WT/DS578/R/Add.1  
 
 
27 July 2021 
(21-5793) Page: 1/94 
  Original: English/French  
 
  
MOROCCO - DEFINITIVE ANTI -DUMPING MEASURES  
ON SCHOOL EXERCISE BOOKS FROM TUNISIA  
FINAL REPORT OF THE PANEL  
Addendum  
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This addendum contains Annexes A to C to the Report of the Panel to be found in document 
WT/DS578/R . 
 
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 WT/DS578/R/Add.1  
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LIST OF ANNEXES  
ANNEX A  
PANEL DOCUMENTS  
Table of contents  Page  
Annex A -1 Working Procedures of the Panel  4 
Annex A -2 Additional Working Procedures of the Panel Concerning Business Confidential 
Information  11 
Annex A -3 Preliminary Ruling by the Panel  13 
Annex A -4 Interim Review  25 
ANNEX B  
ARGUMENTS OF THE  PARTIES  
Table of contents  Page  
Annex B-1 Integrated executive summary of the arguments of Tunisia  33 
Annex B -2 Integrated executive summary of the arguments of Morocco  58 
ANNEX C  
ARGUMENTS OF THE THIRD  PARTIES  
Table of contents  Page  
Annex C -1 Integrated executive summary of the arguments of Canada  81 
Annex C -2 Integrated executive summary of the arguments of the United States  84 
Annex C -3 Integrated executive summary of the arguments of Japan  87 
Annex C -4 Integrated executive summary of the arguments of the European Union  91 
 WT/DS578/R/Add.1  
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  ANNEX A  
PANEL DOCUMENTS  
Table of content s Page  
Annex A -1 Working Procedures of the Panel  4 
Annex A -2 Additional Working Procedures of the Panel Concerning Business Confidential 
Information  11 
Annex A -3 Preliminary Ruling by the Panel  13 
Annex A -4 Interim Review  25 
 
 
 WT/DS578/R/Add.1  
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  ANNEX A -1 
WORKING PROCEDURES OF THE P ANEL 
Adopted on 8 May 2020  
 
General  
 
1. (1) In this proceeding, the Panel shall follow the relevant provisions of the Understanding 
on Rules and Procedures Governing the Settlement of Disputes ("DSU"). In addition, the 
following Working Procedures apply.  
(2) The Panel reserves the right to modify t hese procedures as necessary, after consultation 
with the parties.  
Confidentiality  
2. (1) The deliberations of the Panel and the documents submitted to it shall be kept 
confidential. Members shall treat as confidential information that is submitted to the Panel 
which the submitting Member has designated as confidential.  
(2) In accordance with the DSU, nothing in these Working Procedures shall preclude a party 
or third party from disclosing statements of its own positions to the public.  
(3) If a party submits a confidential version of its written submissions to the Panel, it shall 
also, upon request of a Member, provide a non -confidential summary of the information 
contained in its submissions that  could be disclosed to the publi c. A party shall strive to submit 
a non -confidential summary to any Member requesting it as soon as  possible and within 
10 days of receipt of the request to the extent possible.  
(4) Upon request, the Panel may adopt appropriate additional working procedures for the 
treatment of business confidential information after c onsultation with the parties.  
Subm issions  
 
3. (1) Before the first substantive meeting of the Panel with the parties, each party shall 
transmit a written submission in which it presents the facts of the case and its arguments in 
accordance with the timetable adopted by the Panel.  
(2) Each party shall also submit to the Panel, prior to its second substantive meeting, a 
written rebuttal, in accordance with the timetable adopted by the Panel.  
(3) Each third party that chooses to make a written submission before the first substantive 
meeting o f the Panel with the parties shall do so in accordance with the timetable adopted by 
the Panel.  
(4) The Panel may invite the parties or third parties to make  additional submissions during 
the proceeding, including with respect to requests for preliminary rulings in accordance with 
paragraph 4 below.  
Preliminary rulings  
4. (1) If Morocco  considers that the Panel should make a ruling before the issuance of the 
Report that certain measures or claims in the panel request or the complainant's first written 
submission are not properly before the Panel, the following procedure applies. Exceptio ns to 
this procedure shall be granted upon a showing of good cause.  WT/DS578/R/Add.1  
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  a. Morocco shall submit any such request for a preliminary ruling at the earliest possible 
opportunity and in any event no later than in its first written submission to the Panel. 
Tunisia  shall submit its response to the request before the first substantive meeting of the 
Panel, at within a reasonable time to be determined by the Panel in light of the request.  
b. The Panel may issue a preliminary ruling on the issues raised in such a preli minary ruling 
request before, during or after the first substantive  meeting, or the Panel may defer a 
ruling on the issues raised by a preliminary ruling request until it issues its Report to the 
parties.  
c. If the Panel finds it appropriate to issue a pr eliminary ruling before the issuance of its 
Report, the Panel may provide reasons for the ruling at the time that the ruling is made, 
or subsequently in its Report.  
d. Any request for such a preliminary ruling by Morocco before the first meeting, and any 
subsequent submissions of the parties in relation thereto before the first meeting, shall be 
served on all third parties. The Panel may provide all third parties with an opportunity to 
provide comments on any such request, either in their submissions as pr ovided for in the 
timetable or separately. Any preliminary ruling issued by the Panel before the 
first substantive meeting on whether certain measures  or claims are properly before the 
Panel shall be shared with all third parties.  
(2) This procedure is wi thout prejudice to the parties' right to request other types of 
preliminary or procedural rulings during the proceeding, and to the procedures that the Panel 
may follow with respect to such requests.  
Evidence  
5. (1) Each party shall submit all evidence to the Panel no later than during the 
first substantive meeting, except evidence necessary for purposes of rebuttal, or evidence 
necessary for answers to questions or comments on answers provided by the other party. 
Additional exceptions may be granted upon a  showing of good cause.  
(2) If any new evidence has been admitted upon a showing of good cause, the Panel shall 
accord the other party an appropriate period of time to comment on the new evidence 
submitted.  
6. (1) If the original language of an exhibit or portion thereof is not a WTO working language, 
the submitting party or third party shall simultaneously submit a translation of the exhibit or 
relevant portion into the WTO working language of the submission. The P anel may grant 
reasonable extensions of time for the translation of exhibits upon a showing of good cause.  
(2) Any objection as to the accuracy of a translation should be raised promptly in writing, 
preferably no later than the next submission or the meet ing (whichever occurs earlier) 
following the submission which contains the translation in question. Any objection shall be 
accompanied by an explanation of the grounds for the objection and an alternative translation.  
7. (1) To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute, indicating the submitting Member and the number of each exhibit on its 
cover page.  Exhibits submitted by Tunisia should be numbered TUN -1, TUN -2, etc. Exhibits 
submitted by Morocco should be numbered MAR -1, MAR -2, etc. If the last exhibit in connection 
with the first submission was numbered MAR -5, the first exhibit in connection with th e next 
submission thus would be numbered MAR -6.  
 
(2) Each party shall provide an updated list of exhibits (in Word or Excel format) together 
with each of its submissions, oral statements, and responses to questions.  
(3) If a party submits a document that has already been submitted as an exhibit by the 
other party, it should explain why it is submitting that document again.  WT/DS578/R/Add.1  
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  (4) If a party includes a hyperlink to the content of a website in a submission, and intends 
that the cited content form part of the of ficial record, the cited content of the website shall be 
provided in the form of an exhibit  indicating the date on which it was viewed.  
Editorial Guide  
8. In order to facilitate the work of the Panel, each party and third party is invited, to the extent 
possible, to make its submissions in accordance with the WTO Editorial Guide for Panel Submissions 
(electronic copy provided).  
Questions  
 
9. The Panel may pose questions to the parties and third parties at any time, including:  
a. Before any meeting, the Pane l may send written questions, or a list of topics it intends 
to pursue in questioning orally during the meeting. The Panel may ask different or 
additional questions at the meeting.  
b. The Panel may put questions to the parties and third parties orally during a meeting, 
and in writing following the meeting, as provided for in paragraphs 15 and 21 below.  
Substantive meetings   
 
10. The Panel shall meet in closed session.  
11. The parties shall be present at the meetings only when invited by the Panel to appear before 
it.  
12. (1) Each party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each party shall have the responsibility for all mem bers of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and the 
submissions of the parties and third parties.   
13. Each party shall provide to the Panel the list of members of its delegation no later than 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the Panel.  
14. A request for interpretation by any party should be made to the Panel as early as possible, 
preferably at the organizational stage, to allow sufficient time to ensure availability of interpreters.  
15. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel sha ll invite Tunisia to make an opening statement to present its case first. 
Subsequently, the Panel shall invite Morocco to present its point of view. Before each 
party takes the floor, it shall provide the Panel and other participants at the meeting 
with a provisional written version of its statement. If interpretation is needed, each 
party shall provide additional copies for the interpreters before taking the floor.  
b. Each party should avoid lengthy repetition of the arguments in its submissions. Each 
party is invited to limit the duration of its opening statement to not more than 
45 minutes. If either party considers that it requires more time for its opening 
statement, it should inform the Panel and the other party at least 10 days before the 
meeting, to gether with an estimate of the expected duration of its statement. The Panel 
will accord equal time to the other party.   
c. After the conclusion of the opening statements, the Panel shall give each party the 
opportunity to make comments or ask the other p arty questions.  
d. The Panel may subsequently pose questions to the parties.  WT/DS578/R/Add.1  
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  e. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with Tunisia  presenting its statement first. Before 
each party takes the floor, it shall provide the Panel and other participants at the 
meeting with a provisional written version of its closing statement, if available.  
f. Following the meeting:  
i. Each party shall submit a final written version of its open ing statement no later than 
5.00 p.m. (Geneva time) on the first working day following the meeting. At the same 
time, each party should also submit a final written version of any prepared closing 
statement that it delivered at the meeting.  
ii. Each party shall send in writing, within the timeframe established by the Panel before 
the end of the meeting, any questions to the other party to which it wishes to receive 
a response in writing.  
iii. The Panel shall send in writing, within the timeframe establishe d by the Panel before 
the end of the meeting, any questions to the parties to which it wishes to receive a 
response in writing.  
iv. Each party shall respond in writing to the questions from the Panel, and to any 
questions posed by the other party, within the time -frame established by the Panel 
before the end of the meeting.  
16. The second substantial meeting between the Panel and the parties shall be conducted in the 
same manner as the first one, the only difference being that Morocco shall have the possib ility of 
making its oral statement first. The party having made its preliminary statement first shall make its 
final statement first.  
17. If the substantive meetings cannot be held in -person on the scheduled date in Geneva due to 
the health crisis caused b y COVID -19, the Panel may, depending on the circumstances, decide to 
change the timetable and the working procedures after consulting the parties.  
Third party session  
 
18. Each third party may present its views orally during a session of the substantive meeting with 
the parties set aside for that purpose.  
19. Each third party shall inform the Panel if it intends to make an oral statement at the third 
party session and shall provide to the Panel the list of members of its delegation no later th an 
5.00 p.m. (Geneva time) three working days before the first day of each meeting with the 
Panel.  
20. (1) Each third party has the right to determine the composition of its own delegation when 
meeting with the Panel.  
(2) Each third party shall have the responsibility for all members of its delegation and shall 
ensure that each member of its delegation acts in accordance with the DSU and these Working 
Procedures, particularly with regard to the confidentiality of the proceeding and th e 
submissions of the parties and third parties.  
21. A request for interpretation by any third party should be made to the Panel as early as 
possible, preferably upon receiving the working procedures and timetable for the proceeding, to 
allow sufficient time to ensure avai lability of interpreters.  
22. The third -party session shall be conducted as follows:  
a. All parties and third parties may be present during the entirety of this session.  
b. The Panel shall first hear the oral statements of the third parties, who shall spe ak in 
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  shall provide the Panel and other participants with a provisional written version of its 
statement before it takes the floor. If interpretation of a third party' s oral statement is 
needed, that third party shall provide additional copies for the interpreters before taking 
the floor.  
c. Each third party should limit the duration of its statement to 15 minutes , and avoid 
repetition of the arguments already in its s ubmission. If a third party considers that it 
requires more time for its statement, it should inform the Panel and the parties at least 
10 days before the meeting, together with an estimate of the expected duration of its 
statement. The Panel will accord e qual time to all third parties for their statements.   
d. After the third parties have made their statements, the parties shall be given the 
opportunity to pose questions to any third party for clarification on any matter raised in 
that third party's submi ssion or statement.  
e. The Panel may subsequently pose questions to any third party.  
f. Following the third -party session:  
i. Each third party shall submit the final written version of its oral statement, no later 
than 5.00  p.m. (Geneva time) on the firs t working day following the meeting.  
ii. Each party may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to a third party or parties to which it 
wishes to receive a response in writing.  
iii. The Panel may send in writing, within the timeframe to be established by the Panel 
before the end of the meeting, any questions to a third party or parties to which it 
wishes to receive a response in writing.  
iv. Each third party wishing  to do so shall respond in writing to written questions from the 
Panel or a party, within a timeframe established by the Panel before the end of the 
meeting.  
Descriptive part and executive summaries  
 
23. The description of the arguments of the parties and third parties in  the descriptive part of the 
Panel report shall consist of executive summaries provided by the parties and third parties, which 
shall be annexed as addenda to the report. These executive summaries shall not in any way serve 
as a substitute for the submissi ons of the parties and third parties in the Panel's examination of the 
case.  
24. Each party shall submit one integrated executive summary . This shall summarize the facts 
and arguments as presented by the party to the Panel in the party's written submissio ns, oral 
statements, and may also include a summary of its responses to questions and comments thereon  
following the substantive meetings. The deadline for submitting such an integrated summary shall 
be indicated in the timetable adopted by the Panel.  
25. The integrated executive summary shall be limited to no more than 30 pages.  
26. The Panel may request the parties and third parties to provide executive summaries of facts 
and arguments presented in any other submissions to the Panel for which a deadline may not be 
specified in the timetable.  
27. Each third party shall submit an integrated executive summary of its arguments as presented 
in its written submission and oral  statement in accordance with the timetable adopted by the Panel. 
This integra ted executive summary may also include a summary of responses to questions. The 
executive summary to be provided by each third party shall not exceed six  pages. If a third -party 
submission and/or oral statement does not exceed six pages in total, this may serve as the executive 
summary of that third party's arguments  unless said third party expresses the wish that the WT/DS578/R/Add.1  
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  submission and/or oral statement does not serve as the executive summary, in which case it shall 
submit a separate executive summary.  
Interim  review  
 
28. Following issuance of the interim report, each party may submit a written request to review 
precise aspects of the interim report and request a further meeting with the Panel, in accordance 
with the timetable adopted by the Panel. The right to request such  a meeting shall be exercised no 
later than at the time the written request for review is submitted.  
29. Each party may submit written comments on the other party's written request for review . 
Such written comments shall be limited to commenting on the ot her party's written request for 
review and shall be submitted  in accordance with the timetable adopted by the Panel.  
Interim and Final Report  
30. The interim report, as well as the final report before its official circulation, shall be kept strictly 
confidential and shall not be disclosed.  
Service of documents  
 
31. The following procedures regarding service of documents apply to all documents submitted by 
parties and third parties during the proceeding:  
a. Each party and third party shall submit all docume nts to the Panel by submitting them 
with the DS  Registry (office No. 2047).  
b. Each party and third party shall submit 2 paper copies of its submissions and 
2 paper  copies of its Exhibits to the Panel by 5.00 p.m. (Geneva time) on the due dates 
establishe d by the Panel. The DS  Registrar shall stamp the documents with the date and 
time of submission. The paper version submitted to the DS Registry shall constitute the 
official version for the purposes of submission deadlines and the record of the dispute. If  
any exhibit is in a format that is impractical to submit as a paper copy, then the party may 
submit such an exhibit in electronic format to the DS Registrar (by email or on a CD -ROM, 
DVD or USB key). In such a case, the cover page of the exhibit shall ind icate that it is 
available in electronic format only.  
c. Each party and third party shall also submit all documents in paper copies to the Panel via 
the Disputes On -line Registry Application (DORA), the WTO online registry 
(https://dora.wto.org) before 5:0 0 p.m. on the same day. If the parties or third parties 
have any questions or technical difficulties relating to the online registry, they are invited 
to consult the Help Section of the DORA User Guide or contact the DS Registry 
(DSRegistry@wto.org ). 
d. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve any submissions in advance of th e first substantive 
meeting with the Panel directly on the third parties. Each third party shall serve any 
document submitted to the Panel directly on the parties and on all other third parties. A 
party or third party may serve its documents on another par ty or third party by email only 
or other electronic format acceptable to the recipient, unless the recipient party or third 
party has previously requested a paper copy at least five working days prior to the due 
date for said submission.  Each party and thi rd party shall confirm, in writing, that copies 
have been served on the parties and third parties, as appropriate, at the time it provides 
each document to the Panel.  Each party and third party shall serve copies on the other 
party (and third parties if ap propriate) by 5.00  p.m. (Geneva time) on the due dates 
established by the Panel.  
e.  As a general rule, all communications from the Panel to the parties and third parties will 
be via email. In addition to transmitting them to the parties by email, the Pan el shall 
provide the parties with a paper copy of the Interim Report and the Final Report.  WT/DS578/R/Add.1  
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  Correction of clerical errors in submissions  
32. The Panel may grant leave to a party or third party to correct clerical errors in any of its 
submissions (including paragraph numbering and typographical mistakes). Any such request should 
identify the nature of the errors to be corrected, and should be made promptly following the filing 
of the submission in question.  WT/DS578/R/Add.1  
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  ANNEX A -2 
 
ADDITIONAL WORKING PROCEDURES OF THE PANEL CONCERNING 
BUSINESS  CONFIDENTIAL  INFORMATION  
Adopted on 28  May 2020  
1. For the purposes of these proceedings, business confidential information (BCI) is defined as 
any information designated as such by a party submitting the information to the Panel. The parties 
shall only designate as BCI information that is not available in the  public domain, the release of 
which would cause serious harm to the interests of the originator(s) of the information. BCI may 
include information that was previously treated as confidential by Morocco's Ministry of Industry, 
Investment, Trade and the Dig ital Economy in the course of the anti -dumping proceedings at issue.  
2. No person shall have access to BCI except a member of the Panel, a WTO Secretariat staff 
member assisting the Panel, an employee of a party or third party, and an outside advisor to a party 
or third party for the purposes of this dispute. However, an outside advisor is not permitted access 
to BCI if that advisor is an officer or employee of an enterprise engaged in the production, sale, 
export or import of the products that were the sub ject of the proceedings at issue, or an officer or 
employee of an association of such enterprises.  
3. A person having access to BCI shall treat it as confidential, i.e., shall not disclose that 
information other than to those persons authorized to receive it pursuant to these procedures. Each 
party or third party shall have responsibility in this regard for its employees as well as any outside 
advisors used for the purposes of this dispute. Any information obtained under these procedures 
may be used  only for the purpose of providing information and argumentation in this dispute and 
for no other purpose.^ All documents and electronic storage media containing BCI shall be stored 
in such a manner as to prevent unauthorized access to such information.  
4.  When a party or third party submits BCI in a written submission, it shall mark the cover and/or 
first page of the document containing BCI, and each page of the document, to indicate the presence 
of such information. The specific information in question s hall be placed between double brackets, 
as follows: [[xx,xxx.xx]]. The first page or cover of the document shall state "Contains Business 
Confidential Information", and each page of the document shall contain the notice "Contains 
Business Confidential Info rmation" at the top of the page. For all BCI disclosed in the form of, or as 
part of, an exhibit, the exhibit shall also be marked to indicate that it contains BCI by putting "BCI" 
next to the exhibit number (e.g.  Exhibit TUN -1 (BCI)).  
5. For all BCI submi tted electronically, the file name shall include the terms "Business 
Confidential Information" or "BCI". In addition, where applicable, the term "Business Confidential 
Information" shall be written clearly on the label affixed to the storage media.  
6. In the case of an oral statement containing BCI, the party or third party making such a 
statement shall inform the Panel before making it, and the Panel will ensure that only persons 
authorized to have access to BCI pursuant to these procedures are in the room  to hear that 
statement. The written versions of such oral statements submitted to the Panel shall be marked as 
provided for in paragraph 4.  
7. Where a party or third party submits a document containing BCI to the Panel, the other party 
or third parties, w hen referring to that BCI in its documents, including written submissions, and 
written copies of their oral statements, shall clearly identify all such information in those documents. 
All such documents shall be marked as described in paragraph 4.  WT/DS578/R/Add.1  
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  8. If a party considers that information submitted by the other party or a third party should have 
been designated as BCI and objects to such submission without BCI designation, it shall promptly 
bring this objection to the attention of the Panel and the other par ty or third party, together with 
the reasons for the objection. Similarly, if a party considers that the other party or a third party 
submitted information designated as BCI information which should not be so designated, it shall 
promptly bring this object ion to the attention of the Panel and the other party or third party, together 
with the reasons for the objection. The Panel shall decide whether information subject to an objection 
will be treated as BCI for the purposes of these proceedings on the basis of the criteria set out in 
paragraph 1.  
9. The Panel will not disclose BCI, in its report or in any other way, to unauthorized persons to 
have access to BCI. The Panel may, however, make statements of conclusion drawn from that 
information. Before the Pane l circulates its final report to the Members, the Panel will give each party 
an opportunity to review the report to ensure that it does not contain any information that the party 
has designated as BCI.  
10. Submissions, exhibits and other documents or recor dings containing BCI will be included in 
the record forwarded to the Appellate Body in the event of an appeal of the Panel's Report.  
 WT/DS578/R/Add.1  
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  ANNEX A -3 
 
PRELIMINARY RULING OF THE PANEL  
14 September  2020  
1 INTRODUCTION  
 
1.1. On 19 June 2020, Morocco submitted a preliminary ruling request to the Panel, arguing that 
certain claims made in Tunisia's first written submission do not appear in its request for the 
establishment of a panel or are too vague. Morocco requests the Panel to make a preliminary ruling 
that the submission of these claims is not in accordance with Article 6:2 of the Understanding on 
Rules and Procedures Governing the Settlement of Disputes (hereafter "the DSU") and were 
therefore not properly before the Panel's j urisdiction.  
2 MAIN ARGUMENTS OF THE PARTIES  
2.1. In its preliminary ruling request, Morocco argues that:  
a. The "claims" relating to (i) the distribution cost1, (ii) the exclusion from the calculation 
of the profit margin of certain costs and expenses that are not part of the product price2, 
and (iii) the mathematical formulas used to calculate the margin of dumping3, are 
"missing" from the request for the establishment of a panel.  
b. The "claim" relating to the exclusion of domestic sales in  Tunisia is referred to in the 
panel request, but the legal basis is different to that given in Tunisia's first written 
submission.4 
c. The wording of the claim under Articles 3.1 et 3.2 of the Agreement on Implementation 
of Article VI of the General Agre ement on Tariffs and Trade 1994 (Anti -Dumping 
Agreement), concerning the analysis of sales price depression and of price suppression, 
made in the panel request is too vague.5 
2.2. Morocco contends that its rights of defence are affected by Tunisia's non -compliance with the 
provisions of Article 6:2 of the DSU.6 
2.3. Moreover, Morocco asks the Panel to exclude from its jurisdiction certain "claims" that Tunisia 
appears to have dropped from its first written submission or that would have no chance of being 
upheld7: 
a. The "claims" that Tunisia appears to have dropped are (i) the violation of Article 5.8 of 
the Anti -Dumping Agreement set out in paragraph B.1 of the panel request; (ii) the 
violation of Article 6.8 of the Anti -Dumping Agreement and paragraphs 3, 5, 6 and 7 of 
Annex II set out in paragraph B.4 of the panel request; (iii) the violation of 
Article  2.2.1.1 of the Anti -Dumping Agreement set out in paragraph B.5 of the panel 
request; (iv) the violation of Articles 3.1 and 3.2 of the Anti -Dumping Agre ement set 
out in paragraph B.7.a of the panel request (concerning the analysis of the volume of 
imports, in absolute terms); and (v) the claim made in paragraph B.11 of the panel 
request.8 
 
1 Tunisia's first written submission, section 5.3; and Morocco's preliminary ruling request, section B.1.  
2 Tunisia's first written submission, section 5.2.3; and Morocco's preliminary ruling request, section B.3.  
3 Tunisia's first written submission, section 5.4; and Morocco's preliminary ruling request, section B.4.  
4 Morocco's preliminary ruling request, section B.2.  
5 Morocco's preliminary ruling request, section B.5; and Tunisia's request for the establishment of a 
panel, WT/DS578/2 (Request for the establishment of a panel by Tunisia), para. B.7.c.  
6 Morocco's prel iminary ruling request, para. 6.  
7 Morocco's preliminary ruling request, para. 9 and sections III.A and III.B.  
8 Morocco's preliminary ruling request, para. 47.  WT/DS578/R/Add.1  
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  b. The claims that, according to Morocco, have no chance of being upheld are those 
criticizing the fact that "the [Ministry of Industry, Trade, Investment and the Digital 
Economy (MIICEN)] failed to objectively consider the volume of imports in relative 
terms", as required under Articles 3.1 and 3.2 of the Anti -Dumping A greement.9 
2.4. Meanwhile, Tunisia asks the Panel to reject Morocco's preliminary ruling request pursuant to 
Article 6:2 of the DSU and not to issue a preliminary ruling on Morocco's request concerning claims 
that "had no chance of being upheld". Tunisia hopes that the Panel will address those claims at the 
same time as other substantive issues.10 
2.5. Lastly, Tunisia confirms that it has dropped claims that were not expanded on in its first written 
submission, with the exception of the claim under Article  5.8 of the Anti -Dumping Agreement.11 
3  ANALYSIS BY THE PANEL  
3.1. In this section, we will, first of all, recall the relevant provisions of the DSU that apply to requests 
for the establishment of a panel. Next, we will examine Morocco's request according to which certain 
claims made by Tunisia in its first written submission are "missing" from the request for the 
establishment of a panel. We will then determine whether the legal basis of the "claim" relating to 
the exclusion of domestic sales, as  set forth in the panel request, is different to that given in Tunisia's 
first written submission. Lastly, we will consider whether the wording of the complaint about the 
analysis of price depression and of price suppression is too vague and, for that reas on, does not 
meet the requirements of Article 6:2 of the DSU.  
3.1  Relevant provisions of the DSU  
3.2. Article 6:2 of the DSU provides that:  
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. In case the applicant requests the establishment of a panel with other than 
standard terms of reference, th e written request shall include the proposed text of 
special terms of reference.  
3.3. Furthermore, pursuant to Article 7 of the DSU, the Panel's terms of reference, and thus the 
scope of its jurisdiction, are governed by the request for the establishment o f a panel . The panel 
request also serves the rights of defence, as it notifies the responding party of the case against it 
and allows it to prepare its response. As the Appellate Body recalled in US - Carbon Steel : 
The requirements of precision in the req uest for the establishment of a panel flow from 
the two essential purposes of the terms of reference. First, the terms of reference define 
the scope of the dispute. Secondly, the terms of reference, and the request for the 
establishment of a panel on which  they are based, serve the due process  objective of 
notifying the parties and third parties of the nature of a complainant's case. When faced 
with an issue relating to the scope of its terms of reference, a panel must scrutinize 
carefully the request for e stablishment of a panel "to ensure its compliance with both 
the letter and the spirit of Article 6.2 of the DSU".12 
3.4. It is well established that the adequacy of the panel request must be assessed on a case -by-case 
basis, depending on the merits of each  case, having considered the panel request as a whole.13 
However:  
Defects in the request for the establishment of a panel cannot be "cured" in the 
subsequent submissions of the parties during the panel proceedings. Nevertheless, in 
 
9 Morocco's preliminary ruling request, para. 50.  
10 Tunisia's reply to Morocco's preliminary ru ling request, para. 8.3.  
11 Tunisia's reply to Morocco's request for a preliminary ruling, footnote on page 1.  
12 Appellate Body Report, US - Carbon Steel , para.  126 (fns  omitted)  
13 Appellate Body Report, US - Carbon Steel , para. 127 (referring to Appellate Body Report, Korea - 
Dairy , paras. 124 -127).  WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
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  considering the sufficie ncy of a panel request, submissions and statements made during 
the course of the panel proceedings, in particular the first written submission of the 
complaining party, may be consulted in order to confirm the meaning of the words used 
in the panel request  and as part of the assessment of whether the ability of the 
respondent to defend itself was prejudiced.14 
3.5. Article 6.2 imposes two obligations on the complaining party regarding the formulation of its 
claims in the panel request. The request shall (i)  identify "the specific measures at issue" and (ii) 
provide "a brief summary of the legal basis of the complaint sufficient to present the problem 
clearly". Moreover, "while the summary of the legal basis may be 'brief', the degree of brevity that 
is permi ssible under Article  6.2 is a function of its clarity in presenting the problem".15 In particular, 
the complaining party must "plainly connect the challenged measure(s) with the provision(s) of the 
covered agreements claimed to have been infringed".16 
3.6. The Appellate Body has clarified the meaning of this obligation on several occasions:  
[W]hat is sufficient to "plainly connect" the measure with the provision of the covered 
agreements claimed to have been infringed will also depend on the circumstances o f 
each case. Such circumstances may include the nature of the measure at issue and the 
manner in which it is described in the panel request, as well as the nature of the 
provision of the covered agreements alleged to have been breached. In addition, a pane l 
request need only provide the "legal basis of the complaint", that is, the claims  
underlying this complaint and not the arguments  in support thereof.17 
3.7. Thus, if a complainant includes certain arguments in its panel request, "these arguments should 
not be interpreted to narrow the scope of the measures or the claims".18 
3.2  Whether the "claims" relating to (i) the distribution cost, (ii) the exclusion from the 
calculation of the profit margin of certain costs and expenses that are not part of the 
product price, and (iii) the mathematical formulas used to calculate the margin of 
dumping, are "missing" from the request for the establishment of a panel.  
3.2.1   Summary of parties' arguments  
3.2.1.1   Morocco  
3.8. Morocco asks the Panel to rule that the three "claims mi ssing" from the panel request do not 
comply with Article 6.2 of the DSU.19 
3.9. Morocco notes that Tunisia's first written submission contains a section 5.3 which states that 
"the MIICEN acted inconsistently with Articles 2.1 and 2.2 of the Anti -Dumping Ag reement by 
including the 'distribution cost' in the reconstructed normal value of most of the types of SOTEFI 
exercise books".20 However, Morocco asserts that this claim is not included in the panel request.  
3.10. Morocco also contends that Tunisia's first  written submission includes, in section 5.2.3, a claim 
of inconsistency with Articles 2.1, 2.2 and 2.2.2 of the Anti -Dumping Agreement on the grounds 
that, when calculating the profit margin, the investigating authority did not exclude administrative 
 
14 Appellate Body Report, US - Carbon Steel , para.  127. 
15 Appellate Body Report, Korea - Pneumatic valves (Japan) , para. 5.6.  
16 Appellate Body Report, Korea - Pneumatic valves (Japan) , para. 5.6.  
17 Appellate Body  Report, Korea - Pneumatic valves (Japan) , para. 5.6. (fns omitted; emphasis in the 
original)  
18 Appellate  Body Report, EC - Selected Customs Matters , para.  153. In Korea - Pneumatic valves 
(Japan) , the Appellate Body recalled the difference between claims and arguments: "claims [pertain] to a 
specific provision of a covered agreement, that is, an allegation that 'the respondent party has violated, or 
nullified or impaired the benefits arising from, an identified provision'". Meanwhile, "arguments" are 
"statements put forth by a complaining party 'to demonstrate that the responding party's measure does indeed 
infringe upon the identified treaty provision'". (Appellate Body Report, Korea - Pneumatic valves (Japan) , para. 
5.31)  
19 Morocco's preliminary ruling request, sections B.1, B.3 and B.4  
20 Morocco's preliminary ruling request, para. 11.  WT/DS578/R/Add.1  
BCI redacted, as indica ted [[***]]  
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  costs and certain expenses that are not part of the product price. Again, Morocco asserts that this 
claim is not included in the panel request.21 
3.11. Moreover, Morocco contends that Tunisia's first written submission includes (in section 5.4) a 
claim under A rticle 2.4 of the Anti -Dumping Agreement that was not made in the panel request. This 
claim concerns the "mathematical formulas used by MIICEN to calculate the margin of dumping".22 
3.2.1.2   Tunisia  
3.12. Tunisia responds that these "claims" are in fact "arguments"  made in support of claims brought 
in the panel request. Thus, according to Tunisia the two relevant claims are:  
a. The fact that the investigating authority "committed errors leading to the calculation of 
an artificially high normal value", in a manner th at was incompatible with Articles  2.1, 
2.2, 2.2.1.1 and 2.2.2 of the Anti -Dumping Agreement. Tunisia explains that this claim 
does appear in the panel request (in paragraph B.5) and that it was submitted in 
accordance with the provisions of Article 6:2 of the DSU.23 
b. The fact that Morocco has infringed Article 2.4 of the Anti -Dumping Agreement and 
Article VI:1 of the General Agreement on Tariffs and Trade 1994 (GATT  1994) because 
"the investigating authority failed to make a fair comparison between the no rmal value 
and the export price". Tunisia explains that this claim does appear in the panel request 
(in paragraph B.6) and that it was submitted in accordance with the provisions of 
Article  6:2 of the DSU.24 
3.13. According to Tunisia, paragraph B.5 of the  panel request is in conformity with the provisions 
of Article 6:2 of the DSU because it identifies (i) the specific measures at issue (the calculation of 
the reconstructed normal value)25, and (ii) the legal basis of the claim (Articles 2.1, 2.2 and 2.2.2  
of the Anti -Dumping Agreement). Furthermore, Tunisia maintains that paragraph B.5 of the panel 
request explains the "precise connection" between the specific measure at issue and the legal basis 
for the complaint (the fact that Morocco committed errors le ading to the calculation of an artificially 
high normal value).26 
3.14. Tunisia adds that Morocco is confusing the claim set forth in the panel request and the 
arguments  in support of this claim, including the issue of the distribution cost and the failure to 
exclude administrative costs and certain expenses.27 Tunisia clarifies that paragraph B.5 contains a 
claim that the investigating authority "committed errors leading  to the calculation of an artificially 
high normal value" and that its first written submission sets out three errors committed by Morocco. 
Tunisia contends that "the argument regarding the failure to exclude administrative costs and certain 
expenses from the profit margin serves to demonstrate that the profit margin used to calculate the 
constructed normal value was inflated".28 It also asserts that "the argument concerning the inclusion 
of the distribution cost in the normal value calculation shows that MIICEN constructed an artificially 
high normal value".29 Tunisia maintains that there is no obligation under the DSU requiring a 
complainant to include its arguments  in its panel request.30 
3.15. With regard to the allegedly "missing" claim concerning the mathematical formulas, Tunisia 
replies that the claim under Article 2.4 of the Anti -Dumping Agreement is made in paragraph B.6 of 
the panel request.31 According to Tunisia, this paragraph contains: (i) the claim itself (the failure to 
make a fair comparison between the normal value and the export price, in contravention of Article 
VI:1 of GATT); and (ii) an argument in support of that claim (not making allowance for the physical 
 
21 Morocco's preliminary ruling request, para. 29.  
22 Morocco's preliminary ruling request, section 4.  
23 Tunisia's reply to Morocco's preliminary ruling request, section 3.  
24 Tunisia's reply to Morocco's preliminary ruling request, section 5.  
25 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.11.  
26 Tunisia's reply to Morocco's preliminary  ruling request, paragraph 3.20.  
27 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.22.  
28 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.25.  
29 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.25 . 
30 Tunisia's reply to Morocco's preliminary ruling request, paragraph 3.26.  
31 Tunisia's reply to Morocco's preliminary ruling request, para. 5.1.  WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 17 - 
 
  characteristics).32 Therefore, what Morocco contends is a "claim" regarding the mathematical 
formulas is actually an argument in support of the claim made in paragraph B.6 of the panel 
request.33 
3.16. Last ly, Tunisia considers that paragraph B.6 of its panel request would be compliant with the 
DSU insofar as it sets forth (i) the specific measure at issue (the failure to make a fair comparison); 
(ii) the claim's legal basis (Article 2.4 of the Anti -Dumping Agreement and Article VI:1 of GATT), 
which covers not only the question of adjustments, but also the calculation of the margins of 
dumping; and (iii) the explicit link between the measure and the obligation in question (the fact that 
Morocco would have inf ringed Article 2.4 by not making a fair comparison between the normal value 
and the export price).34 
3.2.2   Summary of the arguments of the third parties  
3.17. In its comments on the preliminary ruling request, Canada supports Tunisia's position, stating 
that35: 
[T]his "claim", concerning the exclusion from the calculation of the profit margin of 
certain costs and expenses that are not part of the product price, is in fact an argument 
in support of the claim made in paragraph B.5 of the panel request, namely that the 
investigating authority committed errors leading to the calculation of an artificially high 
normal value. That Tunisia chose to submit, in the panel request, a potential argument 
in support of this claim does not in any way limit the scope of the claim  or Tunisia's 
ability to submit further arguments in support of this claim.  
3.18. Similarly, the European Union submits that:  
[I]n its panel request, Tunisia does not simply list the provisions that it claims have 
been violated, but also indicates "why", i n particular by referring to "errors leading to 
the calculation of an artificially high normal value". While the nature of these errors has 
not been specified in all instances, this does not appear to be required under Article  6.2 
of the DSU. As far as the  European Union is concerned, the description of the nature of 
the errors at issue seems, a priori , to provide a level of detail that goes beyond setting 
out the claim underpinning the complaint, and to fall within the category of arguments 
rather than cla ims.36 
3.19. With regard to the distinction between claims and arguments that do not necessarily have to 
be set forth in a panel request, Japan and the European Union draw the Panel's attention to the 
clarifications provided by the Appellate Body in Korea - Pneumatic valves (Japan) .37 
3.2.3   Evaluation by the Panel  
3.20. We recall that Morocco does not ask us to rule on whether the claims, set forth in 
paragraphs  B.5 and B.6 of the panel request, are made in accordance with Article 6:2 of the DSU. 
Morocco's request is limited to asking the Panel to rule that new claims are presented in the first 
written submission, which is not conformity with Article 6.2, and that these claims therefore fall 
outside the Panel's terms of reference.38 
 
32 Tunisia's reply to Morocco's preliminary ruling request, paras.  5.6 and 5.7.  
33 Tunisia's reply to Morocco's  preliminary ruling request, paras. 5.19 -5.22.  
34 Tunisia's reply to Morocco's preliminary ruling request, paras.  5.6, 5.10 and 5.18.  
35 Comments of Canada on Morocco's preliminary ruling request, para. 10. (fns  omitted)  
36 Comments of the European Union on M orocco's preliminary ruling request, para.  9. 
37 Comments of Canada on Morocco's preliminary ruling request, para. 8; Comments of Japan on 
Morocco's preliminary ruling request, para. 2; and Comments of the European Union on Morocco's preliminary 
ruling requ est, para.  8. 
38 We note that Morocco states at the beginning of its request that "at least two claims in Tunisia's panel 
request fail to comply with the provisions of Article 6.2 of the DSU which require a brief summary of the legal 
basis of the complaint sufficient to present the problem clearly". (Morocco's preliminary ruling request, para. 
2.) However, the two claims in question are not specified and section B of Morocco's request refers to five 
separate claims submitted by Tunisia. Meanwhile, Tunisia ma intains that the "Panel could also consider, even in 
the absence of a specific challenge by Morocco, whether the claim set forth in paragraph B.5 of the panel WT/DS578/R/Add.1  
BCI redacted, as indica ted [[***]]  
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  3.21. The disagreement be tween the parties relates to the content of the panel request, and 
specifically whether certain claims set forth by Tunisia are "missing" therefrom. To answer this 
question, we will now examine the text of the panel request in the light of Tunisia's first written 
submission.  
3.22. We note that the request for the establishment of a panel comprises (in addition to the 
introduction and the panel request itself) two parts entitled "the measure at issue" and "legal basis 
for the complaint", respectively.  
3.23. The "measure at issue" is "the definitive anti -dumping measure imposed on imports of school 
exercise books from Tunisia". The request also states that it "covers the anti -dumping duties, as 
well as all the documents forming part of the investigation record  that led to the imposition of the 
measure at issue".39 The reading of this section of the panel request therefore leaves no doubt as 
to the nature of the measure at issue.  
3.24. With respect to the "legal basis for the complaint", Tunisia sets out 12 comp laints against the 
measure at issue. Each complaint is set forth in a paragraph citing the relevant articles of the 
Anti-Dumping Agreement and of GATT  1994 and explaining the legal issue in a clause beginning 
with "because ...". It appears to us, therefore , that each of these 12 paragraphs contains a separate 
claim40 and that the claims pertinent to Morocco's preliminary ruling  request are those set forth 
in paragraphs B.5 and B.6 of the panel request.  
3.25. Having identified the measure at issue and the claims set out in Tunisia's panel request, we 
will analyse whether the complaints that Morocco presents as new claims (i.e. th at cannot be linked 
to claims set forth in paragraphs B.5 and B.6) are actually "missing" or whether, as argued by 
Tunisia, they are made in support of those claims, in which case they do not necessarily have to be 
included in the panel request.  
3.26. We f irst consider whether the complaints relating to the distribution cost and the exclusion of 
administrative costs and certain expenses that are not part of the product price are new claims.  
3.2.3.1   Complaints relating to distribution cost and the exclusion of admin istrative costs 
and certain expenses that are not part of the product price  
3.27. Morocco considers that "the text [of paragraph B.5] clearly has nothing to do ... with the 
disputed inclusion of the 'distribution cost' in the calculation of the reconstruct ed normal value" nor 
with "the exclusion from the calculation of the profit margin of administrative costs and certain 
expenses that are not part of the product price".41 Accordingly, Morocco considers that these two 
new "claims" are not within the Panel's  terms of reference.  
3.28. We recall that the text of paragraph B.5, in which Tunisia claims that the measure at issue 
infringes Morocco's obligations, and specifically:  
Articles 2.1, 2.2, 2.2.1.1 and 2.2.2 of the Anti -Dumping Agreement and Article  VI:1 of  
GATT  1994, because the investigating authority committed errors leading to the 
calculation of an artificially high normal value. In particular, but not limited to the fact 
that, when reconstructing the normal value, the authority failed to take into accou nt all 
the sales made in Tunisia for the calculation of the profit margin.  
3.29. We are not convinced by Morocco's contention that this paragraph has "nothing to do" with 
the claims concerning the distribution cost and the exclusion of administrative costs  and certain 
expenses that are not part of the product price. We recall that in order to clarify the meaning of the 
terms used in the panel request, the Panel may consult the text of the complaining party's first 
written submission.42 Thus, sections 5.2.3 and 5.3 of Tunisia's first written submission are part of 
 
request satisfies the conditions of Article 6.2 of the DSU". (Reply to Morocco's preliminary ruli ng request, para. 
3.39).  
39 Tunisia's panel request, p.  1. 
40 The claim under Articles 3.1 and 3.2 of the Anti -Dumping Agreement in paragraph B.7 of Tunisia's 
panel request is divided into several subparagraphs numbered (a) to (c).  
41 Morocco's preliminary ru ling request, paras. 19 and 31.  
42 Appellate Body Report, US - Carbon Steel , para.  127 WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
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  section 5 on "claims relating to the determination of dumping". The introduction to section 5 states 
that Tunisia "presents two claims". The first claim is worded as follows:  
Firstly, MIICEN incorre ctly calculated the profit margin of Tunisian exporters when 
constructing the normal value, which is inconsistent with Articles 2.1, 2.2 and 2.2.2 of 
the Anti -Dumping Agreement. In fact, MIICEN incorrectly included in the profit margin, 
in addition to ordi nary profits, administrative costs, as well as certain expenses that are 
not part of the ex -factory price... Moreover, MIICEN excluded valid sales in the Tunisian 
market from the calculation of the profit margin. Furthermore, MIICEN acted in a 
manner incon sistent with Articles 2.1 and 2.2 by incorrectly including the distribution 
cost in the reconstructed normal value for most of the types of SOTEFI exercise books.43 
3.30. This paragraph therefore relates to the conformity of the normal value constructed by the 
investigating authority with Articles 2.1, 2.2 and 2.2.2.44 
3.31. Section 5.2 of Tunisia's first written submission addresses the calculation of an incorrect profit 
margin and Tunisia sets forth "two arguments" in support of this claim:  
Firstly, MIICEN calculated the profit margin incorrectly by failing to exclude from the 
calculation of the profit margin administrative costs and certain expenses that are not 
part of the product price. Secondly, MIICEN excluded, wrongly, the sales of numb ered 
and watermarked exercise books from the profit margin used for the constructed normal 
value.45 
3.32. Lastly, section 5.3 addresses the inclusion of the "distribution cost" in the reconstructed normal 
value of most of the SOTEFI models. The conclusion of this section states that:  
MIICEN acted inconsistently with Article 2.2 of the Anti -Dumping Agreement by 
including in the construction of the normal value of certain types of SOTEFI exercise 
books the "distribution cost", covering the cost of domestic tr ansport, port charges and 
shipping costs, even though these costs and expenses are not part of an appropriate 
normal value, as provided for in Article 2.2. In addition, MIICEN acted in a manner 
inconsistent with Article 2.1 of the Anti -Dumping Agreement by  calculating an inflated 
margin of dumping as a result of the incorrectly calculated normal value.46 
3.33. Comparing the panel request and Tunisia's first written submission therefore confirms that the 
claim  at issue is that set forth in paragraph B.5 of t he panel request (errors in the establishment of 
the normal value in contravention of Articles 2.1, 2.2 and 2.2.2). This claim is divided into several 
subsections, including in particular the inclusion of the distribution cost  in the normal value and the 
inclusion in the profit margin , in addition to the ordinary profits, of administrative costs, as well as 
certain expenses that are not part of the ex -factory price . 
3.34. Therefore, we do not share Morocco's view that "the text [of paragraph B.5] clearly ha s nothing 
to do ... with the disputed inclusion of the 'distribution cost' in the calculation of the reconstructed 
normal value" nor with "the exclusion from the calculation of the profit margin of administrative 
costs and certain expenses that are not par t of the product price". On the contrary, Tunisia's first 
written submission shows that these two complaints are arguments that support the claim set forth 
in the panel request.  
3.35. In light of the foregoing, we find that Morocco has failed to demonstrat e that the complaints 
concerning the distribution cost and the exclusion of administrative costs and certain expenses from 
the calculation of the profit margin are "claims" missing from the panel request.  
 
43 Tunisia's first written submission, para. 5.2.  
44 See also Tunisia's first written submission, para.  519. 
45 Tunisia's first written submission, para.  5.19.  
46 Tunisia's f irst written submission, para. 5.87.  WT/DS578/R/Add.1  
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  3.2.3.2   Complaint relating to the mathematical formula for calculating the margin of 
dumping  
3.36. We now turn to Morocco's contention that the complaint relating to the mathematical formula 
for calculating the margin of dumping is a new claim that is not within the Panel's terms of reference.  
3.37. We note that Tunisia's panel request does include, in paragraph B.6, a claim under Article  2.4 
of the Anti -Dumping Agreement that Morocco breached its obligation:  
Article 2.4 of the Anti -Dumping Agreement and Article VI:1 of GATT  1994, because the 
investigating au thority failed to make a fair comparison between the normal value and 
the export price, by not making allowance, in particular, for all the physical 
characteristics affecting price comparability that were cited by the exporters;  
3.38. Tunisia states that i ts first written submission sets forth "two arguments" in support of the 
claim that "MIICEN acted in a manner inconsistent with the obligation under Article 2.4 of the 
Anti-Dumping Agreement to make a 'fair comparison' between the normal value and the expo rt 
price".47 
3.39. The first argument relates to the choice of the numerator and denominator of the formula used 
to calculate the margin of dumping. The second argument concerns the rejection by MIICEN of a 
request for adjustment based on a characteristic affecting price comparability (the use of licences). 
It is therefore clear from reading these documents that, according to Tunisia, the complaint 
concerning the mathematical formulas for calculating the margin of dumping is an argument in 
support of the cl aim made in the panel request.  
3.40. Tunisia recalls48 that the obligation under Article 2.4 of the Anti -Dumping Agreement to make 
a fair comparison between the normal value and the export price relates not only to the question of 
adjustments, but also to the issue of the margin of dumping calculation. Thus, Article  2.4.2 
determines the methods for establishing the margins of dumping "[s]ubject to the provisions 
governing fair comparison in paragraph 4 ".49 Similarly, other panels and the Appellate Body have 
confirmed that the obligation to make a "fair comparison" is applicable to the calculation of margins 
of dumping.50 Contrary to Morocco's assertion51, there is therefore no doubt that an argument 
concern ing the calculation of the margin of dumping could support a claim of violation of Article  2.4 
of the Anti -Dumping Agreement.  
3.41. We understand that the first part of paragraph B.6 of the panel request contains a claim 
("Article 2.4 of the Anti -Dumping A greement and Article VI:1 of GATT  1994, because the 
investigating authority failed to make a fair comparison between the normal value and the export 
price"). The second part of the sentence ("by not making allowance, in particular, for all the physical 
characteristics ...") serves, in our view, to explain how the investigating authority violated the 
relevant obligations and, therefore, constitutes an argument rather than an integral part of the claim. 
We consider that the fact that Tunisia included one argu ment (out of two) in its panel request cannot 
have the effect of restricting the scope of the claim set forth in paragraph B.6. Furthermore, 
Article  6:2 of the DSU does not require Tunisia to include in its request the second argument 
concerning the mathem atical formulas used to calculate the margin of dumping.  
 
47 Tunisia's first written submission, para. 5.88.  
48 Tunisia's reply to Morocco's preliminary ruling request, paras.  5.13 and 5.14.  
49 Emphasis added.  
50 For example, the Panel in US - Zeroing (EC)  found that "the obligation to make a fair comparison is 
not limited to the issue of how to ensure price comparability by selecting comparable transactions or making 
appropriate adjustments but also applies to the issue of the calculation of margins of dum ping within the 
meaning of Article 2.4.2 of the Anti -Dumping Agreement". (Report of the Panel , US - Zeroing (EC) , 
para. 7.258). The Appellate Body upheld the panel's finding. (Appellate Body Report, US - Zeroing (EC) , 
para. 146).  
51 Morocco's preliminary r uling request, para. 38.  WT/DS578/R/Add.1  
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  3.42. In light of the foregoing, and bearing in mind what Morocco asked of us in its preliminary ruling 
request52, we conclude that Morocco has not demonstrated that the complaint relating to the 
mathematical formulas is a "claim" missing from the panel request.  
3.3  Whether the legal basis of the "claim" relating to the exclusion of domestic sales, as 
set forth in the panel request, is different to that given in Tunisia's first written submission  
3.3.1   Summary of parties' arguments  
3.43. Morocco submits that there is an inconsistency between the panel request and Tunisia's first 
written submission, because the latter (under section 5.2.4) refers to Articles 2.1, 2.2 and 2.2.2 of 
the Anti -Dumping Agreement, where as the request refers (in paragraph B.3) to Articles 2.1, 2.2 and 
2.2.1. According to Morocco, the claim under Article 2.2.2 of the Anti -Dumping Agreement is 
"missing entirely from the panel request".53 
3.44. Tunisia responds that the issue of the exclusio n of sales of numbered or watermarked exercise 
books is "an argument" that "serves to support the claim" set forth in paragraph B.5 of the panel 
request, "that MIICEN acted in a manner inconsistent with Articles 2.1, 2.2 and 2.2.2 of the 
Anti-Dumping Agree ment".54 Tunisia maintains that the issue of excluding certain types of exercise 
books by the investigating authority is explicitly referred to in paragraph B.5 of the panel request.  
3.3.2   Evaluation by the Panel  
3.45. We begin by noting that the issue of exclud ing domestic sales in Tunisia is explicitly included 
in the description of the "first claim" under Articles 2.1, 2.2 and 2.2.2, in section 5 of Tunisia's first 
written submission ("in addition, MIICEN excluded valid sales in the Tunisian market from the 
calculation of the profit margin").55 
3.46. We further note that the issue of domestic sales in Tunisia is referred to explicitly in paragraph 
B.5 of the panel request, in support of the claim set forth in that paragraph that "the investigating 
authority com mitted errors leading to the calculation of an artificially high normal value".  
3.47. Since paragraph B.5 refers to Article 2.2.2 of the Anti -Dumping Agreement among other 
provisions, it follows that, contrary to Morocco's assertions, Tunisia's first writt en submission does 
refer to the same legal basis as the panel request.  
3.48. In light of the foregoing, we find that Morocco has not demonstrated that the complaint 
concerning the exclusion of domestic sales in Tunisia is a "claim" missing from the panel r equest or 
that it is based on a legal provision that is not cited in the panel request.  
3.4  Whether the wording of Tunisia's claims concerning the analysis of sales price 
depression and price suppression is too vague  
3.4.1   Summary of parties' arguments  
3.49. Morocco contends that the claims set forth in the panel request relating to the investigating 
authority's determination of injury are worded using "catch -all terms" that do not meet the criteria 
of Article 6:2 of the DSU.56 
3.50. Morocco refers to paragrap h B.7 of the panel request and specifically paragraph B.7.c57, which 
alleges a violation of "Articles 3.1 and 3.2 of the Anti -Dumping Agreement and Articles VI:1 and 
VI:6(a) of GATT  1994 because, among other things":  
 
52 Morocco asks the Panel to rule that "the claims  relating to the mathematical formulas used by 
Morocco to calculate the margin of dumping [in violation of] Article 2.4 are missing from the panel request". 
(Morocco's preliminary ruling request, section II.4) (emphasis added).  
53 Morocco's preliminary ruli ng request, para. 24.  
54 Tunisia's reply to Morocco's preliminary ruling request, paras.  3.37 and 3.40.  
55 Tunisia's first written submission, para. 5.2.  
56 Morocco's preliminary ruling request, para. 46.  
57 Morocco's preliminary ruling request, para. 41.  WT/DS578/R/Add.1  
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  [T]he analysis regarding sales price de pression and price suppression is not based on 
positive evidence and does not involve an objective examination.  
3.51. In particular, Morocco considers that the panel request should have specified "why and how" 
the analysis at issue is not based on "positiv e evidence" and does not involve "an objective 
examination".58 
3.52. Tunisia responds that its panel request does comply with the provisions of Article 6:2 of the 
DSU, insofar as it sets forth (a) the specific measure at issue (the anti -dumping measure at issue 
based on the MIICEN analyses of sales price depression and price suppression); (b) the legal basis 
of the complaint (Articles 3.1 and 3.2 of the Anti -Dumping Agreement); and (c) an explicit link 
between the challenged measure and the alleged violatio n (paragraphs 7.a -7.c).59 Tunisia considers 
that requiring a complaining party to explain in its panel request " why and how" the measure at 
issue violates the cited obligation would be "contrary to Article 6.2 of the DSU". Tunisia asserts that:  
Insofar as  the complaining party identifies the relevant aspect of the measure, specifies 
the obligation (distinct and well delineated) and explicitly establishes the link between 
the two, the claim shall meet the legal standard of Article 6.2 of the DSU.60 
3.4.2   Summary of the arguments of the third parties  
3.53. The United States addresses Morocco's assertion that Tunisia should have explained "how and 
why" the measure at issue is inconsistent with Morocco's obligations. In this regard, the United 
States maintain s that neither of the terms "why" and "how" appears in Article 6.2 and considers that 
Morocco's request should be examined in the light of the explicit requirement in Article 6.2, namely 
that the complaining party shall provide in the request for the estab lishment of a panel a "brief 
summary of the legal basis of the complaint sufficient to present the problem clearly".61 The 
United  States adds that Article 6.2 does not require the complaining party to present its arguments 
in the panel request and that, ac cording to the provisions of Appendix 3 of the DSU, the complaining 
party should instead present its arguments in its written submissions.62 
3.4.3   Evaluation by the Panel  
3.54. Article 6.2 requires that the request for the establishment of a panel "provide a bri ef summary 
of the legal basis of the complaint sufficient to present the problem clearly". We understand that in 
this case, Morocco specifically denounces the lack of an "explicit link" between the measure at issue 
and the alleged violation. We therefore e xamine whether paragraph B.7.c of the panel request 
satisfies the requirements of Article 6.2.  
3.55. We note that this paragraph of the panel request refers to both Articles  3.1 and 3.2 of the 
Anti-Dumping Agreement (as well as Articles VI:1 and VI:6(a) of  GATT  1994) and thus identifies the 
provisions of the covered agreements alleged to have been breached. Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement together establish a distinct, well -delineated obligation that 
determinations of the effect of the du mped imports on the price of a like product of the importing 
Member shall be based on positive evidence and involve an objective examination.  
3.56. Furthermore, Tunisia's claim states that it relates specifically to the section of the measure at 
issue conc erning the analysis of price depression and of price suppression. With regard to the explicit 
link between the relevant provisions and the measure at issue, it is our view that Tunisia has clearly 
presented how the measure at issue is inconsistent with Art icles 3.1 and 3.2 by explaining that the 
analysis relating to sales price depression and price suppression is not based on positive evidence 
and did not involve an objective examination.63 
 
58 Morocco's preliminary ruling request, para. 42.  
59 Tunisia's reply to Morocco's preliminary ruling request, paras. 6.6 -6.10.  
60 Tunisia's reply to Morocco's request for preliminary ruling, para. 2.16.  
61 Comments of the United States on Morocco's preliminary ru ling request, paras. 4 -6 and 10.  
62 Comments of the United States on Morocco's preliminary ruling request, para. 6 (referring to para. 4 
of Appendix 3 of the DSU).  
63 We note that the Appellate Body in Korea - Pneumatic valves (Japan)  followed a similar appr oach with 
respect to Japan's claim based on Articles 3.1 and 3.2 of the Anti -Dumping Agreement. The relevant section of WT/DS578/R/Add.1  
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  3.57. We understand that by denouncing the failure to explain "how and why", Morocco is criticizing 
Tunisia for not setting out in sufficient detail its specific allegations regarding the analysis of price 
depression and of price suppression in the panel request. However, in our view, demanding this level 
of detail would go beyond that required by Article 6.2. In this connection, the Appellate Body has 
specified that "the reference to the phrase 'how or why' in certain past disputes does not indicate a 
standard different from the requirement that a panel request include a 'brief summary of the legal 
basis ... sufficient to present the problem clearly' within the meaning of Article  6.2 of the DSU".64 
3.58. It therefore follows that, contrary to Morocco's assertion, paragraph B.7.c of Tunisia's panel 
request contains "a brief  summary of the legal basis of the complaint sufficient to present the 
problem clearly" within the meaning of Article 6.2 of the DSU. In light of the foregoing, we reject 
Morocco's request on this point and confirm that the claim at issue falls within the Panel's terms of 
reference.  
3.5  Morocco's requests concerning claims that have been "dropped" and "have no chance 
of being upheld"  
3.59. We recall that Morocco asks the Panel to exclude from its jurisdiction certain claims that Tunisia 
appears to have dropped from its first written submission.65 In this regard, we note Tunisia's 
confirmation that it has dropped the claims that were not expanded on in its first written submission, 
with the exception of the claim under Article 5.8 of the Anti -Dumping Agre ement, set forth in section 
8 and paragraph 9.1.(h) of Tunisia's first written submission.66 
3.60. Morocco also asks the Panel to exclude from its jurisdiction Tunisia's claim that MIICEN acted 
in a manner inconsistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement by failing "to 
objectively consider the volume of imports in relative terms" because that claim had no chance of 
being upheld.67 Tunisia responds that this request by Morocco encapsulates the essence of Tunisia's 
case and it would theref ore be "inappropriate for such a substantive matter to be the subject of a 
preliminary determination".68 We consider that the issue of whether the examination of the volume 
of imports in relative terms undertaken by MIICEN may be inconsistent with the obli gation set forth 
in Articles 3.1 and 3.2 of the Anti -Dumping Agreement is a matter that should be examined in 
conjunction with other substantive issues raised in this dispute.69 Accordingly, the Panel reserves its 
answer and will address to the points rais ed by Morocco in its final report.  
4  CONCLUSION  
4.1. For the reasons set out in this preliminary ruling, we find that:  
a. Tunisia's complaints relating to (i) the distribution cost, (ii) the exclusion from the 
calculation of the profit margin of certain cost s and expenses that are not part of the 
ex-factory product price, and (iii) the exclusion of certain domestic sales, are not "claims 
 
Japan's panel request argued that Korea's measure imposing the anti -dumping duties on pneumatic valves 
from Japan was inconsistent with Korea's obligations under "[a]rticles 3.1 and 3.2 of the [Anti -Dumping] 
Agreement because Korea's analysis of a significant increase of the imports under investigation did not involve 
an objective examination based on positive evidence". The Appellate Body  found that this argument met the 
criteria of Article 6:2 of the DSU. (Appellate Body Report, Korea - Pneumatic valves (Japan) , paras.  5.65-5.79).  
64 Appellate Body Report, Korea - Pneumatic valves (Japan) , para. 5.12.  
65 Morocco's preliminary ruling request , paras. 9(a), 47 -49. 
66 Tunisia's reply to Morocco's request for a preliminary ruling, footnote on page 1.  
67 Morocco's preliminary ruling request, paras. 9 (b) and 50 -53. 
68 Tunisia's reply to Morocco's preliminary ruling request, para. 8.3. Similarly, Cana da submits that "the 
Panel's preliminary rejection of a claim otherwise included in the panel request and that is the subject of 
arguments in Tunisia's first written submission would be contrary to Article 11 of the DSU. Therefore, this claim 
should not be  the subject of a preliminary ruling by the Panel as requested by Morocco". (Comments of Canada 
on Morocco's preliminary ruling request, para.  15). Japan and the European Union are also in favour of such an 
approach. (Comments of Japan on Morocco's prelimi nary ruling request, para.  6; and Comments of the 
European Union on Morocco's preliminary ruling request, para. 13).  
69 Similarly, the Appellate Body observed in Australia - Apples  that "the question of whether the 
measures identified in the panel request can violate, or cause the violation of, the obligation in Annex C(1)(a) 
and Article 8 is a substantive issue to be addressed and resolved on the merits". The Appellate Body therefo re 
criticized the fact that the panel chose to stop its analysis at the jurisdictional stage. (Appellate  Body 
Report,  Australia - Apples , para.  425).  WT/DS578/R/Add.1  
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  missing" from Tunisia's panel request and are therefore not presented in violation of 
Article 6.2 of the DSU.  
b. Tunisia's complaint relating to the mathematical formulas used to calculate the margin 
of dumping is not a "claim missing" from Tunisia's panel request and is therefore not 
presented in violation of Article 6.2 of the DSU.  
c. Subparagraph (c) of the claim set forth in paragraph B.7 of Tunisia's panel request does 
comply with the requirements of Article 6.2 of the DSU, and thus falls within a Panel's 
terms of reference.  
 
 WT/DS578/R/Add.1  
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  ANNEX A -4 
  
INTERIM REVIEW  
1  INTRODUCTION  
1.1. This annex to the Panel Report sets out our responses to the requests and comments made by 
the parties during the interim review stage, as provided for under Article 15.3 of the DSU.  
1.2. With regard to certain requests, we were guided by the consider ation that the descriptions of 
the parties' arguments in our Report are not intended to reflect the entirety of the parties' 
arguments. Rather, they focus on the principal points we considered relevant to the resolution of 
this dispute. In this respect, we  recall that "a panel ha[s] the discretion to address only those 
arguments it deems necessary to resolve a particular claim".1 We further note that the executive 
summaries of the arguments of the parties are set out in Annexes B1 and B2. Those summaries 
have been prepared by the parties themselves and therefore have provided the parties with the full 
opportunity to reflect their arguments as they see fit.  
1.3. Furthermore, consistent with the approach of previous panels, we consider it to be in appropriate 
for the parties to re -argue, at the interim review stage, arguments already put before a panel.2 
1.4. Where appropriate, we ha ve modified aspects of the Report in the light of the parties' requests 
and comments. Due to changes as a result of our review, the numbering of the paragraphs and 
footnotes in the Final Report has changed from the Interim Report. The text below refers to the 
numbers in the Interim Report, with the numbers in the Final Report in parentheses , if different , for 
ease of reference.  
1.5. In addition to the modifications specified below, we have also corrected a number of 
typographical errors throughout the Repor t. 
2 MOROCCO'S SPECIFIC REQUESTS FOR REVIEW  
2.1. Morocco has not submitted any request for review of the Interim Report.  
3 TUNISIA'S SPECIFIC REQUESTS FOR REVIEW  
3.1 Paragraphs 7.58, 7.85, 7.106 and 7.183  
3.1. Tunisia first requests that we modify our conc lusions in paragraphs 7.58, 7.85, 7.106 and 7.183, 
according to which Tunisia failed to establish what Morocco's obligations are under Article 2.1 of the 
Anti-Dumping Agreement, or how those obligations have been violated  as a result of the errors 
committe d by MIICEN when establishing a reasonable amount for profit, when establishing normal 
value and in the mathematical formula used to calculate the margin of dumping. Tunisia considers 
that its responses to Panel questions Nos. 1.26 and 1.29 explain the spe cific obligation under Article 
2.1 and why MIICEN did not have a "valid factual basis" to find that the exercise books should be 
considered as being dumped.3 "Alternatively", Tunisia requests that we apply "the principle of judicial 
economy" to its claim under Article 2.1.4 
3.2. For its part, Morocco requests that we do not modify our reasoning with regard to Tunisia's 
claims under Article 2.1 nor our Report.5 
3.3. Tunisia's argument, as we understand it, is therefore that an authority that committed an error 
when establishing normal value or when calculating the margin of dumping does not have a "valid 
factual basis" to find that a product "is to be considered as being dumped" within the meaning of 
 
1 Appellate Body Reports, EC - Poultry , para. 135; US - COOL , para. 414. 
2 Panel Reports, EU - Fatty Alcoh ols (Indonesia) , para. 6.5; Japan - DRAMs (Korea) , para. 6.2; US - 
Poultry (China) , para. 6.32; and India - Agricultural Products , para. 6.5.  
3 Tunisia's request for interim review, para.  2.2. 
4 Tunisia's request for interim review, para.  2.3. 
5 Morocco's comments on Tunisia's request for interim review, para.  16. WT/DS578/R/Add.1  
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  Article 2.1. From this perspective, a panel finding a vi olation of another provision of Article 2 of the 
Anti-Dumping Agreement could also find a "consequential" violation of Article 2.1.  
3.4. We recall that Article 2.1 reads as follows:  
For the purpose of this Agreement, a product is to be considered as being dumped, i.e. 
introduced into the commerce of another country at less than its normal value, if the 
export price of the product exported from one country to another is less than the 
comparable price, in the ordinary course of trade, for the like produ ct when destined for 
consumption in the exporting country.  
3.5. This provision sets out positively when a product is to be considered as being dumped: when 
its export price is less than its normal value. The use of the verb " devoir " in the first sentence of 
Article 2.1 in the French text of the Anti -Dumping Agreement is not sufficient, in our opinion, to 
establish an obligation on a Member.6 Explaining, in its responses to the Panel's questions, that 
"Article 2.1 contains the general requirement for the calculation of the margin of dumping"7 and 
"that a product 'is to be considered as being dumped' when its normal value is higher than its export 
price"8, Tunisia sets out a definition but fails to establish what Morocco's obligation was under Art icle 
2.1 in this case, nor how that obligation was violated  by Morocco. For that reason, we reject Tunisia's 
request that paragraphs 7.58, 7.85, 7.106 and 7.183 be amended.  
3.2 Paragraphs 7.121 -7.125, 7.128, 7.129 and 8.1.c.i . 
3.6. Tunisia then requests th at we clarify in our Final Report that its argument regarding the impact 
of licenses on price comparability does not concern  SOTEFI's possible request for an adjustment, 
but rather the typology established by MIICEN to classify the exercise books by model.  In that 
regard, Tunisia would like the Report to indicate that SOTEFI "responded to all MIICEN's requests 
relating to the classification of the exported product ".9 
3.7. In particular, Tunisia asks that we include in our Report a reference to MIICEN's wri tten request 
sent to Tunisian producers/exporters on 4 May 2018, seeking  to clarify with which type of cover 
("varnished or not, laminated, cardboard, under licence, etc.") the exercise books were sold in the 
domestic market and for export to Morocco. The purpose of MIICEN's  request was a possible revision 
of the classification used "by adding cover criteria".10 
3.8. Morocco considers that Tunisia's comments constitute an attempt to relitigate arguments 
already discussed and resolved by the Panel. Morocco t herefore asks us to reject Tunisia's request .11 
3.9. In order to accurately reflect all of the requests sent by MIICEN to the exporters, we have 
decided to include a reference to MIICEN's written request in paragraph 7.120 of our Report, which 
now reads as  follows:  
c. Lastly, on 4 May 2018, MIICEN requested SOTEFI to revise "the classification used" 
for domestic sales and for sales to Morocco "by adding cover criteria (varnished or not, 
laminated, cardboard, under licence, etc.)".[168] 
168 Email dated 4 May 2018 (Exhibit  TUN-72). 
3.10. However, we do not see any reason to amend paragraph 7.121, which specifically describes 
SOTEFI's response to that request, in the form of revised spreadsheets distinguishing which exercise 
books were sold un der licence and which exercise books were sold without a licence. Nevertheless, 
for our findings to respond to Tunisia's specific argument on price comparability, we have amended 
the last sentence of paragraph 7.124, which also refers to those spreadsheets  by indicating:  
 
6 In fact, t he verb " devoir " ("must") is not used in the English and Spanish versions of the text.  
7 Tunisia's response to Panel question No.  2.9, para. 68.  
8 Tunisia's response to Panel question No. 1.26, para.  23. 
9 Tunisia's request for interim review, para.  2.5. (emphasis original)  
10 Email dated 4 May 2018 (Exhibit TUN -72). 
11 Morocco's comments on Tunisia's request for interim review, para.  17. WT/DS578/R/Add.1  
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  Similarly, the revised electronic spreadsheet submitted to MIICEN by SOTEFI does refer 
to which exercise book models are sold under licence, but does not demonstrate how 
that difference affected price comparability .12 
3.11. We also do not c onsider it relevant to indicate, as Tunisia requests, that SOTEFI "responded 
to all MIICEN's requests relating to the classification of the exported product ".13 As we stated in our 
Report, "we are not convinced that how an authority decides to make allowances for differences 
affecting price comparability (by developing a typology of different models or by making 
adjustments) changes the burden of proof falling on  the authority and the interested parties, 
respectively".14 The authority only has "to make allowance" for a possible difference if it is 
demonstrated that this difference exists and that it affects price comparability. In this case, the 
information reques ted by MIICEN was reasonable and relevant both to demonstrating the difference 
that existed between the exercise books under licence and the exercise books sold without a licence, 
and to demonstrating how th is difference affects price comparability (actual  expenditure, market 
value of the adjustment and corresponding references in the company's accounts).  
3.12. For this reason, we decline Tunisia's request to revise paragraph 7.124 of our Report. We also 
decide to uphold our conclusion, reflected in paragra ph 7.126 of our Report, according to which 
"SOTEFI never provided the information requested by MIICEN and therefore  failed to  'demonstrate' 
that licences affected price comparability within the meaning of Article 2.4 of the Anti -Dumping 
Agreement".15 To clarify our conclusion with regard to that claim by Tunisia, we have amended 
paragraph 8.1.c. of our Report as follows:  
Article 2.4 of the Anti -Dumping Agreement, because MIICEN did not accept to make 
allowance for licences as a difference affecting pr ice comparability.  
3.3 Section 7.3.2  
3.13. With regard to the claim under Articles 3.1 and 3.2 of the Anti -Dumping Agreement concerning 
the examination of the volume of Tunisian imports of exercise books compared to domestic 
production and to domestic cons umption, Tunisia notes that the Panel resorted to judicial economy.16 
Tunisia requests us either to find that the underlying facts of this claim are not contested  by the 
parties, or to make the necessary factual findings that could help the Appellate Body to complete 
the legal analysis should  it disagree with our decision.17 
3.14. Morocco objects to Tunisia's request and asks us to not modify our Report on this point.18 
3.15. We note that Tunisia is not contesting our decision to apply judicial economy to t hat claim.19 
We consider that MIICEN's report on the definitive determination contains the relevant facts and 
data underpinning its consideration  of the volume of Tunisian imports in relative terms. In our 
opinion, the additional factual findings requested  by Tunisia are therefore not necessary to rule on 
this claim. That being said, we have added in footnote 344 (345) a clarification regarding the data 
on which MIICEN based its analysis.  
3.4 Paragraph 7.253  
3.16. Tunisia considers that paragraph 7.253 refl ects its position but does not mention its specific 
arguments nor Morocco's position on those arguments. Tunisia requests us to amend this paragraph 
by including a summary of Tunisia's arguments and Morocco's position.20 
Morocco requests that we do not ame nd this paragraph because the parties' arguments are 
adequately reflected in the executive summaries prepared by the parties and because, according to 
 
12 Footnote omitted.  
13 Tunisia's request for interim review, para.  2.5. (emphasis original)  
 14 Paragraph  7.128 of the Interim Report.  
15 Footnote omitted . 
16 Tunisia's request for interim review, para.  2.14.  
17 Tunisia's request for interim review, paras.  2.15 and 2.16.  
18 Morocco's comments on Tunisia's request for interim review, paras.  26 and 27.  
19 Tunisia's request for interim review, paras.  2.14-2.16.  
20 Tunisia's request for interim revi ew, para.  2.17.  WT/DS578/R/Add.1  
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  Morocco, it would not be appropriate to include a summary of Morocco's arguments at Tunisia's 
request.21 
3.17. We consider that this paragraph summarizes Tunisia's position succinctly, while footnotes 334  
to 336 refer to the paragraphs of the parties' written submissions that contain their specific 
arguments. For that reason, we do not consider the amendments  suggested by Tunisia to be 
necessary.  
3.5 Paragraph 7.308  
3.18. Tunisia notes that we have not addressed its argument that MIICEN disregarded the fact that 
many injury factors evolved positively.22 Without contesting that approach, Tunisia requests us to 
make the necessary factual findings that could help the Appellate Body to review that argument in 
the event of an appeal. In particular, Tunisia requests us to find that "production, productive 
capacity, employment, wages, domestic sales, market share and investments evolved positively".23 
3.19. We note that data on the domestic industry's productive capacity, staff assigned to exercise 
book production, productivity, wages and investments are not disputed by the parties. We therefore 
do not see any reason t o analyse these factors' trends.  
3.20. With regard to developments in the domestic industry's production, domestic sales and market 
share, paragraphs 7.272 and 7.283 of the Report reflect the relevant data considered by MIICEN.  
3.6 Paragraphs 7.333 and 7.3 34 
3.21. Tunisia argues that the investigation record contains information demonstrating that 
Imprimerie Moderne sold exercise books in the Moroccan market and therefore competed with the 
domestic industry.24 Tunisia requests us to amend the sentences "because the record dos not 
demonstrate whether this producer sold its exercise books in the Moroccan market or in export 
markets" (paragraph 7.333) and "the investigation record does not indicate where Imprimeri e 
Moderne sold its exercise books" (paragraph 7.334) by taking into account the evidence that shows 
that Imprimerie Moderne made its sales in the Moroccan market.25 Should  these changes affect the 
reasoning and final finding on the non -attribution analysis  under Article 3.5 of the Anti -Dumping 
Agreement, Tunisia requests us to make the necessary amendments.26 
3.22. Tunisia draws our attention to three elements in the record that, in its view, demonstrate that 
Imprimerie Moderne was a competitor in the Moroc can market. We shall examine each of these 
elements in turn.  
3.23. First, Tunisia explains that, in their petition, the applicants accepted the fact that Imprimerie 
Moderne was a competitor in the Moroccan market27: 
It should be noted that the entry of a n ew producer of exercise books into the Moroccan 
market in 2015 is also unlikely to have caused any injury to the domestic industry, since 
that injury existed well before that new producer started its activities.  
Consequently, no domestic competition among producers can break the causal link 
between dumped imports of the product under consideration from Tunisia and the injury 
suffered by the domestic industry.28 
3.24. Second, Tunisia recalls MIICEN's finding that Imprimerie Moderne was an importer of exercis e 
books for a number of years before resuming production of exercise books in 2015. Tunisia deduces 
 
21 Morocco's comments on Tunisia's request for interim review, para.  9. 
22 Tunisia's request for interim review, para.  2.18.  
23 Tunisia's request for interim review, para.  2.19.  
24 Tunisia's request for interim review, paras.  2.22-2.25.  
25 Tunis ia's request for interim review, para.  2.26.  
26 Tunisia's request for interim review, para.  2.26.  
27 Tunisia's request for interim review, paras.  2.22 and 2.23 (referring to Petition, (Exhibit MAR -9) 
paras.  141 and 142).  
28 Petition (Exhibit MAR -9), paras. 141 and 142.  WT/DS578/R/Add.1  
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  from this that, prior to 2015, Imprimerie Moderne's business was selling exercise books at the 
national  level.29 Lastly, Tunisia notes that the exporters br ought to MIICEN's attention the fact that 
Imprimerie Moderne "successfully offer[ed] new brands (e.g. Bleu Marine) and [had] expanded their 
production and sales".30 According to Tunisia, this information confirms "the presence of Imprimerie 
Moderne in the Moroccan market as a competitor". Consequently, MIICEN should have considered 
the effects of competition from Imprimerie Moderne on the domestic industry.31 
3.25. W e have noted in paragraph 7.328 of our Report that the investigating authority is only 
required to investigate a potential injury factor if it has evidence suggesting that a factor is injur ing 
the domestic industry. Subsequently, we concluded in paragraph 7.337 that, on the basis of 
elements contained in the record, an objective authority would not have found that competition from 
Imprimerie Moderne was injur ing the domestic industry.  
3.26. In our view, neither the assertions of the applicants and exporters  cited by Tunisia, nor 
MIICEN's finding that Tunisia brought to our attention demonstrate, on the basis of evidence, what 
proportion of Imprimerie Moderne's sales of exercise books were made in the Moroccan market. 
More importantly, the elements raised by Tunisia do not indicate that Imprimerie Moderne's sales 
were injur ing the domestic branch and are, therefore, not such as to oblige the investigating 
authority to consider this factor under Article 3.5. Consequently, we do not consider it necessary to 
change our reasoning or our conclusions relating to this claim. Nevertheless, bearing in mind 
Tunisia's request, we have made changes to paragraphs 7.333 and 7.334, explaining that the record 
does not demonstrate what proportion of Imprimerie Moderne's sales w ere made in the Moroccan 
market and how its sales affected the domestic industry.  
3.7 Paragraph 7.335  
3.27. Tunisia requests us to amend paragraph 7.335 which states that "the investigation record does 
not provide information on the price levels of the exe rcise books offered by Imprimerie Moderne 
allowing for an assessment of whether this producer could have exerted pressure on domestic 
industry prices".32 According to Tunisia, Exhibit TUN -30, contains the value of Imprimerie Moderne's 
output, allowing MIIC EN to assess whether Imprimerie Moderne exerted pressure on domestic 
industry prices.33 Thus, Tunisia requests us (i) to reflect this information on the value of Imprimerie 
Moderne's products; and, if applicable, (ii) to amend our reasoning and our conclus ion with regard 
to the existence of data on the "value" of this producer's overall and pe r-unit (ton ne) production.34 
3.28. For the sake of completeness, we accept Tunisia's first request and reflect the information on 
the value of Imprimerie Moderne's out put in footnote 465 (466) of the Report.  
3.29. However, the information contained in Exhibit TUN -30 does not change our reasoning in 
paragraph 7.335. Tunisia itself explains that the data in that exhibit may relate to either the exercise 
books' estimated p rice per ton ne, or to their value "at cost".35 Tunisia has therefore not established 
that these data reflected the price levels proposed by Imprimerie Moderne. Accordingly, we see no 
reason to amend paragraph 7.335.  
3.30. Tunisia argues that, to the extent  that these data represent the value of Imprimerie Moderne's 
exercise books "at cost", MIICEN could have checked whether Imprimerie Moderne's cost of 
production was lower or higher than the domestic industry's cost of production and assessed whether 
this p roducer exerted pressure on domestic industry prices.36 This argument by Tunisia assumes 
that MIICEN was required to investigate the effects of competition from Imprimerie Moderne on the 
domestic industry. However, we have indicated that the investigating authority should examine an 
injury factor if it had evi dence suggesting that this factor was injur ing the domestic industry. We do 
 
