that:

"On September 15, 1999, respondents Habas, Diler and Colakoglu responded to the Investigating Authority with some incomplete data and argued that the Investigating Authority's request for additional data was procedurally improper. These respondents argued that the Investigating Authority is prohibited from requesting further data and that, following a verification, the Investigating Authority is required to accept all data submitted by respondents that the Investigating Authority did not find to be inaccurate as a result of the verification. The data provided on September 15 were incomplete and some of them were untranslated, so on September 23, 1999, these respondents were requested to complete the data and translations required. On September 28, 1999, respondents replied that they had previously submitted all data required on September 15, 1999."169

7.187.
Under the heading "Normal Values" the IA commented as follows:

"The Investigating Authority applied partial facts available to calculate the normal value for Habas, Diler and Colakoglu. These respondents failed to respond completely to the Investigating Authority's requests for information. On this point, each of these respondents submitted responses to the Investigating Authority's initial questionnaire and participated in a verification of those responses. Following these verifications, the Investigating Authority issued follow-up requests for information seeking supplemental cost and sales data. These respondents did not provide complete responses to the Investigating Authority's requests. The Investigating Authority forwarded two additional requests for the respondents to complete the responses; however, the requested information was not provided. … As part of this investigation, the Investigating Authority requested that respondents supply source documents supporting certain of its claims of material, labor and overhead costs. Respondents were also requested to reconcile certain costs to their financial statements covering the investigations period. Respondents declined to provide the necessary data."170

7.188.
Concerning the three respondents individually, the IA commented as follows in the Essential Facts and Conclusions Report with regard to the failure of each to submit the requested information and/or supporting documentation.
7.189.
Regarding Habas, the IA commented as follows:

"Although the Investigating Authority twice requested full costs of production for the entire POI, the company only provided costs for two selected months, and there is no evidence on the record that these were representative of the period."171

7.190.
Regarding Diler, the IA commented as follows:

"… Diler did not provide sufficient information for the Investigating Authority to confirm the monthly specific costs of materials, labor, or overhead during the period of investigation despite being requested to do so."172

7.191.
Regarding Colakoglu, the IA commented as follows:

"… Colakoglu did not provide sufficient information for the Investigating Authority to confirm the monthly specific costs of materials, labor, or overhead during the period of investigation despite being requested to do so."173

7.192.
In comments on the Essential Facts and Conclusions Report, counsel for these three producers asserted that "… respondents have submitted complete sales and cost databases which were verified or reconciled to financial statements", "… the respondents' post-verification submissions were fully responsive to ITPD's inquiries – even though those inquiries were, themselves, ill-founded in law and in fact – and as such they provide compelling reason for ITPD to correct the manifest error in the use of facts available and, instead, to issue a final determination in accordance with respondents' databases as submitted and without change", and with reference to the information submitted on 15 September 1999, that "[i]ndeed, the submission was in many respects more than what ITPD had requested, and there were adequate translations for each and every single document".174 Counsel did not address the specific issues raised by the IA regarding incomplete information.
7.193.
In the Final Report, issued in October 1999, the IA stated, under the heading "Complete or Incomplete Sales/Cost Responses":

"We note that these three respondents' [referring to Colakoglu, Diler and Habas] repeated assertion that they 'have submitted complete sales and cost databases which were verified or reconciled to financial statements' is simply incorrect. The sales databases were verified. As for the cost databases being reconciled to financial statements, we requested their trail balances and, when the respondents provided them on September 15, 1999, along with a claim that '[t]rial balances do not contain quantity (tonnage) data, so they will not reveal any information concerning unit costs. Moreover, trial balances are company-wide, and will generally not reveal anything of particular relevance concerning rebar production'. We subsequently requested English translations but never received them. However, in their October 15, 1999 comments respondents assert that they 'clearly and unequivocally reconciled their monthly conversion – labor and overhead – to their trial balances, and thence to the general ledger'. This latter statement is somewhat disingenuous in light of the September 15 statement, regardless, since we never received the requested translations, this information was not usable. Thus, it is simply incorrect that the cost databases were reconciled to financial statements.

….

The Department points out that all cost information was requested for the entire 12-month period in the original questionnaire, but only selected costs were provided; one firm provided detailed cost data for only 4 months, corresponding to the 4 months of Egyptian sales, and a second firm provided detailed cost data for only 2 months of the period. Although the three firms provided 12 months of material, labor and overhead costs, for all three firms these responses were unusable for various reasons: they were limited to materials, labor, and overhead, there was no supporting evidence, no clarifications, and no narrative or further explanations, there were no detailed breakouts of these cost elements such as overhead, and various documents were not translated into English, all of which the Department had requested. Although in response to supplemental requests for information to cure these deficiencies the respondents provided various additional supporting evidence and further arguments about previously furnished data, they failed to provide much of the above necessary information, clarifications, supporting evidence and translations. In sum, the responses remained deficient in many respects; the Department used respondents' data whenever it was sufficient, and only used partial facts available for data that were missing, deficient, or inadequate. "

7.194.
Under the heading "Normal Values", with reference to Colakoglu, Habas and Diler, the IA commented as follows:

"These respondents did not provide complete responses to the Investigating Authority's requests. …. As part of this investigation, the Investigating Authority requested that respondents supply source documents supporting certain of their claims of material, labor and overhead costs. Respondents were also requested to reconcile certain costs to their financial statements covering the investigation period. Respondents declined to provide the necessary data.

These respondents have argued that the data that they submitted was sufficient and those facts (sic) available should not be applied. However, the submissions of these respondents are deficient in several respects. For example, the Investigating Authority requested copies of invoices and purchase orders for purchases of scrap made by respondents during the investigation period. The Investigating Authority considers these source documents important to determine the reliability of the submitted data. These three respondents refused to provide any such evidence of the cost of scrap, or, in fact, of any other materials. …

As another example the Investigating Authority requested that the respondents reconcile reported labor costs with the companies' financial statements. None of these respondents supplied the requested reconciliation or explained why such reconciliation could not be provided. Similarly, the Investigating Authority requested that the respondents reconcile monthly sales amounts to the companies' financial statements. Once again, neither the data nor an adequate explanation was provided by these companies. Further, the Investigating Authority requested that translations be provided for the materials submitted by respondents, however, several of the documents were provided with no such translations."175

7.195.
In its Final Report the IA did not add to its comments in the Essential Facts and Conclusions Report relating to the individual producers.

(ii) Icdas and IDC

7.196.
As indicated in paragraph 7,170, supra, these two companies received basically the same letter, dated 19 August 1999, as Colakoglu, Diler and Habas, from the IA. The contents of the letter are set forth in that paragraph.
7.197.
Both of these companies also received, on request, an extension from the IA for the submission of their responses to the 19 August 1999 request, from 1 September 1999 to 15 September 1999.176

Icdas

7.198.
On 15 September 1999 Icdas submitted to the IA its response to the 15 August 1999 request.
7.199.
The IA responded to Icdas's 15 September submission on 23 September 1999, by stating that:

"1. Attachment 8 has not been received

2. Attachment 9 is unclear, please provide us depreciation expenses for Sep., Oct. and Nov. 1998 translated into English.

The above-mentioned items should be submitted within five working days."

7.200.
Attachment 8 (which concerned labour costs) and the depreciation expenses breakdown, translated into English, were faxed by Icdas to the IA on 27 September 1999 and sent by courier on 28 September 1999.177 According to Turkey, Icdas "responded fully to this information request in a timely manner and received no other indication from the IA that its response on September 15, 1999 was otherwise incomplete or unusable".178
7.201.
In its Essential Facts and Conclusions Report of October 1999, the IA stated:

"Icdas … provided incomplete data and most of the data submitted were not supported by evidence."179

7.202.
The IA further stated, under the heading "Comparison of the Net Home Market Price to the Cost of Production":

… Icdas did not provide sufficient information for the Investigating Authority to confirm the monthly specific costs of materials, labor, or overhead during the period of investigation despite being requested to do so.'

