"To examine, in the light of the relevant provisions of the covered agreements cited by Poland in document WT/DS122/2, the matter referred to the DSB by Poland in document WT/DS122/2, and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements".
· AD Agreement Article 3, as read in conjunction with and Article VI of GATT 1994, by imposing anti-dumping duties where no material injury exists;
· AD Agreement Article 2, as read in conjunction with and Article VI of GATT 1994, by failing to make a proper determination of dumping and by calculating an unsupportable and unreasonable alleged dumping margin; and
· AD Agreement Articles 5 and 6, as read in conjunction with and Article VI of GATT 1994 and Article 12 AD Agreement, by unreasonably initiating and conducting its anti-dumping investigation of angles, shapes and sections of iron or non-alloy steel and H-beams imports from Poland in violation of the procedural and evidentiary requirements set forth in AD Agreement Articles 5 and 6.
"The factual background of the complaint is set forth in the request for consultations referred to above [WT/DS122/1]. More specifically, Thailand has imposed definitive antidumping duties on imports of H-beam steel products originating in Poland in contravention of the basic procedural and substantive requirements of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and of the Antidumping Agreement. The principal measures to which Poland objects are:
Thai authorities have made a determination that Polish imports caused injury to the Thai domestic industry, in the absence of, inter alia, "positive evidence" to support such a finding and without the required "objective examination" of enumerated factors such as import volume, price effects, and the consequent impact of such imports on the domestic industry, in contravention of Article VI of GATT 1994 and Article 3 of the Antidumping Agreement;
Thai authorities have made a determination of dumping and calculated an alleged dumping margin in violation of Article VI of GATT 1994 and Article 2 of the Antidumping Agreement;
Thai authorities initiated and conducted this investigation in violation of the procedural and evidentiary requirements of Article VI of GATT 1994 and Articles 5 and 6 of the Antidumping Agreement.
The above summary is designed to describe briefly the legal basis of the complaint in a manner sufficient to present the problem clearly, but is not to be taken as restricting the arguments which Poland may develop before the panel."35
"The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly…"
"Identification of the treaty provisions claimed to have been violated by the respondent is always necessary both for purposes of defining the terms of reference of a panel and for informing the respondent and the third parties of the claims made by the complainant; such identification is a minimum prerequisite if the legal basis of the complaint is to be presented at all. But it may not always be enough. There may be situations where the simple listing of the articles of the agreement involved may, in the light of attendant circumstances, suffice to meet the standard of clarity in the statement of the legal basis of the complaint. However, there may also be situations in which the circumstances are such that the mere listing of treaty articles would not satisfy the standard of Article 6.2. This may be the case, for instance, where the articles listed establish not one single, distinct obligation, but rather multiple obligations. In such a situation, the listing of articles of an agreement, in and of itself, may fall short of the standard of Article 6.2."39
"…whether the mere listing of the articles claimed to have been violated meets the standard of Article 6.2 must be examined on a case-by-case basis. In resolving that question, we take into account whether the ability of the respondent to defend itself was prejudiced, given the actual course of the panel proceedings, by the fact that the panel request simply listed the provisions claimed to have been violated."40
"(ii) the panel shall interpret the relevant provisions of the Agreement in accordance with 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."
"An application under paragraph 1 shall include evidence of (a) dumping, (b) injury within the meaning of Article VI of GATT 1994 as interpreted by this Agreement and (c) a causal link between the dumped imports and the alleged injury. Simple assertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph. The application shall contain such information as is reasonably available to the applicant on the following:
(iv) 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, 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".
"…Article 5.2 does not require an application to contain analysis, but rather to contain information, in the sense of evidence, in support of allegations. While we recognize that some analysis linking the information and the allegations would be helpful in assessing the merits of an application, we cannot read the text of Article 5.2 as requiring such an analysis in the application itself."115
"The authorities shall avoid, unless a decision has been made to initiate an investigation, any publicizing of the application for the initiation of an investigation. However, after receipt of a properly documented application and before proceeding to initiate an investigation, the authorities shall notify the government of the exporting Member concerned."
"2.2 When there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country or when, because of the particular market situation or the low volume of the sales in the domestic market of the exporting country, such sales do not permit a proper comparison, the margin of dumping shall be determined by comparison with a comparable price of the like product when exported to an appropriate third country, provided that this price is representative, or with the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits. (emphasis added, footnote deleted).
"2.2.2 For the purpose of paragraph 2, the amounts for administrative, selling and general costs and for profits shall be based on actual data pertaining to production and sales in the ordinary course of trade of the like product by the exporter or producer under investigation. When such amounts cannot be determined on this basis, the amounts may be determined on the basis of:
(i) the actual amounts incurred and realized by the exporter or producer in question in respect of production and sales in the domestic market of the country of origin of the same general category of products;
(ii) the weighted average of the actual amounts incurred and realized by other exporters or producers subject to investigation in respect of production and sales of the like product in the domestic market of the country of origin;
(iii) any other reasonable method, provided that the amount for profit so established shall not exceed the profit normally realized by other exporters or producers on sales of products of the same general category in the domestic market of the country of origin". (emphasis added)
"3.1 A determination of injury for purposes of Article VI of GATT 1994 shall be based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on domestic producers of such products."