29 Tunisia's request for interim review, para. 2.24 (referring to the report on the defi nitive determination 
(Exhibit MAR -CONF -3 (BCI)), para. 77).  
30 Tunisia's request for interim review, para. 2.24 (citing the Tunisian exporters' comments on the 
investigation (27 February 2018) (Exhibit TUN -29), p. 10).  
31 Tunisia's request for interim review , para.  2.25.  
32 Footnote omitted.  
33 Tunisia's request for interim review, paras. 2.27 -2.29 (referring to Excel File listing the petitioners 
(Exhibit TUN -30 (BCI))).  
34 Tunisia's request for interim review, para.  2.30.  
35 Tunisia's request for interim review,  para. 2.29.  
36 Tunisia's request for interim review, para.  2.29.  WT/DS578/R/Add.1  
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  not have the confidential version of Exhibit TUN -30. With respect to the data in the non -confidential 
version of Exhibit TUN -30, in our view, they would not have led an objective a nd unbiased authority 
to conclude that Imprimerie Moderne was exerting pressure on domestic industry prices. Thus, in 
view of the elements before us, we are not convinced that MIICEN should have investigated the 
effects of competition from Imprimerie Moder ne and, more specifically, compared its cost of 
production with that of other producers. For these reasons, we decline Tunisia's request to amend 
our reasoning and our conclusion with regard to the existence of data on the "value" of this 
producer's overal l and per -unit (ton ne) production.  
3.8 Paragraphs 7.355, 7.360 and 8.1.c.iii . and paragraphs 7.378, 7.379 and 7.386  
3.31. In the light of the Panel's findings on the measure's consistency with Article 5.3 of the 
Anti-Dumping Agreement, Tunisia requests that we do not make findings under Articles 5.2 and 5.8, 
because such findings are not necessary for the resolution of the dispute. For the same reason, 
Tunisia requests us to delete the last sentence of paragraph 7.378 from our Report and paragraphs 
7.379 and 7.386 in their entirety.37 
3.32. Morocco asks us to decline Tunisia's request for judicial economy in relation to Article 5.2, 
insofar as it was Tunisia itself that requested the Panel to find a violation of Morocco 's obligations 
under that article.38 
3.33. We do not share  Tunisia 's view  that our findings in paragraphs 7.355 and 7.360 are not 
necessary to resolve the dispute. We recall that Tunisia itself requested us, principally, to conclude 
that Morocco had violat ed Articles 5.2, 5.3 and 5.8 of the Anti -Dumping Agreement.39 On the other 
hand, we consider, in the light of the parties' arguments, that it is necessary to explain how we 
interpret the relationship among those three provisions, in order to reach our conc lusion of violation 
of Article 5.3. For this reason, we do not consider that these passages of our Report constitute  obiter 
dicta, i.e. a n observation  that, although it appears in our decision, is not necessary for the resolution 
of the dispute.  
3.34. Last ly, contrary to Tunisia's assertion, we consider that paragraphs 7.378, 7.379 and 7.386 of 
our Report respond directly to an argument made by Tunisia regarding the "representativeness" of 
evidence contained in the complaint , and that the paragraphs are use ful for understanding the 
Panel's conclusion on the alleged violation of Article 5.3 of the Anti -Dumping Agreement. We 
therefore consider that they should be included in the Final Report and we therefore decline Tunisia's 
request in this regard.  
3.9 Paragr aph 7.391  
3.35. Tunisia requests us to expand on  the first sentence of paragraph 7.391 in order to better 
reflect its argument and to indicate in our Report whether we consider that the fact that "similar 
trade practices are taking place in the same region  -  despite the lack of information in the initiation 
petition on the similarities or difference s between the markets concerned in the same region - is a 
sufficient factual basis to establish the adequacy of the evidence".40 Morocco requests that we do 
not amend this paragraph because the parties' arguments are adequately reflected in the executive 
summaries prepared by the parties and annexed to the Report.41 
3.36. We accept Tunisia's request to develop  our description of its argument and we reflect this 
addition in the first sentence of paragraph 7.390, which now reads as follows:  
7.390. In that regard, Tunisia considers that the information substantiating the 
proposed normal value adjustments "does not  pertain to the source or the export 
market, i.e. Tunisia" and that "no explanation is offered as to why these margins 'are 
similar' to those that could be obtained in Tunisia" and, in particular, "why the 
market conditions in Morocco with respect to that profit margin could have 
 
37 Tunisia's request for interim review, paras.  2.31 and 2.32.  
38 Morocco's comments on Tunisia's request for interim review, paras.  34 and 35.  
39 Tunisia's response to Panel question No. 6.22, para.  175. 
40 Tunisia's request for interim review, para.  2.34.  
41 Morocco's comments on Tunisia's request for interim review, para.  8. WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 31 - 
 
  been representative or a reasonable indicator of distribution margins in 
Tunisia" .42 
3.37. However, we do not consider it useful to complete our finding in paragraph 7.391 that "with 
respect to an applicant's difficulty in obtainin g such evidence, relying on comparable data for the 
same business operations in the same region appears to be relevant evidence in this case".  
3.10 Paragraph 8.1.b.  
3.38. Tunisia requests us to expand on  our conclusions by reflecting the specific reasons t hat 
underpin the Panel's findings of violation.43 Morocco objects to this request on the grounds that 
nothing "obliges a panel to set out, under separate headings, all the different arguments used to 
substantiate a panel's findings of violation".44 
3.39. W e agree with Morocco that a panel is not required to set out in its conclusions the detailed 
reasons underpinning its findings. We consider that the conclusions reflected in section 8.1 of our 
Report, read in the light of our findings, allow the Panel's de cision to be understood. Therefore, we 
decline Tunisia's request.  
_______________  
 
42 Footnote omitted; emphasis added.  
43 Tunisia's request for interim review , paras.  2.35-2.39.  
44 Morocco's comments on Tunisia's request for interim review, para.  39. (emphasis added)  WT/DS578/R/Add.1  
BCI redacted, as indica ted [[***]]  
- 32 - 
 
  ANNEX B  
ARGUMENTS OF THE  PARTIES  
Table des matières  Page  
Annex B -1 Integrated executive summary of the arguments of Tunisia  33 
Annex B -2 Integrated executive summary of the arguments of Morocco  58 WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 33 - 
 
  ANNEX  B-1 
 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF TUNISIA  
1  INTRODUCTION  
1.1. This dispute concerns the definitive anti -dumping measure imposed by the Ministry of Industry, 
Investment, Trade and the Digital Economy (MIICEN) and the Ministry of the Economy and Finance 
of the Kingdom of Morocco on imports from Tunisia of exercise books classified under heading 
4820.20.00.00 of Morocco's customs tariff.  
1.2. As Tunisia explains in this submission, MIICEN initiated the investigation on an insufficient 
factual basis at both the level of dumping and the level of injury to the domestic industry (DI). 
Furthermore, MIICEN erroneously found the existence of dumping , injury to the DI and a causal link 
between the two.  
2 MOROCCO VIOLATED ARTICLES 2.2.2, 2.2 AND 2.1 OF THE ANTI -DUMPING AGREEMENT 
BY CALCULATING AN INFLATED CONSTRUCTED NORMAL VALUE  
2.1. Tunisia raises three arguments in support of its claim under Article s 2.2.2, 2.2 and 2.1 of the 
Anti-Dumping Agreement that MIICEN made errors in the calculation of the constructed normal 
value.  
2.1 First error in the calculation of the constructed normal value: the failure to exclude 
administrative costs and other expense s not part of the product price from the profit 
margin  
2.2. Tunisia claims that MIICEN acted inconsistently with Articles 2.2.2, 2.2 and 2.1 of the Anti -
Dumping Agreement by failing to exclude both administrative costs and certain expenses not part 
of the product price from the profit margin. In particular, the parties agree on how MIICEN calculated 
the profit margin by subtracting the "cost of production" from the "unit selling price" of each declared 
sale.1 The parties also agree on the components of these variables. The "unit selling price" is made 
up of the cost of production, administrative, general and selling costs, and profit, as well as expenses 
not part of the ex -factory price.2 Meanwhile, the "cost  of production" is made up of the expenses 
incurred in production (for SITPEC), plus administrative and financing costs (for SOTEFI).3 
2.3. The parties therefore agree that MIICEN calculated the amount of profit for each declared 
domestic sale by adding, to the profit per se , administrative costs (for SITPEC) as well as certain 
expenses not part of the ex -factory product price (for both exporters). MIICEN used this amount of 
profit for each declared sale to calculate the general profit margin of each expor ter for the purpose 
of constructing the normal value.4 
2.4. The only remaining substantive question before this Panel is whether the calculation of the profit 
margin is inconsistent with Articles 2.2.2, 2.2 and 2.1 of the Anti -Dumping Agreement. In this s ense, 
a profit margin composed of administrative costs and other expenses is inflated and therefore cannot 
be qualified as "actual data pertaining to ... sales", as provided for in Article 2.2.2. Nor can an 
inflated profit margin be "reasonable", as requir ed under Article 2.2. Lastly, an inflated profit margin 
also distorts the calculation of the constructed normal value and the overall margin of dumping, 
which is inconsistent with Article 2.1 of the Anti -Dumping Agreement.  
2.5. Morocco appears to base its defence on an "objection to admissibility"5, claiming that this 
argument from Tunisia "could have [been] raised before the authority" but was not.6 Morocco 
 
1 Tunisia's first written submission, paras.  5.30-5.33; and Morocco's response to Panel question 1.1 
following the first substantive meeting, para.  12. 
2 Tunisia's first written submission, paras. 5.36 and 5.49; and Morocco's response to Panel question 1.6 
following the first substantive meeting, para.  25. 
3 Tunisia's first written submission, paras. 5.36 and 5.49; and Morocco's response to Panel que stion 1.6 
following the first substantive meeting, para.  25. 
4 Tunisia's first written submission, paras.  5.45 and 5.56.  
5 Morocco's second written submission, para.  89. 
6 Morocco's first written submission, para.  62. WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 34 - 
 
  therefore appears to suggest that the errors made by an authority are justiciable before a WTO pan el 
only if they are reported by the interested parties in the course of the investigation. In this regard, 
Tunisia referred to the extensive body of WTO case law rejecting Morocco's proposal that the 
complainant's arguments in WTO dispute settlement procee dings should previously have been raised 
before the investigating authority.7 While Morocco put forward this defence on several occasions, it 
did not specify the legal basis for its position.  
2.6. Accordingly, Tunisia claims that an inflated profit margin  including, in addition to the profit per 
se, administrative costs and other expenses not part of the product price (1) is not based on "actual 
data pertaining to ... sales" under Article 2.2.2 of the Anti -Dumping Agreement, (2) does not 
constitute a "reas onable amount" of profits for the purpose of constructing the normal value under 
Article 2.2, and (3) is not suitable for calculating the margin of dumping under Article 2.1 of the 
Anti-Dumping Agreement. Tunisia therefore requests the Panel to find that M orocco violated Articles 
2.2.2, 2.2 and 2.1 by failing to exclude from the profit margin administrative costs and certain 
expenses not part of the product price.  
2.2 Second error in the calculation of the constructed normal value: the exclusion of sales 
of numbered or watermarked exercise books from the calculation of the profit margin  
2.7. Regarding the second error identified in the calculation of the constructed normal value, Tunisia 
claims that MIICEN violated Articles 2.2.2, 2.2 and 2.1 of the Anti -Dumping Agreement by excluding 
sales of numbered or watermarked exercise books from the calculation of the profit margin for the 
purpose of constructing the normal value.  
2.8. Tunisia claims that domestic sales of numbered or watermarked exercise books meet a ll the 
conditions laid down in Article 2.2.2 of the Anti -Dumping Agreement to form part of the calculation 
of the profit margin for the purpose of constructing the normal value. In particular, these sales 
provide "actual data." Furthermore, Tunisian produc ers sell these exercise books to unaffiliated 
purchasers in such a way that these sales "indeed [reflect] the 'normal' price of the like product, in 
the home market of the exporter"8, and neither MIICEN nor Morocco has contended otherwise.9 
Lastly, Moroc co confirmed that numbered or watermarked exercise books fall within the scope of the 
product under consideration, as defined by MIICEN, and therefore sales of such exercise books are 
sales of the "like product". Accordingly, sales of numbered or watermark ed exercise books meet all 
the conditions laid down in Article 2.2.2 to be taken into account for the purpose of calculating the 
profit margin.  
2.9. Morocco responds that sales of numbered or watermarked exercise books "were not taken into 
account because [these products] were not exported".10 Morocco justifies MIICEN's approach by 
arguing that the "actual data" under Article 2.2.2 of the Anti -Dumping Agreement do not relate "to 
all sales, but to those likely to provide a fair comparison; i.e. to sales of exported  product models".11 
These justifications are invalid for the following reasons.  
2.10. First, Morocco conflates the functions of Article 2.2 and Article 2.4 of the Anti -Dumping 
Agreement. Article 2.2 concerns the determination of normal value in the absence of valid domestic 
sales, in order to calculate a "comparable price, in the ordinary course  of trade, for the like product 
when destined for consumption in the exporting country". Article 2.2.2, for its part, establishes the 
methods for calculating reasonable amounts for, most notably, profits. These profits relate to the 
"like product". Contrar y to Morocco's claim, both Article 2.1 and Article 2.2.2 of the Anti -Dumping 
Agreement refer to the "like product" without characterizing it, meaning that it is the like product as 
a whole . 
2.11. Second , it is established case law that the conditions of Article 2.2.2 of the Anti -Dumping 
Agreement do not permit the importation of concepts from other provisions of the Anti -Dumping 
Agreement. For instance, the Appellate Body and several panels have observed  that Article 2.2.2 of 
the Anti -Dumping Agreement does not permit investigating authorities to exclude non -
representative sales under Article 2.2. These sales are of course not valid and cannot be used for 
 
7 Tunisia's second written submission,  paras.  2.25-2.35. 
8 Appellate Body Report, US – Hot-Rolled Steel , para.  140. 
9 Morocco's first written submission, para.  71; and second written submission, para.  132. 
10 Morocco's second written submission, para.  132. 
11 Morocco's second written submission, para.  142. (original italics)  WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 35 - 
 
  the purposes of comparison with the export price. However, the profits of non -representative sales 
must be taken into account in the calculation of the profit margin under Article 2.2.2 of the Anti -
Dumping Agreement. As indicated in the case law, Article 2.2.2 only concerns sales that were not 
made in the  ordinary course of trade.12 Any other sales of the like product must be taken into account 
for the purpose of calculating the profit margin.  
2.12. Third, Morocco's position is at odds with MIICEN's approach of taking into account thousands 
of domestic sal es of exercise books not exported to Morocco for the calculation of the profit margin. 
These sales are listed in Exhibit TUN -62 (BCI). This contradicts Morocco's position that only "sales 
of exported product models" can be taken into account by the investi gating authority under Article 
2.2.2 of the Anti -Dumping Agreement. Thus, it seems that Morocco's argument is, for the purposes 
of this dispute, that the "actual data" under Article 2.2.2 include domestic sales of exercise books 
that were not exported but that could have been exported , but exclude sales of exercise books that 
were not exported and that cannot be exported (are not exportable) . 
2.13. In any event, Morocco's argument cannot be consistent with the customary rules of treaty 
interpretation as cod ified in Article 31 of the Vienna Convention on the Law of Treaties. More 
specifically, Morocco seeks "the importation into a treaty of concepts that were not intended"13 when 
it claims that MIICEN was entitled to disregard sales of exercise books that, de spite the fact of 
containing actual data, being made in the ordinary course of trade, and concerning the like product, 
relate to models of the product under consideration that had not been exported or are not exportable. 
Of course, nothing in the relevant provisions supports this approach.  
2.14. Tunisia therefore requests the Panel to find that the exclusion of sales of numbered or 
watermarked exercise books from the calculation of the profit margin is inconsistent with Articles 
2.2.2, 2.2 and 2.1 of the An ti-Dumping Agreement.  
2.3 Third error in the calculation of the constructed normal value: the inclusion of the 
"distribution cost"  
2.15. With regard to Tunisia's argument that MIICEN wrongly included the "distribution cost" in the 
calculation of the constr ucted normal value, Morocco does not dispute the factual description 
provided by Tunisia in its first written submission. Accordingly, the establishment of the facts with 
respect to this argument is clear: MIICEN added the "distribution cost" to the constr ucted normal 
value at the ex -factory level.  
2.16. Tunisia has explained why the approach taken by MIICEN and contested by Tunisia is 
inconsistent with Articles 2.1 and 2.2 of the Anti -Dumping Agreement. First, MIICEN calculated a 
normal value at the ex -factory level, i.e. the price when the product left the producer's premises. 
The "distribution cost", including the cost of transport, cannot of course be part of the ex -factory 
price.  
2.17. Second, this "distribution cost" was never deducted from the constru cted normal value, even 
though MIICEN asserted that it had done so.14 This assertion by MIICEN in fact relates to the normal 
value calculated on the basis of domestic sales for [[* * *]] models of exercise books.15 However, 
for the exercise book models for  which MIICEN constructed the normal value, this "distribution cost" 
has always been part of the constructed normal value.  
2.18. Third, even assuming that MIICEN added the distribution cost to, then deducted it from, the 
normal value ( quod non ), adding it in the first place had the effect of inflating the normal value, as 
profits were calculated on the basis of a higher normal value. These profits would remain inflated 
even if MIICEN intended to remove the "distribution cost" at a later stage. As a result, by adding the 
"distribution cost", MIICEN inflated the constructed normal value, regardless of whether it intended 
to deduct that cost afterwards.  
 
12 Panel Report, US – OCTG (Korea) , para.  7.47.  
13 Appellate Body Report, India – Patents (US) , para. 45. 
14 Report on the definitive determi nation, para.  90. (Exhibit TUN -7). 
15 See Excel file containing the dumping margin calculation forwarded with the essential facts of 
8 October  2018 (SOTEFI), tab "VENTEDOM". Exhibit TUN -14 (BCI).  WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 36 - 
 
  2.19. As with several other arguments put forward by Tunisia, Morocco seems to base its defence 
concerning Tu nisia's argument that MIICEN wrongly included the "distribution cost" in the 
constructed normal value on the fact that this error was not brought to MIICEN's attention during 
the investigation, and asserts that because of this, Tunisia's argument is inadmi ssible. Tunisia has 
repeatedly explained why this position is untenable. Morocco's approach would be tantamount to 
asking the Panel to conclude that the errors leading to the violations of the Anti -Dumping Agreement 
are justiciable before it only if they h ave been reported to the investigating authority. Neither the 
Anti-Dumping Agreement nor WTO case law supports such an approach.  
2.20. Tunisia therefore requests the Panel to find that by adding the "distribution cost" to the 
calculation of the constructed  normal value, MIICEN violated Articles 2.1 and 2.2 of the Anti -Dumping 
Agreement.  
3 MIICEN VIOLATED ARTICLES 2.4 AND 2.1 OF THE ANTI -DUMPING AGREEMENT BY 
FAILING TO MAKE A "FAIR COMPARISON" BETWEEN THE NORMAL VALUE AND THE 
EXPORT PRICE  
3.1. With regard to  a "fair" comparison between the normal value and the export price, Tunisia puts 
forward two arguments to demonstrate that MIICEN violated Articles 2.4 and 2.1 of the Anti -
Dumping Agreement.  
3.1 First error concerning the comparison between the normal valu e and the export price: 
the use of an erroneous mathematical formula  
3.2. MIICEN calculated the margin of dumping for each exporter on the basis of multiple averaging. 
However, the formula used by MIICEN to calculate the margin of dumping violates the fair  
comparison obligation under Articles 2.4 and 2.1 of the Anti -Dumping Agreement. In particular, both 
the numerator and the denominator of the mathematical operation were expressed in units of 
volume, and therefore the resulting margin of dumping was a perc entage of a quantity expressed in 
units of volume.  
3.3. Morocco agrees with Tunisia that the numerator was expressed in units of volume and not in 
monetary terms. In particular, Morocco acknowledges that the "QTE EN DUMPING" column in the 
Excel files containing the calculation of the dumping margin "is not, in fact, a quantity of dumping 
expressed in monetary terms".16 Furthermore, Morocco does not dispute that the denominator 
corresponds to the total volume of exports (in units for SITPEC and in tonne s for SOTEFI). As a 
result, there is no disagreement regarding Tunisia's factual description concerning the use of an 
erroneous mathematical formula for the calculation of the margin of dumping.  
3.4. Tunisia also explained, without challenge by Morocco, th at this erroneous mathematical formula 
had the effect of inflating the margin of dumping. For SITPEC, the margin of dumping resulting from 
an appropriate formula should have been 15.38% instead of 15.69%, while for SOTEFI it should 
have been 22.55% instead  of 27.71%.17 The comparison between the normal value and the export 
price was therefore distorted and, as such, is inconsistent with Articles 2.4 and 2.1 of the Anti -
Dumping Agreement.  
3.5. Morocco claims that the errors in the calculation of the margin of dumping are not covered by 
the first sentence of Article 2.4 of the Anti -Dumping Agreement.18 This assertion is at odds with the 
vast body of case law on this matter. In this respect, it should be recalled that, firstly, the first 
sentence of Art icle 2.4 of the Anti -Dumping Agreement concerning the obligation to make a "fair 
comparison" between the normal value and the export price may be invoked even in the absence of 
other claims concerning the remainder of Article 2.4.19 Furthermore, the fair c omparison obligation 
covers the calculation of the margin of dumping, meaning that any error in this calculation having 
the effect of inflating the margin of dumping results in a violation of the obligation set out in the first 
 
16 Morocco's opening statement at the first substantive meetin g, para. 143; and second written 
submission, para. 101.  
17 Tunisia's first written submission, para.  5.122.  
18 Morocco's opening statement at the first substantive meeting, para.  129. 
19 Tunisia's second written submission, paras.  3.21-3.24. WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 37 - 
 
  sentence of Article 2.4, whi ch is to make a "fair comparison" between the normal value and the 
export price.20 
3.6. Lastly, Morocco argues that "the exporters never raised these weighting methodology issues 
before the authority" and that therefore "Tunisia seeks a de novo  review of t he evidence".21 Once 
again, Morocco requests the Panel to declare the violations of the obligations contained in the Anti -
Dumping Agreement non -justiciable insofar as the errors giving rise to these violations were not 
brought to the attention of the inves tigating authority. This position is untenable under the Anti -
Dumping Agreement.  
3.7. Accordingly, Tunisia requests the Panel to find that MIICEN, by using an erroneous mathematical 
formula resulting in the inflation of the margin of dumping, violated Arti cle 2.4 (and consequently 
Article 2.1) of the Anti -Dumping Agreement.  
3.2 Second error concerning the comparison between the normal value and the export 
price: the exclusion of the use of licences as a relevant factor for the classification of the 
exported  product  
3.8. Tunisia further claims that in dismissing the use of licences for certain exercise books for the 
purposes of the classification of the exported product, MIICEN failed to make a fair comparison 
between the normal value and the export price for  SOTEFI. To recall, the exporters asked MIICEN 
to classify the product under consideration for the purposes of the comparison between the normal 
value and the export price on a model -by-model basis according to eight physical characteristics of 
the exercis e books.  
3.9. MIICEN retained five characteristics but rejected three others, most notably the use of licences, 
on the grounds that "there was no satisfactory justification for [their] effect on costs or prices" or 
that "[their] impact on price comparabili ty is negligible".22 In this sense, the rejection of the use of 
licences as a factor affecting price comparability is inconsistent with Articles 2.1 and 2.4 of the Anti -
Dumping Agreement.  
3.10. MIICEN was aware of the existence of a difference affecting th e price comparability of exercise 
books relating to the use of licences. Indeed, even before the investigation was initiated, the 
domestic industry (DI) had itself recognized that the price of exercise books varied between [[* * 
*]] depending on the use of  licences.23 MIICEN accepted this fact by calculating an adjusted normal 
value, for the purposes of the initiation of the investigation, on the basis of the use of licences in 
particular.24 
3.11. Furthermore, SOTEFI requested MIICEN to create a separate cl assification for licensed and 
unlicensed exercise books for the purposes of calculating the margin of dumping.25 In support of this 
request, SOTEFI indicated that it [[***]].26 SOTEFI also added to this assertion a list of licensed 
products sold in the exp ort market27, as well as a contract between SOTEFI and the company [[***]], 
which stipulates that SOTEFI was to pay [[***]] to use certain licensed designs on exercise books.28 
3.12. Furthermore, at the public hearing of 30 April 2018, SOTEFI explained the  importance of this 
physical characteristic as a relevant criterion for the classification of the exported product. Following 
these explanations, MIICEN requested data on sales of licensed and unlicensed exercise books, which 
 
