"To examine, in light of the relevant provisions of the covered agreements cited by the United States in document WT/DS132/2, the matter referred to the DSB by the United States 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".
(a) That the United States did not comply with the obligation to present the problem clearly, as required by DSU Article 6.2.
(b) That the United States did not properly present to the Panel a matter, as established by DSU Article 7 and Article 17.4 of the AD Agreement.
(c) That, since no properly identified "matter" has been identified, it is impossible for the Panel to discharge a mandate.
(d) That the United States did not comply with the requirements of Article 17.5 of the AD Agreement, more especially because it did not indicate how a benefit accruing to it, directly or indirectly, under the AD Agreement has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded.
(e) That the consequence of the foregoing is that there is no basis on which the Panel can examine the matter. That, in view of this, the Panel is not empowered to examine and rule on the merits of this dispute.
(a) That the references made by the United States to the procedure being carried out under Chapter 19 of the NAFTA were improperly presented and, therefore, should be rejected.
(b) That the references made by the United States to the consultations were improperly presented and contravened the United States obligation of confidentiality, and therefore should also be rejected.
(c) That the United States allegations under Article 7.4 of the AD Agreement are inappropriate, since the provisional measure lies outside the Panel's mandate.
(d) That Mexico's interpretations in applying the AD Agreement are admissible, for which reason the final anti-dumping measure is consistent with that Agreement.
(e) That the initiation of the anti-dumping investigation into HFCS imports from the United States was consistent with the relevant provisions of Articles 1, 2, 3, 4 and, in particular, Article 5 of the AD Agreement.
(f) That the public notice of initiation of investigation fulfilled the requirements of Articles 12.1 and 12.1.1 of the AD Agreement.
(g) That the final determination of threat of material injury to the domestic sugar industry was made in conformity with the relevant provisions of Article 3 of the AD Agreement.
(h) That the imposition of definitive anti-dumping duties on HFCS imports from the United States was consistent with Articles VI:1 and VI:6 of the GATT 1994.
(i) That the extension of the duration of the provisional measure was in conformity with the provisions of Article 7.4 of the AD Agreement.
(j) That the imposition of anti-dumping duties retroactively to the period of application of the provisional measure is in conformity with Article 10.2 of the AD Agreement.
(k) That, in imposing the final anti-dumping measure, Mexico fulfilled the requirements of Articles 12.2 and 12.2.2 of the AD Agreement.
(l) That the final anti-dumping measure imposed by Mexico was adopted in the circumstances provided for in Article VI of the GATT 1994 and in accordance with Articles 1 and 18, inter alia, of the AD Agreement.
(a) SECOFI neither initiated nor conducted the anti-dumping investigation on imports of HFCS from the United States in accordance with the provisions of the AD Agreement, and therefore its application of a final anti-dumping measure violates Article 1 of the AD Agreement.
(b) SECOFI’s initiation of an anti-dumping investigation on imports of HFCS from the United States was inconsistent with Articles 5.1, 5.2, 5.3, 5.4 and 5.8 of the AD Agreement.
(c) SECOFI’s initiation notice was inconsistent with Articles 12.1 and 12.1.1 of the AD Agreement.
(d) SECOFI’s final determination of threat of injury was inconsistent with Articles 3.1, 3.2, 3.4 and 3.7 of the AD Agreement.
(e) SECOFI’s imposition of anti-dumping duties on imports of HFCS from the United States was inconsistent with Articles VI:1 and VI:6 of the GATT 1994.
(f) SECOFI’s application of provisional anti-dumping measures on imports of HFCS from the United States in excess of six months was inconsistent with Article 7.4 of the AD Agreement.
(g) SECOFI’s imposition of final anti-dumping duties during the period of application of provisional measures was inconsistent with Articles 10.2 and 10.4 of the AD Agreement.
(h) SECOFI’s final determination was inconsistent with Articles 12.2 and 12.2.2 of the AD Agreement.
"17.6 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;
(ii) the Panel shall interpret the relevant provisions of the Agreement in accordance with the customary rules of interpretation of public international law. Where the Panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the Panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations" (emphasis added by Mexico).
"In the view of the United States, Mexico has not made the requisite showing under the pertinent standard of review that the factual findings reached by Guatemala were either not properly established or were biased. Although Mexico alleges that the factual determinations in issue were biased and not impartial, no evidence has been provided to support such claims".8
(a) firstly, the United States failed to comply with Article 6.2 because it did not provide a brief summary of the legal basis sufficient to present the problem clearly; and
(b) secondly, the failure of the United States is not confined to the fact that it did not present the problem clearly. In formulating its request in the terms in which it was submitted, the United States in fact failed to duly bring any "matter" before the Panel.
"There could be more than one legal basis for alleging a breach of the same provision of the Agreement and that, accordingly, a claim in respect of one of these would not also constitute a claim in respect of the other. A separate and distinct claim would be required"13 (emphasis added by Mexico).
"A claim was the specification of the particular legal and factual basis upon which it was alleged that a provision of the Agreement had been breached".14
"A distinction is therefore to be drawn between the "measure" and the "claims". Taken together, the "measure" and the "claims" made concerning that measure constitute the "matter referred to the DSB", which forms the basis for a panel's terms of reference".17
"For a claim to be before a panel, it would have to be specified in the document requesting establishment of a panel".18
"The word "matter" ("cuestión" or "asunto") has the same meaning in Article 17 of the Anti-Dumping Agreement as it has in Article 7 of the DSU. It consists of two elements: the specific "measure" and the "claims" relating to it, both of which must be properly identified in a panel request as required by Article 6.2 of the DSU"19 (emphasis added by Mexico).
"The "matter" referred to the DSB for the purposes of Article 7 of the DSU and Article 17.4 of the Anti-Dumping Agreement must be the "matter" identified in the request for the establishment of a panel under Article 6.2 of the DSU".20
(a) in terms of Article 6.2 of the DSU, the United States' request does not present the problem clearly and hence prevents Mexico and the other WTO Members, in particular those that are interested third parties, from being able to defend their rights properly;
(b) in terms of Article 17.4 of the AD Agreement, the United States has not correctly submitted the "matter" to the DSB and hence the DSB never had nor could have the "matter" before it; and
(c) in terms of Article 7 of the DSU, the United States did not submit a matter correctly, and therefore the Panel cannot fulfil its terms of reference.
Mexico submits that, accordingly, the Panel report should indicate that the United States' request does not fulfil the requirements laid down in Articles 6.2 and 7 of the DSU and in Article 17.4 of the AD Agreement.
"[I]t was sufficient for the Complaining Parties to list the provisions of the specific agreement alleged to have been violated without setting out detailed arguments as to which specific aspects of the measure at issue related to which specific provisions of those agreements".23
"We do not see how the alleged lack of precision of the terms, LAN equipment and PCs with multimedia capability, in the request for the establishment of a panel affected the rights of defence of the European Communities in the course of the panel proceedings. As the ability of the European Communities to defend itself was not prejudiced by a lack of knowing the measures at issue, we do not believe that the fundamental rule of due process was violated by the Panel".30
(a) Mexico's concerns about the lack of clarity in the United States' request for the establishment of a panel were voiced from the start; in other words, this is not an argument prepared following the establishment of the Panel in order to complicate matters;
(b) Mexico's concerns were expressed when there was still time to remedy the lack of clarity of the United States' request for establishment without affecting the work of a panel already established; and
(c) the United States decided to do nothing, even though Mexico drew its attention, as well as that of the Dispute Settlement Body, to this problem in due time.
(a) the specific matters at issue; and
(b) a summary of the legal basis of the complaint (or claims) sufficient to present the problem clearly.
"Adopted panel reports […] should be taken into account where they are relevant to any dispute. However, they are not binding, except with respect to resolving the particular dispute between the parties to that dispute"43 (emphasis added by Mexico).
"The DSB shall, at the request of the complaining party, establish a panel to examine the matter based upon:
(i) A written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement, has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded; and
(ii) the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member" (emphasis added by Mexico).
"When a 'matter' is referred to the DSB by a complaining party under Article 17.4 of the Anti-Dumping Agreement, the Panel request must meet the requirements of Articles 17.4 and 17.5 of the Anti-Dumping Agreement as well as Article 6.2 of the DSU"50(emphasis added by Mexico).
(a) Articles 6.2 of the DSU and 17.4 and 17.5 of the AD Agreement are complementary and must be applied together;51 and
(b) the requirements of Articles 17.4 and 17.5 (which serves as the basis for a panel to examine a matter) of the AD Agreement and 6.2 of the DSU must be met in the request for the establishment of a panel.
"Article 17.5 does not expressly require the complaining Member’s request for the establishment of a panel to identify the ‘specific measure at issue’ or ‘to provide a brief summary of the legal basis of the complaint’. Indeed, Article 17.5 contains none of the explicit, detailed procedural requirements that Article 6.2 of the DSU imposes on a request for the establishment of a panel. All that Article 17.5 requires is that a request by a complaining party contain:
(i) a written statement of the Member making the request indicating how a benefit accruing to it, directly or indirectly, under this Agreement has been nullified or impaired, or that the achieving of the objectives or the Agreement is being impeded; and
(ii) the facts made available in conformity with appropriate domestic procedures to the authorities of the importing Member".54
"... in cases where there is a clear infringement of the provisions of the General Agreement, or in other words, where measures are applied in conflict with the provisions of GATT and are not permitted under the terms of the relevant protocol under which the GATT is applied by the contracting party, the action would, prima facie, constitute a case of nullification and impairment... ".55
"In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on the other Members parties to that covered agreement.."..
"Neither Article 3.3 nor 3.7 of the DSU nor any other provision of the DSU contain an explicit requirement that a Member must have a ‘legal interest’ as a prerequisite for requesting a panel. We do not accept that the need for a ‘legal interest’ is implied in the DSU or in any other provision of the WTO Agreement"59 (emphasis added by the United States).
(a) the actual text of Article 17.5, by establishing the obligation to "indicate how a benefit … has been nullified or impaired …", implies that this obligation must be fulfilled explicitly; otherwise, this obligation would have no sense or purpose, since all requests for establishment would automatically fulfil the requirement regardless of whether or not they indicated "how a benefit … has been nullified or impaired …".
(b) moreover, Article 17.5 of the AD Agreement is listed in Appendix 2 of the DSU, which contains the "special or additional rules and procedures contained in the covered agreements". In other words, the special or additional rules or procedures which, in case of conflict or discrepancy, prevail over the general provisions of the DSU (which include Articles 3.1 and 3.8 of the DSU). To assert, as the United States does, that an obligation of this kind may be fulfilled implicitly reverses the relationship that should exist between a special or additional obligation and those of the DSU, making the latter prevail over the special or additional ones, which is contrary to Article 1.2 of the DSU.
(a) The request for establishment does not even mention Articles 3.1 and 3.8 of the DSU, which shows that the United States is either making an ex post facto argument to justify its failure to fulfil its obligation under Article 17.5 of the AD Agreement; or believes that a special or additional obligation in Appendix 2 of the DSU may be fulfilled by a doubly implicit deduction; or else considers that a doubly implicit deduction is sufficient to present a problem clearly as required under Article 6.2 of the DSU.
(b) The reference to Article 3.1 of the DSU is not related to the fulfilment or non‑fulfilment of Article 17.5 of the AD Agreement. Article 3.1 of the DSU simply affirms the adherence of WTO Members to the dispute settlement principles. Strictly speaking, if this provision had any relationship with the point at issue, it would mean that the adherence mentioned in Article 3.1 confirms once again that the United States should have complied with the provisions of Article 17.5 of the AD Agreement and not the contrary.
(c) Article 3.8 of the DSU contains nothing more than a "presumption", in other words a fact awaiting future corroboration. The United States cannot validly argue that a presumption may replace a written statement indicating "how a benefit has been nullified or impaired", in other words a fact that has already happened and may be corroborated at present. In fact, the term "normally" included in the second sentence of Article 3.8 of the DSU means that the "presumption" referred to in this Article may be confirmed or not depending on each case. Hence, there is no automatic relationship between mere presumption and a fact such as that nullification or impairment exists or that the achievement of the objectives of the Agreement has been impaired.
(d) The concepts of "nullification or impairment" and of "achieving of the objectives of the Agreement" are much broader than that of "non-fulfilment of obligations" or even "violation". Article XXIII of the GATT 1994 itself distinguishes three circumstances in which there may be nullification or impairment or impeding of the achievement of the objectives of the Agreement, namely:
"the failure of another contracting party to carry out its obligations under this Agreement; or the application by another contracting party of any measure, whether or not it conflicts with the provisions of this Agreement; or
the existence of any other situation".
"The fact that Article 17.5 contains these additional requirements, which are not mentioned in Article 6.2 of the DSU, does not nullify, or render inapplicable, the specific requirements of Article 6.2 of the DSU in disputes brought under the Anti-Dumping Agreement. In our view, there is no inconsistency between Article 17.5 of the Anti-Dumping Agreement and the provisions of Article 6.2 of the DSU. On the contrary, they are complementary and should be applied together. A Panel request made concerning a dispute brought under the Anti-Dumping Agreement must therefore comply with the relevant dispute settlement provisions of both that Agreement and the DSU. Thus, when a "matter" is referred to the DSB by a complaining party under Article 17.4 of the Anti-Dumping Agreementthe panel request must meet the requirements of Articles 17.4 and 17.5 of the Anti-Dumping Agreement as well as Article 6.2 of the DSU"66 (emphasis added by Mexico).
(a) The United States disputes Mexico’s argument that WTO panels cannot consider government statements, made in other international fora (such as APEC), without going outside their terms of reference. International tribunals are sometimes called upon to consider statements made by government officials. While there are no hard and fast rules, the overarching approach has not been to find such statements inadmissible, as Mexico advocates, but rather to determine their probative value based on whether "enough evidence is produced in order to prove that the statements at issue were in fact made by the official to whom they are attributed".81 Mexico’s categorical response of "no" to the question of whether panels can consider statements made by a government in other international contexts in a WTO dispute settlement proceeding is incorrect. The United States does not offer these public statements as factual evidence which pertains to the Panel’s obligation, pursuant to Article 17.6(i), to assess SECOFI’s evaluation of the facts. Rather, they are offered to assist the Panel in assessing the strength and credibility of Mexico’s legal arguments. As such, the Panel may give them as much weight as it deems appropriate.
(b) The United States notes that filings by parties in NAFTA Chapter 19 proceedings are public.82 Therefore, contrary to Mexico’s arguments, there is no bar to Mexico’s submissions in the Chapter 19 dispute being properly before the Panel, insofar as these filings are public under the NAFTA rules. In the United States' view, reference to such public filings is no different than reference to public briefs filed before a national court or to parties’ submissions as summarized in GATT or WTO panel reports. The fact that the NAFTA proceeding is ongoing, and that no NAFTA panel report has yet been issued, is not relevant, because the United States cited SECOFI’s filings in the NAFTA case to demonstrate Mexico’s public position on certain issues, not to demonstrate the NAFTA panel’s ruling on those issues.
(c) The United States also notes that Mexico points to NAFTA as being a different legal order from the WTO, because NAFTA panels assess whether national anti-dumping determinations are in accordance with the anti-dumping laws of the importing party.83 In the view of the United States, Mexico, however, fails to mention that, in the Mexican legal order, treaties (including the AD Agreement) are the supreme law of the land, on a par with the Mexican Constitution and laws enacted by the Mexican Congress. In the event of a conflict between the Mexican Foreign Trade Law and the AD Agreement, Article 2 of the Mexican Foreign Trade Law dictates that the provisions of the AD Agreement prevail. Thus, in Mexico’s own legal order, the AD Agreement forms part of the Mexican legal system.84
(d) Finally, the United States disputes Mexico' contention that the United States is making a claim before the Panel under another international agreement, and that the Panel must reject information submitted by Mexico in a parallel proceeding under that other agreement, otherwise the Panel will be going beyond its terms of reference in this dispute. First, the United States is not asking this Panel to make findings on claims under NAFTA Chapter 19. The United States is merely bringing to the Panel’s attention inconsistencies in Mexico’s positions on certain legal issues also before the NAFTA panel.85 Second, the fact that the AD Agreement is relevant law in a NAFTA proceeding does not change this. If anything, it reinforces the importance of bringing inconsistencies in Mexico’s positions to the attention of this Panel.
(i) the final determination of the investigating authorities of the importing countries; and
(ii) amendments of anti-dumping or countervailing duty statutes.87
On the other hand, a Panel established by the WTO may only examine "the specific measures at issue" taken by a Member in the light of the covered agreements, in accordance with the complaining party's request. Mexico recalls in this connection that, regarding the AD Agreement, as stated by the Appellate Body in the Guatemala-Cement, the "specific measure at issue" must necessarily be:
(i) a definitive anti-dumping duty;
(ii) the acceptance of a price undertaking; or
(iii) a provisional measure.88
(a) it asserts that Mexico replied in a specific way to the questions posed by the United States during the consultations. Furthermore, as evidence that Mexico replied as the United States alleges, the latter submits a list of questions raised on 12 July 1998.
(b) it invokes the right to use information obtained in the consultations. To support this, it refers to the panel report in Korea–Alcoholic Beverages.93
"All parties engaged in dispute settlement under the DSU must be fully forthcoming from the very beginning as to the claims involved in a dispute and as to the facts relating to those claims. Claims must be stated clearly, facts must be disclosed freely. This must be so in consultations as well as in the more formal panel proceedings. In fact, the demands of due process that are implicit in the DSU make this especially necessary during consultations"98 (emphasis added by the United States).
"We find that in disputes under the Anti-Dumping Agreement relating to the initiation and conduct of anti-dumping investigations, a definitive anti-dumping duty, the acceptance of a price undertaking or a provisional measure must be identified as part of the matter referred to the DSB pursuant to the provisions of Article 17.4 of the Anti-Dumping Agreement and Article 6.2 of the DSU"106 (emphasis added by Mexico).
Mexico notes that the United States' request for the establishment of the Panel only refers to "SECOFI's final anti-dumping measure, including actions by SECOFI preceding this measure".107 The United States at no time identified the "provisional anti-dumping measure".
"When a provisional measure has a significant impact and the Member that requested consultations considers that the measure was taken contrary to the provisions of paragraph 1 of Article 7, that Member may also refer such matter to the DSB" (emphasis added by the United States).
" … we conclude that its panel request did not identify the final anti-dumping duty as the "specific measure at issue", as is required by Article 6.2 of the DSU. Mexico's panel request refers only to the three actions taken during the course of the investigation by the Guatemalan authority as the "matters in issue, and does not specifically identify the final, definitive anti-dumping duty".109
In Mexico's view, the above denotes a very clear distinction between the "specific measure at issue" and the "actions which preceded it". The United States identified only one measure in its request. If a provisional measure constitutes a "specific measure at issue", as was also affirmed by the AB, then by definition that measure cannot constitute an action. Measures are measures and actions are actions. A measure cannot at the same time be an action, and vice versa.
"Mexico has requested the establishment of a panel in respect of one measure, Guatemala's provisional anti-dumping measure …. Mexico also did not identify Guatemala's final action as a measure in its request for the establishment of a panel. Therefore, Mexico cannot challenge Guatemala's final anti-dumping measure before this Panel. Mexico has neither claimed nor demonstrated that Guatemala's provisional measure has a "significant impact" as required by Article 17.4 of the ADP Agreement. Consequently, according to the United States, this dispute is not properly before the Panel".111
(a) identify the provisional anti-dumping measure as a specific measure at issue distinct from the final anti-dumping measure;
(b) avoid confusing the provisional anti-dumping measure with the actions which preceded the final anti-dumping measure;
(c) distinguish between actions which preceded the provisional anti-dumping measure and actions which preceded the final anti-dumping measure; and
(d) in accordance with the position taken by the United States in Guatemala-Cement, demonstrate that the provisional anti-dumping measure had a significant impact.
"Having examined the administrative record... I issue this Decision in accordance with the following:
In regard to the nationally produced product, the requester pointed out that in the United Mexican States, high fructose corn syrup is not produced and that the similar good which is affected is sugar or saccharose, this is a disaccharide composed of two simple sugars, glucose and fructose, is obtained from sugar cane and is considered the principal caloric sweetener in the Mexican market"127 (emphasis added by Mexico).
A. The Ministry learned of the existence of domestic producers of HFCS in reviewing the information presented by the [Sugar Chamber] in its petition for the initiation of the investigation. However, in examining the data furnished by the Mexican Trade Information System, by the Ministry of Finance and Public Credit and by the petitioner per se, it observed that the only domestic manufacturers of the product under investigation during the period from January 1 through December 31, 1996 were the two leading importers of such products, namely Arancia CPC, S.A. de C.V. and Almidones Mexicanos, S.A. de C.V.
B. In light of this fact, the Ministry felt that, as the country’s only two manufacturers of HFCS were also its leading importers of this product, they should be excluded from the definition of domestic production".
Then paragraph 113(C) goes on to state that: "During the preliminary phase of the investigation, based on information supplied by the parties to these proceedings, the Ministry established that the only domestic manufacturers of HFCS were the country’s two leading importers of this product".
"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 [Article 3]".151
Article 5.2(iv) further provides:
"The application shall contain such information as is reasonably available to the applicant on the following:... information on the evolution of the volume of the allegedly dumped imports, the effect of those imports on prices of the like product in the domestic market and the consequent impact of the imports on the domestic industry, as demonstrated by relevant factors and indices having a bearing on the state of the domestic industry, such as those listed in paragraphs 2 and 4 of Article 3" (emphasis added by the United States).
"[A]n 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".
(a) Article 5.2(i) of the AD Agreement:
· Identity of the applicant: paragraphs 2.1, 2.2 and 2.3 of the application;171
· description of the volume and value of the domestic production of the like product: paragraphs 4.15 and 4.16 of the application and Annex 6A thereto;172
· list of domestic producers of the like product: paragraph 2.4 of the application and Annex 2.4.173
(b) Article 5.2(ii) of the AD Agreement:
· Complete description of the dumped product: Section B3 of the application and Annexes 2.10, 2.15 and 4.3(iii) thereto. See also a comparative study conducted by an academic institution of the characteristics and composition of HFCS and sugar, and various specialized publications in the field of sweeteners which reveal a diversity of uses and applications among the product investigated as well as their commercial substitutability;174
· The names of the country or countries of origin or export in question: Section B3, paragraph 2.13 of the application and Annexes 3.4 and 3.6;175
· Identity of each known exporter or foreign producer and list of importers of the investigated product: Section B2, paragraphs 2.7, 2.8 and 2.9 of the application and Annexes 2.15, 3.15, 3.16 and 4.3(i) as well as Table 2.9;176
(c) Article 5.2(iii) of the AD Agreement:
Data concerning the normal value and the export price of the like product: paragraph 2.6 and Section C of the application, Annexes 3.1, 3.4 and 3.6, 3.12, 3.15 and 3.16;177
Information on prices at which the investigated product is sold when destined for consumption in the domestic market of the country of origin or export and information on export prices: paragraph 2.6 and Section C of the application, and Annexes 3.4 and 3.6, 3.12, 3.15 and 3.16 thereto.178
(d) Article 5.2(iv) of the AD Agreement:
Information on the evolution of the volume of the allegedly dumped imports, the effect of these imports on prices of the like product in the domestic market and the consequent impact of the imports on the domestic industry: Section D of the application, and Annexes 3.4 and 3.6, 4.3(i), 4.3(ii), 4.3(iii), 4.3(v), 4.9, 4.12 and 4.14, 4.22, 4.23, 4.24 and 6-A to the same document.179
"… 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".
"5.43… The applicant contended that if the massive imports of cement continued to be sold at the indicated prices, both the domestic industry’s planned expansion and capital improvements would have to be cancelled and existing production facilities would be closed with a concomitant loss in employment. According to the United States, this information, while limited in scope, appears to minimally satisfy the requirements of Article 5.2(iv) relating to injurious price data and threat of injury. The United States considers it important to note, moreover, that the applicant alleged a threat of injury by virtue of the imports from Mexico, and did not assert the existence of present injury. The nature of information relevant for a threat case may be substantially different from that which is pertinent in a present injury case. Article 3.7 acknowledges this distinction in connection with determinations involving threat of injury. For the United States, it is only logical that the same distinction be recognized in terms of the information that is considered to be "reasonably available" to an applicant in requesting the initiation [sic] of an anti-dumping investigation. An applicant must still provide information, and not mere speculation, to support allegations of threat of injury. However, the United States suggests that the information may be different in kind than that which would be considered "reasonably available" in the context of an application involving present injury, if for no other reason than that threat of injury involves an incipient event".187
"5.52 … Thus, the United States considers it difficult to reconcile Mexico's assertions that Guatemala failed to give consideration to the factors in Articles 3.4 and 3.7 with the explicit discussion of these factors in the preliminary determination by Guatemala. Furthermore, while Guatemala’s preliminary determination did not address all of the factors in Articles 3.4 and 3.7, the United States suggests that it was not necessary to do so. Neither of those Articles requires discussion of all of the listed factors in an injury or threat of injury determination. Moreover, the United States recalls that each Article also specifically includes the proviso that the lists are not exhaustive and no single factor or group of factors is decisive, recognizing the ability of national authorities to discern the relative importance of each factor in the particular circumstances of each investigation …"188 (emphasis added by Mexico).
"7.75 … However, we do not accept the view that the lack of a specific reference to Article 3.7 means that an applicant is not required to submit 'such information as is reasonably available to the applicant' on the question of threat of material injury, if threat of material injury is alleged in the application. Such an interpretation of the Agreement would, in our view, be entirely impermissible, as it would be inconsistent with the text, as well as the object and purpose, of Article 5.2 as a whole (emphasis added by Mexico).
7.76… Thus, the requirements in Article 5.2 regarding 'injury' must, in our view, be read to refer to threat of injury in a case where threat of injury is at issue. Consequently, in this case, as the applicant alleged threat of injury, clearly the application must contain evidence of threat of material injury.
7.77… Moreover, while as noted above, there is clearly a different standard applicable to making a preliminary or final determination of material injury, including threat of material injury, than to determining whether there is sufficient evidence of material injury, including threat of material injury to justify initiation of an investigation, we cannot agree with Guatemala's apparent position that the factors set forth in Article 3.7 are irrelevant to the initiation determination" (emphasis added by Mexico).
"Similarly, while Article 3.7 contains factors which must be specifically considered in determining threat of injury, the factors in Article 3.2 remain relevant".190
"5.35 … However, the United States submits that logic directs that the quantum and quality of information required for the initiation of an investigation must be less than that necessary for a preliminary or final determination that is reached after a full investigation is conducted".
"5.40 … The United States suggests that information sufficient to prove the existence of dumping or to conclude that the domestic industry in Guatemala was threatened with injury by reason of the imports from Mexico was certainly not required for purposes of initiation" (emphasis added by Mexico).
"The United States notes that, in the conduct of anti-dumping investigations, investigating authorities are routinely confronted with complex factual situations. It would be impossible to state with complete confidence at the outset of an investigation precisely all of the information that will be necessary to reach a final determination … "193 (emphasis added by Mexico).
"In analysing further what was meant by the term 'sufficient evidence', the Panel noted that the quantum and quality of evidence to be required of an investigating authority prior to initiation of an investigation would necessarily have to be less than that required of the authority at the time of making a final determination … "194 (emphasis added by Mexico).
"7.57… Moreover, we agree with the view expressed by the Panel in Softwood Lumber that the quantum and quality of evidence required at the time of initiation is less than that required for a preliminary, or final, determination of dumping, injury, and causation, made after investigation. That is, evidence which would be insufficient, either in quantity or in quality, to justify a preliminary or final determination of dumping, injury or causal link, may well be sufficient to justify initiation of the investigation"195 (emphasis added by Mexico).
"5.44 … In the view of the United States, the question that the Panel must have answered by the parties is whether the application contained the information reasonably available to the applicant respecting dumping and import volume. While more information certainly would have been useful in the application, this is likely to always be the case, and is not the issue here. For the United States, the issue is whether the applicant provided the information reasonably available to it as required by Article 5.2(iii) and (iv) of the ADP Agreement" (emphasis added by Mexico).
"5.39 … The United States notes that "… in this regard, the language in Article 5.2 directing that an 'application shall contain such information as is reasonably available to the applicant' is intended to prevent the imposition of unreasonable information requirements that go beyond not only the normal capacity of a private entity to develop, but also beyond those of a particular applicant in a given case" (emphasis added by Mexico).
"On the basis of the information, arguments and evidence submitted by the National Chamber of Sugar and Alcohol Industries and the information collected by the Ministry, we conclude that there are reasonable indications that during the period of investigation, the United States imports entered the Mexican market in alleged conditions of price discrimination and threatened to cause injury to the national sugar industry…".
(a) domestic sugar market indicators concerning production, sales, exports, imports, consumption, inventories, employment, apparent national consumption (market share) and production/employment data allowing the calculation of a productivity index;212
(b) financial indicators including cash-flow statement, financial statement, income statement – containing data on profits-, production costs and financial ratios;213
(c) installed capacity for each sugar mill and the methodology used to determine installed capacity;214
(d) investment projects in the sugar industry (return on investments);215
(e) HFCS import statistics and annual statement of imports compiled by the applicant on the basis of information from the SHCP;216
(f) list of weighted average market prices by sugar category and distribution centre;217
(g) size of the margin of dumping.218
"Article 5.3 is a requirement imposed on the investigating authority: once it has accepted the application, that is, determined that it contains evidence on dumping, injury and causal link, as well as "such information as is reasonably available to the applicant" on the factors set forth in Article 5.3(i)-(v)(sic), the investigating authority must undertake a further examination of the evidence and information in the application".227
"For the purposes of this Agreement, the term 'domestic industry' shall be interpreted as referring to the domestic producers as a whole of the like product for those of them whose collective output of the product constitutes a major proportion of the total domestic production of those products, except that:
(i) when producers are related to the exporters or importers or are themselves importers of the allegedly dumped product, the term 'domestic industry' may be interpreted as referring to the rest of the producers" (emphasis added by Mexico).
This provision of the AD Agreement is in its turn closely related to the definition of "like product" in Article 2.6 of the AD Agreement which stipulates that:
"Throughout this Agreement the term 'like product' ('produit similaire') shall be interpreted to mean a product which is identical i.e. alike in all respects to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration" (emphasis added by Mexico).
-- First, the United States and Mexico agree that in order for the initiation to have been proper, SECOFI needed to define the domestic industry, as required by Articles 5.1 and 5.4 of the AD Agreement, prior to initiation.
-- Second, the United States and Mexico agree that, to define the domestic industry, SECOFI had to have conducted an examination under Articles 5.3 and 5.4 of the information in the application (provided under Article 5.2 by the Sugar Chamber).
-- Third, the United States and Mexico agree that SECOFI needed to make a determination prior to initiation to exclude the domestic producers of HFCS, Almex and Arancia, from the domestic industry under Article 4.1(i) in order to initiate an investigation with sugar as the like product.
Thus, in the opinion of the United States, the issue for the Panel to determine is whether there is sufficient evidence in the record of an administrative proceeding establishing that SECOFI conducted an examination of the domestic industry and made a determination to exclude Almex and Arancia from the domestic industry prior to initiation (emphasis added by the United States).