|Short Title||Full Case Title and Citation|
|EC – Hormones||Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135|
|US – Anti-Dumping Measures on PET Bags||Panel Report, United States – Anti-Dumping MeasuresonPolyethylene Retail Carrier Bags from Thailand, WT/DS383/R, adopted 18 February 2010|
|US – Continued Zeroing||Appellate Body Report, United States – Continued Existence and Application of Zeroing Methodology, WT/DS350/AB/R, adopted 19 February 2009|
|US – Gambling||Appellate Body Report, United States – Measures Affecting the Cross‑Border Supply of Gambling and Betting Services, WT/DS285/AB/R, adopted 20 April 2005, DSR 2005:XII, 5663 (Corr.1, DSR 2006:XII, 5475)|
|US – Shrimp (Ecuador)||Panel Report, United States – Anti‑Dumping Measure on Shrimp from Ecuador, WT/DS335/R, adopted on 20 February 2007, DSR 2007:II, 425|
|US – Shrimp (Thailand)||Panel Report, United States – Measures Relating to Shrimp from Thailand, WT/DS343/R, adopted 1 August 2008, as modified by Appellate Body Report WT/DS343/AB/R / WT/DS345/AB/R, DSR 2008:VII, 2539|
|US – Shrimp (Viet Nam)||Panel Report, United States – Anti-Dumping Measures on Certain Shrimp from Viet Nam, WT/DS404/R, adopted 2 September 2011|
|US – Softwood Lumber V||Appellate Body Report, United States – Final Dumping Determination on Softwood Lumber from Canada, WT/DS264/AB/R, adopted 31 August 2004, DSR 2004:V, 1875|
|US – Stainless Steel (Mexico)||Appellate Body Report, United States – Final Anti-Dumping Measures on Stainless Steel from Mexico, WT/DS344/AB/R, adopted 20 May 2008|
|US – Wool Shirts and Blouses||Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India, WT/DS33/AB/R, adopted 23 May 1997, and Corr.1, DSR 1997:I, 323|
|US – Zeroing (Korea)||Panel Report, United States – Use of Zeroing in Anti-Dumping Measures Involving Products from Korea, WT/DS402/R, adopted 24 February 2011|
|Anti-Dumping Agreement||Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994|
|CIT||United States Court of International Trade|
|DSB||Dispute Settlement Body|
|DSU||Understanding on Rules and Procedures Governing the Settlement of Disputes|
|PRC||People's Republic of China|
|USDOC||United States Department of Commerce|
|USITC||United States International Trade Commission|
To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by China in document WT/DS422/3 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.
(a) in the calculation of the dumping margins for Allied, Yelin and Red Garden in the Shrimp investigation, by the use of the zeroing methodology, the United States acted inconsistently with Article 2.4.2, first sentence, of the Anti-Dumping Agreement;
(b) in the calculation of the separate rate in the Shrimp investigation, by relying on company-specific dumping margins that were calculated with the use of the zeroing methodology, the United States acted inconsistently with Article 2.4.2, first sentence, of the Anti-Dumping Agreement; and,
(c) in the calculation of the dumping margin for AT&M in the Diamond Sawblades investigation, by the use of the zeroing methodology, the United States acted inconsistently with Article 2.4.2, first sentence, of the Anti-Dumping Agreement.
i. identified different "models" (i.e., types) of products using "control numbers" (CONNUM) that specify the most relevant product characteristics;
ii. calculated weighted-average US prices and weighted-average normal values on a model-specific basis for the entire period of investigation;
iii. compared the weighted-average normal value of each model to the weighted-average US price for that same model;
iv. in order to calculate the dumping margin for an exporter, summed the amount of "dumping" for each model and then divided it by the aggregate US price for all models; and
v. before summing the total amount of dumping for all models, effectively set all negative margins on individual models to zero25.
[N]otwithstanding the fact that the United States is not seeking to refute Ecuador's claims, we must satisfy ourselves that Ecuador has established a prima facie case of violation, and notably that it has presented "evidence and argument... sufficient to identify the challenged measure and its basic import, identify the relevant WTO provision and obligation contained therein, and explain the basis for the claimed inconsistency of the measure with that provision"31.