"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."
"The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law…."
In our view, access of interested parties to relevant information in the course of the investigation, in addition to access to the disclosed factual basis and reasoning supporting an affirmative determination at least from the time of the determination enables an interested WTO Member to "exercise its judgment as to whether action under [the DSU] procedures would be fruitful" under Article 3.7 DSU. This is of particular significance given the considerable costs associated with mounting a WTO dispute settlement challenge (and preparing a defence to such a challenge), particularly for developing country Members.Such disclosedfactual basis and reasoning may also serve as the basis for panel review in the context of WTO dispute settlement. We view this as an essential aspect of the requirements concerning dispute settlement and meaningful panel review under the DSU and the AD Agreement.
"The authorities shall whenever practicable provide timely opportunities for all interested parties to see all information that is relevant to the presentation of their cases, that is not confidential as defined in paragraph 5, and that is used by the authorities in an anti-dumping investigation, and to prepare presentations on the basis of this information."
"With regard to the volume of the dumped imports, the investigating authorities shall consider whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the importing Member… No one or several of these factors can necessarily give decisive guidance."
"2.1 The import volume of the subject merchandise from Polandhas continuously increased when the total imports declined. When compared Polish imports with all other imports, Polish imports had increased from 31 per cent in 1994 to 48 per cent in 1995, to 57 per cent during the POI. Moreover, the market share of Polish imports had increased from 1994. It averages 24 per cent in 1995 and and [sic] 26 per cent during the POI." (emphasis added)
In addition, the draft final183 determination states:
"4. During the period of investigation, Total H-beams imported to Thailand decreased at 8% from 1995 while imports from Poland increased by 10%. As a result, market share of H-beam from Poland increased by 1.1%; on the other hand, the market share of the total import decreased at 7%."
"… With regard to the effect of the dumped imports on prices, the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product of the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree. No one or several of these factors can necessarily give decisive guidance."
Alleged data discrepancies
|Average Quarterly Price|
|Import Price from Poland||100||99||108||125||111||98|
|Price Data of H-Beam Unit: baht/ton|
|Import Price (Average c.i.f.) - All countries - Poland||8,951.84 7,792.45||9,936.11 8,408.82||8,754.43 7,975.00|
|Sale Price of Siam Yamato||-||[ ]||[ ]|
"2.2 Average CIF import price from Poland and the average price of Siam Yamato move in the same direction. Price of Polish imports has always been lower than that of Siam Yamato and lower than the average import price from all other countries.
2.3 The situation as described in 2.1 and 2.2 demonstrates the influence of Polish imports upon the Thai domestic market, therefore, the domestic industry has no choice but to decrease its price to the level of Polish imports. This has resulted in price undercutting and price suppression including the fact that the Thai domestic industry is unable to increase its price to recover its costs in a reasonable period of time. This, in turn, has effected its cash flow." (emphasis added)
"The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including actual and potential decline in sales, profits, output, market share, productivity, return on investments, or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can one or several of these factors necessarily give decisive guidance."
"The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including…" (emphasis added)
"The text of Article 3.4 is mandatory:
"The examination of the impact of the dumped imports on the domestic industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including…" (emphasis added).
In our view, this language makes it clear that the listed factors in Article 3.4 must be considered in all cases. There may be other relevant economic factors in the circumstances of a particular case, consideration of which would also be required. In a threat of injury case, for instance, the AD Agreement itself establishes that consideration of the Article 3.7 factors is also required. But consideration of the Article 3.4 factors is required in every case, even though such consideration may lead the investigating authority to conclude that a particular factor is not probative in the circumstances of a particular industry or a particular case, and therefore is not relevant to the actual determination. Moreover, the consideration of each of the Article 3.4 factors must be apparent in the final determination of the investigating authority.60 "
60 In this regard, we note the text of Article 12.2.2, which provides:
"A public notice of conclusion or suspension of an investigation in the case of an affirmative determination providing for the imposition of a definitive duty or the acceptance of a price undertaking shall contain, or otherwise make available through a separate report, all relevant information on the matters of fact and law and reasons which have led to the imposition of final measures…".
"2.5 The mere fact that the production and sales of the domestic industry has increased cannot be the sole indicators that the domestic industry has suffered no injury from Polish imports. In this early stage, it is possible that economy of scale is yet to be reached. Therefore, it is imperative that the domestic industry's market share be preserved and expanded to attain the sale level in keeping with its production at a level that it can continue to be in business. This was done by decreasing its prices to match that of Polish imports, resluting [sic] in the fact that the price level then became lower than it should have been. As a result, timely cost recovery has not been attained."258
"It must be demonstrated that the dumped imports are, through the effects of dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement. The demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities. The authorities shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped imports. Factors which may be relevant in this respect include, inter alia, the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry."