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Report of the Panel

I. INTRODUCTION

1.1.
On 8 May 1998, the United States requested consultations with Mexico pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the AD Agreement) regarding the anti-dumping investigation of high-fructose corn syrup (HFCS) grades 42 and 55 from the United States conducted by the Secretariat of Commerce and Industrial Development (SECOFI) of the Government of Mexico, the 23 January 1998 notice of final determination of dumping and injury in that investigation and the consequent imposition of definitive anti-dumping measures on imports of HFCS grades 42 and 55 from the United States.1 The United States and Mexico held consultations on 12 June 1998, but failed to reach a mutually satisfactory solution.
1.2.
On 8 October 1998, pursuant to Article 6 of the DSU, Article XXIII:2 of GATT 1994 and Article 17 of the AD Agreement, the United States requested the establishment of a panel to examine the consistency of Mexico's final anti-dumping measure, including actions preceding this measure, with Mexico's obligations under the AD Agreement and Article VI of GATT 1994.2
1.3.
At its meeting on 25 November 1998, the Dispute Settlement Body (DSB) established a panel pursuant to the above request.3 At that meeting, the parties to the dispute agreed that the Panel should have standard terms of reference. The terms of reference were:

"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".

1.4.
Jamaica and Mauritius reserved their rights as third parties to the dispute.
1.5.
On 13 January 1999, the Panel was constituted as follows:

Chairman: H.E. Mr. Christer Manhusen

Members: Mr. Gerald Salembier

Mr. Edwin Vermulst

1.6.
The Panel met with the parties on 14-15 April 1999 and 25-26 May 1999. It met with the third parties on 15 April 1999.
1.7.
The Panel submitted its interim report to the parties on 6 October 1999. On 20 October 1999, the United States and Mexico submitted written requests for the Panel to review precise aspects of the interim report. At the request of Mexico, the Panel held a further meeting with the parties on 9 December 1999 on the issues identified in the written comments. The Panel submitted its final report to the parties on 21 January 2000.

II. FACTUAL ASPECTS

2.1.
This dispute concerns the imposition of definitive anti-dumping duties by SECOFI on imports of high-fructose corn syrup, grades 42 and 55, originating in the United States.
2.2.
On 14 January 1997, Mexico's National Chamber of Sugar and Alcohol Industries (Sugar Chamber) filed an application for an anti-dumping investigation with SECOFI complaining that imports of HFCS from the United States were being exported to Mexico at dumped prices and threatened Mexico's sugar industry with material injury. On 27 February 1997, SECOFI published a notice in Mexico's Diario Oficial announcing the initiation of an anti-dumping investigation on imports of HFCS, grades 42 and 55, originating in the United States.4 SECOFI established the period from 1 January 1996 to 31 December 1996 as the period of investigation. Parties filed responses to investigation questionnaires and requests for supplementary information in April and May 1997. On 25 June 1997, SECOFI published a notice announcing a preliminary determination imposing provisional anti-dumping duties ranging from 66.57 to 125.30 U.S. dollars per metric ton in the case of imports of HFCS grade 42, and 63.42 to 175.50 dollars per metric ton in the case of imports of HFCS grade 55.5
2.3.
SECOFI held disclosure meetings with parties regarding the preliminary determination in June and July 1997. Parties filed further submissions and replied to requests for supplementary information from July to October 1997. SECOFI verified the information submitted by the Sugar Chamber and several importing and exporting companies during September-November 1997. SECOFI held a public hearing concerning the investigation on 3 December 1997.
2.4.
On 1, 2 and 10 December 1997, one importing company (Almex) and the United States Corn Refiners Association (CRA), an association of U.S. producers of corn products, including HFCS, requested SECOFI to terminate the investigation, arguing that an alleged agreement between Mexican sugar producers and soft-drink bottlers, dating from September 1997, restraining the latter's consumption of imported HFCS eliminated any threat of injury. The CRA did not provide SECOFI with a copy of the alleged agreement. On 11 December 1997, SECOFI made an inquiry to the Sugar Chamber regarding the existence of the alleged agreement. On 15 December 1997, the Sugar Chamber replied to SECOFI's inquiry, denying the existence of the alleged agreement.
2.5.
On 23 January 1998, SECOFI published a notice announcing the final determination imposing definitive anti-dumping duties ranging from 63.75 to 100.60 U.S. dollars per metric ton in the case of imports of HFCS grade 42, and 55.37 to 175.50 dollars per metric ton in the case of imports of HFCS grade 55.6 The notice entrusted the Ministry of Finance and Public Credit with collecting the definitive anti-dumping duties, levying such duties retroactively to the imposition of the provisional duties.

III. PREVIOUS WTO DISPUTE SETTLEMENT PROCEEDINGS BETWEEN THE PARTIES WITH RESPECT TO THE SAME OR RELATED MATTERS

3.1.
On 4 September 1997, the United States had requested consultations (WT/DS101/1) with Mexico pursuant to Article 4 of the DSU and Article 17.3 of the AD Agreement regarding the provisional anti-dumping measure, including actions preceding this measure, imposed by Mexico on 25 June 1997 on imports of HFCS, grades 42 and 55, originating in the United States. The United States and Mexico held consultations on 8 October 1997, but failed to reach a mutually satisfactory solution.

IV. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS

4.1.
Mexico respectfully requests the Panel to reach the following conclusions:

(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.

4.2.
If the Panel should decide to examine the merits of the United States allegations, in a subsidiary manner and without prejudice to its rights under the DSU, Mexico respectfully requests the Panel:

(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.

4.3.
Consequently, Mexico respectfully requests the Panel to conclude that the final anti-dumping measure adopted by SECOFI on HFCS imports from the United States, and the actions preceding it, are consistent with the obligations incumbent on Mexico under the AD Agreement, in particular Articles 1, 2, 3, 4, 5, 7, 10, 12 and 18, and the GATT 1994.
4.4.
In turn, the United States respectfully requests the Panel to find that:

(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.

4.5.
Accordingly, the United States respectfully requests that the Panel recommend that Mexico, pursuant to Article 19.1 of the DSU, bring SECOFI’s final anti-dumping measure into conformity with the AD Agreement and GATT 1994.

V. ARGUMENTS OF THE PARTIES

A. STANDARD OF REVIEW

5.1.
Mexico recalls that Article 17.6 of the AD Agreement reads as follows:

"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).

5.2.
According to Mexico, the first submission of the United States contains various assertions to the effect that Mexico did not fulfill its obligations under the AD Agreement because SECOFI did not proceed in the manner in which the United States interprets that the provisions of the AD Agreement should be applied. In addition, the submission asks the Panel to agree with the United States' interpretations as if these were the sole permissible interpretations.7
5.3.
Mexico argues that, in taking this position, the United States forgets that it was the United States itself which proposed, during the corresponding round of negotiations, the inclusion of Article 17.6 of the AD Agreement with the intention of recognising the discretionary power of the investigating authority when the AD Agreement itself does not establish a single interpretation with respect to one or more provisions of the Agreement. Consequently, any interpretation of the AD Agreement which is permissible is equally valid; there is no "quality standard" that determines varying "degrees of permissibility". What is important is that an interpretation is or is not permissible, regardless of whether some interpretations may appear, in the eyes of the United States or the Panel itself, more permissible than others. If the interpretation is permissible, the measure should be declared compatible with the AD Agreement. If the interpretation is not permissible, an explanation must be given of why that is so.
5.4.
Mexico further argues that, consequently, when the United States considers that Mexico should have proceeded in a manner that is not clearly established in the AD Agreement, it is up to the United States to show that the manner in which SECOFI proceeded does not correspond to a permissible interpretation of the AD Agreement.
5.5.
Mexico also contends that, on the basis of this provision of the AD Agreement, Panels should follow the same line of conduct even though in their opinion one permissible interpretation may seem more appropriate than another permissible interpretation. Where a panel determines that an interpretation is not permissible, it is obliged to set out the factual and legal reasons for not accepting that interpretation.
5.6.
Mexico points out that the United States did not respond to and, in fact, ignored Mexico's objection that SECOFI's interpretations of the AD Agreement were "permissible" within the meaning of Article 17.6. When the United States was asked at the first hearing whether it had presented evidence regarding this issue, it simply replied that Article 17.6 of the Anti-Dumping Agreement imposes an obligation on the Panel.
5.7.
Mexico holds that, in this connection, it is worth referring once again to Guatemala–Cement, where the United States maintained the following position:

"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

5.8.
Mexico submits that the determination as to "whether the authorities' establishment of the facts was proper and whether their evaluation of those facts was unbiased and objective" forms part of Article 17.6 in the same way as the obligation to determine whether the measure adopted by the authority rests upon a permissible interpretation. Both provisions come under the same heading ("chapeau"). Why then does subparagraph (i) constitute a "pertinent standard of review" which requires a Member to present specific evidence, while subparagraph (ii) is an obligation on the Panel?
5.9.
Mexico submits further that, whatever the answer to this question may be, it is clear that the United States has maintained diametrically opposite positions to suit its convenience. In any event, the United States reply implies that it did not argue that Mexico had made interpretations of the AD Agreement that were not permissible, and therefore acknowledged that all of Mexico's interpretations were permissible.
5.10.
The United States is of the view that, since Mexico violated certain provisions of the AD Agreement by improperly interpreting those provisions, Mexico's interpretations are not permissible. None of Mexico's interpretations might be considered as constituting the "one-of-more-than-one" permissible interpretations allowed by Article 17.6(ii) of the AD Agreement.9

B. OBJECTIONS

5.11.
Mexico submits for consideration by the Panel various objections that it states need be raised at the outset as they are critical for this dispute settlement proceeding. According to Mexico, the request for the establishment of the Panel submitted by the United States does not meet the requirements laid down in the AD Agreement and the DSU, which are indispensable for determining the Panel's authority and terms of reference, and therefore the request must be rejected.
5.12.
Mexico asserts that its objections relate in particular to the improper references by the United States to the submission presented by Mexico in an ongoing proceeding under Chapter 19 of the North American Free Trade Agreement (NAFTA); as well as the incorrect and tendentious references made by the United States concerning Mexico's replies provided during the consultations held on 12 June 1998. Mexico also maintains that the references to the provisional measures in the United States' submission should also be rejected because they lie outside the Panel's terms of reference.

1. Alleged Failure to Properly Identify Claims Under Article 6.2 of The DSU and Alleged Failure to Properly Present a "Matter" Under Article 17.4 of the AD Agreement

5.13.
Mexico submits that the request for the establishment of a panel submitted by the United States10 does not fulfil the requirements laid down in Article 6.2 of the DSU and it should therefore be rejected. In particular, Mexico argues that the request in question does not provide a summary of the legal basis of the complaint sufficient to present the problem clearly.
5.14.
Mexico recalls that Article 6.2 of the DSU establishes that a request for the establishment of a panel shall identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. Mexico holds that, in the present dispute, the United States' request does not contain a brief summary of the legal basis sufficient to present the problem clearly.
5.15.
Mexico contends that the United States infringed the provisions of Article 6.2 in two ways:

(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.

5.16.
Mexico notes that, in the introductory part of the fourth paragraph of the Request for Establishment, the United States stated that "SECOFI's final anti-dumping measure, including actions by SECOFI preceding this measure, is inconsistent with the obligations of Mexico under Articles 1, 2, 3, 4, 5, 6, 7, 10 and 12 of the AD Agreement and Article VI of the GATT 1994". Subsequently the United States confined itself to presenting a number of alleged actions or omissions by SECOFI. However, at no time did it indicate what the relationship was between the provisions cited and the alleged acts or omissions of SECOFI.
5.17.
According to Mexico, the United States' request is extraordinarily confused. For example: Is the United States trying to argue that, with respect to determining whether to apply a lesser duty, SECOFI acted inconsistently with Articles 1, 2, 3, 4, 5, 6, 7, 10 and 12 of the AD Agreement and Article VI of the GATT 1994? If not, which provisions did SECOFI violate and which did it not? Furthermore, are we to understand that one Article is applicable to only one indent or to more than one of them, and in any case to which? Are the Articles applicable in their totality or only partly?The United States' request certainly does not contain the answers to these questions.
5.18.
Mexico submits that the obligation to present the problem clearly is not a mere formality. Mexico recalls that Article 6.2 of the DSU is an obligation for the complainant. Its purpose, inter alia, is to safeguard the rights of the other WTO Members to decide whether they should participate as interested third parties, and more importantly, of the actual Member whose measure has been challenged so that it can defend itself properly. Furthermore, as is well known, the request for the establishment of a panel constitutes the basis of the panel's terms of reference.11
5.19.
Mexico argues that the United States not only did not present the problem clearly but also did not allow the "matter" to be duly constituted.12 In other words, for the Panel to be able to examine a "matter", the United States should have indicated in its request for the establishment of a panel the factual and legal grounds for each of its assertions. The panel in EC-Yarn stated:

"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).

5.20.
Mexico contends that United States did not indicate which legal basis corresponded to which alleged violation. In fact, the United States' request does not contain "claims". The most it contains is "assertions" or, in any case, "reasonings". Mexico recalls once again in this connection the panel in EC-Yarn, which stated that:

"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

5.21.
Mexico maintains that, to understand the problem better, it is important to analyse the United States' omission in the light not only of Article 6.2 of the DSU, but also of Article 7 of the DSU and 17.4 of the AD Agreement. Mexico holds that, in the absence of "claims", which is one of the essential elements of the "matter" referred to by Article 7 of the DSU and of the "matter" referred to in Article 17.4 of the AD Agreement, it is not possible to speak of a "matter" since it has not been properly constituted.15
5.22.
Mexico argues that, in Guatemala-Cement, the Appellate Body (AB) confirmed this obligation, indicating that the matter referred to the DSB consisted of (i) the specific measures at issue; and (ii) the claims.16 The Appellate Body also stated:

"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

5.23.
Mexico further argues that the claims must be contained in the request for the establishment of a panel and not in another document, and therefore the United States cannot remedy this omission. The Panel in EC-Yarn stated that:

"For a claim to be before a panel, it would have to be specified in the document requesting establishment of a panel".18

5.24.
Mexico notes that, in Guatemala-Cement as well, the Appellate Body, after having clarified the components of the "matter", reiterated the obligation that such components must be included in the request for the establishment of a panel:

"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

5.25.
In Mexico's view, the foregoing has several consequences:

(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.

5.26.
The United States disputes Mexico's argument that the request for establishment fails to comply with Article 6.2 of the DSU. According to the United States, Mexico argues that the request for establishment was inconsistent with Article 6.2 of the DSU, because the United States did not explicitly link up the legal claims it identified in the chapeau of paragraph 4 of its Request for Establishment -- Articles 1-7, 10 and 12 of the AD Agreement and Article VI of the GATT 1994 -- with the amplified description of those claims as contained in paragraphs 4(a)-(k) of the request. Mexico asserts that all the United States' claims in this Panel should be dismissed because Mexico has allegedly been unable to defend itself adequately in the absence of such a link. In the view of the United States, Mexico's arguments are baseless and should be rejected.
5.27.
The United States submits that its request for establishment far exceeds the minimum Article 6.2 requirement, i.e., it sets forth the measure (SECOFI’s final anti-dumping measure) and identifies legal claims (AD Agreement Articles 1-7, 10 and 12, and Article VI of the GATT 1994). This minimum standard was established by the panel and Appellate Body reports in European Communities-Bananas. In European Communities-Bananas, Mexico (and the other complaining parties) made a request for establishment containing a summary paragraph listing various GATT 1994 and WTO Agreement Articles (the legal claims) which the request alleged were violated by the European Communities' banana regime measures.21 The request for establishment in European Communities-Bananas did not amplify any of the various legal claims with summary arguments. Nor did it link up the identified measures with the legal claims. The European Communities-Bananas panel found that Mexico’s complaint met the requirements of Article 6.2. On appeal, the European Communities raised a very similar argument to that now raised by Mexico -- that the request violated Article 6.2 because the complaining parties should have linked up legal claims with specific aspects of measures of the EC.22 The Appellate Body rejected the EC’s argument and found that no such linking requirement existed:

"[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

5.28.
The United States argues that, using the Mexican request for establishment in European Communities-Bananas as a minimum standard guide,24 there can be no doubt that the United States' request in this dispute complies with Article 6.2. First, the United States' request, like the Mexican European Communities-Bananas request, identifies the specific "measure" at issue -- SECOFI’s final anti-dumping measure. Second, the United States' request, like the Mexican European Communities-Bananas request, lists each of the claims which form the legal basis of the complaint by citing the provisions in the AD Agreement and the GATT 1994.25 As Mexico successfully argued in European Communities-Bananas, there is no additional requirement to link up the legal claims with the specific measures at issue.
5.29.
The United States asserts that, in the present dispute, the United States did not stop at the minimum requirements for a request for establishment. Unlike the European Communities-Bananas request, the United States' request for establishment in this dispute made a linkage between the specific measures and the various claims. It described in detail the problems which the United States has experienced with the Mexican measure. Thus, paragraphs 4(a)-(k) of the Request for Establishment described those problems using the language in the cited provisions of the AD Agreement. Mexico’s assertion that it is hopelessly confused about which AD provisions apply to these paragraphs simply lacks credibility. For example, paragraph 4(e) identified SECOFI’s final threat of injury determination and explains that SECOFI failed to examine the likely impact of dumped imports on the domestic industry. Only one provision of the AD Agreement relates to a determination of injury and threat -- AD Agreement Article 3. Similarly, other sub-paragraphs relate to other provisions of the AD Agreement. They thus provide summary arguments of the United States' legal claims, and significantly assist in describing the problems faced by the United States.
5.30.
The United States observes that a request for establishment fails to be "sufficient to state the problem clearly" in accordance with DSU Article 6.2 if the request is so flawed that the defending party’s rights of defense are being prejudiced.26 However, Mexico cannot demonstrate that any imperfections in the United States request for establishment rise to that level. The Appellate Body analysed an alleged Article 6.2 violation in European Communities-Computer Equipment.27 The European Communities argued in that dispute that the United States’ request had not properly identified the products and the measures at issue, and that it was denied its due process right to be aware of the case against it.28 In affirming the panel’s finding that the United States' request met the requirements of Article 6.2, the Appellate Body examined whether the European Communities' rights of defense had been prejudiced by the alleged inadequate description of the products and measures. It found that the European Communities had clearly been actually aware of the problems described by the United States, as well as the measures and products at issue in the United States' request as early as the consultation stage of the proceedings.29 The Appellate Body concluded by stating:

"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

5.31.
The United States maintains that its request for establishment "states the problem clearly" in describing the factual and legal issues raised by Mexico’s actions in its anti-dumping investigation of HFCS. In addition, the Panel should be aware that during the consultations which preceded the request for establishment, the United States posed a long list of detailed written questions to Mexico, and discussed them at length during the consultations. The written questions track both the legal claims as well as the arguments raised in the United States' request and in the United States' first submission.31 In light of the text of the request for establishment, the questions submitted to Mexico and the issues actually raised in the consultations, Mexico simply cannot claim that it was surprised or incapable of defending itself in this dispute. Moreover, while the United States does not agree with many of Mexico’s arguments made in its first submission, it is undeniable that this submission as well as Mexico’s participation in the first meeting of the Panel with the parties demonstrate that Mexico’s rights of defense have not been impeded to any extent in the course of the panel proceeding -- let alone to an extent rising to a denial of due process.
5.32.
The United States disputes Mexico's argument that its request for establishment does not contain claims, but rather assertions or reasonings. This formalistic argument reflects a fundamental misapprehension of the requirements of Article 6.2 as articulated by the Appellate Body. In Guatemala-Cement, the Appellate Body reiterated the distinction it had made in European Communities-Bananas between specific measures on the one hand, and the legal basis for the complaint or "claim" on the other.32 It found that in an anti-dumping context, there were only three types of "specific measures" as set forth in Article 17.4. As noted above, the United States’ request identifies SECOFI’s final anti-dumping order as the "specific measure". The Appellate Body in Guatemala-Cement, India-Patents, and in European Communities-Bananas stated that "claims" or the "legal basis for the complaint" may be set out in a very summary fashion -- the minimum requirement being to simply list provisions of a WTO agreement.33 In the U.S. request, these claims are set forth in the chapeau of paragraph 4 of the request, and include AD Agreement Articles 1-7, 10 and 12 and Article VI of the GATT 1994. These claims are further described and amplified in paragraphs 4(a)-(k) of the request. Whether this amplification constitutes "argument" or additional information describing the problems which the United States has with the Mexican measure is not legally significant in light of the facts and the Appellate Body precedent cited supra.
5.33.
Finally, the United States recalls that, in arguing that the United States did not present the problem clearly pursuant to Article 6.2 of the DSU, Mexico refers to the dispute Brazil brought on the European Communities' imposition of anti-dumping measures on cotton yarn.34 That dispute, however, concerned the European Communities' objections that Brazil had not included two particular claims at all in its request for the establishment of a panel. It did not concern, and the panel there did not address, whether the EC’s narrative descriptions of the problemsthemselves needed to specifically mention the provisions in the AD Agreement Article alleged to have been violated.
5.34.
In summary, the United States argues that its request for establishment includes the legal provisions in the specific agreements on which its complaint is based, and, as such, satisfied the requirements of Article 6.2 of the DSU. The United States' request for establishment also went beyond this minimum requirement by including detailed expositions of the problems engendered by Mexico’s measures on HFCS, expositions which tracked the language of the cited provisions of the AD Agreement.
5.35.
The Panel asked the United States whether it would agree with the decision of the Panel in EC-Yarn that even a sub-paragraph of an Article of the AD Agreement could be the basis for several claims?
5.36.
The United States replied that it agreed with the panel in EC-Yarn that a particular sub-paragraph of the AD Agreement could potentially involve more than one claim. However, the EC-Yarn decision must be read in light of the Appellate Body decision in European Communities-Bananas. There the Appellate Body held that the "claims, but not the arguments must all be specified sufficiently in the request for the establishment of a panel in order to allow the defending party and any third parties to know the legal basis of the complaint".35 In European Communities-Bananas, the request for establishment specified a number of general GATT 1994 and WTO Agreement Articles but did not specify which (or how) particular sub-Articles had been violated. For example, Article III of the GATT 1994 was alleged to have been violated without specifying which particular language or sub-paragraph of Article III was being violated.36 The Appellate Body's decision affirmed the panel’s finding that the request for establishment was consistent with Article 6.2, i.e., the listing of entire GATT Articles without further specification of the particular sub-Articles at issue. This fact demonstrates the summary nature of the legal claims that can be made under Article 6.2. Indeed, the observation of the panel in EC-Yarn would be just as correct regarding Article III -- there could be more than one legal claim encompassed within that provision.
5.37.
In addition, the United States observed that nothing would prevent the listing of various violations of specific sub-paragraphs of the AD Agreement as particular claims. However, in light of European Communities-Bananas, there is no requirement to do so. The United States' request for establishment goes far beyond the minimum requirements set forth in European Communities-Bananas. The United States' request uses language from the AD Agreement in paragraphs 4(a)-(k), thereby effectively linking the claims to specific provisions of the AD Agreement. As the EC-Yarn panel indicated, it is possible to have multiple violations of a particular sub-paragraph of the AD Agreement. For example, the United States' request in paragraphs 4(b) and (c) contain separate descriptions of how Article 5.3 was violated in two different ways. Similarly, paragraphs 4(d) and (e) contain two different descriptions as to how Article 3.4 was violated, and paragraphs 4(g) and (j) describe two ways that SECOFI violated Article 7.4.37 Finally, Mexico has not demonstrated that any alleged lack of clarity in the United States' request has negatively impacted their due process rights in this proceeding. Without such a showing, there can be no finding of a violation of Article 6.2 or 17.5.38
5.38.
According to Mexico, the United States argues that it is enough to mention an Article by its number for there to be a "claim". Mexico contends that, in response to a question from a panellist at the first meeting, the United States replied that each of the lettered indents of its request for establishment of a panel constituted a "claim". Mexico observes, however, that the indents of the United States request do not cite to any article. Mexico questioned how the United States could reconcile these two positions?
5.39.
Mexico holds that, even assuming arguendo that the United States' request did contain "claims", the problem was not presented clearly and hence the United States failed to comply with Article 6.2 of the DSU. The United States' request failed to comply with Article 6.2 of the DSU to such an extent that at the first meeting of the Panel with the parties it was evident that neither Mexico nor the Panel nor the United States itself knew for sure what the claims in the United States' request are. If the United States itself cannot identify its claims, how can it expect Mexico to do so? How can it expect the Panel to carry out its terms of reference?
5.40.
Mexico argues that the statements by Mauritius and Jamaica were also very revealing. Neither Mauritius nor Jamaica were affected by Mexico's investigation, but even so they reserved their rights as third parties. Furthermore, they addressed a problem that is completely different from the one raised in this dispute. This is yet another demonstration that the United States did not present the problem clearly and failed to comply with Article 6.2 of the DSU.
5.41.
Mexico states that the obligation to "provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly" is not a mere formality. Mexico stresses that Article 6.2 pursues two objectives: first, it enables the Member whose measure has been challenged to defend itself properly, apart from serving to safeguard the rights of other WTO Members who could be affected by the outcome of the proceeding; second, the request for establishment of a panel constitutes the basis for a panel's terms of reference. Mexico asserts that it drew the United States' attention to this concern even before the Panel was set up.39
5.42.
In Mexico's view, it is evident that:

(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.

5.43.
Mexico reiterates that, as established by Article 7 of the DSU (and in this case Article 17.4 of the AD Agreement too), for a panel to comply with its terms of reference to examine a "matter", the request for establishment has to be submitted properly. That is to say, it must comply, inter alia, with the requirements of Article 6.2 of the DSU. This position has been confirmed by various panels and the Appellate Body in a number of cases.40
5.44.
Mexico submits that the request for the establishment of a panel must indicate the essential requirements to constitute a "matter". For there to be a "matter", it is necessary that the request for establishment contain the following:

(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.

5.45.
Mexico recalls that "to speak of a claim, it was necessary to specify the specific factual and legal basis upon which it was asserted that a provision of the Agreement had been breached".41 Thus, to meet the requirements of Article 6.2 of the DSU, the United States had to specify the particular legal and factual basis upon which it was alleged that a provision of the Agreement had been breached, and should have correlated each allegation with a specific violation. The United States' request does not do so. It contains a heading which mentions various numbers of articles, followed by a series of lettered indents with alleged actions or violations attributed to SECOFI.
5.46.
Mexico observes that it is important for the Panel to see that, unlike Article 6.2 of the DSU, Article 4.4 of the same Agreement (on requirements for requests for consultations) only requires that there is an indication of "the measures at issue and an indication of the legal basis for the complaint". However, at no time is it required that the latter be sufficient to present the problem clearly. Article 6.2 of the DSU contains a specific obligation for requests for the establishment of a panel. Failure to fulfil this obligation directly impacts Article 7 of the DSU and 17.4 of the AD Agreement and cannot be cured subsequently.42 Neither the United States first submission nor its subsequent actions in the present proceeding would remedy this error.
5.47.
In connection to the references cited by the United States as precedents, Mexico recalls the Appellate Body Report in Japan-Alcoholic Beverages:

"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).

5.48.
In the view of Mexico, the above statement allows clarifying two things: first, contrary to what the United States argues, in the WTO there is no notion of "jurisprudence" as a source of law, so that there is no requirement to cite a specific case to support an assertion,44 much less to establish methods of interpretation;45 second, there is no point in referring indiscriminately to all of the cases brought before the dispute settlement system. Only those which "are relevant to any dispute" are of use.
5.49.
In Mexico's opinion, the above demonstrates that the precedents put forward by the United States in connection with these violations are irrelevant, given that they are not "pertinent to this dispute", since they do not refer to "the allegations", but to the "specific measures at issue" which, according to Guatemala–Cement, are governed by a special logic in anti-dumping cases.
5.50.
According to Mexico, with respect to the first violation, the United States asserts that "a panel request fails to be sufficient to state the problem clearly in accordance with DSU Article 6.2 if the request is so flawed that the defending party's rights of defence are being prejudiced", relying on paras, 68 to 70 of the Appellate Body Report in European Communities–Computer Equipment. However, this Appellate Body Report merely refers to "the alleged lack of precision of the terms "LAN equipment" and "PCs with multimedia capability" in the request for the establishment of a panel" in relation to the specific measures at issue.46In other words, this quotation does not address the concept of "claims". As the concept of measure in anti-dumping cases is very restricted, that there can be no analogy between the two cases.
5.51.
In Mexico's view, to support its assertion that it has met the minimum requirements of Article 6.2 of the DSU, the United States refers to paragraph 18 of the Appellate Body Report in European Communities-Bananas, in which the European Communities argue that the request for the establishment of a panel must make a link between the specific measure concerned and the article of the specific agreement allegedly infringed thereby.47 Mexico points out, however, that its argument does not refer to the link between the specific measure concerned and the article of the specific agreement. Rather, its argument is that the United States did not properly link the elements making up a "claim". Mexico did not go into the link between the measures and the articles. In light of Guatemala–Cement, which explains that with respect to anti-dumping there are only three types of specific measures at issue, it would have been pointless for Mexico to make such an argument.
5.52.
With respect to the references made by the United States to India–Patents, Mexico observes that not only do the paragraphs cited refer to the limitation on the findings that a Panel may make on issues that have been submitted to it by the parties to the dispute,48 but the Appellate Body merely reached the conclusion that "a claim must be included in the request for establishment of a panel in order to come within the panel's terms of reference in a given case",49 which does not conflict with what Mexico said. In the opinion of Mexico, this reference bears no relation to the case at issue except to the extent that it shows that the United States failed to comply with Article 7 of the DSU in the past.
5.53.
Finally, Mexico maintains that the specific reference by the United States to Guatemala–Cement is simply inappropriate. Paragraph 72 of the Appellate Body Report (which the United States quotes) states that "the 'matter referred to the DSB', therefore, consists of two elements: the specific measures at issue and the legal basis of the complaint (or the claims)" (emphasis in original). This proves that the "specific measures at issue" is a legal concept distinct from "claims".

2. Alleged Insufficiency of The Request For Establishment Under Article 17.5 of The AD Agreement

5.54.
Mexico argues that the United States' request for establishment of the Panel also failed to fulfil the requirements of Article 17.5 of the AD Agreement. Mexico recalls that Article 17.5 of the AD Agreement provides:

"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).

5.55.
According to Mexico, the Appellate Body in Guatemala Cement perfectly delimited the meaning of Article 17.5 by stating that:

"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).

5.56.
Mexico states that at least the following conclusions can be drawn from the foregoing:

(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.

5.57.
Mexico reiterates its view that the request for establishment submitted by the United States does not fulfil the requirements of Article 17.5. In Mexico's opinion, it is particularly noteworthy that the United States at no time indicates how its benefits under the AD Agreement were nullified or impaired or the achieving of the objectives of the Agreement were being impeded. The United States' request does not even mention the terms "nullification", "impairment", "benefit" or "achieving of objectives". Mexico submits that, since the United States did not make such a statement, and given that the Panel has to examine the "matter" on the basis of such a statement, in the present dispute the Panel does not have any "basis" for examining the "matter". Moreover, the "matter" was likewise not duly constituted. Consequently, the United States' request does not fulfil the requirements to be submitted to a panel.
5.58.
Mexico recalls that the United States itself, in its submission to the Appellate Body in Guatemala‑Cement, put forward the argument that many panels have applied the principle of judicial economy52inter alia in cases where a complainant did not specify what benefit or provision of the 1947 General Agreement was nullified or impaired.
5.59.
The United States disputes Mexico's statement that its request for establishment is inconsistent with Article 17.5 of the AD Agreement because that request did not specifically use the specific terms "nullification", "impairment", "benefit", or "achieving of objectives".53 In the view of the United States, this assertion should be rejected because it completely ignores the extensive nature of its request, and is inconsistent with the text and context of Article 17.5. The United States clearly provided a written statement of how benefits under the AD Agreement were being nullified or impaired when it provided its statement detailing the various breaches of the AD Agreement and Article VI of the GATT 1994 by Mexico’s measures.
5.60.
The United States notes that the Appellate Body in Guatemala-Cement discussed the text and requirements of Article 17.5 as follows:

"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

5.61.
The United States notes further that the text of Article 17.5(i) is phrased in the disjunctive. Thus, the United States' request would have to indicate either(a) how a benefit accruing to it, directly or indirectly, under the AD Agreement has been nullified or impaired, or (b) that the achieving of the objectives of the Agreement is being impeded. The terms "nullification and impairment" and "benefit" used in the first part of 17.5(i) have a particular meaning in GATT jurisprudence. Article 17.5(i) is the anti-dumping counterpart to Article XXIII:1 of GATT 1994. Both provisions relate to the initiation of dispute settlement provisions by a written statement and both use terms such as "nullification or impairment", "benefit" or "objectives". GATT panels and the subsequent GATT interpretations of the language of Article XXIII:1 of GATT 1994 have not required the use of particular "magic" language to initiate a dispute. Rather, in a case such as this one involving a covered agreement (i.e., the AD Agreement and Article VI of GATT 1994) what is required to initiate a case of nullification and impairment is the allegation that the GATT 1994 or the WTO Agreement has been violated by another Member.
5.62.
The United States recalls that in a 1962 panel report on Uruguayan Recourse to Article XXIII, the panel noted that

"... 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

5.63.
The 1979 Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance, adopted 28 November 1979, also adopted a similar interpretation of Article XXIII:1 as have a number of subsequent GATT panel reports.56 This concept is embodied in the DSU in Article 3.8:

"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.."..

5.64.
According to the United States, the presumption of nullification and impairment from a violation of GATT provisions has been described by one panel as operating "in practice as an irrefutable presumption".57 Indeed, to date, no GATT or WTO panel has ever found a party to have successfully rebutted the presumption that a measure infringing obligations causes nullification and impairment. This is because the absence of any adverse impact cannot operate so as to negate a finding of nullification or impairment as long as an agreement is found to be violated.58 Thus, complaining parties alleging violations of the GATT 1994 and WTO agreements are, by definition, alleging that their benefits under those agreements are being nullified and impaired. The same is true in the case of Article 17.5(i). The interpretation of Article 17.5 offered by Mexico -- that it can only be invoked if the exact words in the text of Article 17.5 are invoked -- would be inconsistent not only with the text of Article 17.5, but also with these long-standing interpretations of Article XXIII:1 of GATT 1994 which now apply to all of the agreements annexed to the WTO Agreement, by virtue of Article 3.8 of the DSU.
5.65.
The United States contends that this interpretation is supported by other aspects of the text of Article 17.5(i). Article 17.5 requires that complaining parties provide a written statement "indicating how a benefit has been directly or indirectly nullified or impaired, or the achieving of the objectives of the Agreement is being impeded". An "indication" is distinct from a detailed discussion and suggests that examination of the entire context of the request is important, not simply whether certain magic words have been invoked. The phrase "indicating how" suggests that something more than simply using the words "nullify and impair" (as Mexico appears to claim) is required, because it asks for a description of "how" benefits have been nullified or impaired. In this regard, the text of Article 17.5 is similar to the language in Article 6.2 of the DSU requiring Members to submit "a brief summary of the legal basis sufficient to present the problem clearly". In finding "no inconsistency" between Article 17.5 of the AD Agreement and the provisions of Article 6.2 of the DSU the Appellate Body in Guatemala-Cement recognized this. Thus, any request (concerning a claim under the AD Agreement) which satisfies DSU Article 6.2 also satisfies AD Agreement Article 17.5. The Appellate Body has confirmed this point in characterizing Article 17.5 as requiring none of the detail that Article 6.2 requires.
5.66.
The United States submits that its request sets forth a number of legal claims alleging violations of various provisions of the AD Agreement and Article VI of GATT 1994. Such allegations -- translated into the language of GATT 1994 and AD Agreement Article 17.5(i) -- constitute allegations that United States benefits under the AD Agreement and Article VI of GATT 1994 are being nullified and impaired. Moreover, the United States' request provides information "indicating how" the U.S. benefits under the AD Agreement have been nullified and impaired. Such indications are found in the fourth paragraph of the request, and in particular in the detailed information and summary arguments found in paragraphs 4(a)-(k).
5.67.
Finally, the United States observes that it suggested at the first panel meeting with the parties that Mexico’s Article 17.5 argument appeared to lead to a requirement that Members using the AD Agreement had to demonstrate trade damage in fact. Mexico’s preliminary response was that Article 17.5 does not require submission of a written statement quantifying an "impact" or "effect" of the violations of the AD Agreement. The United States agrees with Mexico. As the Appellate Body stated in European Communities-Bananas in rejecting the European Communities' challenge to the right of the United States to bring claims under the GATT 1994:

"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).

5.68.
In sum, in the view of the United States, all that a party making a written statement under Article 17.5(i) must do is describe how a violation of the Agreement (i.e., nullification or impairment) has taken place. This written statement was clearly made in the request for establishment.
5.69.
The United States recalls that a Member is in compliance with both Article 6.2 of the DSU and Article 17.5 of the AD Agreement when its request for establishment provides "a brief summary of the legal basis of the complaint sufficient to present the problem clearly" (DSU, Article 6.2), and "a written statement... indicating how a benefit..., directly or indirectly, has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded" (AD Agreement, Article 17.5). The request for establishment met these requirements. Therefore, this matter is properly before the Panel under Article 17.4 of the AD Agreement and Article 7 of the DSU.
5.70.
Mexico asked the United States how many alleged "claims" the request for the establishment of a panel by the United States contained and what they were?The United States replied that the claims are set forth in the chapeau to paragraph 4 of the Request for Establishment. These claims are amplified and further described in subparagraphs 4(a)-(k) to the Request for Establishment.60
5.71.
In response to a question from the Panel, the United States said that complaining parties in anti-dumping disputes normally formulate their requests for establishment in a way which identifies their problem(s) with the anti-dumping measure in question, and that this is an approach which normally is sufficient to "present the problem clearly" for purposes of Article 6.2 of the DSU and "indicate how" benefits are being nullified and impaired for purposes of Article 17.5 of the AD Agreement. Thus, such requests for establishment normally will meet the requirements of both of these provisions. This is the case with the request for establishment of the United States in this dispute.
5.72.
In addition, the United States acknowledged that the Appellate Body in Guatemala-Cement stated that Article 17.5 of the AD Agreement contains "additional requirements". The United States did not disagree with this statement. The Appellate Body did not elaborate further on what it meant by this statement than to say that "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". It then concluded that there is "no inconsistency" between Article 6.2 of the DSU and Article 17.5 of the AD Agreement, and that these provisions are "complementary and should be applied together". In the opinion of the United States, it was not clear whether, in the Appellate Body's view, the existence of non-conflicting language in AD Article 17.5 and DSU Article 6.2 meant that anti-dumping complainants do or do not always need to include additional information in their requests for establishment than complainants in non-anti-dumping matters, in order to satisfy the additional requirements of AD Article 17.5. It was possible that, with respect to particular claims in an anti-dumping matter, the simple citation of a provision of the AD Agreement could be sufficient to present a problem clearly and indicate how a benefit is being nullified or impaired. At least the Appellate Body did not rule this out for all circumstances. However, the United States recognized that simple citation will not necessarily always be sufficient.
5.73.
The United States submitted that, in this instance, the United States took special care in formulating its request for establishment to ensure that no matter how AD Article 17.5 and DSU Article 6.2 are interpreted, the request would comply with both of these provisions. The chapeau language in paragraph 4 of the U.S. request identifies the specific Articles in the AD Agreement that the United States maintained were violated by SECOFI’s final anti-dumping measure, and paragraphs 4(a)-(k) provide detailed amplifications which ensure that the request sufficiently describes the U.S. problems with that measure and indicate how a benefit is being nullified or impaired. As such, the request for establishment satisfies the requirements of Article 6.2 of the DSU and Article 17.5 of the AD Agreement, reading these provisions consistently with one another in this case.61
5.74.
Mexico reiterates that Article 17.5 of the AD Agreement is an essential requirement for a panel to be able to examine a matter. In fact, the language of Article 17.5 itself makes it clear that it is the "basis" for examining the matter. Mexico also reiterates that in Guatemala-Cement the Appellate Body made it clear that Article 17.5 of the AD Agreement and Article 6.2 of the DSU are "complementary and should be applied together". It stated that the request for the establishment of a panel must comply with the requirements of Article 6.2 of the DSU as well as Articles 17.4 and 17.5 of the AD Agreement.
5.75.
Mexico submits therefore that requests for establishment concerning anti-dumping matters have further requirements in addition to those of the DSU. In other words, in order to be able to submit a "matter" for a panel to examine it, it is not enough to "identify the specific measures at issue" and "provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly". It is also necessary that the Member make a written statement indicating "how a benefit accruing to it, directly or indirectly, under the Agreement, has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded".
5.76.
Mexico recalls that, at the first meeting of the Panel with the parties, the United States argued in its statement that its panel request "also provided the indication that Article 17.5 of the Anti-Dumping Agreement requires of how a benefit has been nullified or impaired, or that the achieving of the objectives of the Agreement is being impeded. Mexico’s contention that the United States actually had to use the precise terms in Article 17.5, conflicts with the basic GATT tenet, embodied in Articles 3.1 and 3.8 of the DSU, that infringements of obligations under the WTO Agreement prima facie nullify or impair benefits".62 Subsequently, at the same meeting the United States maintained that its request implicitly fulfilled the requirements of Article 17.5.
5.77.
According to Mexico, it may be gathered that: (i) the United States recognizes the obligations imposed on it by Article 17.5 of the AD Agreement; (ii) the United States recognizes that this obligation has to be fulfilled in the request for the establishment of the panels; (iii) the United States maintains that its request implicitly fulfilled this obligation by virtue of the very existence of Articles 3.1 and 3.8 of the DSU; and (iv) the United States considers that having to use the terms of Article 17.5 of the AD Agreement conflicts with Articles 3.1 and 3.8 of the DSU.
5.78.
In the opinion of Mexico, the foregoing arguments by the United States are unsatisfactory. Furthermore, all that they show is that the United States request did not fulfill the obligations of Article 17.5 of the AD Agreement. Besides, the obligations of Article 17.5 cannot be fulfilled implicitly. Mexico's position is supported by the following considerations:

(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.

5.79.
Mexico also asserts that invocation by the United States of Articles 3.1 and 3.8 of the DSU is likewise invalid and groundless for the following reasons, inter alia:

(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".

5.80.
Hence, in Mexico's view, even if the United States had mentioned Article 3.8 of the DSU, this would not have been enough to satisfy the requirements of Article 17.5 of the AD Agreement. To assert otherwise would be tantamount to saying that Article 17.5 is not applicable to the non-violation disputes referred to in Article 26 of the DSU. According to Mexico, the United States agrees that its alleged compliance with Article 17.5(i) requirements was not explicit. Although in its reply a question by Mexico,63 the United States maintains the contrary (there is nothing "implicit" in alleging violations), in its reply to a question by the Panel,64 the United States openly recognizes that, in its opinion, there is no need to comply with the requirements of Article 17.5(i) of the AD Agreement explicitly ("The United States does not believe that an explicit statement that benefits are being nullified or impaired under the AD Agreement is required under Article 17.5(i). To satisfy Article 17.5(i), it is sufficient for the panel request to state a claim of violation of the AD Agreement by an anti-dumping measure").
5.81.
Mexico holds that it is not true that the United States implicitly complied with the requirements of Article 17.5(i). In paragraph 6 of its second submission, the United States asserts that it made a linkage between the specific measures and the various claims using the language in the provisions of the AD Agreement. If this assertion, added to the contention in paragraph 17 of the same second submission of the United States (that the United States provided information "indicating how" its benefits under paragraphs 4(a)-(k) of its request for the establishment of a Panel had been nullified and impaired) were correct, then the United States would at least have had to use the language of Article 17.5(i) for that requirement to be implicitly included in its request for the establishment of a Panel. However, the text of the request shows that the United States never did so. Furthermore, in paragraph 15 of its second submission, the United States contends that there is no need to invoke the "exact words" of Article 17.5(i).
5.82.
In other words, Mexico maintains that, if what the United States says in paragraphs 6 and 17 of its second submission is true, then the United States did not include compliance with Article 17.5(i) in its request. Moreover, if what the United States contends in paragraph 15 of the same submission is correct, then it is not true that the use of the language contained in the provisions of the AD Agreement suffices to fulfill the obligations set forth in Article 6.2 of the DSU. It is not reasonable to argue that using the language of the AD Agreement is sufficient in some cases, and argue that, in other cases, where the United States happens to have committed an error, it is not necessary.
5.83.
Mexico argues that the existence of Articles 3.1 and 3.8 of the DSU and of Article XXIII:1 of the GATT 1994 does not indirectly and automatically ensure fulfilment of the Article 17.5(i) requirements. In its second submission, Mexico explains the inadmissibility of this line of argument by the United States. However, it should also be born in mind that: (a) in its reply to question 22 of Mexico, the United States explicitly recognizes and accepts that Article 3.8 of the DSU "is not sufficient" to meet the requirements of Article 17.5(i), and that (b), unlike other covered agreements, the AD Agreement does not mention Article XXIII because, as stated by the Appellate Body in Guatemala-Cement, the AD Agreement has its own special or additional rules and procedures for the settlement of disputes. Consequently, none of these provisions is sufficient or applicable in meeting the requirements of Article 17.5(i).
5.84.
Mexico maintains that, as in the case of non-fulfilment of Article 6.2 of the DSU mentioned above, Mexico voiced its concerns as to the non-fulfilment of the obligations under Article 17.5 of the AD Agreement to the United States and also to the DSB prior to the establishment of the panel.65 However, once again the United States decided to do nothing in this regard.
5.85.
Mexico concludes that the failure to fulfil the obligations of Article 17.5 of the AD Agreement in the request for the establishment of a panel is an error that cannot be remedied in later stages. Consequently, Mexico submits that the United States' request must be rejected, as was done by the Appellate Body in Guatemala-Cement.
5.86.
In response to a question from the Panel, Mexico stated that the indication as to how a Member's rights have been nullified or impaired, or that the achieving of the objectives of the agreement is being impeded, should be made explicit. The Appellate Body in Guatemala-Cement acknowledged that this was not an obligation to be fulfilled implicitly through compliance with Article 6.2 of the DSU, and made the following observation:

"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).

5.87.
With regard to the second element of Article 17.5 (i) of the AD Agreement, Mexico stated that the United States at no time argued that it was in compliance with the obligation to indicate that the achieving of the objectives of the Agreement was being impeded. In its oral presentation at the first meeting of the Panel with the parties, the United States expressly referred to Articles 3.1 and 3.8 of the DSU in order to substantiate its argument that it did identify the manner in which its benefits accruing under the AD Agreement have been nullified or impaired. In addition, it admitted in its rebuttal that the indication that benefits have been nullified or impaired differs from the indication that the achieving of the objectives of the Agreement has been impeded.67 In Mexico's view, the United States acknowledged that these are different, albeit alternative obligations, and admitted that it did not indicate that the achieving of the objectives of the AD Agreement is being impeded. The United States' argument is therefore confined to the first part of Article 17.5(i), which, as was seen above, was also not complied with. Mexico stated further that, if Article 17.5 were automatically complied with, its provisions would be inoperative. The fact that the indication that "the achieving of the objectives of the Agreement is being impeded" is an alternative to the indication concerning nullification or impairment does not alter the fact that that indication must be made explicitly. In addition, Mexico asserted that, in the present Panel, even assuming arguendo that the presumption contained in Article 3.8 of the DSU could take precedence over the special or additional obligation under Article 17.5 of the AD Agreement, the United States does not make any reference to that Article of the DSU.68
5.88.
In response to the same question from the Panel, the United States asserted that an explicit statement that benefits are being nullified or impaired under the AD Agreement was not required under Article 17.5(i). To satisfy Article 17.5(i), it is sufficient for the request for establishment to state a claim of violation of the AD Agreement by an anti-dumping measure. With respect to the phrase in 17.5(i) "that the achieving of the objectives of the Agreement is being impeded" the United States noted that, during the negotiation of the present AD Agreement in the Uruguay Round, there was a sharp division of views concerning what the "objectives of the Agreement" are or should be. While the preamble of an agreement often provides guidance as to its objectives, that division of views led to omission of any preambular language. However, clearly the objectives of the AD Agreement – or any covered agreement – are impeded if the various provisions of the agreement are not respected. Indeed, from the principle of effective treaty interpretation (ut res magis valeat quam pereat) it follows that whenever the Agreement is violated, ipso facto the achieving of its objectives is impaired. Thus, an allegation (such as that made in the request for establishment) that certain provisions of the AD Agreement are being violated through the application of an anti-dumping measure would be sufficient to comply with this aspect of Article 17.5(i).69

3. Allegedly Improper References to The Mexican Submission In On-Going NAFTA Proceedings

5.89.
Mexico notes that, in its first submission, the United States makes various references to the submission SECOFI presented in a proceeding that is currently being conducted under Chapter 19 of the North American Free Trade Agreement.70 Mexico requests the Panel not to take these references into account. Mexico states that NAFTA is a totally different forum, deriving from the commitments bilaterally established among the parties, in this case Canada, the United States and Mexico. Consequently, its proceedings are governed by different rules from those of WTO panels. Mexico observes that the NAFTA Chapter 19 proceeding is intended to replace the domestic review mechanism that would be carried out by the authorities of the party in which an anti-dumping or countervailing duty investigation had been carried out, and therefore the proceeding and its effects should not be aired before the WTO and still less before a DSB Panel.
5.90.
Mexico recalls that Article 1904 of that Agreement establishes the right to submit to a binational panel a final measure imposed by a party "to determine whether such determination was in accordance with the anti-dumping or countervailing-duty law of the importing party". It also provides that "[t]he anti-dumping or countervailing-duty law consists of the relevant statutes, legislative history, regulations, administrative practice and judicial precedents". Mexico asserts that it is therefore obvious that the arguments which parties present to a binational panel set up under NAFTA Article 1904 are influenced by the legal order applicable to that forum, which is different from the set of WTO rules. Hence, those arguments do not necessarily correspond to those that would be used before this Panel.
5.91.
Mexico also recalls that under NAFTA Article 1904.5, parties may request establishment of a panel on request of a person who would otherwise be entitled under the law of the importing party to commence domestic procedures for judicial review of that final determination. Thus, the rights protected under NAFTA are not necessarily the same as those which this Panel has to examine. In fact, the industry concerned is involved in that forum, which is not the case in WTO proceedings.
5.92.
Mexico states that, therefore, it is not within the competence of the WTO or the DSB to consider such proceedings or the submissions and documents that are, have been or may have been submitted in such a proceeding. The references made by the United States in that connection shall be settled by the panel set up in accordance with the rules and procedures established by NAFTA. Moreover, the United States neglects to mention that the binational panel established under the NAFTA has not yet delivered its decision; therefore, the proceeding to which the United States refers is sub judice and thus pending. It is currently being handled through the appropriate channels and by the relevant bodies. Hence, the information submitted in that forum should not have any evidentiary validity for this panel.
5.93.
Mexico argues that, in addition, this Panel's terms of reference are confined to the AD Agreement and GATT 1994. Any assertions made by the United States concerning the NAFTA proceedings should be rejected. The GATT and WTO have constantly adhered to the practice of not examining other agreements except in cases where they are per se violations of the WTO Agreements.71 Mexico submits that taking a contrary position would entail serious dangers for the relationship between this Organization and other bilateral, plurilateral and multilateral agreements. Is a panel empowered to analyse a Member's statements made in the context of the Maastricht Agreement? Can a WTO Panel examine a Member's statements made in an APEC form and base its conclusions on such statements? Can draft decisions of the LAIA be the subject of a panel? The reply to all these questions can only be "no". Otherwise, the Panel would be going beyond its terms of reference and applying the WTO agreements outside their scope. Accordingly, Mexico requests the Panel to disregard the statements made by the United States that are based on the proceeding that is taking place under the NAFTA.
5.94.
The United States disputes Mexico's argument that references by the United States to Mexico’s submissions in the parallel NAFTA Chapter 19 proceeding should be excluded from consideration by the Panel. In the United States' view, Mexico's objections, which seek to exclude the receipt by this Panel of evidence of SECOFI statements and documents produced in the NAFTA proceedings, are without merit. The Panel should accept and give significant weight to this relevant evidence.
5.95.
The United States notes that the NAFTA Chapter 19 panel will bereviewing SECOFI’s final anti-dumping measure regarding HFCS from the United States, which is also being challenged in this WTO proceeding.72 Many of the issues being challenged in the two proceedings are identical, involve the same law (the AD Agreement), and are based upon the same administrative record compiled by SECOFI during the anti-dumping investigation. Because of the identity of issues in the two parallel proceedings, the United States has cited both to the administrative record in that proceeding as well as to the main public brief filed by SECOFI, in an effort to aid the Panel in understanding certain legal arguments in this case.
5.96.
The United States observes that there are two types of NAFTA-related evidence that the United States has proffered to the Panel in this proceeding. First, citations to SECOFI’s administrative record, as compiled by SECOFI and filed with the NAFTA panel, represent references to the contemporaneous record as developed by the investigating authority, during the anti-dumping investigation.73 This is evidence which the Panel may evaluate, pursuant to Article 17.6(i), in determining whether SECOFI’s establishment of the facts, during the anti-dumping investigation, was proper, and its evaluation of them unbiased and objective. Indeed, Mexico has likewise cited to documents from SECOFI’s administrative record in support of its arguments. Both the United States and Mexico have attached these documents to their respective submissions.74 As a result, they are part of the Panel’s record in this WTO dispute. Mexico does not appear to be disputing the United States’ inclusion of these documents.75
5.97.
The United States observes further that the second type of NAFTA-related evidence consists of statements made in SECOFI’s public brief filed in the NAFTA proceeding.76 These statements are SECOFI’s post-investigation justifications of its positions before the NAFTA panel. Therefore, they do not represent evidence which the Panel can or may consider in evaluating SECOFI’s factual determinations, pursuant to Article 17.6(i). Instead, the United States offers them as authentic statements (and, in the United States' view, admissions) of the Government of Mexico which are relevant to demonstrate inconsistencies between Mexico’s position on the same issues in this dispute and in the NAFTA dispute. Specifically, the excerpts from SECOFI’s NAFTA brief which the United States included address SECOFI’s arguments in that forum pertaining to its initiation of this investigation under Article 5 and its threat of injury analysis under Article 3 of the AD Agreement.77
5.98.
The United States contends that Mexico cites to no WTO rules or jurisprudence in support of its position that all NAFTA evidence should be excluded from WTO proceedings and asserted that there is none. In fact, the Appellate Body in interpreting the fact-finding role of panels has made it clear that "[i]t is particularly within the province and the authority of a panel... to ascertain the acceptability and relevancy of information and advice received, and to decide what weight to ascribe to that information or advice or to conclude that no weight at all should be given to what has been received".78 According to the United States, the issue, therefore, is not whether the Panel may accept the NAFTA evidence proffered by the United States. There is no question that it has the power to do so pursuant to Article 13 of the DSU as set forth in the United States-Shrimp decision. Rather, the issue is whether the Panel should do so, and how much weight the Panel should give to this evidence.79 In the view of the United States, the Panel should accept and give considerable weight to both types of evidence proffered by the United States.
5.99.
The United States contends that there is no question that the documents concerning the first type of NAFTA-related evidence are authentic. Indeed, Mexico itself has attached to its first submission many documents from SECOFI’s administrative record. These documents were generated during the course of SECOFI’s anti-dumping proceeding and were subsequently compiled and filed with the NAFTA Chapter 19 panel, in accordance with its rules. In fact, neither the United States nor Mexico is objecting to inclusion of these documents in this proceeding, with the exceptions noted in notes30 and 31 of the U.S. second submission. The Panel may therefore give full weight to the evidence in these documents, when conducting its review pursuant to Article 17.6(i).
5.100.
The United States maintains that the second type of NAFTA-related evidence -- the admissions of SECOFI in its brief before the Chapter 19 panel -- is also highly relevant. In its brief, SECOFI argued that it was not obligated to consider any Article 3.4 factors regarding injury – a position different from that which it is taking in this proceeding.80 The Panel may take into account these discrepancies in considering what weight to accord Mexico’s arguments in this proceeding regarding these issues.
5.101.
The United States contends that none of the arguments made by Mexico refute the WTO rules and jurisprudence permitting the acceptance and consideration of the evidence proffered by the United States. While the United States views all of these arguments as irrelevant on this basis, it makes the following comments:

(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.

5.102.
The United States concludes that Mexico was aware when it undertook its commitments in the NAFTA of the potential for parallel WTO and Chapter 19 dispute settlement proceedings on the same issues. Its arguments that the Panel should discard the views Mexico expresses in the NAFTA proceeding have no basis, and the Panel should reject them.
5.103.
In response to a question from the Panel, the United States asserted that the Panel may take into account inconsistencies between Mexico’s arguments made in its submissions in this proceeding in contrast to its submissions in the NAFTA proceeding in considering what weight to accord Mexico’s arguments in this proceeding. The Panel may conclude that such inconsistencies undermine the credibility of Mexico’s arguments in this proceeding. For example, in its submission to the NAFTA panel, SECOFI argued that an evaluation of the economic factors and indices in Article 3.4 is not relevant to a determination of threat of material injury. Yet, in its first submission before this Panel, Mexico argued the opposite – that SECOFI’s final determination of threat of injury was based on an assessment of the various economic factors set forth in Article 3.4 as well as related provisions. The conclusion which the Panel should draw from this inconsistency is that Mexico’s argument before this Panel on this point is post hoc rationalization and not to be accorded serious weight.86
5.104.
Mexico reiterates its position that WTO and NAFTA panel proceedings differ significantly in a number of ways. Mexico notes first that the subject or matter for review by a binational panel under Chapter 19 of NAFTA is different from a matter submitted to a WTO panel. Under NAFTA Chapter 19, requests for review may concern:

(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

5.105.
Mexico also notes that the terms of reference of panels established under NAFTA Chapter 19 are completely different from those of a Panel set up in the WTO. The terms of reference of a NAFTA Chapter 19 panel involve consideration of the conformity of a final determination by the investigating authority in the light of the "relevant statutes, legislative history, regulations, administrative practice and judicial precedents, to the extent that a court of the importing Party would rely on such materials in reviewing a final determination of the competent investigating authority".89 In contrast, the terms of reference of a WTO Panel are confined to the consideration of a specific measure at issue in the light of specific provisions of the covered WTO Agreements, as set forth in the request for establishment of the panel or as agreed by the parties, as the case may be.
5.106.
Mexico notes next that Mexico's Foreign Trade Act recognizes the binding nature of the WTO agreements. Mexico observes that, under the Mexican Constitution, the WTO Agreements, as international treaties, were incorporated into national legislation upon ratification. For this reason, if there are any inconsistencies between the WTO Agreements and the Foreign Trade Act, they may be raised before the Mexican courts. However, Mexico points out that the various domestic anti-dumping laws of WTO Members, while being compatible with the AD Agreement, are usually much more detailed and specific than the AD Agreement itself. This is the case with the Mexican Foreign Trade Act and the regulations thereto.
5.107.
In Mexico's view, the above implies that, even though the AD Agreement forms part of the Mexican legislation under which a NAFTA panel examines a final anti-dumping determination, the review carried out by a NAFTA Chapter 19 panel is much broader, since it goes beyond the provisions of the AD Agreement in order to analyse the conformity of the determination with the more detailed provisions of the Foreign Trade Act and the regulations thereto, among others, in accordance with the provisions of NAFTA Article 1904.2
5.108.
Mexico further notes that the standard of review for a NAFTA Chapter 19 panel also differs from the standard of review for a WTO panel in anti-dumping cases. In the case of NAFTA Chapter 19, and in accordance with Annex 1911 thereto, the standard of review for Mexico is governed by the provisions of Article 238 of the Federal Fiscal Code,90 while in the WTO reference must be made to the requirements of Article 17.6 of the AD Agreement.
5.109.
Mexico also reiterates that, pursuant to NAFTA Article 1904.5, the parties that may request the establishment of a panel are those which would otherwise be entitled to commence domestic procedures for judicial review of a final determination. In other words, this is a dispute settlement mechanism between private parties (domestic producers, importers and exporters) and the Government (investigating authority) of the importing Party (private party – State). At the first meeting of the Panel with the parties, the United States accepted that its Government is not a party to the proceedings currently being aired before NAFTA.91
5.110.
Mexico concludes that, if the subject of the dispute is different, if the terms of reference of the NAFTA Chapter 19 panels differ from those of WTO panels, if the standard of review is governed by different provisions and has a different scope, and if the parties in each of these proceedings are not the same, then it is clear that Mexico will put forward neither the same arguments nor the same information. Mexico observes that what the United States refers to as a public position on the part of Mexico are the arguments put forward against a number of exporters and importers. It is not a line of argument intended to demonstrate to another Member that Mexico's final measure is consistent with the requirements of the AD Agreement.
5.111.
Mexico asserts that the two fora are separate and independent, for which reason each of them should be evaluated in its own context. A WTO panel could never formulate its findings on the basis of a proceeding that has nothing to do with the WTO, for the simple reason that this cannot form part of its terms of reference. Furthermore, as this is the first case introduced simultaneously in both these fora (WTO and NAFTA), the objections raised by Mexico must be examined with particular care, given the weighty implications of this twofold action instituted by the United States.
5.112.
Mexico submits that the panel must also take particular account of the references made and information provided by the United States concerning the submission presented by Mexico in a proceeding which is pending before another panel in a forum different from the WTO. Not only does this affect Mexico's rights under the WTO Agreements (the DSU in particular), because it is not covered by the terms of reference laid down for this WTO proceeding, but it may also seriously affect Mexico's interests before the binational panel established under NAFTA, which has not yet issued its decision.
5.113.
Mexico argues finally that, in view of the reasons set out above, the Panel should totally disregard all the references made and exhibits submitted by the United States in connection with the submission presented by Mexico in the proceeding pending before the binational panel established under NAFTA Chapter 19.

4. Allegedly Improper References to Consultations

5.114.
Mexico notes that the United States' first submission makes various references to the consultations held between Mexico and the United States.92 According to Mexico, the United States makes two general statements:

(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

5.115.
Mexico contends that, apart from some factual statements, everything the United States asserts that Mexico said is false or, in the best of cases, an incorrect interpretation. In Mexico's view, the United States had an idea of what it thought Mexico would say and on that basis framed its questions. However, as the Mexican replies were not what the United States wanted, the United States adapted the replies to its needs, in the belief that, as these alleged replies matched its questions, it would not be difficult for the Panel to believe these assertions; hence the utility of submitting the questions as evidence of what Mexico replied.
5.116.
Mexico contends further that the fact that the United States has annexed a list of questions raised at the consultation meeting does not in any way demonstrate that Mexico replied to the questions in the way asserted by the United States. Such list should not be used by the United States to "put words in Mexico's mouth". That is, the United States cannot seek to have the Panel accept its assertions as evidence of what Mexico said during the consultations. Accordingly, Mexico requests that the Panel should not take into account the United States assertions of what it supposedly said during the consultations.
5.117.
Mexico argues that an issue of even greater sensitivity is that the United States seeks to bring before the Panel information provided in consultations that are not part of the present dispute; in particular, the questions put to Mexico on 8 October 1997. This not only lacks any basis but is also wholly irrational. The 1997 consultations were carried out when Mexico had not even imposed the definitive measure. The WTO Secretariat itself recognized that these were two different cases, which is why it gave the second case a different document symbol.94
5.118.
Mexico asserts that the United States' reference to Korea-Alcoholic Beverages is not even applicable to this case, since what was claimed in that case was the violation of the confidentiality provisions of Article 4.6 of the DSU.95 In this dispute, however, the basic problem lies in the fact that what the United States asserts Mexico said is wrong and has no basis whatsoever.
5.119.
Mexico also asserts that, without prejudice to the above, in the present dispute the United States is clearly violating its confidentiality obligations by having transmitted its submission to third parties in this dispute, Mauritius and Jamaica. The confidentiality obligation of Article 4.6 "requires parties not to disclose information obtained in them to parties not participating in the consultations" (emphasis added by Mexico). To be able to use this information, even assuming it were correct, both Jamaica and Mauritius would have had to be joined in the consultations. Since that was not the case, the information should not have been transmitted to them.
5.120.
In Mexico's view, this is not at all to say that Mexico wishes to contest the right of those countries as third parties to this dispute to have all the information supplied by the parties in their first submissions. However, since this is a proceeding in which third parties did not participate in the consultations, the United States should not at any time have referred to those consultations in its first submission. Accordingly, this strengthens the view that this information must not be taken into account, and therefore the Panel should disregard any references made to the consultations.
5.121.
The United States disputes Mexico's argument that the Panel cannot consider the United States' statements about what occurred at the 12 June 1998 consultations. While there may be issues of fact as to what was said at the consultations, the Panel should reject Mexico’s claim that it is incompetent to consider evidentiary references to the consultations and decide what weight to give them.
5.122.
The United States notes that neither the DSU nor the Working Procedures preclude parties from submitting information to panels regarding what occurred at the consultations. Mexico also cites no authority for the position it takes. If the Panel considers it important to resolve issues of fact regarding what occurred at consultations, the Panel has discretion to probe the issue with the parties, either in written or oral questions. In Korea-DRAMS, for example, the panel asked the parties written questions in order to resolve issues of fact relevant to events that occurred at the consultations.96
5.123.
According to the United States, Mexico argues that the Korea-Alcoholic Beverages panel report is "not even applicable to this case, since what was claimed in that case was the violation of the confidentiality provisions of Article 4.6 of the DSU". Mexico then appears to argue just that in asserting that the United States breached its confidentiality obligation by transmitting its first submission, including references to the consultations contained therein, to Mauritius and Jamaica, the third parties in this dispute. The United States asserts that, contrary to Mexico’s characterizations, Korea-Alcoholic Beverages is relevant, because the panel there addressed the substantive need for information acquired by parties during the consultations to be able to be disclosed by them in dispute settlement proceedings. The Korea-Alcoholic Beverages panel stated, "it would seriously hamper the dispute settlement process if the information acquired during consultations could not subsequently be used by any party in the ensuing proceedings".97
5.124.
The United States further argues that the Appellate Body in India-Patents emphasized that fact-finding is a major function of the consultation process:

"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).

5.125.
In the view of the United States, Mexico’s "top-secret" approach to consultations is inconsistent with these panel and Appellate Body rulings. It is difficult to imagine how a defending party can be required under due process notions to freely disclose facts in consultations and then seek to prohibit the complaining party from using the information during panel proceedings. Moreover, the facts that are obtained through the consultation process are in many instances those which are provided in oral responses to written questions. While it would have been more helpful had Mexico provided written answers to these questions as requested by the United States, the United States should not be prohibited from using these oral responses. According to Mexico’s unsupported logic, the United States would not be able to use written answers provided by Mexico in response to U.S. questions in a panel proceeding so long as these answers were requested during the consultation process.
5.126.
According to the United States, the inappropriateness of Mexico’s efforts to limit the use of facts obtained in consultations is particularly evident in its argument that third parties should not receive access to facts and information provided during consultations. This position is inconsistent with the reports cited above. It is also inconsistent with the mandate in Article 10.1 of the DSU that third party interests "be fully taken into account". Moreover, the Working Procedures of the Panel facilitate this by instructing parties to serve their submissions on third parties and allow third parties to be present "during the entirety of the session".99 The United States notes that third parties, like parties to panel proceedings, are required to maintain the confidentiality of the proceedings.
5.127.
The United States observes that it is not entirely clear what Mexico is arguing regarding the written questions from the 8 October 1997 consultations concerning SECOFI’s provisional measure.100 The United States did not submit to the Panel the written questions from the 8 October 1997 to which the "incorporation by reference" statement in the written questions for the 12 June 1998 consultations refers. Therefore, it is unclear how the panel could consider at all, let alone attach any weight to, a document that is not at its disposal. In response to a question put by the Panel, the United States maintains that regardless of how Mexico’s argument may be labelled, the relief that Mexico appears to be seeking is the Panel’s blanket exclusion from the record and/or its consideration in this proceeding of any and all information obtained by the United States from Mexico during the course of the consultations. Such a result is at odds with the DSU’s goals of resolving disputes and the notion of due process, stressed by the Appellate Body in the India-Patents dispute. The Korea-Alcoholic Beverages Panel recognized that it is imperative for panel proceedings not to be hampered by parties’ inability to make known information about what occurred at the consultations.101 That panel’s reasoning is equally applicable to the question of whether the United States has breached its Article 4.6 requirements in this dispute by providing the entirety of its first submission to the third parties, including references to information obtained at the consultations. Article 18.2 of the DSU provides that "[w]ritten submissions to the panel or the Appellate Body shall be treated as confidential", and paragraph 3 of the Appendix 3 Working Procedures of the DSU provides that "the documents submitted [to the Panel] shall be kept confidential". Nothing in these provisions exempts third parties from their confidentiality obligations. DSU Article 10.3 requires that the third parties "shall receive the submissions of the parties to the dispute to the first meeting of the panel". This right is not qualified to permit receipt of only those portions of the submissions which refer to information not obtained during consultations.102
5.128.
The United States concludes that it was appropriate for it to provide its full first submission to the third parties, and that the United States has not breached its confidentiality obligation by so doing. The United States also notes that, to the extent that Mexico is requesting the Panel to make finding and conclusions on this point, this claim is not within the Panel’s terms of reference.
5.129.
Mexico asked the United States whether its recognition that there may be genuine differences in the recollection of what was said in the consultations of 12 June 1998 meant that the United States recognized that the references to the consultations mentioned may be incorrect?
5.130.
The United States noted that Mexico had declined to provide written answers to the questions the United States made during the consultations. Accordingly, there is no agreed written record of what Mexico said during the consultations. The United States recognizes that the recollection of parties can differ as to what occurred in consultations held some time before panel proceedings. It is the recollection of the United States delegation, as supported by the actual questions posed at the consultations, that the Mexican delegation provided the information in response to these questions as noted earlier by the United States. Moreover, the United States' references to the consultation for the purposes of its Article 6.2 argument are not dependent on the answers provided by the Mexican delegation. The mere posing of the questions is sufficient to provide Mexico with notice and information concerning the various "problems" that the United States had with the Mexican final anti-dumping order. In its first submission, the United States used the statements Mexico provided at the consultation for the limited purpose of anticipating Mexico’s arguments in this proceeding.103
5.131.
Mexico also asked the United States what, in its opinion, the confidentiality obligation referred to in Article 4.6 of the DSU consists of? The United States replied that it was of the view that facts provided in response to questions or in statements made during consultations are not immune from disclosure and use during subsequent related dispute settlement proceedings. The only exception to this would involve the subsequent disclosure of offers of settlement made and discussed during the course of consultations. Such offers of settlement should not be disclosed or used in further proceedings under the DSU or in any other way. Parties should be encouraged to use consultations as a vehicle for the exploration of various ways of achieving a settlement of their differences. Thus, a distinction needs to be made between such settlement discussions and the collection and exchange of factual information during consultations. In sum, the term "confidential" in DSU Article 4.6 would (1) limit the attendees of the consultation -- only the delegations of the parties to the proceedings and third parties admitted pursuant to DSU Article 4.11; (2) prohibit the disclosure of any settlement offers made during the consultations; and (3) limit the use of facts obtained during consultations to use in further panel, AB, and related arbitration proceedings.104
5.132.
Mexico reiterates that its objections to the references made by the United States to what the United States asserts Mexico said in the consultations concern two aspects: first, the United States' assertions are false; and second, in fulfilling its obligations towards third parties, the United States violated its obligation to maintain confidentiality.
5.133.
Mexico does not dispute that the United States had an obligation to present its first submission in its entirety to third parties. However, as the third parties were not present at the consultations, the references made by the United States in this connection are inconsistent with the obligation placed upon it by Article 4.6 of the DSU. Mexico asserts that it is concerned that it may become generalized WTO practice that parties freely disclose information exchanged during consultations. In the context of consultations, the standards observed by parties are relatively flexible,105 the aim being that parties are unrestrained to reach a mutually satisfactory solution. However, although consultations constitute an "informal" stage between the parties, the requirements applicable to participation by third parties are much stricter than in a panel proceeding. Specifically, in order to be entitled to join in the consultations, a Member must have a substantial trade interest, and its request may be rejected by a party to the consultations. Conversely, for a Member to participate in panel proceedings as a third party, it need only have a substantial interest and notify that interest to the Dispute Settlement Body, with no possibility of rejection.
5.134.
Mexico also asserts that the flexibility that prevails between the parties to consultations enables them to express themselves freely on the measures at issue or on possible proposed solutions. There is no doubt that there are some aspects of the consultations which only the parties and Members with a substantial trade interest, as demonstrated to the parties, are entitled to know.
5.135.
Mexico notes that, irrespective of the fact that the references made by the United States to what Mexico supposedly said during the consultations are false, it has no wish to see exposed arguments that it might have put forward, or proposals it might have made in these or in other consultations, because this could reveal information which Mexico wishes to keep confidential or weaken its negotiating position vis-à-vis other Members. In any event, Mexico reiterates its objection to the United States seeking to prove that Mexico said something, basing its assertions on some questions that the United States itself drew up.
5.136.
Mexico disputes the argument by the United States that Mexico fails to cite an authority in support of its position that the Panel should disregard any references to the consultations. An argument does not need to be based on a precedent in jurisprudence to be valid. Apart from this, the United States' statements with respect to what Mexico allegedly said in the consultations do not conform to the basic principle of procedural law that "the burden of proof lies with the party making the assertion".

5. References to The Provisional Measure

5.137.
Mexico recalls that the United States requests the Panel to find that SECOFI's application of provisional anti-dumping measures on imports of HFCS from the United States was inconsistent with Article 7.4 of the AD Agreement. In turn, Mexico requests the Panel to reject all references by the United States to the provisional measure. Mexico argues that, because the United States did not identify the provisional measure as the "specific measure at issue", the provisional measure lies outside the Panel's terms of reference. In this regard, Mexico cites the AB's statement in Guatemala-Cement:

"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".

5.138.
Mexico observes that both Article 7 and Article 17.4 of the AD Agreement use the expression "provisional measure(s)". In view of what was said by the Appellate Body in Guatemala-Cement, it is clear that the provisional measure is not a "preceding action" but rather a "measure" per se. This is sufficient to determine that the Unites States did not identify the provisional measure as a specific measure at issue.
5.139.
Mexico holds that the terms of reference of the Panel are delimited by the actual United States' request. If that request does not challenge the provisional measures, the Panel cannot examine such measures, because they lie outside its terms of reference.
5.140.
According to Mexico, the United States acknowledges that it had already requested consultations with Mexico concerning the provisional anti-dumping measure (to use the words of the request for establishment) and decided not to pursue them. Thus, the present dispute (WT/DS132/2) is distinct from the earlier one (WT/DS101/1). Mexico contends that, if the "specific measure at issue" is one of the essential elements of the "matter" referred to by Article 7 of the DSU and Article 17.4 of the AD Agreement, it is clear that the United States could not have properly referred the "matter" relating to the provisional anti-dumping measures. Therefore, Mexico requests the Panel to reject all references to the provisional measure.
5.141.
The United States disputes Mexico's argument that the provisional measure was not identified as a "specific measure at issue" in the United States' request for establishment. The United States contends that Mexico’s reading of Article 17.4 of the AD Agreement -- on which its Article 7.4 argument is based -- is incorrect. Article 17.4 allows for challenges to provisional measures only where the complaining party alleges that the provisional measures were taken in violation of Article 7.1 of the AD Agreement. The United States recalls that Article 17.4 states, inter alia:

"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).

5.142.
The United States notes that Article 17.4, therefore, limits challenges to provisional measures only where the claim involves a violation of Article 7.1 (and the provisional measure has a significant impact). Hence, when a complaining Member considers that another Member violated Article 7.4 by applying provisional measures beyond the time limits therein, it can only refer a matter to the DSB under Article 17.4 "if final action has been taken by the administering authorities of the importing Member to levy definitive anti-dumping duties or to accept price undertakings". Read together with Article 6.2 of the DSU, the only "specific measure at issue" which can be identified is either a final action to levy anti-dumping duties or an undertaking.
5.143.
The United States submits that not only is the text of Article 17.4 clear in what it mandates, the structure is also logical. Violations of Article 7.4 do not occur at but rather after the imposition of provisional measures. Thus, a Member challenging the application of provisional measures during the time between the date on which the violation commenced and the date of the final measure would logically only know at the time of the final measure (and identify that measure as the "specific measure at issue" under Article 6.2 of the DSU).
5.144.
In the view of the United States, Mexico's argument that the Panel should reject all references to the provisional measure appears to misunderstand the nature of the United States' position. The United States is presenting the violation of Article 7 not as a "measure" but rather as one of its "legal claims" related to the measure at issue in this dispute -- SECOFI’s final anti-dumping measure. SECOFI’s application of provisional measures beyond six months, from 26 December 1997 to 23 January 1998, violated Article 7.4 of the AD Agreement. This legal claim was raised in paragraph 4 of the Request for Establishment (as further articulated in paragraph 4(g)) and therefore remains properly before the Panel.
5.145.
Mexico asked the United States whether it considered that it had identified only one "final anti-dumping measure" as "the specific measure at issue", and if so, whether the provisional measure formed part of the "actions" preceding the final anti-dumping measure. The United States replied that it did not understand what Mexico meant by the term "actions". One of the "claims" asserted by the United States in its request includes Article 7 of the AD Agreement relating to provisional measures as further articulated in paragraph 4(g) of the Request for Establishment.108
5.146.
Mexico notes that the United States' request for establishment makes reference to "SECOFI's final anti-dumping measure". The request is worded in the singular, which clearly shows that the United States only challenged one specific measure, at issue, namely the final anti-dumping measure. Mexico recalls that the report of the Appellate Body in Guatemala-Cement stated that:

" … 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.

5.147.
Mexico also recalls that the Appellate Body in Guatemala-Cement ruled that the requirement to identify a specific anti-dumping measure at issue in a request for establishment in no way limits the nature of the claims that may be brought.110 Mexico concludes that any claims that may be brought must concern a specific measure at issue. Since specific measures at issue and actions are mutually exclusive, claims concerning a final anti-dumping measure could address any type of action carried out during the investigation, except for the provisional anti-dumping measure or a price undertaking. In order for a panel to be able to investigate a provisional anti-dumping measure, that measure must have been identified as a specific measure at issue.
5.148.
In addition, Mexico states that in the hypothetical event that the United States had identified the provisional measure as a specific measure at issue, according to what the United States said in Guatemala-Cement, that country would be obliged, under Article 17.4 of the DSU, to demonstrate that the measure in question had a "significant impact", which it did not do in its request for establishment of a panel. Mexico recalls that in Guatemala-Cement the United States made the following statement:

"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

5.149.
Mexico asserts that, if the United States had challenged the provisional anti‑dumping measure, as it alleges in its submissions to the panel, the United States' request for establishment of a panel would have had to:

(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.

C. ALLEGED VIOLATIONS IN THE INITIATION OF THE INVESTIGATION

1. Alleged Insufficiency of the Information in the Application (Claims under Article 5.2)

5.150.
The United States argues that SECOFI did not have sufficient evidence of threat of material injury to the Mexican sugar industry from allegedly dumped imports of HFCS from the United States, or of a causal link between the allegedly dumped imports and the alleged threat, to justify initiation of the investigation. Contrary to the requirements of Article 5.2 of the AD Agreement, the application filed by the Sugar Chamber requesting the initiation of an anti-dumping investigation did not contain sufficient evidence of threat of material injury, because it lacked sufficient information regarding the likely impact on the domestic industry from allegedly dumped HFCS imports and the attendant relevant economic factors and indices bearing on the likely state of the domestic industry. In addition, the application did not contain sufficient evidence regarding the causal link between the allegedly dumped imports and the alleged threat of injury. However, SECOFI did not reject the application under Article 5.8 and decline to initiate the investigation. Nor did SECOFI independently gather sufficient evidence to justify initiation of the investigation or request that the Sugar Chamber submit additional information. Instead, contrary to Articles 5.2, 5.3, and 5.8 of the AD Agreement, SECOFI accepted the application and initiated the investigation in the absence of sufficient evidence.
5.151.
The United States describes the facts relating to the filing of the application as follows. HFCS is a sweetener normally sold in liquid form in two concentrations of fructose: grade 42 and grade 55. U.S. exporters began exporting HFCS to Mexico in the early 1990s. In Mexico, as elsewhere, HFCS is used extensively by the beverage industry. On 14 January 1997, the Sugar Chamber filed its application for an anti-dumping investigation with SECOFI complaining that imports of HFCS from the United States were being dumped in Mexico and threatening the Mexican sugar industry with material injury. The application followed the format outlined by SECOFI in its "Application Form for Manufacturing Companies Requesting Initiation of Investigation for Price Discrimination Practices" (the application form).112 The application form directed that "all questions, without exception, must be answered. If the answer... is not applicable, use 'n/a', if it is not available, use 'n/d' ".113
5.152.
According to the United States, the application stated that the Sugar Chamber represented all but two of the 61 sugar mills in Mexico, or 98 per cent of Mexican sugar production.114 In addition, the application alleged that, in the U.S. beverage industry, HFCS had replaced sugar as a sweetener; that the U.S. HFCS producers had installed capacity and increased production, specifically for the purpose of exporting to Mexico; that U.S. HFCS exports had increased dramatically in the previous three years; and that the demand for HFCS would grow in tandem with Mexican population growth.115 The application therefore concluded that the Mexican sugar industry was threatened with material injury, and would have to reduce production and sales by 50 per cent, impairing job generation in the Mexican countryside.116
5.153.
The United States holds that the application further asserted that the goal of U.S. HFCS producers was to "seize the consumer market for sugar", and that the introduction of HFCS prevented sugar from reaching its maximum pricelevel, also exerting a downward pressureon sugar prices that nullified the market forces leading to an increase in sugar prices.117 It was necessary for sugar to be at its maximum price level in order to service the industry’s debt and meet investment goals.
5.154.
The United States maintains that the application also stated that it was not necessary to provide economic indicators, such as value and volume of the product under investigation (HFCS), because "there is no domestic production" (emphasis added by the United States).118 Later, the application stated again that production of HFCS in Mexico was "non-existent",119 and, later still, "practically non-existent".120 Separately, the application noted that Arancia CPC, S.A. (Arancia, a Mexican majority owned company formed in affiliation with CPC International) was expected to begin operations in the last quarter of 1996, and that Almidones Mexicanos, S.A. de C.V. (Almex, a Mexican joint venture whose shares are owned equally by Archer Daniels Midland Company (ADM) and A.E. Staley) had completed construction of a "distribution" facility in Guadalajara, Mexico.121
5.155.
According to the United States, the exhibits to the Sugar Chamber’s application, however, contain articles which indicate that there was Mexican HFCS production, as early as 1995. For example, a conference presentation by Stephen Vuilleumier "World Outlook for High Fructose Syrup to 2000", World Sugar and Sweetener Conference, 26-29 March 1996, is referenced on page 22 (footnote 10) of the application, wherein Mr. Vuilleumier reports that Almex had begun production. In addition, there is a 21 March 1996 article in Milling & Baking News, which refers to a statement by Mr. Vieulleumeir at a sweetener colloquium that Almex would have production of HFCS at its Guadalajara plant in 1996 (also footnote 10). Further referenced is "Corn Sweeteners: Recent Developments and Future Prospects", prepared by Peter Buzzanell for a "Azucar ‘95 Foro Internacional" conference in Guadalajara on 10 October 1995, in which the author indicates that there has been "negligible" Mexican HFCS production (page 37, footnote 25 of the application). In addition, Mr. Vuilleumier’s presentation at a London sweetener symposium (February 1996) is annexed and indicates that Almex began production in October 1995 and that Arancia was expected to start production in late 1996 (page 28, footnote 19).122
5.156.
In the view of the United States, in a number of instances, the Sugar Chamber failed to provide information in its application as required by SECOFI’s application form: i) information on damage to the domestic industry, threat of damage, and the causal relationship between imports and damage or threat of damage to the domestic industry (section 4.5); ii) information regarding principal clients (section 4.12) and data regarding clients lost to HFCS (section 4.13 (appendix 4.3v)) and information regarding sales policies (section 4.14 (appendix 4.14)).123 The Sugar Chamber simply deemed this information "N/A -- not applicable".
5.157.
The United States maintains that, as to the application form’s request for information from sugar mills regarding production, sales, inventory, and employment, the response from the Sugar Chamber was: "not appropriate because there is no domestic production of HFCS" (section 4.17).124
5.158.
The United States also maintains that, at the 12 June 1998 consultations between the United States and Mexico, the United States asked Mexico in writing whether the Sugar Chamber had provided SECOFI with any information prior to initiation other than that contained in the application. Mexico replied that SECOFI obtained no information prior to initiation from the Sugar Chamber other than that which was contained in the Sugar Chamber’s application.125
5.159.
The United States notes that, on 27 February 1997, SECOFI published a notice in the Diario Oficial announcing the initiation of an anti-dumping investigation based on the Sugar Chamber’s application.126 The notice established an investigation period of 1 January - 31 December 1996. In the third paragraph and in the section of the initiation notice entitled "product description" SECOFI stated:

"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).

5.160.
According to the United States, in that notice SECOFI indicated that sugar and HFCS had a similar [chemical] composition since both contain a high concentration of glucose and fructose.128 The section of the initiation notice entitled "Domestic Production" discusses Mexican sugar producers only.129 The section of the initiation notice entitled "Importers and Exporters" identifies Almex and Arancia as importers of HFCS.130 Nowhere does the initiation notice conclude that Almex and Arancia were also domestic HFCS producers.131 SECOFI determined that the Sugar Chamber had the legal capacity to request an anti-dumping investigation.132
5.161.
The United States holds that the initiation notice repeats the Sugar Chamber’s assertion that growing HFCS imports from the United States under unfair conditions were threatening to cause injury to the national sugar industry.133 As the HFCS imports were claimed to be particularly affecting the industrial segment of the sugar industry (soft drink bottlers were buying more HFCS than had previously been the case), the initiation notice states that it considered the Sugar Chamber’s threat of injury allegations in respect only of the industrial segment of the industry. To do this, the notice states that SECOFI considered only industrial consumption of sugar, and examined the increase in HFCS imports in respect of these isolated consumption figures.134 The notice also discusses the recent increase in U.S. producers’ plant capacity, their high export potential, and publications from the United States Department of Agriculture ("USDA") which reported that a significant part of U.S. HFCS exports were destined for Mexico.135
5.162.
The United States also holds that, in its preliminary determination, SECOFI responds to the U.S. industry’s objections regarding SECOFI’s determination that the Sugar Chamber had standing. The preliminary determination first explains that the Sugar Chamber provided the information that was reasonably available to it regarding domestic production of HFCS.136 It then states that the exhibit annexed to the Sugar Chamber’s application entitled "Estimated Production Capacity of HFCS 42 and 55" contains only an estimate of "installed capacity" and "cannot be used to determine the existence of domestic production".137 Finally, paragraph 62(B) of the Preliminary Determination states that Almex and Arancia themselves stated that "they are producers of high fructose corn syrup" and "are themselves the principal importers".138 It then concludes that: "Therefore the Department [SECOFI] determined that for purposes of the request for the initiation of an investigation, there was no domestic production of an identical good".139
5.163.
The United States maintains that, at the 12 June 1998 consultations between the United States and Mexico, the United States asked Mexico in writing in which documents Almex and Arancia had made the statements SECOFI referenced in paragraph 62(B) of the Preliminary Determination. Mexico responded that the statements of Almex and Arancia referred to in paragraph 62(B) of SECOFI’s Preliminary Determination are contained in the questionnaire responses that Almex and Arancia filed with SECOFI after initiation.140 SECOFI’s record also contains no representations by Almex and Arancia prior to their respective 22 April 1997 and 15 April 1997 responses to SECOFI’s questionnaire.
5.164.
According to the United States, in its final determination, SECOFI states that it established standing in its preliminary determination: "The Ministry established that the petitioner had the legal capacity to petition for the initiation of an anti-dumping investigation in paragraph 62 of the Preliminary Determination concluding the meritorious phase of the investigation".141 The final determination then states something different a few paragraphs later, namely that SECOFI knew before initiation from the Sugar Chamber’s application and from data from the Mexican Trade Information System that Almex and Arancia were the only domestic producers of HFCS, and, on that basis, had decided to exclude them. Paragraph 113 of the Final Determination states:

"113.

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".

5.165.
The United States holds that the Sugar Chamber’s application alleging threat of injury to the sugar industry provided a discussion of the enumerated factors set forth in Articles 3.7(i)-(iv) of the AD Agreement concerning significant increases in dumped imports, substantial increases in exporters’ capacity, domestic price depression or suppression from allegedly dumped import prices, and inventories of the allegedly dumped imports.142 The application, however, contained little evidence of the likely impact of allegedly dumped HFCS imports on the domestic sugar industry. Indeed, the Sugar Chamber’s application did not respond to the pertinent questions of SECOFI’s application form requesting such information.
5.166.
The United States further holds that paragraph 4.1 of SECOFI’s application form states that the applicant must provide clear evidence of injury or threat of injury and that "the competent authority will deny the petition presented... and will terminate the investigation without delay as soon as it has been established that there is insufficient evidence of dumping or of the damage [i.e., injury] which justifies the continuation of the process relative to the case". Additionally, section 4.2(iii) of the application form states that the applicant must demonstrate injury through evidence of "negative effects on production, such as on sales, market participation, benefits, productivity, return on investments, utilization of installed capacity, cash flow, supplies, employment, salaries, growth, the ability to gather capital or investment". In the application, the Sugar Chamber’s response to both of these paragraphs of the application form was "N/A" (i.e., not applicable).143
5.167.
The United States observes that that the only information that the application contained concerning the likely economic impact of HFCS imports on the domestic industry were assertions regarding: (1) the sugar industry’s possible cash flow problems with respect to the renegotiation of the industry’s loans with Nacional Financiera Azucarera (the development bank for the Mexican sugar industry), and (2) possible effects on some sugar refiners’ future investment projects (apparently detailed in a confidential exhibit).144 The application also alleged that the domestic industry’s sugar sales to industrial consumers would likely decline as a result of the influx of HFCS imports.145 However, the application did not indicate the imports’ effect (if any) on the industry’s overall sales, and disclosed that overall domestic sugar consumption was increasing in pace with Mexican population growth.146
5.168.
The United States further observes that the Sugar Chamber also did not respond to the specific questions in the application form requesting evidence of a causal link between the allegedly dumped HFCS imports and the alleged threat of material injury. Section 4.1 of SECOFI’s application form required the application to contain "proof of the existence of... a causal relationship between the imported goods which are the object of dumping, and the supposed damage [i.e., injury]". Likewise, section 4.2(iv) instructed the applicant to "demonstrate damage or prejudice to domestic production... in the following terms:... establish a causal effect of damage [i.e., injury]". The Sugar Chamber’s response to both of these paragraphs was "N/A" (i.e., not applicable). Accordingly, the application contained no discussion of evidence of causal link.
5.169.
The United States recalls that Article 5.2 of the AD Agreement provides that an application requesting the initiation of an investigation "include evidence of... injury within the meaning of Article VI of GATT 1994 as interpreted by this Agreement and... a causal link between the dumped imports and the alleged injury". Because the AD Agreement defines the term "injury" to include threat of material injury147, evidence both of threat of material injury and of a causal link between the allegedly dumped imports and the alleged threat of material injury is required where, as here, an application alleges threat of material injury. The panel in Guatemala-Cement recently reached this very conclusion: "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".148 Significantly, Guatemala-Cement, like the instant investigation, involved the initiation of an anti-dumping investigation on the basis of allegations of threat of material injury, and its conclusions are therefore particularly relevant to this dispute.149
5.170.
The United States further recalls that the AD Agreement requires that, in order to initiate the investigation, the investigating authority must find that there is sufficient evidence regarding threat of material injury and causal link. Article 5.3 of the AD Agreement provides: "The authorities shall examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation". In addition, Article 5.8 states that "[a]n application... shall be rejected and an investigation shall be terminated promptly as soon as the authorities concerned are satisfied that there is not sufficient evidence of either dumping or of injury [including threat of material injury, see AD Agreement, note 9], to justify proceeding with the case". Therefore, the AD Agreement required SECOFI to find sufficient evidence of both threat of material injury and causal link in order to initiate the investigation. As the Guatemala-Cement panel stated, "The ADP Agreement clearly requires sufficient evidence of all three elements [i.e., dumping, threat of material injury, and causal link] before an investigation may be initiated".150
5.171.
The United States contends that the Sugar Chamber's application should have contained sufficient evidence of the likely impact on the domestic industry from allegedly dumped HFCS imports and on the economic factors and indices bearing on the state of the domestic industry contained in Article 3.4 of the AD Agreement. The application, however, did not contain such evidence. Nor did SECOFI independently gather sufficient evidence that would have justified the initiation of an investigation or request that the applicant supply the missing information. Therefore, upon examination, SECOFI should have rejected the application and should not have initiated this investigation.
5.172.
The United States notes that Article 5.2 requires an application to contain "evidence of... injury within the meaning of Article VI of GATT 1994 as interpreted by this Agreement" (emphasis added by the United States). In turn, the AD Agreement defines the term "injury" to include threat of material injury:

"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).

5.173.
The United States notes further that Article 3.4 provides that the examination of the impact of imports on the domestic industry must include:

"[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".

5.174.
According to the United States, an evaluation of the economic factors and indices of Article 3.4 is required in an investigation based on allegations of threat of material injury to a domestic industry, just as such an evaluation is required in investigations based on allegations of material injury. Article 5.2(iv) by its terms sets forth the type of information required of all applications, regardless of the type of "injury" alleged - i.e., material injury, threat of material injury, and/or material retardation of the establishment of a domestic industry.152
5.175.
The United States recalls that, as the Guatemala-Cement panel stated, "evidence to substantiate the allegation of threat of material injury might have included information on the relevant economic factors and indices having a bearing on the state of the industry set forth in Article 3.4.."..153 That panel’s conclusion was in accord with Mexico’s contentions in that dispute that the economic factors bearing on the likely state of the domestic industry set forth in Article 3.4 were relevant to the decision whether to initiate the anti-dumping investigation, and hence should have been included in the domestic industry’s application claiming that Mexican imports threatened the domestic industry with material injury.154 Given Mexico’s arguments in Guatemala-Cement, it is difficult to understand why SECOFI initiated this investigation, in view of the insufficiency of evidence in the Sugar Chamber's application on the likely state of the domestic industry and the relevant economic factors set forth in Article 3.4.
5.176.
The United States submits that Article 3.4 is itself framed in terms of an "actual and potential decline in sales, profit, output, market share, [etc.]" (emphasis added by the United States), and "actual and potential negative effects on cash flow, inventories, employment, [etc.]" (emphasis added by the United States). The use of the word "potential" necessarily implies a prospective, or future-looking, analysis of the economic factors, which is the touchstone of a threat of material injury analysis.155 Hence, the AD Agreement clearly required that the petitioner's application contain evidence of threat of material injury, evidence of the impact (or the likely impact) on the domestic industry from allegedly dumped imports, and a discussion of the attendant economic factors set forth in Article 3.4.
5.177.
In the view of the United States, the Sugar Chamber did not provide in its application information reasonably available to it regarding likely impact and relevant economic factors. The Sugar Chamber's failure to provide such evidence in the application is particularly difficult to understand, given that most of this information is uniquely within the applicant’s control. The Sugar Chamber alleged in the application that it represented all but two domestic sugar mills, and, as SECOFI stated in the initiation notice, its membership collectively accounted for 98 per cent of domestic sugar production. Accordingly, information regarding the likely impact on the domestic industry and relevant economic factors was clearly and uniquely within the applicant’s control. Moreover, as the Guatemala-Cement panel noted: "we are particularly troubled by the lack of information provided [regarding relevant economic factors set forth in Article 3.4], as this information is uniquely within the control of the applicant".156
5.178.
According to the United States, the Sugar Chamber did not even bother to respond to the pertinent questions in SECOFI's application form requesting such information. Section 4.1 of SECOFI's application form closely tracks language contained in Articles 5.2 and 5.8 of the AD Agreement. That section states that the applicant must provide clear evidence of injury or threat of injury and that "the competent authority will deny the petition presented... and will terminate the investigation without delay as soon as it has been established that there is insufficient evidence of dumping or of the damage [i.e., injury] which justifies the continuation of the process relative to the case". Additionally, section 4.2(iii) of SECOFI's application form requires language that closely tracks Article 3.4 of the AD Agreement that the applicant demonstrate injury through evidence of "[n]egative effects on production, such as on sales, market participation, benefits, productivity, return on investments, utilization of installed capacity, cash flow, supplies, employment, salaries, growth, the ability to gather capital or investment". In its application, the Sugar Chamber's response to both of these paragraphs of the application form was "N/A" (i.e., not applicable).157 In effect, by answering "N/A", the Sugar Chamber was stating to SECOFI its belief that the likely impact on the industry and the attendant economic factors set forth in Article 3.4 were not relevant to the initiation of an investigation on the basis of allegations of threat of material injury.
5.179.
The United States maintains that the Sugar Chamber's application contained no meaningful analysis of the likely effect (if any) that allegedly dumped HFCS imports would have on the domestic industry. The application could have discussed several economic factors that were clearly relevant to an assessment of the prospective impact of dumped imports on the domestic industry in this investigation. Factors that could have been discussed include the domestic industry’s capacity utilization, overall capacity trends, and projections of future capacity, including whether the domestic industry’s production capacity or capacity utilization would likely decline as a result of the influx of allegedly dumped HFCS imports; or whether the domestic industry would likely maintain stable, or increase, capacity utilization levels by increased production and sales to household customers (where the application acknowledged that HFCS imports did not compete with sugar).158
5.180.
The United States holds that the Sugar Chamber similarly could have provided a discussion of employment trends and projections within the domestic industry in the application. The application’s only statements regarding employment are conclusory, passing references, which, as conclusory statements unsupported by relevant evidence, are not sufficient to meet the requirements of Article 5.2. For example, the Sugar Chamber stated that "it is clear that an old established industry in Mexico, like the sugar industry, as has been shown, is threatened with being seriously affected and having to reduce its production and sales by more than 50% of what it is currently producing, furthermore losing job generation opportunities in the Mexican countryside" (emphasis added by the United States).159 The Sugar Chamber further claimed that "[t]he depressing effect on prices from HFCS, will result in this maximum level of sugar prices not being achieved, and consequently, in the industry’s inability to meet its payment commitments. The industry will find itself forced to close down the operation of the least profitable sugar mills, unleashing negative repercussions in the employment of cane field workers, factory workers, day workers, transporters and other indirect employment") (emphasis added by the United States).160 But the application simply did not discuss any of these issues.
5.181.
The United States also maintains that the application contained no meaningful discussion of any "actual and potential decline[s] in the domestic industry’s sales, profits, output, [and] market share".161 The application contains no discussion at all of the domestic industry’s profits, output, or market share. Additionally, while the application alleges that the domestic industry’s sugar sales to industrial consumers would likely decline as a result of the influx of HFCS imports, and the initiation notice noted receipt of a letter from one member of the Sugar Chamber regarding sales lost to HFCS imports162, it does not discuss either the sugar industry’s overall sales and projections of sales, or sales and projections of sales to other customers (e.g., household consumers). The application’s statement that the sugar industry’s sales to industrial customers were likely to decrease as a result of increasing HFCS sales to these customers is not in itself meaningful in assessing the likely impact of imports on the industry as a whole.
5.182.
The United States asserts that the application also disclosed that overall domestic sugar consumption was increasing in pace with Mexican population growth.163 Given this acknowledgement, it appears speculative that increasing HFCS imports would adversely affect the domestic industry’s overall sales in the imminent future. The application failed to address whether the industry’s sales to other customers were likely to increase in an amount equal to or exceeding the decline in sales to industrial customers. The application itself therefore did not seek to provide a basis for concluding that the sugar industry’s overall sales were likely to decline.
5.183.
In the view of the United States, the only information that the application does contain concerning the likely economic impact of HFCS imports on the domestic industry are assertions regarding (1) the sugar industry’s possible cash flow problems with respect to the renegotiation of the industry’s loans with Nacional Financiera Azucarera (the development bank for the Mexican sugar industry); and (2) possible effects on some sugar refiners’ future investment projects.164 Even apart from the absence of allegations on other factors, these two allegations did not establish the likely impact of dumped imports on the domestic industry sufficiently to justify initiation of the investigation. The application did not address whether, and to what extent, a downturn in one market served by the sugar industry (i.e., in sales to soft drink manufacturers) would impede the domestic industry’s overall cash flow and ability to pay its debts. Nor does the application give any reason why such a downturn in one market would impair some members’ future investment projects, much less why an effect on only some producers would impact the industry as a whole.165 This lack of information is all the more telling in that the application’s inadequate analysis of overall sales left it entirely likely that the domestic sugar industry would maintain stable, or even increasing, profitability and cash flow, by increasing sales and/or prices to household customers, despite decreasing sales to one segment of industrial customers.
5.184.
The United States concludes that the Sugar Chamber's application contained insufficient evidence regarding threat of material injury, including the likely impact of dumped imports on the domestic sugar industry, and the attendant economic factors set forth in Article 3.4 of the AD Agreement.
5.185.
The United States argues that, in light of the absence of sufficient evidence in the application to justify initiation of the investigation, SECOFI should not have accepted the application and initiated the investigation. As Articles 5.3 and 5.8 of the AD Agreement state, "[t]he authorities shall examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify initiation of an investigation", and "[a]n application... shall be rejected and an investigation shall be terminated as soon as the authorities concerned are satisfied that there is not sufficient evidence of either dumping or of injury to justify proceeding with the case". An application that fails to address at all the likely impact on the domestic industry from allegedly dumped imports and numerous economic factors and indices enumerated in Article 3.4, when the relevant information is readily available to the applicant, could hardly be regarded as adequate. Indeed, SECOFI's acceptance of the application and initiation of the investigation, despite the absence of sufficient evidence in the application regarding likely impact and relevant economic factors, equates to an agreement with the petitioner's response of "N/A" to the pertinent application form questions, which indicated the petitioner's belief that such information was not relevant to the initiation of an investigation based on allegations of threat of material injury. Whatever the case, SECOFI clearly violated the AD Agreement in accepting the Sugar Chamber's deficient application and initiating an investigation in the absence of sufficient evidence concerning relevant economic factors and the likely impact on the domestic industry from the allegedly dumped HFCS imports.166
5.186.
The United States recalls that the AD Agreement requires that applications contain evidence of a causal link between the allegedly dumped HFCS imports and the alleged threat of material injury to the domestic industry. In addition, the AD Agreement requires investigating authorities to examine the sufficiency of such evidence in determining whether to initiate the investigation. Neither the application nor the initiation notice contain such information, however. Therefore, by accepting an application that failed to contain such evidence, and by initiating an investigation in the absence of such evidence, SECOFI violated the AD Agreement.
5.187.
The United States contends that because neither the initiation notice nor the application contained sufficient evidence of threat of material injury to justify initiation, obviously SECOFI also did not have (and the application did not contain) sufficient evidence of causal link between the allegedly dumped imports and the alleged threat of material injury. Logically, sufficient evidence of causal link must be lacking if there is insufficient evidence of either or both of the events between which there must be a causal nexus.167
5.188.
According to the United States, the Sugar Chamber did not provide evidence in the application as required by Article 5.2 of the AD Agreement by failing to include in the application any information regarding causal link.168 Indeed, as with the Sugar Chamber's response to the application form questions regarding impact on the domestic industry and relevant economic factors, the Sugar Chamber did not respond to the specific questions in the application form regarding causal link. Section 4.1 of SECOFI's application form—in language that closely tracks Article 5.2 of the AD Agreement -- requires that the application contain "proof of the existence of... a causal relationship between the imported goods which are the object of dumping, and the supposed damage [i.e., injury]". Likewise, section 4.2(iv) instructs the applicant to "demonstrate damage or prejudice to domestic production... in the following terms:... establish a causal effect of damage [i.e., injury]". The Sugar Chamber's response to both of these paragraphs was "N/A" (i.e., not applicable). By answering "N/A", the Sugar Chamber effectively stated to SECOFI its belief that information regarding causal link was not relevant to the initiation of an investigation on the basis of allegations of threat of material injury. Accordingly, the application contains no explanation or discussion of causal link. Because the application did not contain sufficient evidence regarding causal link, the investigating authorities should have rejected the application and not have initiated the investigation.169 In addition, like the application, the initiation notice does not contain an explanation or discussion of causal link.
5.189.
Finally, the United States contends that, given that the application did not contain any meaningful analysis of relevant economic factors and indices having a bearing on the state of the domestic industry, the application also did not contain any analysis of correlations or trends between and among those factors and indices, which might have tended to show whether or not there was a causal link between the allegedly dumped imports and the threat of injury to the domestic industry. Accordingly, there were a number of issues concerning causal link that could have been (but were not) discussed in the application. For example, given the absence of any discussion of the domestic industry’s production capacity and capacity utilization, the application did not discuss whether or not the domestic industry’s capacity utilization rate was declining or was likely to decline as import volumes increased. Similarly, the application did not discuss whether or not employment levels in the domestic industry were declining or were likely to decline as import volumes increased. The same reasoning applies to whether or not there were correlations between declines, or the likelihood of declines, in the domestic industry’s sales, profits, output, and market share, and a concomitant increase in import volumes. Since the AD Agreement clearly requires the applicant to provide evidence regarding causal link, the application’s failure to provide any information regarding causal link clearly violated the AD Agreement.
5.190.
The United States concludes that, for all of the foregoing reasons, because SECOFI did not have sufficient evidence regarding either the alleged threat of material injury (including the likely impact on the domestic industry and relevant economic factors) or the causal link between the allegedly dumped imports and the alleged threat, SECOFI violated the AD Agreement by not rejecting the petitioner's application and instead initiating an investigation.
5.191.
The United States argues that SECOFI's initiation of this investigation must stand or fall on the basis solely of the evidence on its record at initiation. Under the AD Agreement, as previous panels have found, an authority’s failure to have sufficient evidence to justify initiation and failure to properly determine an application was made by or on behalf of the domestic industry are violations which cannot be cured at a later date.170 Therefore, even assuming arguendo that SECOFI's final determination contains reasoning that would justify initiation, it does not show that SECOFI had the necessary evidence or made the necessary findings at the time of initiation. Any such post hoc justification is legally irrelevant and cannot cure SECOFI's erroneous initiation.
5.192.
Mexico submits that the application filed by the Sugar Chamber was consistent with the requirements of Article 5.2 of the AD Agreement and that SECOFI properly and validly determined that there was sufficient evidence of threat of injury and of a causal relationship to justify the initiation of an investigation under Article 5.3 of the AD Agreement.
5.193.
Mexico recalls that Article 5.2 of the AD Agreement stipulates that the application for initiation of an anti-dumping investigation shall contain such information as is reasonably available to the applicant on the existence of dumping, injury and a causal relationship between the dumped imports and the injury.
5.194.
In Mexico's view, the application submitted by the Sugar Chamber contained the information that was reasonably available to it and such information included sufficient information concerning dumping, threat of injury and a causal relationship between the two, as well as evidence concerning the factors and indices mentioned in Article 5.2(i) to (iv) of the AD Agreement.
5.195.
Mexico relates specific provisions under Articles 5.2(i) to (iv) of the AD Agreement to specific sections of the application submitted by the Sugar Chamber:

(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

5.196.
According to Mexico, it can be concluded therefore that the application for initiation submitted by the Sugar Chamber met all of the requirements laid down in Article 5.2 of the AD Agreement since it was based on the information appearing in the text as well as the annexes, which contain a range of relevant documentary evidence, and not merely simple assertions.
5.197.
Mexico argues that, to reach the conclusion that the application for initiation of the investigation submitted by the Sugar Chamber met the requirements laid down in Article 5.2 of the AD Agreement, SECOFI carried out a comprehensive analysis of the information submitted, as duly established in very clear terms in the Initiation Notice, more specifically in paragraphs 24 to 99 thereof.
5.198.
Further, Mexico contends that the application did contain precise and relevant information concerning the impact of the dumped imports on the national sugar industry, information which was considered sufficient to initiate the investigation. It was considered sufficient following an extensive analysis thereof in accordance with Article 5.3 of the AD Agreement, and that analysis appears in the notice of initiation, specifically in paragraphs 61 to 98.
5.199.
Mexico recalls that Article 5.2(iv) of the AD Agreement expressly stipulates that the information must refer to factors and indices that are relevant. In Mexico's view, the requirement laid down in Article 5.2(iv) leaves the investigating authority with a range of evaluative powers to determine the relevant indices and factors by which the consequent impact of the dumped imports can be quantified. Thus, it is up to the investigating authority to decide whether the information submitted with the application for the investigation concerns relevant factors and indices.
5.200.
Mexico recalls further that Article 5.2(iv) also speaks of "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 Mexico). Mexico states that if the terms "relevant" and "such as" in Article 5.2(iv) are interpreted according to their ordinary meaning, it is clear that the above requirement is not a strict one as regards the factors and indices. The reference to Articles 3.2 and 3.4 of the AD Agreement is simply illustrative. Thus, Mexico concludes, the information to be included in the application to demonstrate the impact of the imports may cover some of the factors and indices mentioned in Articles 3.2 and 3.4 of the AD Agreement that the investigating authority considers relevant to the demonstration of such impact.
5.201.
According to Mexico, the obligation laid down in Article 5.2(iv) of the AD Agreement is that the application for the initiation of an anti-dumping investigation must contain sufficient information on the effect of the dumped imports on prices of the like product in the domestic market, and on the consequent impact of the imports on the domestic industry, and that this must be demonstrated by relevant factors and indices which could be all or some of those set forth in Articles 3.2 and 3.4 of the AD Agreement.
5.202.
According to Mexico, SECOFI's anti-dumping practice provides that, in the "Application for Producing Enterprises Requesting the Initiation of a Dumping Investigation", for purposes of the determination of threat of injury, the applicant must furnish information concerning economic and financial indicators, installed capacity and investment projects, and such additional information as the applicant considers relevant. The application at issue contained all of the relevant information for initiating the investigation, since it enabled SECOFI to assess the impact and the sensitivity of the national sugar industry resulting from dumped HFCS imports.
5.203.
Mexico holds that, while it is true that in certain parts of the application the Sugar Chamber indicated that the question was not applicable (N.A.), this was not because the required information was irrelevant in supporting the alleged threat of injury, but because the Sugar Chamber, following the order of the application, incorporated the information in other sections. Likewise, the assertion by the United States that the application did not contain information indicating the loss of sales as a result of the HFCS imports is irrelevant, given that the information is incorporated in the application and was analysed by SECOFI in paragraphs 57 and 58 of the notice of initiation.180
5.204.
In Mexico's view, it is clear that the United States reviewed the application for initiation in a biased, incorrect and tendentious manner, since such application contained the information reasonably available to the Sugar Chamber concerning the relevant factors and indices having a bearing on the state of the domestic sugar industry, including some of those listed in Articles 3.2 and 3.4 of the Anti-Dumping Agreement. Specifically, (i) domestic sugar market indicators, in thousands of tonnes, for production, sales, exports, imports, consumption, inventories and employment;181 (ii) financial indicators (cash flow statement, financial statement, income statement, statement of production costs and financial ratios);182 (iii) installed capacity of each mill and the methodology used to determine the installed capacity;183 (iv) investment projects in the sugar industry;184 (v) HFCS import statistics and annual statement of imports drawn up by the applicant with information from the SHCP;185 and (vi) list of average weighted market prices according to the category of sugar and the supply centre.186Consequently, SECOFI determined that the application for initiation contained the information reasonably available to the applicant on the factors and indices mentioned in Articles 3.2 and 3.4 of the AD Agreement, which were relevant and had a bearing on the state of the domestic industry.
5.205.
Mexico argues that the United States misunderstands Article 3.7 of the AD Agreement. Mexico recalls that Article 3.7 of the AD Agreement states the following:

"… 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".

5.206.
According to Mexico, this specific provision of the AD Agreement sets forth the factors which an investigating authority must take into account in determining whether there is a threat of injury; in other words, in the case of an application for initiation of an investigation specifically relating to threat of injury, the investigating authority must consider, in particular, the factors indicated in Article 3.7 of the AD Agreement.
5.207.
Mexico submits that this does not prevent an investigating authority from analysing the factors and indices that it considers relevant including those identified in Articles 3.2 and 3.4 of the AD Agreement. This is clearly demonstrated by the fact that SECOFI considered all the factors indicated in Article 3.2 and the relevant factors in Article 3.4 of the AD Agreement to determine that the information contained in the application submitted by the Sugar Chamber concerning the impact of dumped HFCS imports on the domestic sugar industry was sufficient clearly demonstrates this fact. It is also extremely important to point out that the application contained information on the totality of the factors indicated in Article 3.7 of the AD Agreement.
5.208.
Mexico argues that Article 5.2(iv) of the AD Agreement in no way requires that the investigating authorities limit themselves to determining that the information contained in an application for initiation concerning the relevant factors and indices, and the examination thereof, concern only the factors and indices identified in Articles 3.2 and 3.4 of the AD Agreement or the totality of such factors and indices. First, it is up to the authorities to decide which of the above-mentioned factors and indices should be taken into account, and second, the references to Articles 3.2 and 3.4 in Article 5.2(iv) are illustrative. This is clear from the text of Article 5.2(iv), as it would be entirely illogical to endorse the interpretation that because the factors in Article 3.7 (which refer to an investigation concerning threat of injury) are not expressly mentioned in Article 5.2, the authority should ignore them or minimize their importance. In other words, it is evident that the factors indicated in Article 5.2(iv) are merely illustrative; and indeed, the fact that this provision does not mention those identified in Article 3.7 does not mean that they should be ignored in a case involving threat of injury.
5.209.
Mexico asserts that it is odd for the United States to interpret Article 5.2(iv) of the AD Agreement so strictly, when in fact it has taken a different position in other cases. For example, in Guatemala-Cement, the United States stated the following:

"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

5.210.
According to Mexico, the above shows that on other occasions, the United States has agreed that a distinction must be drawn, both during the initiation and during other stages, between the information to be taken into account in an investigation of present injury, and in an investigation of threat of injury. The United States expressly refers to the factors in Article 3.7, which indeed are not mentioned in Article 5.2(iv), showing that the nature of the information required in the application is different in a case involving threat of injury from a case involving present injury, and that the factors indicated in Article 3.7 are of greater relevance in a case involving threat of injury.
5.211.
In Mexico's view, this completely contradicts the assertion made by the United States that the Sugar Chamber's application allegedly contained "little evidence" of the likely impact of dumped HFCS imports on the domestic sugar industry. Indeed, on other occasions the United States has considered that little evidence or evidence of limited scope sufficed to meet the minimum requirements of Article 5.2(iv). This, in turn, contradicts the argument made by the United States that the application contained no evidence concerning certain elements substantiating the threat of injury.
5.212.
Mexico recalls that in Guatemala-Cement the United States also asserted:

"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).

5.213.
Thus, according to Mexico, the United States has previously recognized the investigating authority's power to decide which factors, depending on the investigation, should be taken into account in the analysis leading to the initiation of an investigation, i.e. that the investigating authority is under no obligation to consider the totality of such factors.
5.214.
Similarly, Mexico submits, the United States has recognized that in cases involving threat of injury, a distinction must be drawn in deciding which factors are relevant to determining when there is sufficient information to initiate an investigation.
5.215.
Mexico asserts that this is reaffirmed in the conclusions of the Panel in Guatemala-Cement,189 which state that:

"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).

5.216.
Mexico notes that, in footnote 248 of the Panel report in Guatemala-Cement, the Panel expressly recognizes the importance of the factors in Article 3.7 in cases of threat of injury:

"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

5.217.
Mexico considers therefore that the application was consistent with Article 5.2(iv) of the AD Agreement since it contained the information that was reasonably available to the Sugar Chamber on the relevant factors contained in Articles 3.2, 3.4 and 3.7 of the AD Agreement. These factors were duly analysed, as can be verified by reading the application and the extensive notice of initiation of the investigation, specifically paragraphs 57-58 and 91-96 thereof.191
5.218.
Again, Mexico maintains that SECOFI reached the above conclusion after having extensively analysed the accuracy and adequacy of the information contained in the application and determined that the sufficiency requirement for initiating the investigation had been met.
5.219.
Mexico observes that there are differences in the degree of complexity and the scope of the information required in different stages of an investigation. That is, the information on threat of injury required for the initiation of an investigation is not the same as that required for the preliminary or final determination. This argument is supported by statements made by the United States itself and various panels that have interpreted the matter.
5.220.
In this connection, Mexico recalls that the Guatemala-Cement panelreport192stated that:

"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).

5.221.
Mexico recalls further that footnote 168 of the same report reads:

"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).

5.222.
Mexico states that, similarly, the panel report in United States-Lumber made the following observation:

"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).

5.223.
Mexico notes that, in support of the above, the panel report in Guatemala-Cement stated in its conclusions that:

"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).

5.224.
Thus, Mexico is of the view that the information submitted in the application, specifically as regards Article 5.2(iv), permitted the investigation to be initiated, the more so since the scope and complexity of evidence required for the initial stage of the investigation is less than for other stages. This is not to say that the information submitted was meagre – on the contrary, it was sufficiently comprehensive to substantiate the threat of injury to the domestic sugar industry.
5.225.
Mexico notes that Article 5.2 of the AD Agreement expressly states that the application must contain such information as is reasonably available to the applicant on the points mentioned in Articles 3.2 and 3.4. Therefore, the applicant is not required to submit more information than is reasonably available to it, and no investigating authority can require of an applicant more than Article 5.2 of the AD Agreement indicates. While additional information may exist, both in terms of volume and complexity, the intention of this provision is to limit somehow the investigating authority's power to impose too heavy a burden on the applicant by requiring an unreasonable effort which could impede the initiation of an investigation when there is sufficient information, even though it is always possible to obtain further information.
5.226.
Mexico contends that this argument is supported by statements made by the United States itself in connection with other cases, particularly, Guatemala-Cement.196 The report of the Panel in Guatemala-Cement illustrates the lack of consistency in the United States' arguments.

"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).

5.227.
Mexico concludes that the application contained all of the information reasonably available to the Sugar Chamber on the elements set forth in Article 5.2 of the AD Agreement, and that this information was sufficient to initiate the investigation.
5.228.
Mexico contends that the United States' allegations with respect to Articles 5.3 and 5.8 of the AD Agreement are based on the prior argument that the application did not contain sufficient information under Article 5.2(iv). Since this argument, in Mexico's view, has no support, it cannot be asserted either that SECOFI did not conduct the examination concerning the accuracy and adequacy of the evidence submitted by the Sugar Chamber, or that the application should have been rejected.
5.229.
Mexico asserts that evidence indicating that SECOFI examined the accuracy and adequacy of the evidence submitted by the Sugar Chamber to determine that it was sufficient to initiate the investigation can be found in paragraph 99 of the Initiation Notice.

"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…".

5.230.
Mexico submits that the evidence provided by the Sugar Chamber and the examination of the information undertaken by SECOFI are specifically recorded, at length, in paragraphs 20 to 23 and 42 to 98 of the Initiation Notice. In various parts of the notice of initiation, SECOFI notes that its findings were drawn from information submitted by the Sugar Chamber, or from information submitted by the Sugar Chamber together with information collected by SECOFI itself. SECOFI's analysis is described in detail in paras. 62 to 98 of the Initiation Notice. As an integral part of this examination and in exercise of its investigatory powers, SECOFI collected a set of evidence which, together with the information in the application, could be considered as accurate, adequate and sufficient to justify the initiation of the investigation. Its is clear, therefore, that Mexico complied with Article 5.3 of the AD Agreement. Mexico submits further that, in view of these considerations, there was no violation of Article 5.8 of the AD Agreement.
5.231.
With respect to the causal relationship between the dumped imports and the threat of injury to the domestic sugar industry, Mexico argues that, on the basis of the information described above and contained in Section 4.3 of the application with its annexes,197 as well as information appearing in the bibliographical files,198 SECOFI determined that there were sufficient elements to substantiate the existence of threat of injury as a result of the dumped HFCS imports on domestic production.
5.232.
Mexico contends that the establishment of this causal link can be seen throughout the analysis referred to above, and more specifically and extensively, in paragraphs 61 to 98 of the Initiation Notice. The applicant stated and provided evidence in support of the allegation that as a result of the dumped HFCS imports the national sugar industry was threatened.
5.233.
According to the United States, Mexico invokes two basic defences to the arguments of the United States. First, Mexico argues that the Sugar Chamber’s application contained "precise and relevant information" concerning the impact of the HFCS imports on the Mexican sugar industry.199 Second, Mexico contends that the scope of "relevant" information for purposes of an application alleging threat of material injury is more circumscribed in nature than "relevant" information for purposes of an application alleging material injury and in any event is more circumscribed than that advocated by the United States. Mexico’s arguments are without merit.
5.234.
In the view of the United States, Mexico’s characterization of the information contained in the application about the likely impact of the imports on the domestic industry is incorrect. The confidential material in the annexes to the application that Mexico accuses the United States of disregarding is simply historical statistical information submitted by the petitioner concerning a variety of indices of industry performance.200 Indeed, this is precisely how SECOFI describes the material in its initiation notice.201
5.235.
The United States contends that the Sugar Chamber nowhere attempted to explain how the historical data it submitted were pertinent to its theory of threat of material injury. The Sugar Chamber consistently declined to explain the implications of the data it furnished by stating in its application that questions seeking information on the negative effect of HFCS imports on the domestic industry were not applicable.
5.236.
According to the United States, the data that the Sugar Chamber submitted were insufficient to satisfy the requirements of Article 5.2(iv) with respect to an application alleging threat of material injury. Article 5.2 requires that an application for anti-dumping duties contain "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 these 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". In turn, Article 3.4 identifies factors to be evaluated in examining the impact of dumped imports on the domestic industry. This includes such factors as "actual and potential declines in sales, profits, output, market share, productivity, return on investments" and "actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments" (emphasis added by the United States).
5.237.
The United States is of the view that, because threat of material injury focuses on the imminent future, the potential declines in the factors specified in Article 3.4 are of particular relevance in threat cases. Although historical data alone may be sufficient to show actual declines in Article 3.4 factors, they will ordinarily be insufficient to show potential declines. Instead, there must be some empirical or narrative information that would demonstrate how one can project a potential decline from the historical data. The need for further information is particularly acute where, as here, an applicant does not contend that there are actual declines in the Article 3.4 indicators sufficient to constitute material injury. In this case, the Sugar Chamber was not claiming that the statistical data it furnished in the annexes showed that the HFCS imports to date had caused material injury. In such circumstances, the applicant must provide some explanation of how further imports are likely to cause the industry’s current condition to change. Certainly some understanding of why an applicant believes it is likely to experience material injury in the imminent future is information that is reasonably available to the applicant. Such information is also critical to a respondent importer’s presentation of its case. Article 5.2, properly understood, does not permit silence on this point, and Article 5.3 precludes authorities from finding such silence to be sufficient to justify initiation.
5.238.
The United States contends that the Sugar Chamber was silent on this point, however. It did not provide any information in either its application form or annexes on potential declines in the factors specified in Article 3.4. In light of this, the Sugar Chamber's repeated "N/A" responses on its application form must be taken at face value and considered to be evidence of the petitioner’s belief that it did not have any response to the questions. There is no basis for interpreting the "N/A" responses, as did Mexico at the first panel meeting, to signify that the information was not provided on the application form because it could be found in other materials that the petitioner submitted.
5.239.
The United States acknowledges that the standard for information in an application should be considerably lower than the requirement for explanation in a final determination imposing duties. It does not dispute the statement of Mexico — or Mexico’s quotations of arguments that the United States submitted to the Guatemala-Cement panel — that "the information on threat of injury required for the initiation of an investigation is not the same as that required for the preliminary or final determination".202
5.240.
The United States contends that, even when the annexes are taken into account, the Sugar Chamber's application failed to provide any information why it believed there would be potential declines in such critical factors as capacity, employment, or financial performance. Consequently, the application contained insufficient evidence regarding threat of material injury, including the likely impact of dumped imports on the domestic sugar industry, and the attendant economic factors set forth in Article 3.4 of the AD Agreement.
5.241.
The United States disputes the statement made by Mexico that SECOFI's initiation notice demonstrates that the application contained the requisite information about the impact of the dumped imports and the economic factors set forth in Article 3.4 of the AD Agreement.203 Mexico is incorrect. SECOFI's initiation notice contains no more information concerning these matters than did the application.
5.242.
The United States argues that the portions of the initiation notice cited by Mexico in paragraph 151 of Mexico's first submission recite allegations: (1) that imported HFCS competes with domestically-produced sugar in the Mexican soft drink market;204 (2) that HFCS imports have caused price depression and lost sales for one producer;205 and (3) that future HFCS imports will make it difficult for domestic producers to engage in several investment projects.206 None of these allegations provide any information about important indicators such as capacity, production, market share, employment, and financial performance. Moreover, the discussion in the initiation notice about investment projections, although purportedly addressing the potential impact of the future imports, does not in fact do so. There is no allegation, much less discussion, of how or why further HFCS imports are likely to affect the sugar industry’s future investment—only a conclusory statement that "investment projects undertaken by the [sugar] industry could suffer, should the growing trend of corn sweeteners under unfair competition continue", which itself alleges not that an event is imminent or even likely, but only that it "could" happen.207 Consequently, the allegations in question provide no information concerning the alleged nexus between future HFCS imports and the potential foregone investment projects.
5.243.
The United States disputes the argument made by Mexico that, to the extent that the application did not contain information concerning the impact of dumped imports or the attendant economic factors set forth in Article 3.4 of the AD Agreement, such information was not required because it was not "relevant". The United States also disputes the arguments made by Mexico that an application for anti-dumping duties premised on threat of material injury is required to contain information on only those factors specified in Article 3.7 of the AD Agreement, and that information on factors specified in Articles 3.2 and 3.4 need only be included in such an application to the extent it is relevant.
5.244.
According to the United States, Mexico’s legal arguments, taken in conjunction with the material SECOFI cited in its initiation notice, negate any possible inference that when SECOFI examined the application it reviewed the statistical data and concluded that the material in the annexes provided "sufficient evidence" justifying initiation of an investigation alleging threat of material injury, as required by Article 5.3. Rather, Mexico’s argument supports the conclusion that SECOFI interpreted the applicant’s "N/A" responses as meaning questions asking for allegations of harm were not relevant to a threat case, and that the investigating authorities agreed.
5.245.
The United States contends that Mexico's argument is premised on a theory, which Mexico develops in more detail in the portion of its first submission defending SECOFI's affirmative threat determination, that an investigating authority has the discretion to decide which of the Article 3.4 factors it will consider in the context of a threat determination and which it will ignore. Mexico’s argument conflicts with language in Article 3 of the AD Agreement and with the conclusions previous panels have reached.
5.246.
The United States maintains that Mexico’s argument is also directly contrary to the language of Article 5 of the Agreement. Article 5.2(iv) requires the applicant to provide "information reasonably available" to it concerning "relevant factors and indices having a bearing on the domestic industry, such as those listed in paragraphs 2 and 4 of Article 3" (emphasis added by the United States). This mandatory language applies to all applications, including those alleging threat of material injury.208 Consequently, the Agreement clearly contemplates that an application will contain information concerning the factors specified in Article 3.4.
5.247.
The United States argues that nothing in the Agreement would support providing the applicant with the discretion to determine which Article 3.4 factors it will discuss in its application and which it will not. Otherwise, the applicant would have the power to determine the terms of the investigation and what information would be adequate to support a petition. Such a conclusion would be irreconcilable with Article 5.3, which instructs the investigating authority to determine the accuracy and adequacy of the evidence provided in the application.
5.248.
In response to a question put by the Panel, the United States said that, while every application must contain reasonably available information concerning the Article 3.4 factors pertaining to the impact of the dumped imports on the domestic industry, this does not necessarily mean that every application must contain information concerning every specific factor in Article 3.4. In some cases, information concerning a specific 3.4 factor might not be reasonably available to the applicant. In other cases, it may be clear from whatever conditions of competition applicable to the industry that are described in an application that a specific 3.4 factor is not pertinent to the industry. For example, industries that do not maintain inventories should not be required in an application to provide information on inventories. In the current proceeding, however, there is no indication that the information not provided in the Sugar Chamber's application concerning potential declines in the sugar industry in such factors as capacity, employment, or financial performance was not reasonably available to it. Nor is there any basis for a conclusion that potential declines in a factor such as financial performance is not pertinent to the sugar industry. Indeed, Mexico has repeatedly declined to make such an argument.209
5.249.
In the view of the United States, Mexico’s relevance argument therefore cannot change the conclusion that the application failed to contain the information reasonably available to the applicant concerning threat of material injury required by Article 5.2(iv) of the AD Agreement. Additionally, because the application contained no information concerning the alleged threat of material injury, the application also failed to contain sufficient evidence of causal link between the allegedly dumped imports and the alleged threat of material injury.210
5.250.
The United States submits that SECOFI's initiation of an investigation on the basis that the application contained sufficient information on threat of material injury violated Article 5.3.211 This provision requires authorities to examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation. Had SECOFI conducted the required examination, it should have determined that the information provided in the application did not constitute information reasonably available to the Sugar Chamber concerning the potential effect of further dumped imports. Alternatively, it should have determined that the evidence in the application on threat of material injury was in any event inadequate to justify initiation. Failing to do either, Article 5.8 required SECOFI to reject the application and terminate the investigation.
5.251.
The United States concludes that, consequently, because of the lack of sufficient information in the application on the alleged threat of material injury and the alleged causal link between the allegedly dumped imports and the alleged threat of material injury, SECOFI violated Articles 5.2, 5.3, and 5.8 of the Agreement by its initiation of an anti-dumping investigation.
5.252.
Mexico argues that the application submitted by the Sugar Chamber contained a variety of information on the factors and indices set forth in Articles 3.2 and 3.4 of the AD Agreement, concerning the impact of the dumped imports in the domestic sugar industry. Mexico reiterates that the application contained, inter alia, information on the following factors:

(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

5.253.
Mexico concludes that the application contained the information reasonably available to the petitioner concerning the factors and indices listed in Articles 3.2 and 3.4 of the AD Agreement that were relevant and had a bearing on the state of the domestic industry.
5.254.
Mexico submits that the United States makes an impermissible interpretation of Article 5.2(iv), plainly ignoring the existence of Article 3.7 even though the investigation concerned was initiated on the basis of threat of injury. In addition, in Mexico's view, the United States is in error when suggesting that the application should have contained information concerning the totality of the factors set forth in Articles 3.2 and 3.4 of the AD Agreement.
5.255.
Mexico argues that Article 5.2(iv) makes it clear that the references to the factors and indices listed in Articles 3.2 and 3.4 are illustrative, since it is understood that the investigating authority has the power to determine which of them are to be considered relevant according to its bearing on the state of the relevant domestic industry, and nothing requires the applicant to provide information on the totality of these factors and indices.
5.256.
Mexico also argues that the fact that Article 5.2(iv) does not mention the factors and indices indicated in Article 3.7 is additional proof that Article 5.2(iv) is illustrative and not limitative as to the factors that may be considered by the investigating authority in determining the impact of imports on the domestic industry and that none of the cited provisions require an exhaustive examination of the factor and indices indicated therein.
5.257.
Mexico asserts that, in a threat of injury investigation, the factors indicated in Article 3.7 of the AD Agreement take on greater importance. Article 3.7 was specially included in the AD Agreement for the purpose of establishing the factors that must be considered specifically in a threat of injury case. The application submitted by the Sugar Chamber contained the information that was reasonably available to it concerning the factors and indices mentioned in Articles 3.2, 3.4 and 3.7 of the AD Agreement, which was considered sufficient to initiate the investigation.
5.258.
Mexico disputes the statement by the United States that the annexes to the application containing information on threat of injury, having been classified as confidential information, were revealed for the first time in Mexico's first submission. Under Mexico' anti-dumping practice, there is a system which gives the interested parties in an investigation access to confidential information provided that they meet the requirements established to safeguard the confidential nature of such information. In the case at issue, Mexico submitted to the Panel a document indicating the number of occasions on which interested parties were given access to confidential information during the investigation.219 This clearly shows that anyone who met the applicable requirements could have had free access to such information, as happened in many instances. In other words, the information in question was not revealed for the first time in Mexico's first submission.
5.259.
Mexico disputes the argument made by the United States that the application submitted by the Sugar Chamber failed to provide explanations, discussion or analysis of the impact of imports on the domestic sugar industry. This obligation is nowhere to be found in the AD Agreement. The United States suggests that the applicant was under an obligation to present an analysis of the information contained in the application and its annexes. However, under Article 5.2 of the AD Agreement, the applicant is only required to submit such information as is reasonably available to it on the items indicated in Article 5.2, which nowhere requires the applicant to provide the investigating authority with "explanations, discussion or analysis" of the information contained in the application. Moreover, the only examination of the information in the application required under Article 5 of the AD Agreement is the examination mentioned in Article 5.3, which is the express responsibility of the investigating authority. In other words, the United States seems to be confusing the obligations of the applicant or imposing a burden that it is not for the applicant to carry. The phrase "reasonably available to the applicant" in Article 5.2 is highly significant, since its purpose is to avoid the imposition of excessive obligations on the applicant. The United States' interpretation is therefore entirely unacceptable.
5.260.
Mexico also disputes the statement by the United States that the Sugar Chamber's application violated Article 5.2 in that it provided insufficient information concerning the causal link between the allegedly dumped imports and the alleged threat of injury –because there was insufficient information concerning injury, there also was insufficient information concerning causal link. In the view of Mexico, this allegation is groundless since it has been shown that the application contained sufficient information concerning threat of injury.
5.261.
Mexico disputes as well the United States' allegation that the application contained no information concerning causal link because certain items in the application were marked as "not applicable" (N/A). Mexico notes that the AD Agreement does not impose a specific structure regarding the formal aspects of the preparation of an application, and as long as all the information required under Article 5.2 is included, its actual location within the application is irrelevant.
5.262.
Mexico asserts that information on causal link appears throughout the application, and while it may not appear in the form that the United States would have preferred, this does not imply that the AD Agreement has been violated. For instance, in item 4.3(i), in the indications provided in the conclusion to item 4.3(iii), pages 32 and 33 specifically, and in the final part of item 4.3(v) of the application,220 the Sugar Chamber expressly points out that the threat of injury facing the domestic sugar industry was the consequence of dumped HFCS imports.
5.263.
Mexico reiterates that, as the Sugar Chamber's application was shown to meet all of the requirements set forth in Article 5.2 of the AD Agreement in that it contained sufficient information on dumping, threat of injury and causal link, there was no reason to apply Article 5.8 of the AD Agreement and to reject such application.

2. Alleged Insufficiency of The Examination of The Information And Alleged Insufficiency of The Evidence to Justify Initiation (Claims Under Article 5.3)

5.264.
The United States argues that the initiation of the investigation was inconsistent with Article 5 of the AD Agreement. Contrary to Article 5.2 of the AD Agreement, the application submitted by the petitioner contained self-contradictory information, including the unsubstantiated, simple assertion that HFCS was not being produced in Mexico. By accepting the accuracy of this assertion and initiating in accordance with it, SECOFI violated Article 5.3 of the AD Agreement, which requires an authority to "examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation". SECOFI's failure to examine the evidence regarding the threshold issue of like product, necessarily also prevented it from determining that the application was made "by or on behalf of the domestic industry", in violation of Articles 5.1 and 5.4 of the AD Agreement.221 Without sufficient evidence to justify initiation and without determining that the application had been made by or on behalf of the domestic industry, SECOFI should have rejected the application. Its failure to do so violated Article 5.8 of the AD Agreement.
5.265.
The United States maintains that the Sugar Chamber’s application contained contradictory information as to whether HFCS was being produced in Mexico during the period of investigation. SECOFI could not have examined the adequacy and accuracy of the evidence in the application and determined that such evidence was sufficient to justify initiation without resolving the contradictions in the Sugar Chamber’s application. Under the circumstances, SECOFI could not, consistent with its obligations to examine the sufficiency of the evidence presented, rely, as its initiation notice did, on a simple acceptance of the unsupported allegation that there was no Mexican HFCS production. So far as can be ascertained from any contemporaneous record, SECOFI did not resolve the contradictory information submitted to it, and therefore improperly initiated this investigation.
5.266.
According to the United States, the application filed by the Sugar Chamber alleged that there was no domestic HFCS production, and the authorities initiated this investigation "in accordance with" this allegation. The application also alleged that HFCS production was "practically non-existent". However, the application also contained information, referenced in its narrative and included in its annexed exhibits, that reported domestic production of HFCS during the period of investigation (1996) and from as early as 1995. Yet, neither the initiation notice nor documents contemporaneous with the pre-initiation time period, demonstrate that SECOFI examined the accuracy and adequacy of the Sugar Chamber’s contradictory information, or that SECOFI determined on what basis it found the application to contain sufficient evidence to justify initiation.
5.267.
The United States notes that, under Article 5.3 of the AD Agreement, the investigating authority must "examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation". As the exhibits to the application contained contradictory information regarding Mexican HFCS production, these exhibits provided more than adequate reason to conclude that the application’s flat denial of such production was neither accurate nor adequate on issues essential to the decision whether to initiate an investigation. Whether there was such production was directly relevant to several questions that an application containing sufficient evidence to initiate an investigation needed to address.
5.268.
The United States recalls that Article 5.1 requires, inter alia, that an investigation "shall be initiated upon a written application by or on behalf of the domestic industry". A domestic industry is defined as the domestic producers of the like product.222 Article 5.4 further directs: "An investigation shall not be initiated pursuant to paragraph 1 unless the authorities have determined, on the basis of an examination of the degree of support for, or opposition to, the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry". An application’s allegations concerning what product corresponding to the subject imports is produced in the importing country are thus critical to the threshold questions of like product and domestic industry, and therefore also critical to the question of whether an application provides a sufficient basis for initiating an investigation. This is all the more important where, as here, an industry complains about imports of a product it does not produce.
5.269.
The United States notes further that Article 5.2 requires, therefore, that an applicant must provide evidence reasonably available to it describing the volume and value of domestic production of the like product. This provision necessarily entails that the applicant must provide evidence of what the like product is and who produces it. So far as the initiation notice and the pre-initiation record disclose, SECOFI made no effort to determine whether additional evidence concerning production of HFCS in Mexico was available to the Sugar Chamber. The United States maintains that Mexico confirmed this at the 12 June 1998 consultations with the United States, indicating that the only information the Sugar Chamber provided to SECOFI prior to initiation was the information contained in its application.
5.270.
The United States maintains that even if additional information would not have been available to the Sugar Chamber, Article 5 does not countenance the initiation of an investigation based on allegations that are unsupported by evidence. Article 5.2 admonishes, "Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph". This admonition is supported by Article 5.3's requirement that the authorities must "determine whether there is sufficient evidence to justify initiation of an investigation". In this case, the application’s statement that there was no domestic production of HFCS was a simple assertion unsubstantiated by relevant evidence. Indeed, it was an assertion that other information in the application’s annexed exhibits contradicted.
5.271.
In addition, the United States submits that an authority fails to comply with Article 5 when, faced with contradictory information concerning a threshold issue bearing on the decision to initiate, no contemporaneous information reveals how the authority resolved the conflict. Article 12 requires that adequate information to reflect such a resolution appear in the initiation notice. Article 5 necessarily implies that it will be reflected at least in some contemporaneous record.223 Absent such a contemporaneous record, there can be no basis for concluding that the authority in fact conducted the examination required by Article 5.3. In the investigation in question, the only contemporaneous indication – the initiation notice – reflects on its face a lack of examination.224
5.272.
According to the United States, Mexico was well aware of its obligation to examine the accuracy and adequacy of the information provided by the petition. In Guatemala-Cement, Mexico had argued that "the evidence in an application may be insufficient to justify initiation" and that "an unbiased and objective investigating authority would be justified in initiating the investigation only if it determines that the evidence is sufficient…".225 Mexico took the position that "the national authorities should be obliged to establish the truth and relevance of the information [submitted by the applicant] prior to initiation".226 The Panel agreed with Mexico and stated:

"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

5.273.
In the view of the United States, the Guatemala-Cement Panel articulated a standard for an investigating authority’s Article 5.3 analysis: "Thus, the decision to initiate is made by reference to the objective sufficiency of the evidence in the application, and not by reference to whether the evidence and information provided in the application is all that is reasonably available to the applicant".228 Accordingly, the AD Agreement requires a finding by the investigating authority that there is objectively sufficient evidence to justify initiation, not simply a finding that the information contained in the application is all that is reasonably available to the applicant. Therefore, SECOFI could not simply initiate the instant investigation – given that the information in the application regarding Mexican HFCS production was hopelessly contradictory – by simply accepting the allegation regarding HFCS production that was most favorable to the Sugar Chamber.
5.274.
The United States argues that past panels have properly regarded it as essential to reviewing a member’s compliance with its obligations that there be an adequate contemporary record of that compliance. Mexico’s subsequent statements, both in SECOFI’s final determination and in its first submission here, cannot provide that record. As we have shown, Mexico’s current assertions do not in fact support that its authority conducted the required examination at the time. Even if Mexico’s current assertions were more probative, post hoc assertions cannot substitute for a contemporary record. Otherwise, obligations like that of Article 5.3, which requires an examination by a national authority at a particular time, would be utterly unenforceable. This is particularly so when, as we have discussed earlier, other provisions require a national authority to publish a notice at the time that reflects the basis for its action.
5.275.
The United States contends that, even if the Sugar Chamber provided in the application all the information reasonably available to it regarding the existence of Mexican HFCS production, that information, being self-contradictory, was insufficient to justify the initiation of an investigation.229 Under Articles 5.1 and 5.4 of the AD Agreement, SECOFI was required to determine whether the application was made by or on behalf of the pertinent domestic industry, as part of its examination whether there was sufficient evidence of injury to justify initiation of an investigation under Article 5.3. Since the evidence presented by the Sugar Chamber regarding the existence of Mexican HFCS production was self-contradictory, no "reasonable, unprejudiced person" could have concluded, without further examination, that the application had been made by or on behalf of the domestic industry. Instead, a "reasonable, unprejudiced person" would have examined the accuracy and adequacy of the application’s self-contradictory allegations regarding such production and would have attempted to resolve them. There is no contemporary evidence that such an examination was actually conducted; in view of the information on the record, no authority could initiate consistent with the AD Agreement based on the allegations recited in the initiation notice.
5.276.
Finally, the United States asserts that SECOFI also violated Article 5.8 of the AD Agreement. Article 5.8 provides, inter alia, that "an application under paragraph 1 shall be rejected and an investigation shall be terminated promptly as soon as the authorities concerned are satisfied that there is not sufficient evidence of either dumping or injury to proceed with the case". The application did not contain sufficient evidence of whether HFCS was being produced in Mexico or not, and SECOFI did nothing of its own accord to resolve this issue. Thus, SECOFI had no choice but to reject the application. Its failure to do so violated Article 5.8.
5.277.
Mexico argues that, while it is true that the application for initiation contained indications that there was no domestic production of HFCS or that such production was "practically" non-existent, it cannot be implied from these indications that the Sugar Chamber was either affirming or "flatly denying" the existence of such production, as the United States suggests, since as the United States itself points out, the annexes of the application contained information concerning the existence of domestic production of HFCS during the period of investigation230, which was examined by SECOFI together with the rest of the information in the application, in conformity with Article 5.3 of the AD Agreement.
5.278.
Mexico further argues that, even if SECOFI did not consider the annexed document entitled "Estimated Production Capacity of HFCS 42 and 55" as decisive231 with respect to the existence of domestic production of HFCS, SECOFI did consider as decisive other information contained in various Articles and papers annexed to the application, which clearly pointed to the involvement of the companies Almex and Arancia in the production of HFCS in Mexico; particularly, information published by the United States Department of Agriculture (USDA) concerning, inter alia, the establishment of HFCS distribution centres and manufacturing plants in Mexico. The latter was considered to be a most reliable piece of information since it came from a government source, which was not trying to demonstrate any particular trend.
5.279.
Thus, Mexico holds that, even if SECOFI concluded in its analysis of the application that the Sugar Chamber's allegation was not very clear with respect to the existence of domestic HFCS production, certain information included in the annexes to the application provided sufficient indications for SECOFI to know of the existence of HFCS production by the Mexican companies Almex and Arancia during the period of investigation.232
5.280.
Mexico observes that, in conformity with Article 5.2 of the AD Agreement, the Sugar Chamber also provided, as part of its application for initiation, information containing import statistics by company, obtained from the Ministry of Finance and Public Credit (SHCP)233, and copies of the corresponding import documentation and invoices.234 Thus, while realizing that Almex and Arancia were HFCS producers in Mexico, SECOFI became aware at the same time, when examining the other items of evidence in the application for initiation, that these two companies were also the leading importers of the product subject to investigation. In other words, while examining the accuracy and adequacy of the evidence submitted in the application as required of the investigating authority under Article 5.3 of the AD Agreement, SECOFI learned in parallel that the companies Almex and Arancia had produced HFCS in Mexico during the period of investigation and that these two companies had become the leading importers of the allegedly dumped product.
5.281.
Mexico maintains that, on the basis of official import statistics, SECOFI confirmed that, from January to December 1996, i.e. the period of investigation, the two domestic producers of HFCS, Almex and Arancia, had, in fact, become the leading importers of the subject product. The documents showing that prior to the initiation of the investigation SECOFI had learned of the existence of a domestic production of HFCS in Mexico by the companies Almex and Arancia, and confirming that SECOFI had collected and examined information in addition to that provided by the Sugar Chamber, in order to verify that these companies were the leading importers of HFCS, in particular MEXICO-13, appear in the administrative file under the title "Working Papers", classified as confidential information. Mexico submitted these documents to the Panel with the request that their confidentiality be respected, in accordance with paragraph 3 of the Working Procedures established for this dispute on 29 January 1999. In response to a question put by the Panel, Mexico stated that MEXICO-13 constitutes SECOFI's determination with respect to the definition of the domestic industry and the exclusion of domestic producers of HFCS from this concept.235
5.282.
Mexico disputes the argument made by the United States that SECOFI failed to examine the information contained in the application regarding the existence of HFCS production in Mexico, and that this necessarily prevented SECOFI from determining that the application was made "by or on behalf of the domestic industry", which allegedly involved a violation of Articles 5.1 and 5.4 of the AD Agreement. In this regard, Mexico notes that the finding of greater relevance arising from the examination under Article 5.3 of the Agreement conducted prior to the initiation of the investigation was that, according to the information included in the application and the information collected by SECOFI, the domestic producers of HFCS were themselves the leading importers of the subject product. After having examined the evidence in the application concerning the involvement of Almex and Arancia in the production of HFCS in Mexico, but above all, after having simultaneously verified the status of those two companies as the leading importers, SECOFI considered excluding the HFCS producers from the definition of the relevant domestic industry. The United States argument that there is no indication that SECOFI obtained information on whether the Mexican HFCS producers could be excluded from domestic industry is therefore entirely false.236
5.283.
Mexico argues further that, in accordance with Article 4.1(i) of the AD Agreement, SECOFI found that Almex and Arancia could not be considered as the relevant domestic industry, since both companies had become the leading importers of the allegedly dumped product. Consequently, SECOFI excluded them, and determined therefore that the relevant domestic industry for the purposes of the investigation was made up of the sugar producers represented by the Sugar Chamber, since this was the industry producing the like product with closely resembling characteristics. This determination conforms fully with Article 2.6 and 4.1 of the AD Agreement.
5.284.
Mexico recalls that Article 4.1 of the AD Agreement reads as follows:

"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).

5.285.
Mexico submits that these two provisions of the AD Agreement show that the definition of the relevant "like product" is closely linked to the determination of the "domestic industry", including within the meaning of Article 4.1(i) which permits the exclusion of importers and related parties.
5.286.
In response to a question by the Panel as to whether the concept of "injury" required defining the relevant like product and domestic industry in order to specify the subject of the injury alleged, Mexico stated that, on the one hand, while it is true that under the AD Agreement there is a clear relationship between the determination of the domestic industry in accordance with Article 4.1 and the definition of the relevant like product in accordance with Article 2.6, it is also true that the Agreement does not establish or require a specific obligation of sequentiality between those articles. On the other hand, in anti-dumping practice the obligation concerning the determination of the relevant domestic industry for purposes of an investigation arises a priori, because the investigating authority, before taking the decision to initiate, must ascertain whether an application for initiation submitted to it has been made by or on behalf of the industry actually entitled (in terms of standing) to apply for such initiation. In this connection, while the AD Agreement does not lay down a required sequence, anti-dumping practice makes it necessary for an investigating authority at the outset to analyse the question of the relevant domestic industry, in order as a first step to establish whether the domestic industry which submitted an application for initiation has the requisite standing for that purpose, as a result inter alia of being a producer of a like product within the meaning of Article 2.6 and whether, as such, it may be the industry actually affected or threatened by dumped imports (i.e. the domestic industry subject to the alleged injury or threat of injury).237
5.287.
In Mexico's view, Article 2.6 of the AD Agreement, when defining the term "like product" as a product which, although not identical to the subject product (i.e. alike in all respects), "has characteristics closely resembling" those of the subject product, suggests that for the purposes of Article 4.1(i) the term "domestic industry" can be interpreted as referring to the "rest of the producers" of like products with closely resembling characteristics, if the producers of the like product that is identical to the imported product cannot be considered as representing the relevant domestic industry, on account of their being importers of the allegedly dumped product, as is the case in this dispute.
5.288.
Mexico contends that, while it is true that in an anti-dumping investigation, the identification of the relevant like product and the identification of the relevant domestic industry form part of the analysis leading to the determination of injury to a given domestic industry238, for the purposes of defining the relevant domestic industry, HFCS could not be identified as the relevant like product in this investigation, since Almex and Arancia, although manufacturers of the identical like product, were the leading importers of the allegedly dumped product and therefore could not also be taken as the domestic industry that could be affected or threatened by the dumped HFCS imports. It would have been absurd to conclude that the two producers - leading importers of HFCS - could be taken as the domestic industry affected and therefore the relevant domestic industry in this investigation, disregarding that, as the main parties engaged in the importation of HFCS, Almex and Arancia were directly benefitting from the imports of the allegedly dumped product.
5.289.
Mexico observes that SECOFI went on to determine, in accordance with the AD Agreement, whether the sugar producers, represented by the Sugar Chamber as applicant, could be considered as representing the relevant domestic industry, understood as referring to the producers of the "like product with closely resembling characteristics", and to assess whether the sugar producers could be the domestic industry affected or threatened by HFCS imports. SECOFI proceeded to analyse whether the product manufactured by such industry – sugar – could be considered as a "like" product with characteristics closely resembling those of HFCS within the meaning of Article 2.6 of the AD Agreement. Having done so, and having established through a detailed analysis239 that HFCS and sugar qualified as like products with closely resembling characteristics, SECOFI determined, on the basis of Articles 2.6, 4.1, 5.1 and 5.4 of the AD Agreement, that the relevant domestic industry for the purposes of the investigation was indeed the sugar industry as represented by the Sugar Chamber.240
5.290.
Mexico recalls the United States assertion that "as previous panels have found, an authority's failure to have sufficient evidence to justify initiation and failure to properly determine an application was made by or on behalf of the domestic industry are violations which cannot be cured at a later date". Mexico states that this, precisely, has been Mexico's position in various panel procedures.241 In the view of Mexico, as SECOFI complied with all of its obligations under the AD Agreement in initiating the investigation, in particular the initiation provisions in Article 5 of the Agreement, by determining that the application for initiation had been submitted by or on behalf of the relevant domestic industry, and by determining that there was sufficient evidence to justify the initiation of the investigation, there was no violation whatsoever that might need to be cured following the initiation, as the United States argues.
5.291.
The United States argues that the following issues/facts before the Panel have been clarified:

-- 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).

5.292.
The United States argues that the legal basis requiring the authorities to make a determination defining the domestic industry prior to initiation is set forth in the following provisions of the AD Agreement. Article 5.1 of the AD Agreement requires that applications be filed "by or on behalf of the domestic industry" (emphasis added by the United States). Article 5.4 of the AD Agreement also makes clear that authorities must conduct an examination and determine that the application has the requisite support of domestic producers of the like product, in order to find that an application has been made by or on behalf of the domestic industry as required by Article 5.1. Article 5.4 states, "An investigation shall not be initiated pursuant to paragraph 1 unless the authorities have determined, on the basis of an examination of the degree of support for, or opposition to, the application expressed, that the application has been made by or on behalf of the domestic industry" (emphasis added by the United States, footnotes omitted). Article 5.3 of the AD Agreement states, "The authorities shall examine the accuracy and adequacy of the evidence provided in the application to determine whether there is sufficient evidence to justify the initiation of an investigation" (emphasis added by the United States).
5.293.
The United States submits that the importance of making a determination regarding domestic industry prior to initiation is also reflected in the text of AD Article 5.2. Article 5.2 requires that an application "shall contain evidence of... injury within the meaning of Article VI of GATT 1994 as interpreted by this Agreement". The Agreement defines "the term ‘injury’... 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" (Article 3, footnote 9, emphasis added by the United States). Therefore, in order to determine whether the evidence alleging threat of material injury is sufficient, an authority must conclude that those allegations concern a properly defined industry. In this case, whether the Sugar Chamber's allegations of a threat of injury to the sugar industry were relevant depended on whether the sugar industry was the appropriate domestic industry.
5.294.
The United States concludes that, in light of the above-referenced provisions, in those cases where an authority exercises its discretion to exclude domestic producers of the like product from the domestic industry pursuant to Article 4.1(i), it must make a determination to satisfy the requirements of this provision prior to initiation.
5.295.
Thus, in the view of the United States, in order for Mexico to satisfy its obligations under Articles 5.1, 5.2, 5.3, and 5.4 of the AD Agreement, the Panel must be able to determine from the administrative record that the authorities made the following determinations prior to initiation: (a) that the application was filed by or on behalf of the domestic industry; and (b) that the producers of HFCS were excluded by SECOFI from the domestic industry.
5.296.
The United States argues that the type of material in an administrative record which suffices for an investigating authority to determine it has sufficient evidence to justify initiation and to determine that the application is filed by or on behalf of the domestic industry is not unduly burdensome. For example, a short memorandum in the record examining the issues together with a summary mention in the initiation notice as to how the issues were resolved in a particular way could have been sufficient. There did not need to be a lengthy analysis of all of the contradictions in the Sugar Chamber's application and annexes as to production in Mexico of HFCS. Nor did the initiation notice need to contain an extensive discussion of whether there was HFCS production and whether to exclude those producers and why. But, there did need to be some determination somewhere in SECOFI's record of these issues and how they were resolved.242 Moreover, this determination needed to be accessible to the parties.