7.203.
In response to these statements in the Essential Facts and Conclusions Report, Icdas stated in its 14 October 1999 comments thereon that:

"Icdas timely responded to the Department's additional request for information dated August 19, 1999 and provided all the necessary information to the Department. In its letter No. 629 dated September 23, 1999, the Department listed outstanding issues in Icdas' responses dated September 15, 1999 and this remaining items are timely submitted to the department. If there would have been any other missing information, the Department should have notified Icdas to provide this missing or incomplete information in its letter No. 629. In the Report the department does not clearly state what information is found missing or incomplete."180

7.204.
In its Final Report the IA stated that "Icdas and IDC provided incomplete data and most of the data submitted were not supported by evidence".181 Although, as recounted above, the IA addressed in detail in the Final Report the failure of Colakoglu, Diler and Habas to submit certain requested information, no such detail was included in respect of Icdas or IDC.182
7.205.
Instead, concerning Icdas' compliance with the 19 August request, the Final Report states:

"On September 23, 1999, the Department requested a missing document and several documents to be translated into English. …183 (emphasis added)

As for Icdas' claim that it 'provided all the necessary information' in response to the Department's August 19, 1999 request and that the 'remaining items are[sic] timely submitted' in response to the Department's September 23, 1999 request, that is incorrect. In fact, the firm did not furnish (1) the requested breakdown of labour and overhead costs, (2) the requested supporting documents for labour and overhead costs, (3) the requested allocations and allocation methodologies for materials, overhead, and SG&A, and (4) the requested reconciliations of submitted data to its financial statement. In addition, its explanation of how inflation was reflected/included in its costs was inadequate and unsupported."184

IDC

7.206.
In response to IDC's submission of the information requested in the 19 August 1999 letter, on 23 September, the IA requested IDC to:

"… provide the following within five working days:

1.Interest expense: Furnish a list identifying separately interest expenses from interest income.

2.In worksheet 2 (factory cost and profit for domestic sales per ton) it is unclear whether the materials listed are scrap or billets, please specify.

3. Fill in the enclosed cost of production sheet for Aug., Sep., and Oct. 1998.

Item 1 should be submitted within 2 days."185186

7.207.
IDC faxed information on interest expense to the IA on 25 September, the due date. When informed by the IA that the fax had not been received, IDC resent it on 29 September 1999.187
7.208.
On 28 September 1999, IDC faxed the information on the cost of production for the months of August, September and October 1998 to the IA. In the fax IDC also noted that the "production costs given in Worksheet 2 are calculated from scrap to rebar basis" and that "[m]aterials listed are the same as the cost of production sheets attached for item 3 (Cost of production sheets) ".188
7.209.
On 28 September 1999 the IA requested IDC to submit a list identifying separately interest expenses from interest income showing the difference between both interest expense and interest income per ton during 1998 on a monthly basis, with a note "[y]our effort will be appreciated if we receive the above-mentioned immediately". According to Turkey, IDC faxed the requested information to the IA on 29 September 1999.189
7.210.
As noted above, the IA issued its Essential Facts and Conclusions Report on 5 October 1999, applying "facts available" to IDC. In that report, as indicated above, the IA stated that "Icdas and IDC provided incomplete data and most of the data submitted were not supported by evidence". The IA also stated that:

"For materials, labor and overhead, since the company did not adequately demonstrate or support its claim that inflation was included, as facts available, since these costs varied significantly during the period, we used the highest cost for each element during the period to reflect the inclusion of inflation costs."190

7.211.
The IA did not identify in the Essential facts and Conclusions Report any particular document or other information that had been requested by the IA, but not submitted by IDC.
7.212.
On 15 October 1999 IDC commented regarding the Essential Facts and Conclusions Report that:

"Up to today, IDC has always become(sic) cooperative with your Authority and have always given all information and supporting documents you requested. Therefore, facts available clause should not have been used. As you know, IDC has never refused your any request of any information. We have given all correct information and documents to you on time and informed you to contact us anytime you need more clarification and explanations."191

7.213.
IDC attached to this letter "Worksheet 1: Cost of Production (From Billet to Rebar) for 1998", "Worksheet 2: Calculation of Financial Expenses for Constructed Normal Value Table and Constructed Normal Value table for IDC". Worksheet 1 contains the cost of production from billet to rebar for the months of August, September and October 1998 and is the same information that was faxed to the IA on 28 September 1999, except that in this document ex-factory sales prices and profits were added. Worksheet 2 contains information relating to interest expense (but not interest income), a list of productions items subject to interest expense, and a constructed normal value for IDC for the three months of August, September and October 1998.
7.214.
In its Final Report the IA repeated that:

"Icdas and IDC provided incomplete data and most of the data submitted were not supported by evidence."192

7.215.
Turkey takes strong issue with this characterization, alleging that all of the information requested by the IA, most importantly that provided on 15 September in response to the IA's 19 August request, as well as the further information provided in response to the IA's 23 September request, was submitted within the time-periods set by the IA.
7.216.
The IA did not refer in the Final Report to any specific requested document or information not submitted by IDC. However, the IA stated that:

"With its comments on the Essential Facts Report Izmir (IDC) attached information which the Department, because it determines that this is new information untimely submitted, will not consider in this investigation."193

(b) Was the cost information requested by the IA on 19 August and 23 September 1999 "necessary information"?

7.217.
We recall that the parties have submitted extensive arguments regarding the validity of the IA's rationale for seeking the detailed cost information. Turkey claims that "because the basis for initially questioning and then rejecting Turkish respondents' costs was unfounded, resort to facts available was unjustified under Article 6.8 of the Agreement". On the other hand, we note that the IA justified its request for the cost data as necessary to enable it to determine whether the respondents had made sales of comparison merchandise in the home market at prices that were below the cost of production, in accordance with Article 34 of the Egyptian Regulations. This provision, which essentially mirrors the provisions of Article 2.2 and 2.2.1 of the Anti-Dumping Agreement, allows investigating authorities to construct a normal value if sales of the like product in the domestic market of the exporting country are below costs of production plus SG&A. Egypt argues that the IA was not in a position to make this determination because the required information to enable it to make the determination was not submitted by the respondents in their responses to the initial questionnaire. On its face, this justification for seeking the detailed cost information appears plausible to us, given, as noted, that a below-cost test is explicitly provided for in Articles 2.2 and 2.2.1 of the AD Agreement. Thus, the requested information would seem to be "necessary" in the sense of Article 6.8.
7.218.
As to the specific basis for the IA's 19 August request, the IA stated in that request that it was seeking the additional, detailed cost data because it was aware that Turkey was a country with a hyperinflationary economy, with inflation averaging "roughly 5 per cent per month". The IA indicated that it would have expected to see the effect of this hyperinflation reflected in the different cost elements reported by the respondents in the original questionnaire responses. The IA maintained this position throughout the process.
7.219.
The parties are in agreement that the cost figures reported by the respondents did not reflect the increases one would normally have expected in a hyperinflationary economy. However, in their responses to the 19 August and 23 September information requests, the respondents provided a number of explanations for this in respect of scrap, labour and depreciation, the main cost elements questioned by the IA as not reflecting hyperinflation. According to the respondents, the international price of steel scrap (accounting for 60 per cent of the cost of producing rebar), fixed in US dollar terms, declined substantially during the POI; labour rates were fixed once a year after negotiations with trade unions; and the revaluation of assets for purposes of depreciation was also done once a year through the application of "uplift factors" published by the Turkish Government. The respondents insisted that the cost data that they submitted were their actual figures, reflecting their actual costs of production during the POI. These arguments by the respondents were repeated in their respective comments on the Essential Facts and Conclusions Report194, as well as by the Government of Turkey in its comments.195
7.220.
Turning first to scrap cost, the IA rejected the data and explanation on world steel scrap prices submitted by the three respondents, stating:

"… [r]espondents' information on world scrap prices was expressed in annual terms (prices at the end of a year were lower than prices at the beginning of the year), it was not useful in determining price movements during the investigation period (calendar 1998). When the Department examined monthly domestic rebar and purchased scrap prices throughout the period (another respondent in this investigation submitted monthly scrap prices), a very different picture emerged. … The sharp decline, which respondents implied was sustained throughout the period, was in fact, limited to 3 out of 12 months of the investigation period, …..

Thus, the Department had a reasonable basis for its concern whether domestic costs fully reflected the high inflation."196

7.221.
As it was not clear to us to which company "another respondent in this investigation" referred, we requested Egypt during the Second Substantive Meeting of the Panel with the Parties to clarify the matter.197 Egypt indicated that this "other respondent" was Alexandria National Steel, which had submitted the information in response to a telephonic request made by the IA "in order to verify the veracity" of the claim by the Turkish respondents that scrap prices had collapsed throughout the period of investigation.198. At our request Egypt provided the scrap cost information as submitted by Alexandria National Steel.199 The document consists of two parts: one part sourced, from the Metal Bulletin of March 1999, which reflects iron and steel scrap prices, fob Rotterdam, for three categories of scrap -- "HMS 1"200, "HMS 1&2" and "shredded" on specific dates covering the period January to December 1998, excluding March and June 1998. The price information gives a minimum and a maximum price per date and per category. The second part of the document consists of prices computed by Alexandria National Steel from the underlying Metal Bulletin data. According to Egypt, the IA's "assessment of the evolution of scrap prices was based on the 'source reference' in the second page of EX-EGT-12, and not on the prices mentioned on the cover page of the Alexandria National".
7.222.
Egypt asserts before us that the evidence submitted by Alexandria National Steel reveals that the Turkish respondents' claim that scrap prices declined throughout the investigation period was factually wrong.201 Egypt states:

"Indeed, as explained in the Final Report, scrap prices were found to be fairly constant for the first seven months of the investigation period. During the next three months, prices collapsed. Then, prices started to recover in the last two months on the investigation period. In other words, the 'sharp decline' was in fact limited to three out of twelve months."

7.223.
Turkey commented on Egypt's response on our questions and states that:

"As the panel can clearly see by a review of … the second page of EX-EGT-12, HMS1&2 scrap prices declined steeply between January 1998 ($114 – 116 per ton) and April 1998 ($96 - $97 per ton) and continued their decline into July 1998 (to $92 -$94 per ton). This is an overall decline of 19%, hardly evidence of scrap price stability during the first seven months of the year. Scrap prices for HMS 1 show similar declines – from $123 - $124 per ton in January 1998 to $105 - $107 per ton in April 1998 and $98 –$ 99 in July (an overall decline of 20%). Prices then dropped from August to October ($70 - $72 per ton) or a further decline of 23% from January levels. …"202

7.224.
We have a slightly different reading from that of Turkey of the scrap price data submitted by Alexandria National. In particular, we note that for each of the categories "HMS1" and HMS1&2", prices declined from January through end- February, then were essentially stable from March through mid- July, then declined again from mid- July through end- September, then rose from October through December. Prices in December 1998 were nevertheless considerably lower than in January 1998 in all categories. The IA's characterization that the trend in scrap prices as reported by Alexandria National Steel showed "sharp declines" in only three out of the twelve months of 1998, was essentially borne out by the data. Nevertheless, it is somewhat incomplete given the large end-point-to-end-point decline that took place over the period.
7.225.
Turning to the evidence on scrap prices that was submitted by the Turkish respondents in questionnaire responses and other submissions, we note that in general these data also show considerable declines from the beginning to the end of the period of investigation, although again with a certain amount of fluctuation during that period. For example, the data reported by Icdas show that there was a sustained decrease in the scrap prices during the POI, with the month of August the only exception. The scrap price paid by Icdas for locally sourced and imported scrap decreased from US$129.44 in January 1998, to US$85.81 in November 1998.203 In particular, the price dropped between January and March, was relatively steady in April through July, then rose slightly in August, and dropped again in September through November. The prices of scrap reported by IDC (sourced in Turkey) also reflect a decrease from US$134 in January 1998, to US$85 in December 1998204. However, these data show a substantial decrease in April, some recovery in May, June and July, and then a monthly decrease to December 1998.205 The scrap cost data "sourced from Colakoglu"206 also reflect a decrease in scrap prices in Turkish Lire over the POI, although with increases in different months compared with the data reported by Icdas and IDC. The overall trend is the same, however, namely that the price of scrap decreased from the beginning to the end of the POI.
7.226.
Turning to the questions of labour costs and depreciation, the IA stated here again that the expected effects of hyperinflation were not evident, causing it to doubt the accuracy of these costs as reported in the responses to the original questionnaire, and leading it to seek additional information and supporting documentation in respect of these costs.
7.227.
Turkey argues that the three respondents, Colakoglu, Diler and Habas "explained" in their 15 September submissions and elsewhere that labour contracts are renegotiated once per year, and that depreciation expenses are adjusted at year-end for inflation, meaning that inflation would not be expected to cause these costs to vary from one month to another. According to Turkey, this "factual" information further undermines the IA's rationale for requesting the detailed cost information, as it "proves" that the effects of inflation on the three respondents' costs were not as presumed by the IA.
7.228.
The parties also have divergent views concerning the general Turkish inflation rate during the POI. Throughout the process, the IA referred to an estimated inflation rate of 5 per cent per month in Turkey during that period,207 which it said was derived from statistics sourced from the Turkish State Institute of Statistics.208 In its comments on the Essential Facts and Conclusions Report, the Turkish Government objected to the use of an inflation rate of 5 per cent per month and submitted evidence (also from the Turkish State Institute of Statistics) showing that the inflation rate was less than 5 per cent per month during the POI.209 The IA rejected the evidence and argument put forward by the Turkish Government, stating that: "[s]ince the referenced exhibit constitutes new, untimely information, the Department will not consider it in this investigation." Nevertheless, it should be noted that Turkey did not at the time and does not now contest the fact that the Turkish economy was "hyperinflationary" during the POI. Thus, there seems to be no disagreement between the parties that the actual monthly rate of inflation during the POI, whatever its exact level, was high. We thus see no basis on which to conclude, as contended by Turkey, that the factual evidence submitted by the Government of Turkey, even if it had been accepted, would have "disproved" the IA's hyperinflation premise for seeking the detailed cost data.
7.229.
Further, in reference to inflation, the parties have submitted arguments concerning the significance of the fact that the Turkish respondents do not prepare their financial statements in accordance with International Accounting Standards 29 ("IAS 29"), applicable to economies with hyperinflation. This issue was not raised by Egypt during the investigation, although the audited financial statements of Habas, Diler and Colakoglu, which indicate that they do not apply IAS 29, were submitted by those companies in their 15 September submissions.210 No direct reference to IAS 29 relating to Icdas and IDC could be found in the documents of record submitted to us.211 Egypt argues that the auditors' reports support the view of the IA that the data submitted by the respondents did not reflect the effects of inflation212. However, the auditors' reports make clear in all instances that there was not consensus in Turkey on the use of IAS 29. The auditors' notes to the financial statements of two of the companies indicate that the accounts were prepared in US dollars which, being a stable currency, obviated the need to prepare the financial statements according to IAS 29. In any case, it seems to us that the main rationale behind IAS 29 (which requires presentation of three years of figures, together with certain indexes), is to give the reader a clear picture of the financial status of the company, compared to previous periods, undistorted by hyperinflation. It therefore seems that IAS 29 is primarily useful for comparison purposes.213
7.230.
We are therefore of the view that the application, or non-application, of IAS 29 by the Turkish respondents in preparing their financial statements is not relevant for our review of the measures taken by the IA. That said, it seems to us that the reference to IAS 29 is a post hoc justification by Egypt in respect of the IA's request for cost data, a justification which is in any case not required by Article 2.2 and Article 2.2.1.
7.231.
While, as is evident from the above, the parties have argued extensively before us concerning the IA's rationale for seeking the detailed cost data, in our view this question is essentially irrelevant under Article 6.8, because that provision simply does not cover this question. Rather, as noted above, the relevant provisions are Articles 2.2 and 2.2.1 These provisions establish no preconditions for requesting cost data. Indeed, in this case, cost data were requested as a normal, integral part of the initial questionnaire, and Turkey raises no challenge in this regard before us. Rather, Turkey objects to the rationale for requesting additional details and supporting documentation that would allow the originally-reported data to be checked and verified. Given that the IA's overall concern about how the effects of hyperinflation were treated in the five respondents' accounting records was not unsubstantiated (in that there was no disagreement that Turkey was experiencing hyperinflation), and in view of the fact that cost data is a normal part of an anti-dumping investigation, there is in our view no basis in Article 6.8 or for that matter in any other provision of the AD Agreement, for a finding of any violation in respect of the IA's request for the detailed information. In this sense, we confirm our finding above that the requested information was "necessary" in the sense of Article 6.8.

(c) Did the respondents "refuse access to" or "otherwise fail to provide" "necessary information"?

7.232.
We now consider whether the facts of record indicate, as asserted by Egypt that the Turkish respondents Habas, Colakoglu and Diler "'refused access to'" the necessary information and "'failed to provide'" such information, and that the other two respondents (Icdas and IDC) "'otherwise failed to provide'" the necessary information.214 Turkey asserts that it does not claim that the five respondents "submitted all of the information and documents requested by the Investigating Authority after the original questionnaire responses were filed". In fact, Turkey admits that these companies did not submit all the requested information and/or reconciliations.215 However, Turkey asserts they acted "to the best of their ability" in providing the information.216 With regard to Icdas and IDC, Turkey claims that "the Investigating Authority itself found little fault with the responses filed by the respondents, requesting only a few follow-up documents and clarifications, which were promptly provided".
7.233.
In light of the facts as set out above, it is clear that a distinction can be made between the information, in terms of both amount and quality, submitted by Colakoglu, Diler and Habas, on the one hand, and Icdas and IDC on the other. We thus conduct our factual analysis on this basis.

(i) Colakoglu, Diler and Habas

7.234.
In reviewing the documentation submitted by Turkey as Exhibits TUR-34A, TUR-34B and TUR-34C, containing the full response of Diler, Colakoglu and Habas, respectively, to the IA's 19 August 1999 request for information, it is clear to us that a great deal of the requested information was not submitted. From the documents submitted by these three respondents, it appears that rather than submitting, or even attempting to submit, all of the information and documents requested by the IA, only selected information was submitted. In the case of Colakoglu and Habas, for example, Appendix 9A – Factory Cost and Profit for Domestic Sales, the sales price ex-factory and profit/loss before tax were not provided. In the case of Diler, only information on direct material, direct labor and factory overhead, but not the breakdown, as requested, was submitted. Of particular note, and emphasized by the IA in its reports, these companies did not submit underlying source documents (purchase orders, invoices, etc.).
7.235.
Furthermore, very few of the headings of the submitted documents were translated and no reconciliation of the different cost elements to the audited financial statements were submitted. To clarify the exact situation concerning the requested reconciliations, we posed the following written question to Turkey:

"Turkey asserts that the respondents submitted all the requested information and documents, including the requested reconciliations of data to the financial statements. Could Turkey indicate for each of the respondent companies (Habas, Diler, Colakoglu, IDC and Icdas) where in the record these reconciliation could be found and for each one explain exactly, in a step-by-step fashion, how the reconciliations were done?"217

7.236.
In response to this question, Turkey submitted a detailed step-by-step explanation of how the reconciliations could be done for each of the producers218. However, Turkey failed to indicate where in the record any such reconciliations could be found in the case of Colakoglu, Diler and Habas. It is thus clear that the reconciliations were not submitted to the IA.
7.237.
Instead, the three Turkish producers submitted the raw data as is, without any explanatory narrative or translations, in spite of the IA's clear request. We are of the view that the request to translate the documents did not put an unreasonable burden on the exporters, as the narrative parts of the documents were quite limited. Furthermore, the translations could have been provided in hand-written form on the documents themselves without extraordinary effort.
7.238.
The extent of the deficiencies of the responses of these three producers is evident from the follow-up requests sent by the IA to Colakoglu, Diler and Habas on 23 September 1999.219 Then, in response to the IA's request of 23 September 1999, the three respondents made no attempt to provide the information identified as missing. Instead they claimed that that information constituted a "new" request (not previously made) to provide a break-down of the companies' billet costs into a number of separate components.220 However, a close reading of the requests of 19 August and 23 September 1999 shows that the request of 23 September 1999, which attached a list of the cost components for which information was required, was a follow-up request to the 15 September submissions of these respondents, requesting for a second time the details underlying the originally reported costs, including documentation of raw material purchases. The fact that this list was attached only to the 23 September 1999 request does not detract from the fact that the very same information, albeit in a less explicit manner, had already been requested in the 19 August letter.
7.239.
We next consider Turkey’s claim that although these three respondents did not submit all of the information requested by the IA, they "acted to the best of their ability" in the sense of Annex II, paragraph 5, and that therefore the IA’s resort to facts available was not justified. Turkey thus appears to argue that the fact of acting to the best of one’s ability should override any substantive flaws in the information submitted, in determining whether resort to facts available is justified under Article 6.8.
7.240.
Egypt argues that these respondents did not supply the requested information and did not act to the "best of their ability". Therefore, Egypt argues, the IA's resort to facts available in respect of these respondents was fully justified. In particular, Egypt states, these exporters explicitly informed the Investigating Authority that they refused to submit the information requested in the Investigating Authority’s letter of 23 September 1999 which requested them to fill the gaps of their previous submission, thus effectively terminating their co-operation with the IA on that date. It is clear to Egypt that those respondents cannot therefore be considered to have acted to the best of their ability since they declined to submit information which was readily available to them. Egypt states in this regard that the evidence which Diler, Habas and Colakoglu refused to submit was provided by the two other respondents within the time-limit set by the Investigating Authority, confirming that the requested documentation could have been submitted by Diler, Habas and Colakoglu had they agreed to do so. In consequence, Egypt considers, the IA was fully entitled to make use of the provisions of Article 6.8 of the AD Agreement with respect to these respondents as they refused to provide necessary information and, as a consequence, significantly impeded the investigation.
7.241.
Paragraph 5 of Annex II provides, in relevant part:

"[E]ven though information provided may not be ideal in all respects, this should not justify the authorities from disregarding it, provided the interested party has acted to the best of its ability." (emphasis added)

7.242.
We recall that our finding above that the provisions of Annex II, paragraph 5 form part of the substantive basis for interpreting Article 6.8. That is, we found that this paragraph in conjunction with other paragraphs of Annex II provides certain substantive parameters that must be followed by an investigating authority in making its assessment of whether, in a particular case, resort to "facts available" pursuant to Article 6.8, in respect of certain elements of information, is justified. In other words, paragraph 5 does not exist in isolation, either from other paragraphs of Annex II, or from Article 6.8 itself. Nor, a fortiori, does the phrase "acted to the best of its ability". In particular, even if, with the best possible intentions, an interested party has acted to the very best of its ability in seeking to comply with an investigating authority's requests for information, that fact, by itself, would not preclude the investigating authority from resorting to facts available in respect of the requested information. This is because an interested party's level of effort to submit certain information does not necessarily have anything to do with the substantive quality of the information submitted, and in any case is not the only determinant thereof. We recall that the Appellate Body, in US – Hot-Rolled Steel, recognized this principle (although in a slightly different context), stating that "parties may very well 'cooperate' to a high degree, even though the requested information is, ultimately, not obtained. This is because the fact of 'cooperating' is in itself not determinative of the end result of the cooperation".221
7.243.
Furthermore, even if, arguendo, acting to the best of one's ability by itself were sufficient to preclude an investigating authority from resorting to facts available in respect of certain information, we do not find that Turkey has established as a factual matter that the three respondents – Habas, Diler, and Colakoglu – did act to the best of their abilities in responding to the IA's requests for cost-related information in the rebar investigation. We recall that the Appellate Body stated that the phrase "to the best of its ability" suggests a high degree of cooperation by interested parties222, and we agree.
7.245.
In applying this test to the actions of Diler, Habas and Colakoglu in responding to the IA's requests for cost information in the rebar investigation, in our view an unbiased and objective investigating authority could find that it was within the capacity of these respondents to submit the requested information (particularly the supporting documentation substantiating the reported costs, and the reconciliations of those costs to financial statements). The information undeniably was at their disposal, and they never argued, or submitted, that it was not, or that for some other reason it would be impossible to provide it, or even that it would cause them some hardship to do so. The fact that other respondents provided most, if not all, of the requested information (particularly concerning scrap costs) also indicates that provision of such information was within the three respondents' ability.
7.246.
Indeed, these points were made by the IA in the Final Report. For example, concerning scrap, the IA stated:

"[t]hese three respondents refused to provide any such evidence of the cost of scrap, or, in fact, of any other materials. The fact that other respondents supplied such information indicates that the materials are readily available; indeed, these respondents do not contend otherwise."225

Similarly, concerning labour cost, the IA stated:

"As another example, the Investigating Authority requested that the respondents reconcile reported labor costs with the companies' financial statements. None of these respondents supplied the requested reconciliation or explained why such reconciliation could not be provided. Similarly, the Investigating Authority requested that the respondents reconcile monthly sales amounts to the companies' financial statements. Once again, neither the data nor an adequate explanation was provided by these companies."226

7.247.
To summarize, we are of the view that the nature and extent of the deficiencies identified in the IA's 23 September letter, none of which any of the three respondents attempted to rectify, were such that the IA was justified in considering that information "necessary" to make an analysis of whether domestic sales were made below cost, as provided for in Article 2.2 and 2.2.1 of the AD Agreement, had not been provided. That is, the information submitted was substantially incomplete, lacking in particular underlying documentation and reconciliations to audited financial statements which the IA had identified as the information required to render "verifiable" the respondents' reported cost data. Moreover, in addition to the substantive flaws in the information, we do not find that these companies acted to the best of their ability in responding to the IA’s requests of 19 August and 23 September, 1999.
7.248.
For the foregoing reasons, we find that an unbiased and objective investigating authority could have found that Habas, Diler and Colakoglu failed to provide necessary information in the sense of Article 6.8. As a consequence, we find that Egypt did not violate Article 6.8 or paragraph 5 of Annex II in resorting to facts available in respect of these respondents’ cost of production calculations.

(ii) Icdas and IDC

7.249.
In the case of Icdas and IDC it is clear from the record that these companies submitted almost all, if not all, of the requested information. Nor did the IA clearly indicate in the Essential Facts and Conclusions Report which specific information these companies had failed to provide, which in turn formed the basis of the IA's decision to resort to facts available in respect of those companies. Indeed, in respect of IDC, neither the Essential Facts and Conclusions Report nor the Final Report identifies any single piece of requested information that was not submitted.
7.250.
To clarify this issue in respect of Icdas, we posed the following written question to Egypt:

"…. Could Egypt please precisely identify the documents containing the IA's requests for the information referred to in the Final Report as not having been submitted. Please describe the documents that were provided by Icdas on these points and indicate how, in the light of those documents, the IA was satisfied that AD Article 6.8 could be applied".227

7.251.
Although Egypt pointed out certain deficiencies in the information submitted by Icdas in response to our question, Egypt failed to identify the documents containing the IA's requests for the information referred to in the Final Report as not having been submitted.228 In other words, the IA apparently never requested of Icdas the documents referred to in the Final Report as missing.
7.252.
Moreover, looking at the evidence overall as submitted by Icdas and IDC, it is clear to us that these two producers responded quite comprehensively to the IA's 19 August 1999 request. It is also clear from the record that after receipt of these companies' responses, the IA on 23 September requested from each of them only two or three items of a minor nature, and identified no fundamental problems with, or deficiencies in, the information that they had submitted. These respondents complied with these follow-up requests within the time specified by the IA. In respect of IDC, neither of the IA’s published reports identifies any single requested document or piece of information that IDC failed to submit. In respect of Icdas, while the published reports refer to a few documents purportedly not submitted by Icdas, that company was never so informed by the IA.
7.253.
This brings us to a further related element of Turkey's claims in respect of the use of facts available for Icdas and IDC, namely, that in resorting to facts available, Egypt violated Annex II, paragraph 6, in that the IA failed to inform these companies that their cost information submitted in response to the 19 August and 23 September requests was not accepted, and that the IA in addition failed to give them the opportunity to provide further explanations.
7.254.
To recall the facts, on 23 September 1999, the IA sent letters to respondents IDC and Icdas identifying for each company a few items which according to the IA had not been submitted in these companies' responses to the 19 August questionnaire. According to Turkey, these companies submitted the requested information within the time allowed. Neither company received any further communication from the IA. These respondents' cost data as submitted were rejected by the IA, and certain "facts available" were used instead.
7.260.
Here again we believe that this issue can only be decided in the light of the particular situation at the time. While we have concluded in Section VII.D.5, infra, that the 19 August request was not a questionnaire in the sense of Article 6.1.1, there is nevertheless no doubt that it was a request by the IA for the provision of a great deal of detailed information. The responses to it by IDC and Icdas were quite lengthy, and contained many pages of accounting and other documentation. The IA's 23 September letters following up on these responses identified no fundamental problems in them, but rather identified a few apparently minor missing items that were to be (and were) submitted within two to five days.
7.261.
Given the nature of the 19 August communication and of these companies' responses thereto, in our view the IA continued to be bound by the obligation to inform the respondents that their information submitted in response to the 19 August request was being rejected and to give them a final opportunity to explain. For us, the determinative factor in this regard is that the 19 August letter not only gave respondents the opportunity to provide explanations concerning their originally-submitted cost data, it also requested them to submit extensive further information, which they in fact did. Because the 19 August request was a request for "information" as referred to in Annex II, paragraph 6 (and not just an opportunity for explanation), and because IDC and Icdas provided extensive "information" in response to it, the IA was bound by the first sentence of Annex II, paragraph 6 in respect of that "information". Thus, these companies should have been informed that their responses to the 19 August request were being rejected, and given an opportunity to "provide further explanations". This did not happen. On 23 September, these companies were simply requested to provide a few missing pieces of information, and thus certainly were left with the impression that their responses to the 19 August requests had been accepted by the IA.
7.262.
We must emphasize in this connection that it was the IA itself that requested the information at issue (i.e., the information submitted in response to the 19 August letters). As we have found above, it is within the discretion of an investigating authority to determine, subject to the requirements of Annex II, paragraph 1, what information it needs from interested parties. Furthermore, there is nothing in the AD Agreement that precludes an investigating authority from requesting information during the course of an investigation, including after the questionnaire responses have been received.229 The fact that an investigating authority may request information in several tranches during an investigation cannot, however, relieve of it of its Annex II, paragraph 6 obligations in respect of the second and later tranches, as that requirement applies to "information and evidence" without temporal qualification.230
7.263.
We note that, at least in respect of Habas, Diler and Colakoglu, the IA itself apparently considered that it had the obligation to explicitly indicate that the information submitted in response to the 19 August request was being rejected. In particular, the 23 September letters identify, as discussed above, a number of very serious inadequacies in the responses of these companies and contain long lists of missing items that would need to be submitted within two to five days. Given these companies' reactions to the 23 September letter, in their own letter of 28 September to the IA, it is evident that they were in no doubt that the IA intended to reject the cost information they had submitted. Nevertheless, the IA sent these three companies one final letter, dated 28 September 1999231, informing them that they had not fully responded in respect of six items232, and that therefore the IA "will use other data provided by your clients which were satisfactory, but will use facts available for the above-mentioned items". No similar communication was ever sent to IDC or Icdas.
7.264.
Finally, the IA gave no indication in the Essential Facts and Conclusions Report or in the Final Report that either Icdas and IDC had at any point failed to act to the best of its ability. To the contrary, the record shows that these companies responded on time and comprehensively to the 19 August request, and did so once again in response to the IA’s 23 September follow-up requests.
7.265.
To summarize in respect of Icdas and IDC, we have found that the IA in the 19 August request not only informed these respondents of problems with their originally-submitted cost data, but informed them of what information would be needed for their costs to be verifiable. Thus, in the 19 August letter, the IA established the standard for verifiability of the respondents' cost data. Icdas and IDC responded in a timely manner, and as evidenced by the narrow scope of the 23 September follow-up requests that they received, their responses also were largely complete. Furthermore, they supplied the further information requested on 23 September within the deadlines set by the IA. Thus, the record evidence indicates that as of their responses to the 23 September requests, these two respondents had submitted all of the information that the IA itself had defined as what was necessary to render their cost information "verifiable". There is no indication whatsoever that the IA considered either of these companies to have failed to act to the best of its ability. Nevertheless, the IA rejected the submitted cost information on the grounds that the IA still was not convinced that the cost data reflected hyperinflation – that is, in effect, it simply did not believe the costs reported by these companies, although the information they submitted complied fully with what the IA itself had defined as necessary to verify those costs. The IA failed to inform these companies that it was rejecting the information submitted in response to the 19 August and 23 September requests, and failed to give them an opportunity to provide further explanations.
7.266.
For the foregoing reasons, we find that Egypt violated Article 6.8 and Annex II, paragraph 6, in respect of IDC and Icdas, because the IA, having identified to these respondents the information "necessary" to verify their cost data, and having received that information, nevertheless found that they had failed to provide "necessary information"; and further, did not inform these companies of this finding and did not give them an opportunity to provide further explanations.

4. Claim under Article 2.2.1.1, 2.2.2 and 2.4 due to alleged unjustified resort to facts available

7.267.
Under this claim, Turkey cites Articles 2.2.1.1, 2.2.2 and 2.4 as being violated "because the IA was not justified in resorting to facts available". Article 2.2.1.1 requires that costs shall normally be calculated on the basis of records kept by the exporter or producer under investigation, provided such records are kept in accordance with generally accepted accounting principles of that country, and reasonably reflect the relevant costs. Article 2.2.2 deals with calculations of general, selling and administrative costs, and profits, and how these calculations should be done in the case of a constructed normal value. Turkey alleges that the methodologies set forth in those provisions were not followed by the IA. In response to a question from the Panel, Turkey clarified that this was an "alternative" claim to that under Article 6.8 and Annex II. In particular, Turkey stated that this claim was intended to avoid a situation where the Panel might find that even if resort to facts available had not been technically justified, the particular facts that were used could have been used, i.e., that only a harmless error had been committed.
7.268.
Given Turkey's characterization and explanation of the rationale for this claim, we understand the claimed violations of Article 2.2.1.1 and Article 2.2.2 to be entirely subsidiary to the claimed Article 6.8 violation. In this regard, we recall that we have found that the IA was justified in resorting to facts available in respect of Habas, Diler and Colakoglu. This can only mean that the IA was justified to use facts other than those as submitted by the respondents, i.e, that Articles 2.2.1.1 and 2.2.2 do not apply. We also recall that we have found that the IA was not justified in resorting to facts available, in violation of Article 6.8 and Annex II, paragraph 6, as regards IDC and Icdas. For these two companies, we need not and do not reach the issue of which particular information of the respondents was not used. We therefore exercise judicial economy in respect of the claimed violations of Articles 2.2.1.1 and 2.2.2 in respect of all of the respondents.