… made model-specific comparisons of weighted-average export prices with weighted-average normal values of comparable merchandise [and] then combined the dumping margins found based upon these comparisons, without permitting non-dumped comparisons to reduce the dumping margins found on distinct models of subject merchandise, in order to calculate the weighted-average dumping margin36. (emphasis added)
The Department interprets [the statutory definition of dumping] to mean that a dumping margin exists only when normal value is greater than export or constructed export price. As no dumping margins exist with respect to sales where normal value is equal to or less than export or constructed export price, the Department will not permit these non-dumped sales to offset the amount of dumping found with respect to other sales"37. (emphasis added)
First, USDOC divided the product under investigation (that is, softwood lumber from Canada) into sub-groups of identical, or broadly similar, product types. Within each sub-group, USDOC made certain adjustments to ensure price comparability of the transactions and, thereafter, calculated a weighted average normal value and a weighted average export price per unit of the product type. When the weighted average normal value per unit exceeded the weighted average export price per unit for a sub-group, the difference was regarded as the "dumping margin" for that comparison. When the weighted average normal value per unit was equal to or less than the weighted average export price per unit for a sub-group, USDOC took the view that there was no "dumping margin" for that comparison. USDOC aggregated the results of those sub-group comparisons in which the weighted average normal value exceeded the weighted average export price – those where the USDOC considered there was a "dumping margin" – after multiplying the difference per unit by the volume of export transactions in that sub-group. The results for the sub-groups in which the weighted average normal value was equal to or less than the weighted average export price were treated as zero for purposes of this aggregation, because there was, according to USDOC, no "dumping margin" for those sub-groups. Finally, USDOC divided the result of this aggregation by the value of all export transactions of the product under investigation (including the value of export transactions in the sub-groups that were not included in the aggregation). In this way, USDOC obtained an "overall margin of dumping", for each exporter or producer, for the product under investigation (that is, softwood lumber from Canada). … Thus, as we understand it, by zeroing, the investigating authority treats as zero the difference between the weighted average normal value and the weighted average export price in the case of those sub-groups where the weighted average normal value is less than the weighted average export price. Zeroing occurs only at the stage of aggregation of the results of the sub-groups in order to establish an overall margin of dumping for the product under investigation as a whole41. (emphasis original, footnote omitted).
Subject to the provisions governing fair comparison in paragraph 4, the existence of margins of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all comparable export transactions or by a comparison of normal value and export prices on a transaction-to-transaction basis.
The Appellate Body began its analysis with the text of Article 2.4.2 and noted that the question before it was the proper interpretation of the terms "all comparable export transactions" and "margins of dumping" in Article 2.4.2. In examining the arguments of the parties with respect to these phrases, the Appellate Body concluded that the parties' disagreement centered on whether a Member could take into account "all" comparable export transactions only at the sub-group level, or whether such transactions also had to be taken into account when the results of the sub-group comparisons are aggregated. To examine that issue, the Appellate Body noted the definition of dumping in Article 2.1 of the Anti-Dumping Agreement. The Appellate Body found that "it [was] clear from the texts of [Article VI:1 of the GATT 1994 and Article 2.1 of the Anti-Dumping Agreement] that dumping is defined in relation to a product as a whole as defined by the investigating authority". The Appellate Body further considered that the definition of "dumping" contained in Article 2.1 applies to the entire Agreement, including Article 2.4.2, and that "'[d]umping', within the meaning of the Anti-Dumping Agreement, can therefore be found to exist only for the product under investigation as a whole, and cannot be found to exist only for a type, model, or category of that product." Next, the Appellate Body relied on its Report in EC – Bed Linen, in which it stated that "[w]hatever the method used to calculate the margins of dumping... these margins must be, and can only be, established for the product under investigation as a whole." Thus, the Appellate Body noted that "[a]s with dumping, 'margins of dumping' can be found only for the product under investigation as a whole, and cannot be found to exist for a product type, model, or category of that product." The Appellate Body therefore rejected the United States' arguments in that case that Article 2.4.2 does not apply to the aggregation of the results of multiple comparisons at the sub-group level; for the Appellate Body, while an investigating authority may undertake multiple averaging to establish margins of dumping for a product under investigation, the results of the multiple comparisons at the sub-group levels are not margins of dumping within the meaning of Article 2.4.2; they merely reflect intermediate calculations made by an investigating authority in the context of establishing margins of dumping for the product under investigation. It is only on the basis of aggregating all such intermediate values that an investigating authority can establish margins of dumping for the product under investigation as a whole. On this basis, the Appellate Body held that zeroing, as applied by the USDOC in US – Softwood Lumber V:
mean[t], in effect, that at least in the case of some export transactions, the export prices are treated as if they were less than what they actually are. Zeroing, therefore, does not take into account the entirety of the prices of some export transactions, namely, the prices of export transactions in those sub-groups in which the weighted average normal value is less than the weighted average export price. Zeroing thus inflates the margin of dumping for the product as a whole.
The Appellate Body on this basis concluded that the treatment of comparisons for which the weighted average normal value is less than the weighted average export price as "non-dumped" comparisons was not in accordance with the requirements of Article 2.4.2 of the Anti-Dumping Agreement. As a result, the Appellate Body upheld the Panel's finding that the United States had acted inconsistently with Article 2.4.2 of the Anti-Dumping Agreement in determining the existence of margins of dumping on the basis of a methodology incorporating the practice of zeroing48. (footnotes omitted)
[W]e consider that our finding that Ecuador has established that the calculation of the margins of dumping for [some of the individually-investigated exporters] was inconsistent with Article 2.4.2 means that the calculation of the "all others" rate as the weighted average of the individual rates necessarily incorporates this inconsistent methodology59. (emphasis added, footnote omitted)