5. Claim under Article 6.1.1, Annex II, paragraph 6, and Article 6.2 – Deadline for response to 19 August 1999 request

7.270.
Turkey argues that Article 6.1.1 requires that a party must be given 37 days to reply "after receiving a questionnaire used in an anti-dumping investigation[]" and that "due consideration" must then be given to any request for an extension of the original period for a response. According to Turkey, Egypt violated these provisions by first setting a 13-day rather than a 37-day deadline, and then by granting an inadequately short extension.
7.271.
Turkey claims in the alternative that Egypt violated Annex II, paragraph 6, which provides that parties receiving supplemental request for information should be given "an opportunity to provide further explanations within a reasonable period …", and Article 6.2 which provides that "[t]hroughout an anti-dumping investigation all interested parties shall have a full opportunity for the defence of their interests". In particular, Turkey argues that the original 13-day deadline was plainly inadequate given the nature and magnitude of the 19 August request, and was more so in light of the earthquake that had occurred in Turkey on 18 August. Turkey argues that the "denial" of the respondents' requests for extensions to 11 and 22 October thus violated Annex II, paragraph 6 and Article 6.2.
7.272.
Egypt responds that the 19 August requests did not constitute "new questionnaires", in that they were, in the first place, not "new". Rather, according to Egypt, they re-requested information that already had been requested in the foreign manufacturers' and exporters' questionnaires, which normally should have been readily available to the respondents. Nor, Egypt argues, were they "questionnaires" in the sense of Article 6.1.1, meaning that they were not subject to the minimum response time requirements of that provision. Rather, they were intended to provide an additional opportunity for respondents to report cost data for the full period of investigation, and to clarify whether and to what extent the reported costs reflected the effects of hyperinflation. Egypt further argues that the respondents were given a reasonable period of time in which to respond, noting in particular the 14-day extension that was granted by the IA, a more than doubling of the initial 13-day period.

(a) Claim under Article 6.1.1

7.273.
We consider first Turkey's allegation of violation of Article 6.1.1. Article 6.1.1 provides as follows:

"Exporters or foreign producers receiving questionnaires used in an anti-dumping investigation shall be given at least 30 days for reply. 15 Due consideration should be given to any request for an extension of the 30-day period and, upon cause shown, such an extension should be granted whenever practicable.

_____________

15 As a general rule, the time-limit for exporters shall be counted from the date of receipt of the questionnaire, which for this purpose shall be deemed to have been received one week from the date on which it was sent to the respondent or transmitted to the appropriate diplomatic representative of the exporting Member or, in the case of a separate customs territory Member of the WTO, an official representative of the exporting territory."

7.274.
We note first, as a point of clarification, that the time-limit requirement specified in Article 6.1.1 is 30 days, not 37 days. Moreover, footnote 15 provides that (only) in the case of questionnaires sent to exporters is it necessary to count the time-limit from date of receipt, which in turn is deemed (only) for exporters to be seven days from transmittal. In effect, therefore, Turkey's statement that Article 6.1.1 requires a minimum time-limit of 37 days from date of receipt, is not entirely accurate.

(b) Alternative claim under Annex II, paragraph 6 and Article 6.2

7.280.
We now turn to Turkey's alternative claim in respect of the deadline for responses to the 19 August requests, that the time allowed did not constitute a "reasonable period", in violation of Annex II, paragraph 6, and that therefore the IA failed to provide the Turkish respondents a "full opportunity for the defence of [their] interests", in violation of Article 6.2.
7.281.
Because the claimed violation of Article 6.2 is entirely dependent on the claimed violation of Annex II, paragraph 6, we turn first to Annex II, paragraph 6. We note that the relevant part of this provision reads as follows:

"If evidence or information is not accepted, the supplying party should be informed forthwith of the reasons therefor, and should have an opportunity to provide further explanations within a reasonable period, due account being taken of the time-limits of the investigation …." (emphasis added)

7.282.
This text makes clear that the obligation for an investigating authority to provide a reasonable period for the provision of further explanations is not open-ended or absolute. Rather, this obligation exists within the overall time constraints of the investigation. Thus, in determining a "reasonable period" an investigating authority must balance the need to provide an adequate period for the provision of the explanations referred to against the time constraints applicable to the various phases of the investigation and to the investigation as a whole.
7.283.
We recall that in the rebar investigation, the IA initially set a 13-day deadline for any responses to the 19 August requests. After receiving the requests for extensions from the respondents, the IA extended by 14 days the time-period that was allowed for the responses.235 After the IA informed the respondents of the extended deadline, no respondent came back with any additional request for more time, nor did any respondent argue that the new deadline was unreasonable or otherwise object to it. All of the respondents in fact made lengthy submissions in response to the 19 August request on or before the deadline.
7.284.
On the basis of the foregoing considerations, we do not find that, as a factual matter, the deadline for responses to the 19 August request was unreasonable. We note that this claim concerns in part Annex II, paragraph 6 outside the context of Article 6.8. Given our finding that the deadline established was not unreasonable, i.e., that the factual basis for this claim does not exist, we need not and do not rule on whether Annex II, paragraph 6 can be invoked outside the context of Article 6.8. As a consequence, we also do not find that in establishing a 27-day deadline for the provision of these responses, the IA failed to provide the respondents with a full opportunity for the defence of their interests, and we thus find no violation of Article 6.2 in this respect.

6. Claim under Article 6.1.1, Annex II, paragraph 6, and Article 6.2 - Deadline for the responses of Habas, Diler and Colakoglu to the 23 September letter of the IA

7.285.
On 23 September, i.e., approximately one week after receiving the responses to the 19 August request, the IA sent letters to each respondent identifying information and documentation which, according to the IA, that particular respondent had "not yet furnished" in response to the 19 August request. The IA gave all of the respondents the same time-frame in which to furnish the identified information, namely 2 days for some of the listed items and 5 days for the rest.
7.286.
Turkey claims that in the 23 September letter to Habas, Diler and Colakoglu, the IA for the first time required these companies to provide a monthly breakdown of all costs to produce billet, and also demanded that the companies translate each page of the hundreds of pages of documentation that they had been required to provide in their responses to the 19 August request. According to Turkey the two-to-five days allowed these three companies to respond to the 23 September letter was manifestly inadequate, and was contrary to Articles 6.1.1, 6.2 and Annex II, paragraph 6.
7.287.
For the same reasons set forth in respect of the preceding claim, we do not find that the 23 September letters constituted "questionnaires" in the sense of Article 6.1.1, and thus we find no violation of that provision.
7.288.
As for the claim of violation of the requirement in Annex II, paragraph 6 to provide a "reasonable period", we recall that this provision forms part of the required procedural and substantive basis for a decision as to whether resort to facts available pursuant to Article 6.8. We further recall that we have found, supra236, that the IA’s decision to resort to facts available in respect of Habas’, Diler’s and Colakoglu’s costs of production and constructed normal values did not violate Article 6.8, based on considerations under Annex II, paragraphs 3 and 5. Thus, we would not necessarily need to address this aspect of this claim for its own sake. Nonetheless, a full analysis of Annex II, paragraph 6 as it pertains to the factual basis of this claim, appears necessary to evaluate the merits of the claimed violation of Article 6.2 resulting from the deadline for responses to the 23 September requests. In performing this analysis, however, we note that we again do not here take a position on whether Annex II, paragraph 6 can be invoked separately from Article 6.8. We would need to do so only if we find that as a factual matter, the deadline in question was unreasonable.
7.289.
We thus turn first to this factual question, i.e., whether the two-to-five day deadline as it applied to Habas, Diler and Colakoglu was unreasonable. We believe that this issue must be judged on the basis of the overall factual situation that existed at the time. Here, it appears that the key element raised by Turkey is whether the information requested was "new" information that was being requested for the first time. In this regard, Turkey complains in particular about the IA's request for a monthly breakdown of costs to produce steel billet (the feedstock used in rebar production).
7.290.
In considering whether this was an entirely new information request, we note that item 4 of the "list of supplemental materials" in the 19 August letters requested detailed listings of raw material "purchases" as well as copies of payment ledgers showing payments for those purchases, and copies of the underlying purchase orders. The main information provided by these companies in response to the request for data on raw material costs was their internal transfer price data for billet, a product they make themselves, rather than purchasing it as a raw material. Thus, the 23 September request for a monthly breakdown of the costs to produce steel billet, rather than constituting a new request for previously-unrequested information, in fact, was in essence a restatement of the request in the 19 August letters for data and documentation on raw material purchases. The other items listed in the 23 September letter similarly were items previously requested. Thus we conclude that the 23 September request was a follow-up to the responses to the 19 August request rather than a new request.
7.291.
A further consideration concerning the "reasonableness" of the 23 September request is whether any of the other respondents received a longer period in which to respond to the letters they received from the IA on 23 September. Here the answer is "no"; all respondents were given the same amount of time to respond to those letters. The fact that more information was requested in the letter to Habas, Diler and Colakoglu than in the letters to the other two respondents, IDC and Icdas, is a reflection of the fact that, according to the record, the latter two companies' responses to the 19 August request were much more complete than those of the first three companies. For the IA to have given Habas, Diler and Colakoglu more time than IDC and Icdas to respond to the 23 September follow-up request arguably would have been less than fair, and indeed would have rewarded precisely the companies whose responses to the 19 August request were the least adequate.
7.292.
In this context it must be remembered that all five respondents received essentially equivalent information requests on 19 August, and were given an identical period in which to respond. All five respondents then again were given an identical period in which to respond to the 23 September follow-up (deficiency) requests. Thus, for equivalent requests for information, the five respondents received, in total, equivalent (and considerable) time-periods to respond. Thus, the two-to-five-day deadline for responses to the 23 September simply forms part of the overall time granted for responses to the basic request for cost information that was sent on 19 August. The three respondents mentioned in this claim chose to use their initial 27-day response period in a different way from the other two respondents. It was these decisions by the two groups of respondents (not by the IA) that fundamentally gave rise to the different scopes of the 23 September follow-ups that they respectively received.
7.293.
We note further that in any case, Habas, Diler and Colakoglu never even attempted to submit any of the information identified in the 23 September letters or sought any extension of the deadline for responding. To the contrary, they made it clear in their response to the IA237 that they had no intention of submitting further information.
7.294.
The factual situation thus was: (1) that the 23 September letter was essentially a restatement of previous requests that had not been responded to in full, rather than a new request, (2) that all five respondents, including Habas, Diler and Colakoglu, received overall the same amount of time to provide the cost data specified in the 19 August request, and (3) that unlike Icdas and IDC, which had used the initial 27 day period to full advantage, these three respondents stated explicitly that they would not provide the information referred to in the 23 September request, (i.e., they made no attempt to comply with the request nor did they request an extension of the two-to-five day period).
7.295.
As a consequence, we do not find that Turkey has established that the two-to-five day period provided to Habas, Diler and Colakoglu for responding to the 23 September request was unreasonable, and thus we do not find that Turkey has established the factual basis for a possible violation of Annex II, paragraph 6 in that regard. As a result, we also do not find that the IA failed to provide Habas, Diler and Colakoglu with a full opportunity for the defence of their interests, and thus find no violation of Article 6.2 in this respect.

7. Claim under Annex II, paragraph 7 due to the addition of 5 per cent for inflation to Habas' highest reported monthly costs

7.296.
Turkey claims that the Investigating Authority violated Annex II, paragraph 7 by adding an arbitrary 5 per cent to Habas' reported costs when constructing Habas' normal value. Habas submitted cost data for only two of the 12 months of the period of investigation. As a proxy for the effects of hyperinflation, the IA constructed Habas' normal value by using the highest (of the two reported) monthly costs for each cost element as submitted by Habas, and then added to these 5 per cent, the monthly rate of inflation considered by the Investigating Authority as reflecting the ruling rate of inflation during the period of investigation. Turkey claims that in doing this, Egypt violated Annex II, paragraph 7, as this amount which was based on a "secondary source", was wholly arbitrary, was contradicted by data supplied to Egypt by the Government of Turkey, was not corroborated by any other data on the record, and thus was an inappropriate basis for facts available under the AD Agreement.
7.297.
Egypt argues that it determined the "facts available" in such a manner that the respondents would still benefit from their own data, by taking the highest monthly cost of production reported by the respondents during the investigation period. In the case of Habas, because Habas had provided costs for two selected months only, and had failed to submit satisfactory evidence that these two months were representative of the period of investigation or had been adjusted for inflation, the IA added 5 per cent to each cost element except interest to account for inflation. For interest, no adjustment was made to the data reported by Habas, as it was found that Habas’s interest cost was determined in the marketplace and therefore would reflect inflation. According to Egypt, the IA would have been entitled to reject entirely the reported cost data, and base its determinations on information from secondary sources, as explicitly contemplated by Annex II, paragraph 7, but instead it decided to use the respondents' submitted data to the extent possible.
7.298.
Paragraph 7 of Annex II states, in relevant part:

"If the authorities have to base their findings, including those with respect to normal value, on information from a secondary source, including the information supplied in the application for the initiation of the investigation, they should do so with special circumspection. In such cases, the authorities should, where practicable, check the information from other independent sources at their disposal, such as published price lists, official import statistics and customs returns and from the information obtained from other interested parties during the investigation. …."

7.299.
Concerning the "facts available" used in the case of Habas, the IA stated in its Final Report:238

"The Investigating Authority first attempted to compare the net home market to the cost of production. Although the Investigating Authority twice requested full costs of production for the entire POI, the company only provided costs for two selected months, and there is no evidence on the record that these were representative of the period. Therefore, as facts available for the COP, the Investigating Authority used for each cost element (except interest) the highest of the company's submitted costs and added 5 per cent to account for inflation during the period of each month."

7.300.
We understand that the main issue raised by this claim is the factual validity and accuracy of the estimated 5 per cent for inflation that was used in the cost of production and constructed value calculations for Habas. In particular, Turkey argues that the official statistics published by the Government of Turkey show a lower monthly average rate of inflation, in that in only two months of 1998 did inflation exceed 5 per cent, fluctuating in the other months between 1.6 and 4.6 per cent.239 This issue was raised during the investigation, namely in the comments of the Government of Turkey on the Essential Facts and Conclusions Report. Along with these comments, the Turkish Government, provided wholesale price index data published by the Turkish State Institute of Statistics. In its Final Report, the IA indicated that it had rejected the inflation information submitted by the Turkish Government as "new" and "untimely"240, and stated that it was continuing to apply the estimated 5 per cent inflation rate on the basis that it had other information at its disposal that showed an even higher monthly rate.
7.301.
We requested Egypt to submit to us the information on inflation the IA had referred to in the Final Report,241 and to explain how the IA had arrived at the 5 per cent figure based on the data at its disposal.242 Egypt replied that it had used the same data source as that submitted by the Turkish Government (i.e., the price indices published by the Turkish State Institute of Statistics), but that the 5 per cent rate was the average of the official wholesale and consumer price indices during the period of investigation, whereas the Turkish Government had referred in its comments only to the wholesale price index.
7.302.
We recall that the claim before the Panel is that the addition of 5 per cent to Habas' costs was arbitrary, finds no support anywhere in the record and, as information from a "secondary source", should have been used with "special circumspection", and in particular, should have been "check[ed] … from other independent sources at [the IA's] disposal". Turkey also argues that under the AD Agreement, if data from a company cannot be used, they must be replaced with data from a secondary source. According to Turkey, there is no authority in the AD Agreement to make purely arbitrary adjustments to a respondent's costs. Turkey cites no provision of the AD Agreement in this context, however.
7.303.
In considering this claim, we note that the 5 per cent figure was derived from a secondary source, in fact the same secondary source as was proffered by the Government of Turkey during the investigation. Thus, the source of the information as such is not at issue. Given this, there was no need for the IA to check the validity of that source. Rather, the only issue is whether the 5 per cent figure that was derived from that source was calculated and used with "special circumspection". In this regard, the relevant fact is that the 5 per cent figure represents an average of the 1998 wholesale and consumer price indices for Turkey.
7.304.
Turkey asserted during this dispute that a consumer price index is "irrelevant" to rebar.243 Turkey offered no specific argumentation or information in support of this point, however. We note that in its communications with respondents during the investigation concerning the effects on the respondents of hyperinflation in Turkey, the IA appears to have been referring to the general, economy-wide rate of inflation. It is not illogical that such a broad measure of inflation should reflect both wholesale and consumer prices. Nor is it illogical that a company’s cost to produce a product would be influenced by both consumer and wholesale prices. In short, to us it is not evident on its face that consumer prices would be wholly irrelevant to a company’s production costs. Nor has Turkey advanced any argumentation or evidence to demonstrate that this is so, either as a matter of general principle or in respect of the companies that were respondents in the rebar investigation.
7.305.
For these reasons, we do not find that the IA failed to use "special circumspection" in estimating inflation in Turkey at 5 per cent per month, and in applying this figure to Habas. We thus do not find that Egypt violated Annex II, paragraph 7 in this regard. We find, rather, that on the basis of the evidence of record, an objective and unbiased investigating authority could have reached the conclusion that 5 per cent was the approximate average monthly inflation rate in Turkey during the period of investigation. In this regard, it should be emphasized that applying "special circumspection" does not mean that only one outcome is possible on a given point in an investigation. Rather, even while using special circumspection, an investigating authority may have a number of equally credible options in respect of a given question. In our view, when no bias or lack of objectivity is identified in respect of the option selected by an investigating authority, the option preferred by the complaining Member cannot be preferred by a panel.

8. Claim under Annex II, paragraphs 3 and 7 due to failure to use Icdas' September- October 1998 scrap costs

7.306.
Turkey claims that in constructing Icdas normal value on the basis of facts available, the IA declined to use the scrap costs as reported by Icdas for September- October 1998 (the months in which it exported to Egypt), and instead used Icdas' January 1998 scrap cost (the highest in the period of investigation). Because, according to Turkey, Icdas had provided all of the requested data and documentation concerning its scrap costs in a timely manner and these data were "verified" (clarified by Turkey to mean "verifiable"244), the IA should have used those scrap costs as submitted. Its failure to do so, Turkey argues, was a violation of Annex II, paragraph 3. In addition, Turkey argues that the IA violated the spirit, if not the letter, of paragraph 7 of Annex II, in that a comparison with the "verified" data submitted by Icdas shows that the scrap cost data used by the IA in its calculations were "grossly distorted".
7.307.
Egypt argues that Turkey's invocation of Annex II, paragraph 3 is misplaced. In Egypt's view, this provision is only concerned with the circumstances in which the data submitted by the respondents have to be accepted or can be rejected, and says nothing about the selection of appropriate facts available once the data submitted by respondents has been rejected.
7.308.
Paragraph 3 of Annex II states, in relevant part:

"All information which is verifiable, which is appropriately submitted so that it can be used in the investigation without undue difficulties, …, should be taken into account when determinations are made. …."

7.309.
We recall that in our assessment of Turkey's claim that Egypt violated Article 6.8 in resorting to the use of "facts available", we found that the provisions of Annex II, paragraph 3 form part of the substantive parameters for the interpretation of Article 6.8. That is, we found that this paragraph in conjunction with other paragraphs of Annex II must be followed by an investigating authority in making its assessment of whether, in a particular case and in respect of certain elements of information, it is justified in resorting to "facts available" pursuant to Article 6.8. In other words, paragraph 3 applies to an IA's decision to use "facts available" in respect of certain elements of information. It does not have to do with determining which particular facts available will be used for those elements of information once that decision has been made. Thus, we find that this provision does not apply to the situation that is the subject of this claim. This said, we recall that we have found, supra, in part based on an analysis of Annex II, paragraph 3, that the IA was not justified in resorting to facts available in respect of Icdas. We thus do not need to address this claim further.
7.310.
Turning to Turkey's claim of violation of Annex II, paragraph 7, given that we have found, in the context of Turkey's Article 6.8 claim, that the IA's resort to "facts available" in respect of Icdas was not justified, we do not need to address this claim, which concerns the selection of particular facts available.

9. Claim under Annex II, paragraphs 3 and 7 due to calculation of the highest monthly interest cost for IDC

7.311.
Turkey claims that the IA violated Annex II, paragraph 3 in calculating the amount of interest expense to use as facts available in constructing IDC's normal value. In particular, according to Turkey, the IA calculated the interest expense by dividing IDC's total interest expense by rebar production in April 1998. Turkey states that because IDC produces and sells on the market other products (namely billets), and because the April rebar production figures were abnormally low, the result was a distorted, very high, interest component, which overstated the constructed normal value. Turkey argues that the IA should have divided total interest cost by total sales during the period of investigation, based on the audited financial statement, instead of choosing the month with the highest interest cost and dividing that cost by that month's rebar production, which was abnormally low. According to Turkey, IDC's audited financial statement shows that its interest expense expressed as a percentage of the total cost of manufacturing would be much lower. Because the IA failed to use verifiable information (the interest expense as reflected in the audited financial statement), in Turkey's view, the IA violated Annex II, paragraph 3.245
7.312.
Egypt responds that there are no requirements in the AD Agreement for any particular methodology for calculating interest expense for a constructed value, and that therefore, provided that the methodology used is not partial or biased, the IA's calculation should be upheld. Moreover, Egypt disagrees with the calculation methodology proposed by Turkey, which in Egypt's view would have been totally inappropriate in the context of the rebar investigation, as IDC's reported costs had been found to be unreliable.246 Egypt argues, having selected April as the appropriate month for calculation of interest expense, it had to use the production for that month as the denominator, as any other choice for allocation would have been arbitrary.
7.313.
Concerning Turkey's claim of violation of Annex II, paragraph 3, we find, for the same reasons as stated in Section VII.D.8, supra, that this provision does not apply to the situation that is the subject of this claim, and we similarly recall our findings, supra, in part based on an analysis of Annex II, paragraph 3, that the IA was not justified in resorting to facts available in respect of IDC. We thus do not consider this claim further.
7.314.
Concerning Turkey's claim of violation of Annex II, paragraph 7, as was the case in respect of the claim concerning Icdas discussed in Section VII.D.8, supra, Turkey's exact claim is that Egypt violated the "considerations underlying Annex II, paragraph 7", i.e., once again, that this provision was violated "in spirit". In our view, the factual situation about which Turkey complains in respect of IDC is precisely analogous to that raised in respect of Icdas under the same provision. Our basic reasoning and conclusions therefore are the same.
7.315.
In particular, given that we have found, in the context of Turkey's Article 6.8 claim, that the IA's resort to "facts available" in respect of IDC was not justified, we do not need to address this claim, which concerns the selection of particular facts available.

E. Other claims relating to the Dumping Investigation

1. Claim under Annex II, paragraph 1; Annex II, paragraph 6; and Article 6.7, Annex I, paragraph 7 – Alleged failure to verify the cost data during the "on-the-spot" verification, and conduct of "mail order" verification instead

7.316.
Turkey claims that by failing to request the basic cost data identified in its 19 August letter in its original questionnaire, the IA violated Annex II, paragraph 1. Turkey further claims that by waiting until after the verification to raise these issues and then insisting that respondents provide full "mail order" verification of previously-submitted cost responses and the information requested on 19 August, Egypt violated Annex I, paragraph 7 and Article 6.7. According to Turkey, by taking these steps, Egypt also seriously prejudiced the rights of respondents and impaired their "opportunity to provide further explanations" in violation of Annex II, paragraph 6.
7.317.
Egypt argues that the AD Agreement permits, but does not require, on-the-spot verification. Egypt further argues that the IA did request cost data from the outset, in the questionnaires, that the additional data was requested by the IA on 19 August due to possible problems in the cost data as originally reported by the Turkish respondents, and that nothing in the AD Agreement prevents an investigating authority from seeking information during the course of an investigation.
7.318.
Turning first to the claim of violation of Annex II, paragraph 1, we note that the relevant text of this provision reads as follows:

"As soon as possible after the initiation of the investigation the investigating authorities should specify in detail the information required from any interested party, and the manner in which that information should be structured by the interested party in its response."

7.319.
We recall that in the context of Article 6.8, we found that the various provisions of Annex II contain substantive parameters for the application of Article 6.8.
7.320.
In the rebar investigation, the IA sent questionnaires to the Turkish respondents shortly after initiating the investigation, and these questionnaires did request cost information. Furthermore, the import of the 19 August letter was to request certain supplemental cost information as well as explanations concerning certain of the cost information originally submitted in response to the questionnaires. We find no basis on which to conclude that an investigating authority is precluded by paragraph 1 of Annex II or by any other provision from seeking additional information during the course of an investigation.
7.321.
We note that this claim concerns in part Annex II, paragraph 1 outside the context of Article 6.8. Given our finding that Annex II, paragraph 1 does not contain the obligation asserted by Turkey, we need not and do not rule on whether Annex II, paragraph 1, can be invoked separately from Article 6.8.
7.322.
We turn next to Turkey's claim that Egypt violated Article 6.7 and Annex I, paragraph 7 by waiting until after the on-the-spot verification to raise the cost issues in the 19 August letters, and then by attempting to conduct what Turkey refers to as a "mail order" verification. In evaluating this claim we note that it depends on an interpretation of Article 6.7 and Annex I, paragraph 7 as requiring an on-the-spot verification. We thus consider these provisions in detail to determine whether they contain any such requirements.
7.323.
Article 6.7 reads in relevant part as follows:

"In order to verify information provided or to obtain further details, the authorities may carry out investigations in the territory of other Members. …." (emphasis added)

7.324.
Annex I, paragraph 7 provides in relevant part:

"As the main purpose of the on-the-spot investigation is to verify information provided or to obtain further details, it should be carried out after the response to the questionnaire has been received unless the firm agrees to the contrary and the government of the exporting Member is informed by the investigating authorities of the anticipated visit and does not object to it;...."

7.325.
Concerning the relationship of Annex I to Article 6.7, we come to the same conclusion as in respect of Annex II and Article 6.8.247 In particular, we note Article 6.7’s explicit cross-reference to Annex I: "[T]he procedures described in Annex I shall apply to investigations carried out in the territory of other Members". This language thus establishes that the specific parameters that must be respected in carrying out foreign verifications in compliance with Article 6.7 are found in Annex I. Thus, we must analyze the relevant provisions of Article 6.7 and Annex I together to determine if the requirement claimed by Turkey exists.
7.328.
For the foregoing reasons, we find that Turkey has not established that Egypt violated Annex II, paragraph 1, Article 6.7, or Annex I, paragraph 7, as these provisions do not contain the obligations asserted by Turkey.
7.329.
This brings us to Turkey's final allegation of a violation in connection with this claim, of Annex II, paragraph 6, regarding the alleged impairment of the respondents' "opportunity to provide further explanations". We note that this alleged violation is entirely dependent on and derivative from the other alleged violations raised by Turkey in connection with this claim. Given that we have found no violation of these provisions, we conclude in this instance as well that Turkey has not established the factual basis for the alleged violation by Egypt of violated Annex II, paragraph 6 in respect of the factual situation that is the subject of this claim.249

2. Claim under Article 2.4 – Request for detailed cost information late in the investigation allegedly imposed an unreasonable burden of proof on the respondents