20 Tunisia's secon d written submission, paras.  3.25-3.29. 
21 Morocco's opening statement at the first substantive meeting, para.  137. 
22 Report on the definitive determination, para.  85. Exhibit TUN -7. 
23 See Tunisia's first written submission, paras.  5.128 -5.133.  
24 Initiation report, Petition filed by exercise book producers for the implementation of anti -dumping 
measures on imports of exercise books from Tunisia (initiation  report), p. 6. Exhibit TUN -2. 
25 Report on the definitive determination, para.  83. Exhibit TU N-7. 
26 Exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on 15 August 2017. 
Exhibit TUN -43 (BCI).  
27 Annex 2.1 to the exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on 
15 August 2017. Exhibit TU N-44 (BCI).  
28 Annex 2.2 to the exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on 
15 August 2017, clauses 8 -10. Exhibit TUN -45 (BCI).  WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 38 - 
 
  SOTEFI provided in an Excel fi le, as requested by MIICEN .29 In particular, SOTEFI identified, in its 
Excel files, the exercise books that were sold under licence and without a licence, so as to enable 
MIICEN to classify them under separate codes.30 On the basis of that data, MIICEN could easily have 
verified the s ignificant price difference in respect of five models of exercise books sold under licence 
in one market and without a licence in another market. These price differences are shown in the 
table in paragraph 5.141 of Tunisia's first written submission.  
3.13. MIICEN therefore wrongly excluded the use of licences from the relevant criteria for the 
classification of the product under consideration. In doing so, MIICEN compared the licensed exercise 
books sold in one market to the unlicensed exercise books sold i n another market, even though the 
use of licences is a physical characteristic affecting price comparability. The failure to take into 
account the use of licences for the purpose of classifying the product under consideration is therefore 
clearly inconsist ent with Articles 2.1 and 2.4 of the Anti -Dumping Agreement.  
3.14. In response, Morocco raises a set of insufficient arguments to try to rebut Tunisia's claim. 
First, Morocco claims that certain models listed in the table in paragraph 5.130 of Tunisia's fi rst 
written submission "are not included in the VENT[E]DOM file used for the calculation".31 However, 
all the references to these exercise books are clearly set out in the Excel file submitted by SOTEFI 
on 23 May 2018.32 Morocco's argument must therefore b e rejected.  
3.15. Second , Morocco submits that four of the exercise book models listed in the table in paragraph 
5.130 of Tunisia's first written submission have characteristics other than the use of licences that 
may account for the price differences.33 As regards the use of certified (PEFC) paper, the comparison 
of exercise books in the tables in paragraphs 5.130 and 5.131 of the first written submission includes 
unlicensed  exercise books with this type of paper. If the exercise books with certified (PE FC) paper 
are removed, the price differential between the licensed and unlicensed exercise books is even 
higher. As a result, Morocco's reference to the use of certified (PEFC) paper is not relevant. 
Furthermore, as regards ruling, Morocco appears to attri bute to this aspect an effect on the prices 
of exercise books, even though MIICEN itself had found in its final report that ruling had no impact 
on price or that such an impact was "negligible".34 Morocco's argument is therefore at odds with 
MIICEN's findi ngs and must be rejected.  
3.16. Third, Morocco argues that the contract between SOTEFI and [[***]] covers only part of the 
investigation period.35 This argument is irrelevant. The investigation period, as determined by 
MIICEN at the initiation stage, exten ds from 1 January 2016 to 30 April 2017.36 Admittedly, the 
contract between SOTEFI and [[***]] expired on 31 December 2016.37 However, all the sales of 
licensed exercise books in both Tunisia and Morocco declared by SOTEFI were made between the 
months of M ay and December 2016.38 The fact that the contract in question expired before 31 
December 2016 is of little consequence, since it was valid for assessing the impact of the use of 
licences on the prices of all exercise books sold under licence throughout th e investigation period. 
Morocco's argument must therefore be rejected.  
3.17. Fourth , Morocco asserts that "[t]he evidence relating to the costs of an exporter in its domestic 
market bears no relation to "the impact on prices» for exports on the import mark et" and that the 
"contract is not relevant to the matter before the Panel".39 Contrary to Morocco's assertion, the 
production cost is essential for determining whether a given physical characteristic has an impact 
 
29 Email dated 4 May 2018 addressed to Mr Charles Julien, entitled "Relance/Tableaux de cal cul de 
marge de dumping". Exhibit TUN -72. 
30 See Excel file containing the dumping margin calculation forwarded with the essential facts of 
8 October  2018, tabs "VENTEMAR BRUT" and "VENTEDOM BRUT". Exhibit TUN -14 (BCI).  
31 Morocco's first written submission,  para. 96. 
32 Exhibit TUN -11 (BCI).  
33 Morocco's first written submission, para.  102. 
34 Report on the definitive determination, para.  85. Exhibit TUN -7. 
35 Morocco's response to Panel question 2.3 following the first substantive meeting, para.  51. 
36 Notice of initiation, p. 4. Exhibit TUN -1. 
37 Annex 2.2 to the exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on 
15 August 2017, p. 5. Exhibit TUN -45 (BCI).  
38 See Excel file containing the dumping margin calculation sent with the essential facts of 8  October 
2018 (SOTEFI), tab "VENTEDOM BRUT" (column N) and tab "VENTEMAR BRUT" (column L). Exhibit TUN -14 
(BCI).  
39 Morocco's response t o Panel question 2.7 following the second substantive meeting, para.  14. WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 39 - 
 
  on price comparability. In addition, the e xporter could provide evidence regarding the prices of two 
products with different physical characteristics, but these prices cannot be the only relevant 
information for determining the impact of certain physical characteristics, since they may mask the 
true impact on price comparability. The most important thing is to find out about the price structure 
(including the cost of production) rather than the final selling price.  
3.18. Fifth, Morocco claims that the price difference associated with the use of lic ences was 
"negligible".40 This argument does not stand, since the comparison between licensed exercise books 
in one market and unlicensed exercise books in another market inflated the margin of dumping, 
regardless of whether this involves a few decimal poi nts. The main point is that this inflation results 
from an inappropriate comparison between the normal value and the export price of licensed and 
unlicensed exercise books. Morocco's argument must therefore be rejected.  
3.19. Sixth, Morocco claims that SOT EFI was supposed to "quantify the impact of these licences on 
the price of the models".41 In this respect, SOTEFI submitted sufficient evidence to demonstrate the 
impact of the use of licences on the cost of production through the contract between SOTEFI a nd 
[[***]] and on the price of exercise books through the sales of licensed exercise books declared by 
SOTEFI, as shown in the tables in paragraphs 5.130 and 5.131 of Tunisia's first written submission. 
SOTEFI therefore provided sufficient information to d emonstrate the impact of the use of licences 
on the costs and prices of exercise books sold under licence. Morocco's argument must therefore be 
rejected.  
3.20. Accordingly, the central issue before the Panel is whether, by comparing licensed exercise 
books  in one market to unlicensed exercise books in another market, MIICEN acted inconsistently 
with the Article 2.4 obligation to make a "fair" comparison. In addressing this issue, the Panel should 
consider whether an "unbiased and objective" investigating au thority was entitled to reject (or 
ignore) highly relevant evidence at its disposal, including the introductory petition of the DI, a list of 
licensed exercise books exported to Morocco, the contract with [[***]] and the Excel file containing 
the selling p rice of unlicensed and licensed exercise books, organized according to the format 
indicated by MIICEN following the public hearing. Even if the Panel considers that MIICEN may need 
further information or additional explanations concerning the data already placed on the record, it 
should examine whether MIICEN was required to engage in a "dialogue" under the last sentence of 
Article 2.4 of the Anti -Dumping Agreement in order to obtain that information.42  
3.21. Tunisia therefore requests the Panel to  find that MIICEN violated Articles 2.1 and 2.4 of the 
Anti-Dumping Agreement by failing to make a fair comparison between the normal value and the 
export price of exercise books sold under licence in one market and without a licence in another 
market.  
4 MIICEN VIOLATED ARTICLE 12.2.2 OF THE ANTI -DUMPING AGREEMENT BY FAILING TO 
ADDRESS IN ITS REPORT THE KEY FACTUAL ELEMENTS RELATING TO THE IMPACT OF THE 
USE OF LICENCES ON THE PRICE OF EXERCISE BOOKS  
4.1. In its report on the definitive determination, MIICEN  ignored the extensive information available 
for analysing the impact of the use of licences on the price of exercise books, including: (1) the DI's 
assertion that the use of licences represented between [[***]]% of the product price43; (2) the list 
of licensed exercise books exported to Morocco44; (3) the contract with a foreign company, which 
provided for, inter alia , a payment enabling SOTEFI to use certain licensed designs on the exercise 
books45; and (4) the Excel files in which SOTEFI separately decla red the licensed and unlicensed 
exercise books.46 All this evidence concerns "an issue that [had] arisen in the course of the 
investigation that [had] necessarily [to] be resolved in order for the investigating authorities to be 
 
40 Morocco's response to Panel question 2.3 following the first substantive meeting, para. 50.  
41 Morocco's response to Panel question 2.3 following the first substantive meeting, para.  51. 
42 Appellate  Body Report, EC – Fasteners (China) , para.  489. 
43 Initiation report, para.  29. Exhibit TUN -2. 
44 Annex 2.1 to the exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on 
15 August 2017. Exhibit TUN -44 (BCI).  
45 Annex 2.2 to the exporters' response of 4 September 2017 to the deficiency letter sent by MIICEN on 
15 August 2017. Exhibit TUN -45 (BCI).  
46 Excel file containing the dumping margin calculation sent with the essential facts of 8  October  2018 
(SOTEFI), tabs "VE NTEMAR BRUT" and "VENTEDOM BRUT". Exhibit TUN -14 (BCI).  WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 40 - 
 
  able to reach their determi nation".47 By failing to address this evidence in its report on the definitive 
determination, MIICEN acted inconsistently with Article 12.2.2 of the Anti -Dumping Agreement.48 
Tunisia notes that Morocco did not respond directly to this claim.  
5 MIICEN VIOLA TED ARTICLES 3.1 AND 3.2 OF THE ANTI -DUMPING AGREEMENT BY 
ERRONEOUSLY FINDING AN INCREASE IN IMPORTS IN RELATIVE TERMS  
5.1. Tunisia claims that MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement by 
failing to analyse the volume of Tunisian imports in relative terms in an objective manner.49 
5.2. In this case, MIICEN set out its analysis of imports in relative terms in four paragraphs. On this 
basis, it concluded that the volume of dumped imports of exercise books from Tunisia had 
significantly increased, most notably "relative to the domestic production and domestic consumption 
of exercise books".50 Tunisia contests this analysis for a number of reasons.  
5.3. First, MIICEN erroneously focused on the period January -April 2017 to fin d an increase in 
imports in relative terms, without taking into account the seasonality of sales of exercise books.51 
Indeed, as MIICEN explained from the start of the investigation, school exercise books are products 
that follow a seasonal logic driven by  the start of the school year: production begins after orders are 
placed around December time, and the exercise books are delivered in April and May in anticipation 
of the start of the school year.52 Given that the deliveries take place in April and May, i t is quite 
possible that from one year to the next, they mainly occur in either April or May, in such a way that 
the January -April data for one year cannot be compared to the January -April data for another year. 
As Tunisia demonstrated, this is exactly wha t happened in 2016 and 2017 (the only years for which 
the investigation file contains the volume of imports for the first four -month period and for the entire 
year). Looking at the volume of imports in absolute terms, it can be seen that in 2016, 56% of 
Tunisian exercise books were imported between January and April, while in 2017 this figure rises to 
80% for the same period.53 The proportion of exercise books imported in the periods January -April 
2016 and January -April 2017 is therefore not at all similar.  Nevertheless, MIICEN based its 
conclusion regarding the increase in imports in relative terms on a comparison between these two 
sub-periods.  
5.4. Second , MIICEN did not properly compare trends throughout the investigation period.54 If one 
examines the share of imports in relation to domestic consumption and production between 2013 
and 2016, a generally downward trend is observed. Moreover, the share of imports in relation to 
domestic production and consumption never exceeded the ini tial level of 2013. Nevertheless, MIICEN 
explained that the import share had "fluctuated"55, "increased significantly"56 and evolved in a 
"steady" manner57, and focused on the period January -April 2017 to conclude that imports had 
increased. MIICEN thus pr ovided a picture of trends that is not objective with regard to the data 
available because its analysis suggests that imports increased throughout the entire investigation 
period.58 
 
47 See Panel Reports, EC – Tube or Pipe Fittings , para.  7.424; and  
EU – Footwear (China) , para.  7.844.  
48 Tunisia is aware that panels apply the principle of judicial economy in relation to claims under  
Article  12.2.2 of the Anti -Dumping Agreement when finding a violation of a substantial obligation of that 
agreement.  
49 Tunisia raised a third argument in its first written submission, based on apparent inconsistencies 
concerning the indexed figures contai ned in the non -confidential version of the report on the definitive 
determination (paras.  6.26-6.27). However, in light of the confidential data provided by Morocco with its first 
written submission, Tunisia is not pursuing this argument. It is therefore n ot reflected in this summary.  
50 Report on the definitive determination, para.  180. Exhibit TUN -7. 
51 Tunisia's first written submission, paras.  6.28-6.31. 
52 Initiation report, para.  11. Exhibit TUN -2; Report on the preliminary determination, para.  32. Exhib it 
TUN-5; Report on the definitive determination, para.  63. Exhibit TUN -7. 
53 Tunisia's first written submission, para.  6.29.  
54 Tunisia's first written submission, para.  6.32. See also Tunisia's response to Panel questions following 
the first substantive meeting, paras. 86 -87. 
55 Report on the definitive determination, para.  125. Exhibit MAR -CONF -3. 
56 Report on the definitive deter mination, para.  122. Exhibit MAR -CONF -3. 
57 Report on the definitive determination, para.  123. Exhibit MAR -CONF -3. 
58 Tunisia's first written submission, para.  6.32.  WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 41 - 
 
  5.5. Morocco requests the Panel to conclude that this claim has "no chance  of success" and cannot 
hold, because MIICEN was not required to examine the increase in imports in relative terms under 
Article 3.2.59 In response to Morocco's arguments, Tunisia explained that Article 3.2 does indeed 
provide that an investigating authori ty may analyse the increase in imports in absolute terms or in 
relative terms, and that it is therefore not required to conduct both reviews. However, if an 
investigating authority chooses to analyse imports in absolute and relative terms, it must comply 
with the requirements of Articles 3.1 and 3.2.60 This is precisely the approach taken by several 
panels.61 In this case, MIICEN chose not only to analyse the increase in imports in relative terms, 
but also to use this analysis as the basis for concluding th e existence of injury.62 MIICEN's analysis 
of imports in relative terms should therefore have complied with the requirements of Article 3.1, in 
particular the requirement to conduct an objective examination. For the reasons outlined by Tunisia 
above, MIICE N clearly failed to conduct such an objective examination of the volume of imports in 
relative terms.  
5.6. For these reasons, Tunisia requests the Panel to conclude that Morocco acted inconsistently 
with Articles 3.1 and 3.2 by failing to analyse the volum e of Tunisian imports in relative terms in an 
objective manner.  
6 MIICEN VIOLATED ARTICLES 3.1 AND 3.2 OF THE ANTI -DUMPING AGREEMENT BY 
ERRONEOUSLY FINDING PRICE UNDERCUTTING  
6.1. With regard to the price undercutting analysis, Tunisia puts forward three a rguments to 
demonstrate that MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement.  
6.1 MIICEN acted inconsistently with Articles 3.1 and 3.2 by comparing the actual price of 
imports with a constructed domestic product price  
6.2. Tunisia clai ms that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement by comparing the actual  price of imports with a constructed  domestic product price.  
6.3. In its price undercutting analysis, MIICEN reconstructed the price of the domestic product to 
obtain a "target selling price", which was then compared with the actual import price.63 This approach 
is clearly contrary to the very nature of the concept of "price undercutting" under Article 3.2, which 
relates to a comparison be tween two actual prices in the importing Member's market.  
6.4. The price undercutting analysis under Article 3.2 of the Anti -Dumping Agreement requires "a 
dynamic assessment  of price developments and trends in the relationship between the prices of the 
dumped imports and those of domestic like products over the entire period of investigation (POI)".64 
This "dynamic assessment" can only be made using the actual prices  of imports and of the domestic 
product in the importing Member's market. In this regard, Tunisia recalls that both the European 
Union and Canada, as third parties to this dispute, share Tunisia's view that a comparison between 
the actual import price and the constructed domestic product price for the purpose of analysing price 
undercutting would not be consistent with Articles 3.1 and 3.2 of the Anti -Dumping Agreement.65 
6.5. In response, Morocco puts forward three arguments. First, Morocco asserts that Ar ticle 3.2 does 
not contain any reference to the need to compare "actual" prices.66 This assertion is not, however, 
relevant. The purpose of the price undercutting analysis in Article 3.2 is to examine the interaction 
(dynamic assessment) between the import  and domestic product prices in the market of the 
importing country. Of course, this interaction requires an analysis of prices as posted in the market, 
that is, the (actual) prices that purchasers have to pay. Any attempt to construct the price of imports  
or the price of the domestic product for the purpose of price undercutting would inevitably have the 
 
59 Morocco's request for a preliminary determination, paras.  50-53. 
60 Tunisia's response to Morocco's request for a preliminary determination, paras.  8.8-8.14.  
61 See Panel Reports, Pakistan - BOPP Film (UAE) , para. 7.281, and  
Morocco - Hot-Rolled Steel (Turk ey), para. 7.148; and Appellate Body Report,  
US - Corrosion -Resistant Steel Sunset Review , para.127.  
62 Report on the definitive determination, para.  180. Exhibit TUN -7. 
63 Tunisia's first written submission, paras.  6.38-6.42. 
64 Appellate Body Report, China  – HP-SSST , para.  5.159. (Emphasis added)  
65 See third -party written submissions of the European Union, para.  105, and Canada, para.  10. 
66 Morocco's second written submission, para.  199. WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 42 - 
 
  effect of distorting the interaction between the import and domestic product prices in the market of 
the importing country. As a result, Morocco's argumen t regarding the absence of the word "actual" 
in Article 3.2 is not relevant.  
6.6. Second , Morocco refers to Article 2.2.1 of the Anti -Dumping Agreement in an attempt to 
demonstrate that "deficit prices may be set aside in the calculation of the normal valu e".67 This, 
however, is not relevant. Article 2.2.1 relates to the calculation of the normal value, i.e. the value 
with which the export price will be compared in order to determine the margin of dumping. However, 
the price undercutting analysis in Article  3.2 relates to the comparison of the interaction between 
import and domestic product prices as posted  in the market of the importing country. There is no 
relationship between the calculation of the margin of dumping and that of price undercutting.  
6.7. Third, Morocco asserts that the three categories of effects of imports on prices listed in Article 
3.2 of the Anti -Dumping Agreement are not "fixed and impermeable categories"68, and that "the 
three phenomena can be observed in the same set of data ".69 Moroc co appears to claim that an 
authority is entitled to conduct the examination required under Article 3.2 of the Anti -Dumping 
Agreement by carrying out a combined analysis of the three listed phenomena. Without even 
addressing the validity of this argument, it should be noted that MIICEN conducted a separate 
analysis of each phenomenon and, as a result, the analysis of consistency with Article 3.2 of the 
Anti-Dumping Agreement must be based on this approach. It is therefore not necessary for the Panel 
to addr ess the issue of whether Article 3.2 of the Anti -Dumping Agreement permits a combined 
analysis of the effects of imports on the price of the domestic product.  
6.8. Tunisia therefore requests the Panel to find that the price undercutting analysis violates A rticles 
3.1 and 3.2 of the Anti -Dumping Agreement because MIICEN compared an actual import price with 
a constructed (fictitious) domestic product price.  
6.2 MIICEN acted inconsistently with Articles 3.1 and 3.2 by using as its basis a 
comparison of prices for a single year rather than the entire period of investigation  
6.9. Tunisia claims that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement by basing its price undercutting analysis on a static, fixed comparison of prices for a 
single year.70 
6.10. In conducting its price undercutting analysis, MIICEN only compared one import price with one 
(constructed) domestic product price calculated for a single sub -period from 1 May 2016 to 31 April 
2017, i.e. the last 12 months of th e period of investigation. As explained above, the price 
undercutting analysis requires a "dynamic assessment of price developments and trends in the 
relationship between the prices of the dumped imports and those of domestic like products over the 
entire period of investigation (POI)".71 This means that an investigating authority is violating its 
obligation under Articles 3.1 and 3.2 by conducting:  
... a static examination of whether there is a mathematical difference at any point in 
time during the POI wi thout any assessment of whether or how these prices interact 
over time.72 
6.11. The question therefore arises as to what is the appropriate period for conducting this "dynamic 
assessment". In the above quotation, the Appellate Body stated that this analysis must be conducted 
"over the entire period of investigation", i.e. the pe riod of investigation chosen for the purposes of 
the injury assessment. Tunisia indicated that it was not necessary to address this issue in the 
abstract. The relevant question is whether there is consistency between the period used for price 
undercutting and the period used for the rest of the injury analysis. Given that MIICEN relied on the 
period from 1 January 2013 to 30 April 2017 for almost all of the factors and indices examined in 
 
67 Morocco's second written submission, para.  200. 
68 Morocco's second w ritten submission, para.  203. 
69 Morocco's second written submission, para.  204. 
70 Tunisia's first written submission, paras.  6.43-6.47. 
71 Appellate Body Report, China  – HP-SSST , para.  5.159.  
72 Appellate Body Report, China  – HP-SSST , para.  5.160.  WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 43 - 
 
  relation to injury and the causal link, it should have based its pric e undercutting analysis on the 
same period.  
6.12. Morocco relies on Article 17, paragraph 3, of Decree No. 2 -12-645 of 27 December 2012 (which 
requires a period for price undercutting like that set for the dumping analysis) in claiming that "the 
period sel ected is defined in a pre -existing rule of general and routine application".73 Insofar as 
Morocco attempts to justify an inconsistency with the Anti -Dumping Agreement by invoking its 
internal law, Tunisia recalls the general principle of international law enshrined in Article 27 of the 
Vienna Convention on the Law of Treaties under which "[a] party may not invoke the provisions of 
its internal law as justification for its failure to perform a treaty".74 This principle is also codified in 
Article XVI:4 of th e Marrakesh Agreement Establishing the World Trade Organization, which provides 
that "[e]ach Member shall ensure the conformity of its laws, regulations and administrative 
procedures with its obligations as provided in the annexed Agreements". A violation of international 
obligations cannot therefore be justified on the grounds that the act or omission at issue is required 
under domestic legislation.  
6.13. Accordingly, Tunisia requests the Panel to find that the price undercutting analysis violates 
Articles  3.1 and 3.2 of the Anti -Dumping Agreement because MIICEN made a static, fixed analysis 
between one import price and one domestic product price calculated for one single year of the 
investigation period.  
6.3 MIICEN acted inconsistently with Articles 3.1 an d 3.2 by erroneously using the 
Tunisian exporters' profit margin to construct the selling price of domestic exercise books  
6.14. In constructing the price of the domestic product, MIICEN used the Tunisian exporters' profit 
margin obtained in the Tunisian m arket for domestic producers in the Moroccan market.75 Tunisia 
claims that, even assuming that MIICEN was authorized to construct a price for the domestic product 
under Articles 3.1 and 3.2 of the Anti -Dumping Agreement ( quod non ), MIICEN's approach whereb y 
the profit margin of Tunisian producers is attributed to Moroccan producers is without basis for two 
reasons.  
6.15. First, MIICEN asserted that "it is legitimate for Moroccan producers to be able to aspire to the 
same level of profit made by their Tunisian counterparts in their domestic market".76 However, this 
assertion has no factual basis. A company's "profit" depends on, inter alia , production costs, market 
conditions (interaction between supply and demand) and distribution channels. It is there fore normal 
for a producer's "profit" to be different from that of another producer, particularly in different 
markets.  
6.16. MIICEN's assertion that it is "legitimate" for Moroccan producers to obtain the "same level of 
profit" in the Moroccan market as T unisian producers in the Tunisian market does not hold in the 
absence of an in -depth analysis of the particular circumstances of both markets. Without even 
attempting to conduct such an analysis, MIICEN improperly attributed the profit margin of Tunisian 
exporters to domestic producers for the purposes of constructing the price of the domestic product. 
MIICEN should have used a more detailed analysis of the conditions in both markets in order to 
reach its conclusion that it was "legitimate for Moroccan prod ucers to be able to aspire to the same 
level of profit made by their Tunisian counterparts in their domestic market".77 
6.17 Second , MIICEN calculated the profit margin attributed to Moroccan producers "on the basis of 
the average of the two weighted avera ges of the profit margins of both exporters for their domestic 
 
73 Response  to Panel question 3.15 b. following the second substantive meeting, para.  41.a. 
74 See G.C. Fitzmaurice, The General Principles of International Law Considered from the Standpoint of 
the Rule of Law , Collected Courses of the Hague Academy of International Law, (volume 92), 1952, p. 85, 
where Professor Fitzmaurice considered that the principle preventing States from relying on internal law to 
avoid international obligations is "one of the great principles of international law, informing the whole 
[national] system and applying to every branch of it". Several decades later, the International Court of Justice 
recognized the customary law status of the principle codified in Article  27 of the Vienna Convention on the Law 
of Treaties. See Case concerning certain q uestions of mutual assistance in criminal matters (Djibouti v. 
France) , Judgment of 4  June 2008, para.  121. 
75 Report on the definitive determination, para.  136. Exhibit TUN -7. 
76 Report on the definitive determination, para.  140. Exhibit TUN -7. 
77 Report on the definitive determination, para.  140. Exhibit TUN -7. WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 44 - 
 
  sales".78 However, as demonstrated by Tunisia in the context of its claims under Articles 2.1, 2.2 
and 2.2.2 of the Anti -Dumping Agreement, this profit margin calculated for each of the Tunisia n 
exporters was inflated due to errors made by MIICEN. As a result, the profit margin does not reflect 
the profit margin that the Tunisian exporters could in all likelihood have achieved for their domestic 
sales. Tunisia recalls that Morocco has not respon ded to this argument.  
6.18. Tunisia therefore requests the Panel to find that the price undercutting analysis violates Articles 
3.1 and 3.2 of the Anti -Dumping Agreement because MIICEN attributed an incorrectly calculated 
profit margin to the Moroccan prod ucers, without analysing whether all the relevant conditions in 
the Moroccan and Tunisian markets were similar.  
7 MIICEN VIOLATED ARTICLES 3.1 AND 3.2 OF THE ANTI -DUMPING AGREEMENT BY 
ERRONEOUSLY FINDING PRICE DEPRESSION  
7.1. With regard to the price depression analysis, Tunisia puts forward two arguments to 
demonstrate that MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement.  
7.1 MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement by establishing 
a distorted factual basis  for considering whether the price decline was "to a significant 
degree"  
7.2. Tunisia claims that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement by establishing a distorted factual basis for considering whether the pric e decline was 
"to a significant degree".  
7.3. MIICEN analysed the trend in the price of imports in paragraph 146 of the report on the definitive 
determination, finding that the price had remained at very low levels and had fallen by 6% between 
2013 and the  first four months of 2017.  
7.4. Tunisia claims that MIICEN did not establish a valid factual basis for considering whether the 
price decline was "to a significant degree", as required by Article 3.2 of the Anti -Dumping Agreement. 
In particular, Tunisia ac knowledges that "the drafters of the provision intentionally left considerable 
margin for an investigating authority to determine whether price [depression] is "significant", based 
on the specific circumstances of the case."79 However, case law has interpr eted the word "significant" 
in Article 3.2 as requiring the investigating authority to "rely on all positive evidence" to arrive at an 
objective factual basis.80 
7.5. MIICEN did not explicitly analyse whether the observed price depression was "to a signifi cant 
degree". The question may arise as to whether MIICEN was required under Article 3.2 of the Anti -
Dumping Agreement to explicitly consider this, as this condition is contained in Article 3.2. As WTO 
case law has clarified, regardless of the method used by the investigating authority, the factual basis 
for analysing whether price depression is "to a significant degree" must be based on an objective 
analysis of all available evidence.81 
7.6. Even assuming that MIICEN could fulfil its obligation to consider  whether the observed price 
depression was "to a significant degree" on the basis of an implicit analysis, such an analysis was 
necessarily based on the 6% decrease, as found by MIICEN when comparing the whole of 2013 to 
the first four months of 2017. This  price decline is the only observation made by MIICEN concerning 
price trends in paragraph 146 of the report on the definitive determination.  
7.7. However, the comparison of the domestic product's price performance between 2013 and the 
first four months of  2017 is inappropriate due to the seasonal nature of exercise book sales and 
prices. As Tunisia has repeatedly explained, the data that were available to MIICEN show that the 
prices of exercise books vary according to seasonality  stemming from the start of  the school year. 
This is confirmed by the table in paragraph 148 of the report on the definitive determination.  
 
78 Report on the definitive determination, para.  140. Exhibit TUN -7. 
79 Panel Report, US - Carbon Steel (India) (Article  21.5 – India) , para.  7.345.  
80 Appellate Body Report, China – HP-SSST , para. 5.161.  
81 Appellate Body Report, China – HP-SSST , para.  5.161.  WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
- 45 - 
 
   
7.8. In this table, the price for the period January -April 2016 was 93, while the price was considerably 
higher, 98.31, for 2016 as a whole. The price for the period May -December was therefore 99.46. 
Hence, the price for the first four months was 6.46% lower than the price for the rest of the year.  
7.9. The figures for 2016 should have served as an indication to MIICEN that the period January -
April 2017 was unreliable. If MIICEN intended to rely on the data from that period for 2017, it should 
have at least verified the reliability of those figures. Unfortunately, MIICEN did not conduct such a 
verification analysis. As the figures for the period  January -April 2017 were unreliable, MIICEN should 
have focused on analysing entire years, given that those figures were not affected by the seasonal 
nature of exercise book sales and prices. Such an analysis shows that, although the price fell 
continuousl y during the period under investigation, the decline was much less pronounced than 
MIICEN suggests, i.e.: 0.89% from 2013 to 2014; 0.58% from 2014 to 2015; and 0.22% from 2015 
to 2016. The overall decrease between 2013 and 2016 was 1.69%.  
7.10. In light of  the above considerations, MIICEN erroneously relied on the sub -period January -
April 2017 to try to accentuate the fall in the price of the domestic product. Of course, a 6% decrease 
based on this sub -period is more like to qualify as "significant" than a 1.69% decrease based on the 
four full years comprising the period covered by the investigation. MIICEN therefore acted 
inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping Agreement by establishing a distorted 
factual basis for assessing whether th e observed price decline was "to a significant degree".  
7.2 MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement by failing to 
properly consider whether the decline in the price of the domestic product was due to 
Tunisian imports  
7.11. Tunisia claims that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement by failing to properly consider whether the decline in the price of the domestic product 
was due to Tunisian imports.  
7.12. In the report on the definitive determination, MIICEN included two paragraphs attributing the 
decline in the price of the domestic product to imports. In particular, MIICEN justified its finding on 
price depression by stating that domestic producers of exercise books are force d to constantly match 
the low prices offered primarily by importers of Tunisian exercise books so that they can sell and 
maintain a certain level of market share.82 
7.13. Tunisia claims that MIICEN failed to properly consider whether the decline in the pri ce of the 
domestic product was due to Tunisian imports. In this regard, Tunisia recalls Appellate Body case 
law, according to which "an investigating authority is required to consider whether a first variable - 
that is, subject imports - has explanatory fo rce for the occurrence of significant depression or 
suppression of a second variable - that is, domestic prices".83 
7.14. The question therefore arises as to whether MIICEN properly assessed whether the decline in 
the price of the domestic product was due to imports. The answer is no. The confidential version of 
the report on the definitive determination (Exhibit MAR -CONF -3 (BCI)) confirms that MIICEN's 
assertions attributing the decline in the price of the domestic product to imports are misleading. In 
particular, MIICEN simply asserted, without any serious analysis of price trends, that domestic 
producers "are forced to constantly match the low prices offered... primarily [by] importers of 
 
82 Report on the definitive determination, paras.  147 and 148. Exhibit TUN -7. 
83 Appellate Body Report, China – GOES , para.  136. (Emphasis added)  
WT/DS578/R/Add.1  
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  Tunisian exercise books".84 However, this assertion is contradicted  by a thorough analysis of the 
interaction between the price of imports and the price of the domestic product.  
7.15. The price of imports and the price of the domestic product were virtually the same in 2013. 
However, while the price of imports increased i n 2014, 2015 and 2016, the price of the domestic 
product declined over the same period. It should be noted that the price differentials increased year -
on-year: they rose from 3.9% in 2014, to 4% in 2015, and to 5.6% in 2016. Based on these price 
trends, it  should be asked how MIICEN was able to conclude that imports had "explanatory force for 
the occurrence of significant depression... [of] domestic prices".85 The price trends of imports and 
the domestic product show instead that the DI's decision to lower the price of its exercise books had 
nothing to do with the price of imports.  
7.16. MIICEN therefore did not analyse the trends in the interaction between the price of imports 
and the price of the domestic product. By disregarding this interaction, MIICEN d id not conduct a 
serious examination of whether the decline in the price of the domestic product was due to imports, 
as required by Articles 3.1 and 3.2 of the Anti -Dumping Agreement. An analysis of price trends 
based on the data that were available to MII CEN calls into question, and even contradicts, any 
assertion that imports have "explanatory force for the occurrence of significant depression... [of] 
domestic prices".86 Hence, by failing to properly consider whether the decline in the price of the 
domest ic product was due to Tunisian imports, MIICEN acted inconsistently with Articles 3.1 and 3.2 
of the Anti -Dumping Agreement.  
8 MIICEN VIOLATED ARTICLES 3.1 AND 3.2 OF THE ANTI -DUMPING AGREEMENT BY 
ERRONEOUSLY FINDING PRICE SUPPRESSION  
8.1. With regard to t he price suppression analysis, Tunisia puts forward two arguments to 
demonstrate that MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement.  
8.1 MIICEN violated Articles 3.1 and 3.2 of the Anti -Dumping Agreement by establishing 
a distorted fac tual basis for assessing whether the increase in the ratio between the 
selling price and the cost of production of the domestic product was "to a significant 
degree"  
8.2. Tunisia claims that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement by establishing a distorted factual basis for assessing whether the increase in the ratio 
between the selling price and the cost of production of the domestic product was "to a significant 
degree".  
8.3. In its price suppression analysis,  MIICEN found that the cost of production had increased by 1% 
between 2013 and 2016 and by 3% between 2013 and 2017, while the price of the domestic product 
had "gradually decreased since 2013".87 MIICEN then found that "the ratio between the cost of 
produ ction and the selling price of the locally produced exercise book had increased by 10% between 
2013 and 2017" and that this finding "reflects the presence in the domestic market of pressure to 
prevent the domestic industry from increasing its prices to a l evel that will enable it to cover its 
production and marketing costs".88 
8.4. Tunisia submits the data on which MIICEN relied to conclude that the price of the domestic 
product had been suppressed:89 
 
84 Report on the definitive determination, pa ra. 147. Exhibit TUN -7. 
85 Appellate Body Report, China – GOES , para.  136. (Emphasis added)  
86 Appellate Body Report, China – GOES , para.  136. (Emphasis added)  
87 Report on the definitive determination, para.  149. Exhibit TUN -7. 
88 Report on the definitive det ermination, para.  149. Exhibit TUN -7. 
89 Report on the definitive determination, para.  149. Exhibit TUN -7. WT/DS578/R/Add.1  
BCI redacted, as indicated [[***]]  
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8.5. Tunisia does not dispute the fact that the ratio between the cost of production and the selling 
price increased during the period of investigation. However, for this increase to meet the legal 
standard in the second sentence of Article 3.2 of the Anti -Dumping Agreement, the increase must 
be observed "to a significant degree". Regardless of the method chosen, Articles 3.1 and 3.2 of the 
Anti-Dumping Agreement require the investigating authority to "rely on all positive evidence" to 
arrive at an objective factual basis on the "significance" of the price sup pression.90 
8.6. In this case, MIICEN did not explicitly address whether the price suppression was "to a 
significant degree". This raises the question of whether MIICEN was required, under Article 3.2 of 
the Anti -Dumping Agreement, to explicitly consider the "significance" of the price suppression. Even 
assuming that MIICEN could implicitly consider whether the price suppression was "to a significant 
degree", this examination was necessarily based on the 10% increase in the ratio between the cost 
of production and the price of the domestic product between 2013 and the first four months of 
2017.91 However, as Tunisia has repeatedly explained, the data for the first four months of 2017 
were not reliable because of the seasonality of exercise book sales, production and prices. This is 
confirmed by the data for 2016 that were available to MIICEN. In p articular, the ratio between the 
cost of production and the price of the domestic product for the first four months of 2016 was 111%. 
However, the ratio for 2016 as a whole was 103%. This means that the ratio between the cost of 
production and the price of  the domestic product for the period May -December 2016 was below 
103%. The gap between the first four months and the rest of 2016 is therefore considerable, 
highlighting the seasonal nature of the ratio between the cost of production and the price of the 
domestic product.  
8.7. Moreover, the ratio between the cost of production and the price of the domestic product in the 
first four months of 2016 and 2017 is similar (i.e. roughly 111% and 110%, respectively). The 
performance of this factor during the first four months and the rest of 2016 should have been a 
strong indication that the accuracy of the data for the first four months of 2017 was questionable. 
However, MIICEN disregarded the seasonal nature of the ratio between the cost of production and 
the pric e of the domestic product, by exclusively relying on an increase of 10% in that ratio between 
2013 and the first four months of 2017 to implicitly find suppression of the price of the domestic 
product "to a significant degree". Of course, a 10% increase in  the ratio between the cost of 
production and the price of the domestic product between 2013 and the first four months of 2017 is 
more likely to be "significant" than a 3% increase between 2013 and 2016 (full years).  
8.8. As a result, MIICEN only relied on  a 10% increase in the ratio between the cost of production 
and the price of the domestic product between 2013 and the first four months of 2017 to find that 
there was price suppression. It is on the basis of this 10% increase that MIICEN finally found, al beit 
implicitly, that the price suppression was "to a significant degree". MIICEN therefore acted 
inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping Agreement by deeming that the price 
suppression was "to a significant degree" on the basis of the  10% increase in the ratio between the 
 
90 Appellate Body Report, China – HP-SSST , para.  5.161.  
91 Report on the definitive determination, para.  149. Exhibit TUN -7. 
WT/DS578/R/Add.1  
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  cost of production and the selling price of the domestic product between 2013 and the first four 
months of 2017.  
8.2 MIICEN failed to assess whether the alleged price suppression was due to imports  
8.9. Tunisia claims  that MIICEN acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement by failing to objectively examine whether the observed price suppression was due to 
imports.  
8.10. In particular, paragraph 149 of the report on the definitive determ ination does not contain any 
reference to imports, highlighting that MIICEN failed to consider whether the price suppression was 
due to imports. MIICEN found that the 10% increase in the ratio between the cost of production and 
the price of the domestic pr oduct between 2013 and the first four months of 2017 "reflects the 
presence in the domestic market of pressure to prevent the domestic industry from increasing its 
prices to a level that will enable it to cover its production and marketing costs".92 As thi s "pressure", 
according to MIICEN, came from imports, it should have explicitly said so and, more importantly, it 
should have explained how imports were exerting "pressure" on the ratio between the cost of 
production and the selling price of the DI's exerc ise books.  
8.11. In any case, analysis of trends in the price of imports, the price of the domestic product and 
the cost of production confirms that the "pressure" on the Moroccan market preventing the DI from 
raising its prices does not come from imports.  In 2014, 2015 and 2016, the price of imports exceeded 
the DI's cost of production, which exceeded the price of the domestic product. It is clear that imports 
had nothing to do with the DI's decision to set its selling price below the cost of production. I f the 
DI's price had been aligned with the price of imports, it would have exceeded the cost of production 
throughout the period. These trends thus demonstrate that the so -called "pressure" mentioned by 
MIICEN in paragraph 149 of its report on the definiti ve determination does not come from imports.  
8.12. MIICEN therefore acted inconsistently with Articles 3.1 and 3.2 of the Anti -Dumping 
Agreement, as it failed to examine whether the observed price suppression was due to imports.  
9 MIICEN VIOLATED ARTICLES 3.1 AND 3.4 OF THE ANTI -DUMPING AGREEMENT BY 
ERRONEOUSLY FINDING INJURY  
9.1. Under Articles 3.1 and 3.4 of the Anti -Dumping Agreement, an investigating authority must 
objectively examine the relevant economic and financial factors listed in Article 3.4, ba sed on positive 
evidence, to assess the DI's situation. The examination of each of these factors "requires a process 
of analysis and assessment of the role, relevance and relative weight of each factor in the particular 
investigation".93 Moreover, the inve stigating authority's examination must be conducted in an 
unbiased manner, without favouring any of the interested parties.94 This examination must draw a 
"streamlined, genuine and undistorted picture" from the facts to be considered as coming from an 
objective authority.95 
9.2. With regard to MIICEN's analysis of the DI's situation, Tunisia puts forward three interrelated 
arguments to demonstrate that MIICEN violated Articles 3.1 and 3.4 of the Anti -Dumping 
Agreement.  
9.1 MIICEN violated Articles 3.1 and 3 .4 of the Anti -Dumping Agreement by failing to take 
into account that most of the factors showed positive trends  
9.3. MIICEN based its conclusion of injury on four factors: DI profitability, production, sales and 
market share. MIICEN specified that profita bility was the key indicator underlying its conclusion.  
 
92 Report on the definitive determination, para.  149. Exhibit TUN -7. 
93 Panel Report, Russia – Commercial Vehicles , para.  7.111, referring to Appellate Body Report, Thailand 
– H-Beams , para.  125, and Panel Report, EC – Bed Linen  (Article  21.5 – India), para  6.162 (footnotes 
omitted).  
94 Appellate Body Reports, US – Hot-Rolled Steel , para.  193; and China – HP-SSST (Japan) / China – 
HP-SSST (EU) , para.  5.207.  
95 Panel Report, EC – Tube or Pipe Fittings , para.  7.316.  WT/DS578/R/Add.1  
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  9.4. Tunisia alleges that MIICEN concluded that there was injury despite the positive performances 
of many other factors. Productive capacity, employment and investment increased on the whole 
during t he period of investigation, as did three of the factors on which MIICEN relied to conclude 
that there was injury (production, sales and market share showed positive trends during most of the 
investigation period (2013 -16)). Given the overall positive situa tion of the DI, it was not objective 
for MIICEN to conclude that there was injury by relying almost exclusively on profitability as a key 
factor and ignoring the positive performance of many factors.96 The fact that certain factors show a 
positive performa nce does not prevent an investigating authority from concluding that there is 
injury.97 However, in such cases, the authority must explain in a "thorough and persuasive manner" 
why the positive performance has been "outweighed by any other factors".98 MIICEN failed to do 
this. 
9.5. In response, Morocco argues that the context is one of an industry trying to remain 
competitive,99 and that the overall picture was one of economic decline.100 Tunisia maintains that 
the picture painted by Morocco of a sufferi ng industry forced to sell at a loss in order to remain 
competitive is not convincing in light of the facts. An industry in which production, productive 
capacity, sales, market share, employment and investments have increased is a healthy industry. 
Given t he positive trends in these factors, which suggest that the DI was in good health, MIICEN 
should have provided a "thorough and convincing" explanation as to why the DI was still suffering 
injury, as the Panel in Thailand - H-Beams  suggested.101 Morocco still argues that the increase in 
stocks shows that the DI was suffering injury,102 while Tunisia argues that the fact that the DI 
increased its sales without disposing of its stocks points to an over -producing industry. Lastly, 
Morocco explains th at investment increased to allow the DI to remain competitive. However, it 
makes no sense for a supposedly suffering industry, as MIICEN claims, to continue to massively 
increase its investments over several years. MIICEN therefore failed to analyse the DI 's situation in 
an objective manner.  
9.2 MIICEN violated Articles 3.1 and 3.4 of the Anti -Dumping Agreement by erroneously 
relying on the DI's production, sales and market share performance during the first four 
months of 2017  
9.6. Tunisia claims that MIIC EN erroneously relied on the DI's production, sales and market share 
performance during the first four months of 2017 to conclude that there was injury. However, this 
data was not reliable due to the seasonality of exercise books.  
9.7. For example, product ion does not occur on a regular basis throughout the year, and it is 
therefore highly likely that it occurred during different periods from one year to the next. Thus, 
production from January -April of a given year cannot be compared to production during th e same 
period from another year without ensuring that the comparison has not been distorted by the 
seasonality of exercise books.103 Moreover, MIICEN concluded that there was injury based on the 
data for January -April 2017, even though production increased during the full years covered by the 
investigation period (from 2013 to 2016).  
9.8. In response, Morocco explained that the period January -April was quite representative, as "most 
output must be available by May of each year".104 However, the figures do not  support this 
statement. Looking at the data for 2016 (the only year for which we have data for January -April and 
for the entire year), we can see that roughly one third of production took place during the first four 
months of the year, and not the majorit y, as Morocco suggests. As a result, the data for January -
April are likely to create distortions, as the proportion of exercise books produced by the DI may 
 
96 Tunisia's first written submission, paras.  6.99-6.106; and opening state ment at the first substantive 
meeting, para.  8.3. 
97 Tunisia's first written submission, para.  6.105.  
98 Panel Report, Thailand – H-Beams , para.  2.249.  
99 Morocco's first written submission, para.  179. 
100 Morocco's opening statement at the first substantive meeting, para.  99. 
101 Panel Report, Thailand – H-Beams , para.  2.249.  
102 Morocco's first written submission, paras.  180-181. 
103 Tunisia's first written submission, paras.  6.111 -6.112.  
104 Morocco's first writ ten submission, footnote 162.  WT/DS578/R/Add.1  
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  change from one year to the next, for example, depending on when the orders are placed and when 
the producers provide the raw material.105 
9.9. With regard to sales and market share, MIICEN relied on the decrease observed in January -
April 2017 compared to January -April 2016 to conclude that there was injury, despite the positive 
performance of these fact ors during the four full years covered by the period of investigation (2013 -
16). However, in 2017, a very large portion of imports (80%) occurred during the first four months 
of the year, when this share was much lower in 2016 (56%). Given that domestic ex ercise books 
compete directly with Tunisian exercise books, it is not surprising that their sales and market share 
decreased in January -April 2017 when Tunisian imports were, in proportion to the rest of the year, 
most significant. MIICEN therefore should not have relied on data from January -April 2017 to 
conclude that there was injury without ensuring that the comparison did not create distortions due 
to seasonality.106 
9.10. In response, Morocco explained that MIICEN's analysis was objective, as it had com pared the 
same period (January -April) in 2016 and 2017.107 However, the distorted nature of MIICEN's 
comparison does not stem from comparing different periods; rather, it stems from the fact that from 
one year to the next, the share of sales and market shar e observed in January -April may vary. 
Morocco also refers to the dispute Russia - Commercial Vehicles  in an effort to defend MIICEN's 
approach.108 However, in that dispute, the seasonality of the product at issue was not comparable 
to that of exercise books . Moreover, the investigating authority had taken into account data for 
temporal subsets (half -year data), but had also taken into account data for entire years,109 whereas 
MIICEN relied on data for the first four months of 2017, without having data for the  entire year. It 
is therefore clear that the approach used by the investigating authority in Russia - Commercial 
Vehicles  does not in any way validate MIICEN's approach.110 
9.3 MIICEN violated Articles 3.1 and 3.4 of the Anti -Dumping Agreement by erroneously 
relying on the DI's negative profitability  
9.11. Tunisia claims that MIICEN erroneously gave decisive weight to the DI's negative profitability 
to conclude that there was injury.111 Such an approach is not objective in this case for several 
reasons.112 
9.12. First, there are several reasons why an enterprise may decide to sell at a loss, and selling at 
a loss can sometimes be part of normal commercial activity.113 It is therefore not a sign of injury 
per se . Second, MIICEN explained that the DI's n egative profitability was due to the fact that it was 
forced to sell its exercise books at a loss as a result of Tunisian imports. However, the data available 
to MIICEN showed that the DI was pursuing an aggressive business strategy, as its selling price w as 
still below the price of Tunisian exercise books and below the cost of production. Therefore, if the DI 
was actually suffering, it could have increased its selling price above the cost of production and 
below the price of Tunisian exercise books in orde r to be profitable, as well as competitive vis-à-vis 
imports. However, it strategically chose not to do so in order to increase its market share. MIICEN 
therefore should not have interpreted the DI's negative profitability as being synonymous with 
injury.114 
 
105 Tunisia's second written submission, para.  4.129.  
106 Tunisia's first written submission, paras.  6.116 -6.120.  
107 Morocco's first written submission, para.  189 (footnote deleted).  
108 Morocco's first written submission, paras.  190-191. 
109 Panel Report, Russia – Commercial Vehicles,  table in para. 7.32.  
110 Tunisia's second written submission, para.  4.20. 
111 Tunisia's first written submission, paras.  6.129 -6.132.  
112 In its first written submission, Tunisia put forward an argument based on apparent inconsistencies 
concerning the indexed figures in the non -confidential version of the report on the definitive determination 
(paras.  6.123 -6.128). However, in light of the confidential data provided by Morocco in its first written 
submission, it does not pursue this argument. It is therefore not reflected in this summary.  
113 Appellate Body Report, Canada –Renewable Energy / Canada – Feed-In Tariff Program , para.  5.71; 
Panel R eport, Canada – Renewable Energy / Canada – Feed-In Tariff Program , para.  7.151.  
114 Tunisia's first written submission, para.  6.131; and oral statement at the first substantive meeting, 
para. 8.9. WT/DS578/R/Add.1  
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  9.13. In response, Morocco explains that the DI was unable to adopt a multi -year loss -making 
strategy.115 However, when looking at the only producer with negative profitability throughout the 
investigation period, it is telling that despite the lack of pr ofitability, it chose to increase its 
production and sales volume, but continuously lowered its selling price.116 Moreover, it should be 
noted that the three producers of Moroccan exercise books comprising the DI had diversified 
activities in addition to th e production of exercise books, which could have offset the loss of 
profitability from exercise books.117 Lastly, Morocco considers that an industry such as the exercise 
book industry cannot react very quickly to changes in the cost of production and price movements.118 
However, the DI had ample time to adapt to this reality, as its selling price remained below the cost 
of production and the price of Tunisian imports for several years. Tunisia also notes that for a 
seasonal product such as school exercise books, orders a re placed every year in anticipation of the 
start of the next school year, and one can easily imagine that the selling price is also set every 
year.119 Moreover, even the DI indicated during the investigation that its prices were set according 
to the compet ition, mainly from Tunisian producers.120 Morocco's argument that the DI could not 
adapt to changes in the costs of production and the price of the competition therefore does not hold.  
9.14. Finally, Morocco emphasizes that the Panel must not take inference s into consideration, but 
rather, evidence to assess whether the DI was pursuing a business strategy.121 Tunisia notes in this 
regard that it is not asking the Panel to determine whether there was a business strategy in the DI. 
Rather, Tunisia is asking the  Panel to assess whether MIICEN's conclusion that the DI was "forced" 
to sell at a loss in order to match the low prices of Tunisian imports was the conclusion of an objective 
and unbiased authority. As the figures on record do not support this conclusion in any way, but 
MIICEN nevertheless accepted this explanation from the applicants without questioning it, Tunisia 
considers that the analysis conducted by MIICEN lacked objectivity and impartiality.122 
9.15. For the above reasons, Tunisia requests the Panel  to conclude that Morocco acted 
inconsistently with Articles 3.1 and 3.4 of the Anti -Dumping Agreement by failing to analyse the 
factors related to injury in an objective manner.  
10 MIICEN VIOLATED ARTICLES 3.1 AND 3.5 OF THE ANTI -DUMPING AGREEMENT BY 
ERRO NEOUSLY FINDING A CAUSAL RELATIONSHIP  
10.1. With regard to the causal relationship analysis, Tunisia puts forward two arguments.  
10.1 MIICEN acted inconsistently with Articles 3.1 and 3.5 of the Anti -Dumping Agreement 
by finding a causal relationship despi te the multiple errors committed in the analyses 
under Articles 3.2 and 3.4 of the Anti -Dumping Agreement  
10.2. Tunisia claims that MIICEN violated Articles 3.1 and 3.5 of the Anti -Dumping Agreement by 
finding a causal relationship despite the errors expla ined above in the analysis of the volume of 
imports, the effects of imports on the price of the domestic product, and injury factors.  
10.3. Tunisia recalls that the provisions of Article 3 of the Anti -Dumping Agreement provide for "a 
logical progression of inquiry leading to an investigating authority's ultimate injury and causation 
determination".123 If the examination of each step in this "logical progression" is biased and, as a 
result, inconsistent with the relevant provisions of Article 3 of the Anti -Dumping Agreement, the 
final finding on the causal relationship will inevitably be incorrect and inconsistent with Articles 3.1 
and 3.5 of the Anti -Dumping Agreement. Tunisia notes that Morocco does not refute this statement.  
10.4. In this case , as Tunisia explains above, each stage of the injury analysis conducted by MIICEN 
is inconsistent with the relevant provisions of the Anti -Dumping Agreement, i.e. Articles 3.1, 3.2 and 
3.4. Therefore, the price undercutting analysis is inconsistent with A rticles 3.1 and 3.5 of the Anti -
 
115 Morocco's first written submission, para.  195. 
116 See Tunis ia's opening statement, para.  8.12; and second written submission, para.  4.149.  
117 Tunisia's second written submission, para.  4.149.  
118 Morocco's opening statement at the first substantive meeting, para.  100. 
119 Tunisia's second written submission, para.  4.150. 
120 Tunisia's opening statement at the second substantive meeting, para.  7.7. 
121 Morocco's opening statement at the first substantive meeting, para.  100. 
122 Tunisia's second written submission, para.  4.151.  
123 Appellate Body Report, China – GOES , para. 128. WT/DS578/R/Add.1  
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  Dumping Agreement, as it is based on biased findings regarding the injury and causal relationship 
analysis.  
10.2 MIICEN acted inconsistently with Articles 3.1 and 3.5 of the Anti -Dumping Agreement 
by failing to analyse the e ffects of competition from Moroccan producers other than the 
applicants, particularly Imprimerie Moderne, on the state of the DI  
10.5. Tunisia further claims that MIICEN violated Articles 3.1 and 3.5 of the Anti -Dumping Agreement 
by failing to examine the effects of competition from Moroccan producers other than the applicants 
in its non -attribution analysis. Both the DI and Tunisian exporters drew MIICEN's attention to the 
significant presence of Imprimerie Moderne on the Moroccan market, as well as the ef fects of the 
competition from this company on the DI since 2015. In particular, the introductory petition indicates 
that the Imprimerie Moderne's share of production increased from 0% to 28% of total production 
between 2015 and 2016. Moreover, Tunisian exp orters have pointed out that Imprimerie Moderne 
performed very well and that it "[was] successfully develop[ing] new brands (e.g. Bleu Marine) and 
[had] expanded their production and sales".124 As such, an unbiased and objective authority should 
have found that Imprimerie Moderne had a significant presence as a producer of exercise books and 
should have investigated whether (and how) the DI had responded to the competition from this new 
producer.  
10.6. MIICEN was thus required, under Articles 3.1 and 3.5 of the Anti -Dumping Agreement, to 
"separat[e] and distinguish[…] the injurious effects of [the competition from Imprimerie Moderne] 
from the injurious effects of the [...] imports" at issue,125 regarding the facts that were available to 
it. It therefore does n ot matter whether, as Morocco claims, "Imprimerie Moderne failed to cooperate 
with the authority" in the subsequent stages of the investigation.126 MIICEN acknowledged that these 
companies explicitly supported the introductory petition.127 Moreover, in the i ntroductory petition, 
the DI provided information on the volume and value of these companies' sales.128 Of course, due 
to its confidential nature, this information is only available if the companies holding it are 
forthcoming. This would suggest that both I mprimerie Moderne and Sopalemb cooperated in the 
preparation of the petition.  
10.7. In any event, Morocco's claim that neither Imprimerie Moderne nor Sopalemb replied to 
MIICEN's questionnaire after the initiation of the investigation is irrelevant. It sho uld be recalled that 
these producers supported the introductory petition and provided information on the volume and 
value of their production. Therefore, even if these producers decided not to cooperate, MIICEN 
already had highly relevant information to de termine their impact on the DI's situation. More 
specifically, according to information available to MIICEN, Imprimerie Moderne's share of production 
increased from 0% to 28% of total domestic production between 2015 and 2016.  
10.8. Therefore, an unbiased and objective authority could not have ignored that the sudden 
appearance of a domestic competitor accounting for a significant share of domestic production was 
likely to have had a significant effect on the DI's commercial decision -making (including price  
determination). However, MIICEN ignored the effects of the competition from Imprimerie Moderne 
on the state of the DI, even though it was well aware of this factor. Thus, by failing to analyse this 
non-attribution factor, MIICEN acted inconsistently with Articles 3.1 and 3.5 of the Anti -Dumping 
Agreement.  
11 MIICEN VIOLATED ARTICLES 5.2 AND 5.3 OF THE ANTI -DUMPING AGREEMENT BY 
ERRONEOUSLY INITIATING THE INVESTIGATION  
11.1. Tunisia claims that the initiation of the investigation on 4 May 2017 is inconsistent with Articles 
5.2, 5.3 and 5.8 of the Anti -Dumping Agreement.  
 
124 Comment by Tunisian exporters concerning the investigation, 27 February 2018, p. 10. Exhibit TUN -
29. 
125 Appellate Body Report, EU – PET (Pakistan) , para.  5.171.  
126 Morocco's second written submission, para.  195. 
127 Initiation report, Petition fil ed by exercise book producers for the implementation of anti -dumping 
measures on imports of exercise books from Tunisia (initiation report), p 6. Exhibit TUN -2. 
128 Excel file entitled Annex 2 - PUBLIC Petition Participation, submitted with MAPAF, Med Paper and 
Promograph's petition of 10 March 2017. Exhibit TUN -30. WT/DS578/R/Add.1  
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  11.2. As a reminder, the introductory petition was filed by an applicant comprising the companies 
MAPAF, Med Paper and Promograph. The domestic product was defined as "the exercise book, which 
is broadly defined and includes all types of exercise books intended for writing, whose sheets of 
paper have been assembled and attached together. It is intended primarily for schoolchildren and 
students."129 The applicant specified that the dom estic product consisted of "different types of 
exercise books", including "any type of exercise book, whether stitched, bound or spiral bound; any 
type of format: small format (A5); large format (A4) and maxi format; any type of paper grammage 
between 55 a nd 120 g/m²; and any type of cover: soft or hard".130 
11.3. Furthermore, the dumped imported product is defined as "school exercise books in small, large 
and maxi formats with a grammage of 55 to 120 g/m², primarily for the use of schoolchildren and 
student s".131 The applicant also "provided information on the export price to Morocco and the normal 
value of exercise books at the ex -factory level for the period 1 December 2015 to 30 November 
2016".132 
11.4. The evidence of dumping provided by the applicant cons isted of a single invoice for Tunisian 
exports of exercise books to Morocco in 2016 on the basis of the f.o.b./Tunisia price.133 The invoice 
was only for exercise books with one type of paper grammage (60 g/m2) (despite the wide range of 
grammage of between 55 and 120 g/m2); and was limited to three formats: 21x29.7 cm, 9x14 cm 
and 11x17 cm; and to three forms of presentation: stitched, register and bound.134 
11.5. Regarding the normal value, the evidence consisted of sales catalogues published by Carr efour 
Tunisia and specialized bookshops at the retail level. The prices were only for "numbered" exercise 
books, with two specific grammages (60 and 64 g), in three formats (21x29.7 cm, 9x14 cm and 
11x17 cm), and in three forms of presentation: stitched, r egister and bound.135 The applicant also 
provided information on two adjustments to the normal value based on data on the Moroccan 
market.136 
11.6. Article 5.2 of the Anti -Dumping Agreement specifies that evidence of dumping, injury and a 
causal link between  the imports concerned and the alleged injury must accompany the application. 
As pointed out by the Panel in Mexico - Steel Pipes and Tubes , Article 5.2 provides that "[s]imple 
assertion, unsubstantiated by relevant evidence, cannot be considered sufficien t to meet the 
requirements of this paragraph";137 and that "the absolute threshold of sufficiency will depend upon 
the circumstances of a given case" and "must be based on an assessment" of the criteria in Article 
5.3.138 Therefore, under Article 5.3 of the Anti-Dumping 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 explained by the 
Panel in Mexico - Steel Pipes and Tubes , a Panel review is to determine "whether an unbiased and 
objective investigating authority, looking at these facts, could properly have determined that there 
was sufficient evidence of dumping to justify the initiation o f an anti -dumping investigation".139 
11.7. In addition, if the investigating authority considers that there is insufficient evidence to justify 
the initiation of an investigation, pursuant to Article 5.8 of the Anti -Dumping Agreement, the 
authority must pro mptly reject the application and terminate the investigation. This provision 
therefore applies not only to the end of an investigation that has already been initiated, but also to 
the rejection of an application prior to initiation.  
11.8. In light of this legal standard, in this case, Tunisia considers that MIICEN acted inconsistently 
with Articles 5.2 and 5.3 for the following reasons. First of all , given the prices contained in the 
 
129 Initiation report, para.  8. Exhibit TUN -2. 
130 Initiation report, para.  9. Exhibit TUN -2. 
131 Initiation report, para.  13. Exhibit TUN -2. 
132 Initiation report, para.  22. Exhibit TUN -2. 
133 Initiation r eport, para.  24. Exhibit TUN -2. 
134 Initiation report, para.  26. Exhibit TUN -2. 
135 Initiation report, paras.  27 and 31. Exhibit TUN -2. 
136 Initiation report, para.  29. Exhibit TUN -2. 
137 Panel Report, Mexico – Steel Pipes and Tubes , para.  7.19.  
138 Panel Report, Mexico – Steel Pipes and Tubes , para.  7.24.  
139 Panel Report, Mexico – Steel Pipes and Tubes , para.  7.32.  WT/DS578/R/Add.1  
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  export invoice140 and the prices in the catalogues of wholesalers in Tunisi a,141 which were limited to 
certain models of the product under investigation, MIICEN should have assessed whether these 
prices could be representative of the prices of the product under consideration in its entirety. 
However, as Tunisia explained, MIICEN s imply accepted the prices proposed by the applicant and 
the explanation that "about 85% of the exercise books imported into Morocco from Tunisia" 
concerned the models for which prices were provided.142 There was no evidence to support this level 
of "popular ity" of 85%.143 MIICEN thus initiated the investigation without assessing whether the 
prices contained in the evidence concerning exports and domestic sales in Tunisia, which was limited 
to certain models (compared to the range of models of the product unde r investigation), could be 
representative of the export prices and normal values of the product under consideration in its 
entirety. MIICEN therefore acted inconsistently with Articles 5.2 and 5.3.  
11.9. Second , based on the isolated, individual nature of the prices on the export invoice,144 MIICEN 
should have assessed whether these export prices for one day (and one transaction) could be 
representative of export prices for the entire period of investigation. As the Panel in Mexico - Steel 
Pipes and Tubes  noted, "it is [...] quite possible that an individual, isolated transaction may be an 
aberration from the typical prevailing prices and/or conditions, and therefore if the applicant has 
provided only such temporally isolated evidence, the authority should no t assume without some 
corroboration that this evidence is representative of the period as a whole".145 MIICEN simply 
accepted the applicant's price without questioning its temporal representativeness, and initiated the 
investigation without assessing whethe r the export prices for one day could be representative of 
export prices for the entire period of investigation. MIICEN therefore acted inconsistently with 
Articles 5.2 and 5.3.  
11.10. Third, given the information (or lack thereof) on the origin of the pro ducts listed for the 
calculation of the normal value,146 MIICEN should have assessed whether the information contained 
in the catalogues submitted as evidence was accurate and adequate in terms of the Tunisian 
producers involved in the petition, or in terms  of the Tunisian origin of the good in question. As the 
Panel in Mexico - Steel Pipes and Tubes  indicated in relation to a similar situation:  
Where, as is the case here, it is obvious on its face that the normal value evidence 
before the authority at the time of initiation does not pertain to a producer or exporter 
and indeed pertains to a different level of trade, and may not even reflect products 
produced in the exporting country, the authority should make its best endeavours to 
verify that that evid ence reflects the prevailing home market pricing at the level of 
producers and/or exporters.  
In this case, Mexico has pointed to no evidence, and indeed does not argue, that 
Economía took any steps to determine whether the products reflected in the invoice and 
price quote were reflective of Tubac's prices - in spite of the fact that Tubac was the 
only identified Guatemalan producer or exporter of the product - or even that these 
products were of Guatemalan origin.* Nor does Mexico point to any eviden ce, or argue, 
that Economía asked Hylsa to confirm the Guatemalan origin of the products reflected 
in the invoice and price quote, or to provide any information as to whether and how 
these prices should be adjusted to reflect the producer/exporter level (e .g., by 
subtracting an amount for distributor mark -up).*147 
11.11. MIICEN failed to do this. As in the case of Mexico, Morocco has not submitted anything to the 
Panel indicating that MIICEN took steps to determine whether the products reflected in the 
catalogues, particularly Carrefour's, were reflective of the prices of the Tunisian producers mentioned 
in the petition for initiation or even that these products were of Tunisian origin. Nor does Morocco 
 
140 Tunisia's first written submission, paras.  8.23-8.24. 
141 Tunisia's first written submission, paras.  8.31-8.32. 
142 Tunisia's second writte n submission, para.  6.63(h).  
143 Tunisia's second written submission, para.  6.63(h).  
144 Tunisia's first written submission, paras.  8.21-8.22. 
145 Panel Report, Mexico – Steel Pipes and Tubes , para.  7.37.  
146 Panel Report, Mexico – Steel Pipes and Tubes , para. 7.37.  
147 Panel Report, Mexico – Steel Pipes and Tubes , paras.  7.35-7.36. WT/DS578/R/Add.1  
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  point to any evidence, or argue, that MIICEN asked the a pplicant to confirm the Tunisian origin of 
the products reflected in the catalogues.  
11.12. MIICEN therefore initiated the investigation without assessing whether the information 
contained in the catalogues submitted as evidence of the normal value was acc urate in terms of the 
producers involved or the origin of the good in question. MIICEN therefore acted inconsistently with 
Articles 5.2 and 5.3.  
11.13. Fourth , MIICEN relied on the information submitted in the petition to calculate the domestic 
freight adj ustment on exports. Given that certain variables made the adjustment insufficient (such 
as the variable weight of the models involved,148 the arbitrary nature of double "round trip" freight149 
and freight based on a single distance (the longest one)150), MIIC EN should have assessed whether 
this adjustment was based on correct assumptions and supported by relevant evidence. However, 
MIICEN accepted the applicant's proposal without contesting it or taking additional verification 
measures in this regard,151 and in itiated the investigation without assessing whether the 
adjustments to be applied to the export price and the normal value were based on correct 
assumptions. MIICEN therefore acted inconsistently with Articles 5.2 and 5.3.  
11.14. Fifth, based on the inform ation submitted in the petition for the calculation of the distribution 
margin adjustment, given that the evidence submitted concerned a market other than Tunisia's (the 
Moroccan market),152 MIICEN should have assessed whether the proposed adjustment was re ally 
based on a correct assumption and supported by relevant evidence. However, MIICEN accepted the 
applicant's proposal without contesting it or taking additional verification measures in this regard,153 
and initiated the investigation without assessing wh ether the adjustments to be applied to the export 
price and the normal value were based on correct assumptions. MIICEN's determination is therefore 
inconsistent with Articles 5.2 and 5.3.  
11.15. Sixth, based on the information submitted in the petition, an d given the intention to calculate 
the normal value at the ex -factory level (in order to make it comparable to the export price), MIICEN 
should have requested additional information on the retail profit margin.154 However, MIICEN failed 
to do this,155 and in itiated the investigation without assessing whether the adjustments to be applied 
to the export price and the normal value were based on correct assumptions. MIICEN therefore acted 
inconsistently with Articles 5.2 and 5.3.  
11.16. Seventh , given that the ad justment for the freight of domestic sales was the same as the 
adjustment for domestic freight for the export price,156 MIICEN should have assessed whether this 
adjustment was based on correct assumptions. However, MIICEN accepted the applicant's proposal 
without contesting it or taking additional verification measures in this regard,157 and initiated the 
investigation without assessing whether the adjustments to be applied to the export price and the 
normal value were based on correct assumptions. MIICEN the refore acted inconsistently with Articles 
5.2 and 5.3.  
11.17. Eighth , based on the information submitted in the petition for the calculation of the fees 
adjustment, given that the evidence submitted concerned a market other than Tunisia's (the 
Moroccan mar ket),158 MIICEN should have assessed whether the proposed adjustment was truly 
based on a correct assumption and supported by relevant evidence. However, MIICEN accepted the 
applicant's proposal without contesting it or taking additional verification measur es in this regard,159 
and initiated the investigation without assessing whether the adjustments to be applied to the export 
 
148 Tunisia's first written submission, paras.  8.25-8.26. 
149 Tunisia's first written submission, para.  8.27.  
150 Tunisia's first written submission, paras.  8.28-8.30. 
151 Tunisia's firs t written submission, para.  8.42.  
152 Tunisia's first written submission, para.  8.35.  
153 Tunisia's first written submission, para.  8.42.  
154 Tunisia's first written submission, para.  8.35.  
155 Tunisia's first written submission, para.  8.42.  
156 Tunisia's first writ ten submission, para.  8.37.  
157 Tunisia's first written submission, para.  8.42.  
158 Tunisia's first written submission, para.  8.38.  
159 Tunisia's first written submission, para.  8.42.  WT/DS578/R/Add.1  
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  price and the normal value were based on correct assumptions. MIICEN therefore acted 
inconsistently with Articles 5.2 and 5.3.  
11.18. For these reasons, in light of the shortcomings identified on the basis of Article 5.2, Tunisia 
considers that an unbiased and objective authority, using only the evidence in question as the 
evidentiary basis, could not have properly determined that  there was sufficient evidence to justify 
the initiation of an anti -dumping investigation under Article 5.3.  
11.19. In response, Morocco seems to rely on the theory that it was up to the exporters or Tunisia 
to prove that there was additional information o n the wide range of models concerned or on the full 
period proposed that was reasonably available to the applicant.160 In the absence of such evidence, 
the authority was bound to conclude that the information provided by the applicant was sufficient or 
met the requirements of Article 5.2.  
11.20. In formulating this theory, Morocco admits that its attitude towards requests for initiation 
favours the acceptance of the information provided by the applicants, unless the exporters or the 
government of the exporti ng country demonstrate that there is better information that is reasonably 
available to the applicants. This attitude is biased and favours applicants.  
11.21. Morocco's theory is inconsistent with Article 5.2 of the Anti -Dumping Agreement. The 
obligation contained therein is to provide not only the information that is available to the applicant, 
but "evidence". It does not permit the submission of simple assertions on the grounds that it is the 
only information available to the applicants. If an  applicant accuses exporters of having engaged in 
dumping for an entire year, this must be "proven". The submission of information on a transaction 
on one day could prove the existence of a certain price level that day. However, this information 
does not p rove the existing price level for the 365 days comprising the period of analysis. The same 
applies to models. A piece of information on certain models could prove the price level of those 
models, but is not evidence of the price level of other models of th e product under investigation.  
11.22. It would, of course, be unreasonable to require documents for every day and every model 
covered by the petition, and this is not what Tunisia proposes. However, in the absence of concrete 
evidence, reasonable assumptio ns must be made to address this lack of information, or a reasoned 
explanation must be provided on the reason why the information already provided is representative 
of the rest of the period or the range of products concerned. This is the least one would e xpect from 
a neutral and objective investigating authority.  
11.23. In this case, MIICEN accepted the information provided by the applicant without questioning 
it or trying to fill the gaps in the petition. It is clear from the report and the notice of init iation of the 
investigation that the investigating authority simply reported on the information provided by the 
applicant and ordered the initiation of the investigation. There is no evidence to suggest that this 
information was contested or verified.  
11.24. Moreover, Morocco argues that Tunisia overlooked an "element of a legal obligation" 
necessary to support its claim: i.e. that "[t]he application shall contain such information as is 
reasonably available to the applicant".161 However, Tunisia considers th at the sufficiency of the 
evidence does not depend on its availability to the applicant. On the contrary, the sufficiency of the 
evidence depends on what is needed to prove the assertions in an introductory petition.162 Therefore, 
the fact that the evidence  included in the petition was the only evidence available to the applicant 
does not justify the lack of sufficient and relevant evidence to prove dumping, injury and a causal 
link. 
11.25. Morocco's argument would mean that, in order to establish a violatio n of Article 5.2, the 
complainant would have to prove not only that the evidence was insufficient, but also that there was 
other evidence available to the applicant. In the absence of such proof, there would be no violation 
of Article 5.2, even if the evid ence accompanying the petition was not sufficient. This interpretation 
of Article 5.2 would run counter to the plain text of the second sentence of the provision, and would 
 
160 Morocco's first written submission, para.  255. 
161 Morocco's second written su bmission, para.  267. 
162 Tunisia's second written submission, para.  6.24. WT/DS578/R/Add.1  
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  also violate the condition provided for in Articles 5.6 and 5.8 on the need for "su fficient" evidence to 
justify the initiation of an investigation.  
11.26. Therefore, the interpretation proposed by Morocco would render the requirement, under 
Article 5.2, to provide sufficient evidence inutile.163 As explained by Tunisia, the purpose of th e 
sentence in question on "such information as is reasonably available to the applicant" "is to limit the 
expectations of exporting Members so that they cannot require the submission of irrefutable 
evidence or evidence that would substantiate a preliminary  or final determination for the initiation 
of an investigation".164 
11.27. Morocco also argues that Article 5.2 does not impose obligations on Members, but rather, on 
applicants only.165 However, this argument disregards the fact that the Anti -Dumping Agreem ent, 
including Article 5.2, imposes international obligations on the 164 Members of the WTO as subjects 
of international law, and not on the domestic producers of each Member. Contrary to what Morocco 
suggests, a Member's actions would be inconsistent with  Article 5.2 if its authority accepted a petition 
for initiation that lacked sufficient evidence, even if it was the only evidence reasonably available to 
the applicants. Therefore, shifting the "locus of obligation... to Articles 5.1 and 5.3"166 as suggest ed 
by Morocco would have the effect of rendering Article 5.2 inutile as an international obligation. 
Morocco's arguments should therefore be rejected.  
11.28. In light of the above considerations, Tunisia considers that the anti -dumping measure in 
question was adopted in violation of Articles 5.2 and 5.3. Given that the application did not contain 
sufficient evidence and that the authority failed to assess the adequacy and accuracy of the evidence 
submitted, the investigation should have been terminated purs uant to Article 5.8 of the Anti -
Dumping Agreement.  
12 CONCLUSION  
12.1. In light of the explanations provided in its written and oral submissions in this proceeding, 
Tunisia requests the Panel to find that the anti -dumping measure at issue is inconsistent w ith Articles 
2.1, 2.2, 2.2.2, 2.4, 3.1, 3.2, 3.4, 3.5, 5.2, 5.3, 5.8 and 12.2.2 of the Anti -Dumping Agreement.  
12.2. Furthermore, Tunisia requests the Panel to issue a suggestion, under the second sentence of 
Article 19.1 of the Understanding, that Morocco  comply with its obligations by revoking the anti -
dumping measure at issue. The anti -dumping measure at issue is inconsistent with Morocco's 
obligations under the Anti -Dumping Agreement. Tunisia is of the view that these inconsistencies are 
of a "fundament al and pervasive" nature and, therefore, the only way for Morocco to comply with 
the recommendations and rulings of the DSB is to revoke the anti -dumping measure at issue.  
 
 
 
 
163 Tunisia's second written submission, para.  6.26. 
164 Tunisia's response to Panel question 6.6, para.  161. 
165 Morocco's second written submission, paras.  274, 281 and 283.  
166 Morocco's se cond written submission, para.  283. WT/DS578/R/Add.1  
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  ANNEX  B-2 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF MOROCCO  
I. INTRODUCTION  
1. Morocco regrets the fact that a dispute which, to its mind, could have been settled bilaterally 
and amicably, or at the very least, through a review, has given rise to the establishment of a Panel.1 
2. Tunisia's claims in this dispute are a combination of errors of comprehension and application 
of the provisions of the Anti-Dumping Agreement, misunderstandings of the Final Report of the 
investigating authority, attempts to conduct de novo reviews of the authority's determination by 
advancing arguments that were not raised before the investigating authority in good time, as well 
as claims that are outside the Panel's jurisdiction.2 
3. By initiating the investigation, concluding as it did and imposing the measures at issue, 
Morocco has acted in accordance with its obligations under the Anti -Dumping Agreement. The Panel 
should refrain from any interpretation and conclusion that would have a systemic impact on the 
conduct of anti -dumping investigations or that could potentially unduly burden developing countries 
seeking merely to exercise their rights by virtue of the WTO Agr eement.3 
4. This executive summary outlines Morocco's arguments related first of all to the relevant legal 
framework for trade remedies at the WTO, then highlights those related to an authority's obligations 
by virtue of Articles 5, 2, 3 and 12, and lastl y, it recalls the claims abandoned by Tunisia.  
II. RELEVANT LEGAL FRAMEWORK FOR TRADE REMEDIES AT THE WTO  
5. Morocco has drawn the Panel's attention to Tunisia's claims that are incompatible with 
Article  6.2 of the Dispute Settlement Understanding (DSU), b ut also to Tunisia's invitations to 
proceed with a de novo review in violation of Article 17.6 of the Anti -Dumping Agreement, as well 
as to Tunisia's invitations to breach the terms of the Anti -Dumping Agreement by ignoring the 
principles of treaty interpr etation.  
A. Tunisia's claims are incompatible with Article 6.2 of the DSU: Morocco's 
adjudicatory requests  
6. Morocco submitted its request for a preliminary ruling during the proceedings promptly;4 that 
request was limited in scope and based on a good fa ith reading of the last sentence of each claim, 
which specified the allegation in accordance with the requirements of Article 6.2 of the DSU.5 
Morocco reiterated  its request in its first written submission: "Following Morocco's preliminary ruling 
request" .6 
7. The Panel's preliminary ruling on its jurisdiction was based solely on Morocco's limited request 
for a preliminary ruling.7 8 In any event, the Panel has a duty to ensure its own jurisdiction,9 i.e. 
that the request for the establishment of a pan el is in conformity with the provisions of Article 6.2.10 
Morocco respectfully requests that the Panel examine this matter in the light of Appellate Body 
reports related to requests for the establishment of a panel that do not specify which obligations are  
 
1 Morocco's first written submission, para. 8.  
2 Morocco's first written submission, para. 9.  
3 Morocco's first written submission, para. 10.  
4 Morocco's preliminary request, 19 June 2020.  
5 Morocco's comments on Tunisia's responses to the Panel's questions, para. 89.  
6 Morocco's first written submission, para. 284.  
7 Preliminary ruling of the Panel, para. 3.20.  
8 Morocco's first opening statemen t, para. 6.  
9 Report of the Appellate Body, EC — Bananas III , para. 142.  
10 Report of the Appellate Body, US — OCTG  (Korea) , para. 7.80.  WT/DS578/R/Add.1  
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  challenged when a provision contains multiple obligations ,11 such as in Korea - Pneumatic Valves 
(Japan) .12 
8. Far from disagreeing with the Panel's ruling, Morocco's request to determine jurisdiction with 
regard to paragraphs B.5 and B.6 rests entirely o n the merits  of the Panel's finding in its preliminary 
ruling,13 according to which the last sentence of paragraph B.5 did not limit the scope of that 
paragraph and the underlying analyses that were based on Tunisia's first written submission to 
clarify th e scope of paragraph B.5.14 
9. More specifically, Morocco, taking note of the Panel's preliminary ruling, requests that the 
Panel find that, ipso facto , claims B.5 and B.6 in Tunisia's panel request are not compatible with 
Article 6.2 of the DSU.  
1. Claim B.5  
10. With regard to paragraph B.5, in its preliminary ruling the Panel referred to Tunisia's first 
written submission to clarify the claims set forth in the panel request.15 The Panel concluded that 
paragraph 5.2 "relates to the conformity of the normal value constructed by the investigating 
authority with Articles 2.1, 2.2 and 2.2.2".16 However, in this case, paragraph B.5 refers to 
Articles  2.1, 2.2, 2.2.1.1  and 2.2.2; nothing  in that paragraph or anywhere else in Tunisia's 
submission clarifies t he relevance of Article 2.2.1.1 , which, in any case, is not specified in the panel 
request, thus, in accordance with the Panel's own approach, the entire paragraph is incompatible 
with the specificity required by Article 6.2 of the DSU.17 
11. The finding o f incompatibility is unavoidable since a claim must be examined as it is written 
and not just taking into account certain parts of it.18 As paragraph B.5 makes reference to four 
different provisions of the Anti -Dumping Agreement, one of which, Article 2.2.1.1, sets forth three 
obligations, the Panel cannot exclude Article 2.2.1.1 from the claim in order to make it more specific 
and therefore compatible with Article 6.2.19 The absence of clarification regarding the relevance of 
Article 2.2.1.1  to paragraph B .5, means that, on this basis alone, the claim does not specify a 
"distinct and well -defined obligation" and therefore does not meet the requirements of Article 6.2.20 
12. Furthermore, from a structural perspective and contrary to each of the claims in 
Korea − Pneumatic Valves , paragraph B.5 refers to multiple provisions which, both individually and 
as a whole, set forth " multiple obligations ".21 Because of its reference to multiple obligations, 
paragraph B.5 would only have been compatible with Article 6.2  if it had been worded in a more 
specific manner.22 
13. Lastly, through its response to Panel question 1.28,23 Tunisia confirmed that nothing in the 
text of paragraph B.5 restricts in any way the scope of Article 2.2.1.1, listed in that paragraph, and 
that nothing indicates which of the obligations set forth in that provision is the subject of the claim, 
thus conf irming that paragraph B.5 as a whole is incompatible with Article 6.2 of the DSU.24 
14. Morocco therefore respectfully requests that the Panel find that paragraph B.5 is incompatible 
with Article 6.2 of the DSU.  
 
11 Report of the Appellate Body, Korea - Dairy , para. 124; Report of the Appellate Body, China - Raw 
materials,  para. 220 . 
12 Appellate Body Report, Korea - Pneumatic valves , para. 5.118.  
13 Morocco's comments on Tunisia's responses to the Panel's questions, para. 95.  
14 Preliminary ruling of the Panel, para. 3.33.  
15 Preliminary ruling of the Panel, para. 3.29.  
16 Preliminary ru ling of the Panel, para. 3.30.  
17 Morocco's first opening statement, para. 7.  
18 Morocco's second written submission, para. 51.  
19 Morocco's second written submission, para. 58.  
20 Morocco's second written submission, para. 59.  
21 Morocco's second written submi ssion, para. 58.  
22 Morocco's second written submission, para. 60.  
23 Panel question 1.28.  
24 Morocco's comments on Tunisia's responses to the Panel's questions, para. 107.  WT/DS578/R/Add.1  
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  2. Claim B.6  
15. With regard to paragraph B. 6, a similar line of reasoning to that used for paragraph B.5 shall 
apply, mutatis mutandis .25 
16. In fact, Article 2.4 is a provision that stipulates a "fair comparison" and like many other 
provisions of the Anti -Dumping Agreement, Article 2.4 includes multiple and various obligations .26 
There are at least three , and perhaps even six, distinct obligations under Article 2.4, and the mere 
fact of reaffirming the first sentence of Article 2.4 does not satisfy the requirements of Article 6.2 of 
the DSU.27 
17. Lastly, through its response to Panel question 1.28, Tunisia also confirmed that paragraph  B.6 
as a whole is incompatible with Article 6.2 of the DSU.28 
18. Morocco therefore respectfully requests that the Panel find that paragraph B.6 is incompatible 
with Article 6.2 of the DSU.  
B. The Panel's terms of reference under Article 17.6 of the Anti -Dumping 
Agreement: Tunisia's invitations to proceed with a de novo review  
19. It is indisputable that the Anti -Dumping Agreement prohibits the Panel from undertaking a de 
novo review,29 just as it is undisputed, in this case, that certain arguments  brought by Tunisia before 
the Panel were never specifically raised by the exporters before the authority, even though they 
could have done so, since all these ne w arguments are basic and routine questions on the application 
of formulas by the authority.30 As a result, the authority was not able to consider or address those 
arguments,31 so any examination of them by the Panel would necessarily constitute a de novo 
review.32 The Panel should reject these arguments by Tunisia,33 which are incompatible with 
Article  17.6 (i).34 
C.  The principles of treaty interpretation: Tunisia's invitations to breach the 
terms of the Anti -Dumping Agreement  
20. The usual principles of treaty interpretation,35 codified in part in the Vienna Convention on the 
Law of Treaties ,36 and also present in the legal maxims and logical axioms applied by domestic and 
international jurisdictions, as well as by quasi -jurisdictions, prohi bit any interpretation aimed at 
replacing words used in the treaty with others.37 Furthermore, the references to "context", "object" 
and "purpose" in Article 31 of the Vienna Convention precludes the mechanical interpretation of a 
treaty by simply selectin g and applying one definition in one dictionary38 as revealing or clarifying 
the meaning of a provision.39 
21. The Agreement uses specialized terms but does not include specific methodologies, or even a 
definition, for most of them, and the Panel should th erefore be very prudent when setting, for 
 
25 Morocco's second opening statement, para. 63.  
26 Morocco's second written submission,  para. 70.  
27 Morocco's second written submission, para. 72.  
28 Morocco's comments on Tunisia's responses to the Panel's questions, para. 107.  
29 Report of the Panel, United States - Shrimp II , para. 7.8.  
30 Morocco's second opening statement, para. 9.  
31 Morocco's first written submission, para. 31.  
32 Morocco's second written submission, para. 8.  
33 In its submissions, Morocco explicitly brought to the attention of the Panel each of Tunisia's 
arguments that wa s never specifically raised by the exporters before the authority and which must, 
consequently, all be rejected by virtue of Article 17.6 (i).  
See notably: Morocco's first written submission, paras. 43, 60, 65, 265 and 275; Morocco's first oral 
statement, para. 56 and 137; Morocco's responses to the Panel's questions of 12 October 2020, paras. 26 and 
36; Morocco's second written submission, paras. 87, 97 and 101; Morocco's second oral statement, paras. 41, 
64 and 94; Morocco's responses to the Panel's quest ions of 15 February 2021, para. 36.  
34 Morocco's second written submission, para. 22.  
35 Morocco's first written submission, para. 221.  
36 Vienna Convention on the Law of Treaties,  concluded at Vienna on 23 May 1969.  
37 India — Patents (United States),  para 45 . 
38 EC — Chicken Cuts,  paras. 175 and 176.  
39 Morocco's first written submission, para. 32.  WT/DS578/R/Add.1  
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  purposes of "clarification" using non -specialized dictionaries, the meaning of a term not defined in 
its particular specialized context.40 The Agreement already provides specific indications to panels as 
far as que stions of interpretation are concerned, and relying on the Larousse Dictionary alone as 
Tunisia advocates, even if the principles of treaty interpretation allow for the use of a dictionary, is 
not permitted by the Anti -Dumping Agreement.41 Moreover, the te rms used in the Anti -Dumping 
Agreement are the fruit of lengthy, historic negotiations and were used as specialized terms  even 
before the Uruguay Round and the entry into force of the WTO Agreement, so anyone interpreting 
a treaty must presume that the Mem bers who negotiated, ratified and implemented the treaty were 
aware of the specialized nature of the terms used and that, when they decided to not provide a 
definition or methodology, that choice was deliberate and should, consequently, be respected.42 
22. Lastly, Articles 31 and 32 of the Vienna Convention outline an approach in favour of 
interpreting the entire  provision in its literal, historical and practical context; and the legal maxims 
and logical axioms that predated the Vienna Convention and that c ontinue to be used by international 
tribunals ( effectiveness , ejusdem generis , expressio unius , etc.) came into being precisely because 
a purely literal interpretative approach is inadequate for the task at hand.43 As such, taking a 
negotiated technical te rm out of its treaty context is a clear error of law and replacing said term with 
an expression that is not tried and tested in order to define it using other words by means of 
decontextualized references taken from a non -specialized dictionary, in additio n to constituting an 
unsound interpretation technique, discredits the very task of interpretation.44 
III. TUNISIA'S CLAIMS UNDER ARTICLE 5 MUST BE REJECTED  
23. Morocco explained in detail to the Panel its position regarding the relationship between 
Articles  5.2 and 5.3, and on the correct interpretation of Article 5.3, and has demonstrated that, in 
this case, the authority acted in compliance with Article 5. Morocco has therefore respectfully 
requested that the Panel reject all Tunisia's claims under  Article 5.  
A.  Relationship between Articles 5.2 and 5.3  
24. First, Tunisia never addressed the only key condition in the chapeau of Article 5.2, i.e. that 
the information at issue must be "reasonably available to the applicant".45 When a complaining part y 
fails to demonstrate and, a fortiori , does not even address  one element of an obligation, it cannot 
be considered as having established a prima facie  violation.46 
25. Second, Tunisia puts forward numerous contentions regarding Article 5.2 without once 
demonstrating how the wording  of the provision might impose obligations on a Member.47 
26. In fact, nothing in the letter of Article 5.2 imposes any obligation whatsoever on an authority.48 
Similarly, nothing in the combined operation of Articles 5.1 and 5.2 imposes obligations on an 
authority  as far as the quality  of the content of an application is concerned.49 The letter of Article  5.2 
establishes, however, a negative pr oof threshold  regarding claims brought by the domestic industry, 
without providing the authority with guidance on how to assess the required content.50 Lastly, the 
chapeau of Article 5.2 expressly limits information required to that " as is reasonably avail able" to 
the domestic industry, which is an assessment that must necessarily be made on a case -by-case 
basis.51 
 
40 Morocco's second written submission, para. 19 a).  
41 Morocco's second written submission, para. 19 b).  
42 Morocco's second written submission, para. 20.  
43 Morocco's first oral statement, para. 32.  
44 Morocco's first oral statement, para. 33.  
45 Morocco's first written submission, para. 255; Morocco's first oral statement, para. 122; Morocco's 
second written submission, para. 266.  
46 Morocco's second opening statement, pa ra. 19.  
47 Morocco's second opening statement, para. 17.  
48 Morocco's second opening statement, para. 32 a).  
49 Morocco's second opening statement, para. 32 b).  
50 Morocco's second opening statement, para. 32 c).  
51 Morocco's second opening statement, para. 32 d).  WT/DS578/R/Add.1  
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  27. Article 5.3 addresses the authority directly: "The authorities shall examine the accuracy and 
adequacy of the evidence provided".52 It is ne vertheless important to note, in the light of the 
relationship between Articles 5.2 and 5.3, that the letter of Article 5.3 follows the chapeau of 
Article  5.2, such that "the adequacy of the evidence provided" simply refers to the negative standard 
of proo f enshrined in Article 5.2.53 Lastly, the letter of Article 5.3 is unambiguous with regard to the 
fact that the examination is justified "to determine whether there is sufficient evidence to justify the 
initiation of an investigation ".54 Thus, the obligati on under Article 5.3 to conduct an examination 
and, in particular, its scope are necessarily contingent on its rationale  and the so -called minimum 
threshold (" initiation of an investigation "), so there is no question here of conducting a pre-
investigation  before the authority can proceed with initiating the main investigation, which lasts at 
least one year.55 This is why the evidence to be provided by the domestic industry before an 
investigation , that is to say for the purposes of initiating an investigati on, is necessarily different, in 
terms of volume, quality and probative value, to the evidence that an authority gathers and on which 
it can base its findings.56 
28. In this case, Morocco has described on several occasions the efforts made by the domestic 
industry to ensure that the application met with the requirements of Article 5.2; the application that 
was before the authority, from the perspective of form and substance (supporting information in 
annex), could not be considered a simple assertion.57 
29. Lastly, if the Panel were to apply the interpretation proposed by Tunisia of Articles 5.2 and 
5.3, it could, in addition to discrediting the dispute settlement mechanism due to the interpretation's 
incompatibility with the text and context of Article 5, h ave the systemic consequence of denying 
most small and medium -sized enterprises, even in developed countries, access to the Anti -Dumping 
Agreement.58 
B. Correct interpretation of Article 5.3  
30. The obligation under Article 5.3 is linked to the purpose of the exercise (which is to initiate an 
investigation and not to end it, as enshrined in Article 5.1) and to the letter of Article 5.2 (that the 
"application shall contain such information as is reasonably available to the applicant", for 
example) .59 Thus, the obligation under Article 5.3 to conduct an examination and, in particular, its 
scope are necessarily contingent on its rationale and the so -called minimum threshold: the 
"initiation  of an investigation".60 
31. If Morocco is correct in its assessment of the relationship between Articles 5.2 and 5.3, the 
fact that Tunisia ignores a fundamental requirement of Article 5.2, concerning the adequacy of the 
evidence, means that its arguments concerning Article 5.3 must also founder.61 
C. Applicatio n of Article 5 to the present case: the authority acted in accordance 
with Article 5  
32. The Panel should reject Tunisia's claims under Article 5 because, in view of its application to 
the present case, Tunisia ignores  a critical legal condition of Article  5,62 replaces  the text of the 
treaty with other words,63 proposes  unilaterally to modify the standards of proof64 and legal 
 
52 Morocco's second opening statement, para. 32 e).  
53 Morocco's second opening statement, para. 32 f).  
54 Morocco's second opening statement, para. 32 g).  
55 Morocco's second opening statement, para. 33.  
56 Morocco's comments on Tunisia's responses to the Panel's questions, para. 255.  
57 Morocco's first written submission, para. 258; Morocco's first oral statement, para. 125.  
58 Morocco's second written submission, para. 17; Morocco's second written submission, paras.  262 
and 287. 
59 Morocco's second written submission, paras. 284 -287. 
60 Morocco's second opening statement, para. 34.  
61 Morocco's second written submission, para. 288 . 
62 Article 5.2 of the Anti -Dumping Agreement: "The application shall contain such information as is 
reasonably  available to the applicant [...]" [emphasis added to the relevant part].  
63 Tunisia's first written submission, para. 10.8.  
64 Tunisia's first wri tten submission, para. 10.8.  WT/DS578/R/Add.1  
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  standards not negotiated in the Agreement,65 and objects  to a "theory"66 that Morocco has never 
put forward.67 
33. The issue before  the Panel concerns the evidence  required and the actions  taken by the 
authority with respect to that evidence (or lack thereof), with Article 5.2 setting out two evidentiary 
requirements: (a) the domestic industry must provide evidence to support  each of its claims, but 
(b) only to the extent that such information is reasonably available to it .68 
34. Morocco has submitted the table of contents of the application to illustrate both the rigour and 
scope of the domestic industry's initial submission to the au thority.69 
35. Tunisia's arguments concerning the key condition of "reasonably available" under Article  5.2 
are found to be lacking, and a fortiori  it has also failed to establish the evidence that applicants were 
supposed to provide.70 
36. Moreover, the e xporters and Tunisia have never specifically raised arguments before the 
authority and the Panel, respectively, relating to information as is reasonably available  to the 
domestic industry composed of small and medium -sized enterprises in a developing country. In fact, 
the exporters did not contest the relevance or veracity of the invoice before the authority,71 instead 
they simply pointed out that other evidence, i t is not clear where, said something different to the 
invoice, without ever justifying that assertion.72 
37. Lastly, it is completely incorrect, in addition to being absurd, to characterize the wholesale 
invoice, as Tunisia does, as being a "one -off and ex ceptional" and as representing an "export price 
set for one day (and one transaction)",73 as the invoice, because it was issued by one of the 
exporters, has the highest probative value possible, and that it cannot reasonably be expected that 
the domestic i ndustry would be able to obtain - where necessary - abundant evidence of this 
nature.74 
38. Thus, in this case , the application could not be considered a simple assertion,75 rather it 
included all the elements  required by Article 5.2; the authority having accepted an invoice for a large 
order covering the most popular models of the products at issue as a conclusive piece of evidence, 
after ensuring that the invoice, bearing in mind its nature, was the best evidence that was reasonably 
available to the domes tic industry.76  
39. Accordingly, the authority met the requirements of Article 5.3 to the extent that after receiving 
the investigation initiation request, the authority conducted a series of internal analyses and informal 
exchanges with the applicants on  all elements of the application. In the context of these exchanges, 
the authority forwarded the lists of failures established in the confidential and non -confidential 
versions, organized working and information meetings on the application (as well as info rmation 
visits to the exercise book manufacturers at the application review stage, on 15 and 16 March 2017) 
and meetings with the Foreign Exchange Board to obtain import data.77 
40. Morocco therefore respectfully requests that the Panel reject Tunisia's claims under Article  5. 
 
65 Tunisia's first oral statement, para. 10.11.  
66 Tunisia's first oral statement, para. 10.8.  
67 Morocco's second written submission, para. 292 -299. 
68 Morocco's second written submission, para. 301.  
69 Morocco's first written subm ission, para. 219.  
70 Morocco's first written submission, paras. 251 -255. 
71 Morocco's extraordinary request, para. 3.  
72 Morocco's first written submission, paras. 243 -246. 
73 Tunisia's responses to the Panel's questions, 15 February 2021, para. 178.  
74 Morocc o's comments on Tunisia's responses to the Panel's questions, para. 258 -259. 
75 Morocco's first written submission, para. 258. Morocco's first oral statement, para. 125.  
76 Morocco's second written submission, para. 304.  
77 Morocco's first written submission,  para. 220.  WT/DS578/R/Add.1  
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  IV. TUNISIA'S CLAIMS UNDER ARTICLE 2 MUST BE REJECTED  
41. First, under Article 2.1, Tunisia puts forward a flawed interpretation of the scope of Article  2.1, 
which is not an ancillary  obligation that can be invoked as a co nsequential argument in order to 
exacerbate  the violation.78 
42. Second, under Article 2.2, Tunisia's many arguments are outside the Panel's jurisdiction, 
pursuant to Article 17.6 of the Anti -Dumping Agreement prohibiting an de novo review, to the extent 
that these arguments were never specifically invoked before the authority.79 
43. Third, Tunisia proposes a flawed interpretation of Article 2.2.2, because the exporters' 
calculation of their own "profit margin" is not "actual data" within the meaning of Ar ticle 2.2.2,80 the 
letter of Article 2.2.2 does not allow the provision to be interpreted as being consequential and 
ancillary ,81 and, above all, Article 2.2.2 does not require an authority to examine products that, 
pursuant to the laws of the exporting co untry, are not allowed to be exported.82 
44. Fourth, Tunisia has put forward a flawed interpretation and application of the first sentence of 
Article 2.4, because there is no basis, either in the letter of the first sentence of Article 2.4, or in the 
repor ts cited by Tunisia,83 for asserting that the first sentence of Article 2.4 alone can be used to 
address all the claims of problems with the mathematical formulas that are not associated with 
zeroing, or the alleged problems with the weighted average in sp ecific cases.84 
45. Fifth, Tunisia has proposed a flawed interpretation and application of the third sentence of 
Article 2.4 by requesting that the Panel introduce a "dialogue" requirement of the authority with 
regard to the burden of proof imposed on the exporter, because Tunisia ignores the letter of Article 
2.4, which unequivocally states that it is the responsibility of the exporter to demonstrate the impact 
on domestic market prices.85 
46. Lastly, under Article 2.4, Tunisia's arguments concerning the weighted average by weight 
must be rejected because the authority acted in accordance with Article 2.4 and because the first 
sentence of Article 2.4 is not applicable to all calculation errors. In any case, Tunisia's arguments 
are outside the Panel's jurisdiction, in accordance with Article 17.6 (i) of the 
Anti-Dumping  Agreement prohibiting any de novo review, because they were never raised before 
the authority and, consequently, the authority ne ver had the opportunity to consider those 
arguments.86 
47. Morocco respectfully requests that the Panel reject all Tunisia's claims under Article 2 for the 
reasons set out below.  
A. Interpretation of the scope of Article 2.1 and its irrelevance to this par ticular 
case 
48. Tunisia has put forward a flawed interpretation of Article 2.1, according to which the 
authority's violation of Article 2.1 would be consequential for the other alleged violations under 
Article 2.  
49. When considering the text of Article 2  in its entirety, it appears that Article 2.1 has an 
independent nature and it not an ancillary obligation that can be invoked as a "consequential" 
argument in order to exacerbate the violation.87 Moreover, in so far as Articles 2.2 and 2.3 envisage 
 
78 Morocco's comments on Tunisia's responses to the Panel's questions, para. 18 -19. 
79 Morocco's first written submission, para. 12.  
80 Morocco's second written submission, paras. 106 -125. 
81 Morocco's comments on Tunisia's responses to the Panel's questions, para. 56 -65. 
82 Morocco's second opening statement, para. 66.  
83 Morocco's comments on Tunisia's responses to the Panel's questions, paras. 140 -150. 
84 Morocco's comments on Tunisia's respon ses to the Panel's questions, para. 151.  
85 Morocco's comments on Tunisia's responses to the Panel's questions, para. 185.  
86 Morocco's second opening statement, para. 64.  
87 Morocco's comments on Tunisia's responses to the Panel's questions, para. 18 -19. WT/DS578/R/Add.1  
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  an exception  to the situation described in Article 2.1, this means, ipso facto , that the "definition" in 
Article 2.1 is a substantially independent general  obligation.88 
50. Furthermore, Article 2.1 is not applicable to this case. Tunisia claimed that Morocco had 
violated its obligations under international law, but failed to put forward even the beginnings of an 
argument in support of the claim at issue and when Tunisia was asked about this matter, it admitted 
that the claim is purely incidental and co nsequential. When further clarification was sought, Tunisia 
then admitted that the claim is irrelevant to the basic obligation at issue, so the Panel should not let 
itself be influenced by the shift in Tunisia's position with which it is attempting to conc eal the fact 
that it has failed to fulfil its responsibility as complainant under international law by relying on the 
"principle of judicial economy".89 Tunisia brought a claim but was unsuccessful in its argumentation 
and, a fortiori , in its formulation; this should be the Panel's finding.  
51. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under Article  2.1. 
B. Tunisia's arguments under Article 2.2 that are outside the Panel's terms of 
reference  
52. In the context of a disput e under the Anti -Dumping Agreement, a panel cannot conduct a de 
novo review of the issues before an authority.90 
53. Under Article 2.2, Tunisia requests that the Panel make findings on the arguments that the 
exporters never specifically invoked before the authority, by enjoining the Panel to examine the 
evidence before the authority but on the basis of a new rationale - on new arguments - and not on 
the arguments, comments and explanations presented and elaborated on by the exporters. 
Nevertheless, these ar guments are inadmissible because Article 17.6 (i) does not permit a panel  to 
undertake such an examination.91 Any examination by the Panel of the evidence before the authority 
ignoring the arguments presented in support of the evidence would be tantamount  to conducting a 
de novo review prohibited under Article 17.6.92 
54. Tunisia's arguments under Article 2.2 that are outside the Panel's terms of reference are the 
following: (1) the arguments in support of the claim based on the exclusion of administrative  costs 
and certain expenses not included in the product price used to calculate the profit margin; and (2) 
the arguments in support of the claim based on the inclusion of the "distribution cost" when 
constructing the normal value of certain models of SOTEF I exercise books.  
1. Tunisia's arguments in support of the claim based on the exclusion of 
administrative costs were never specifically invoked before the authority  
55. By putting forward its arguments in support of the claim based on the exclusion of 
administrative costs and certain expenses not included in the product price used to calculate the 
profit margin, Tunisia is inviting the Panel to conduct a de novo review.  
56. These arguments have never been specifically invoked before the authority; the auth ority did 
not have the opportunity to evaluate these arguments and draw conclusions from them, and, if 
necessary, to make corrections or to explain why corrections were not required. Therefore, Tunisia's 
claim based on these contentious arguments is not wi thin the Panel's terms of reference pursuant 
to Article 17.6 (i) of the Anti -Dumping Agreement.93 This solution is justified by the fact that when 
a Member in the role of applicant brings, as in this particular case, arguments before the Dispute 
Settlement  Body (DSB) that were never brought before the responding party's authority, it puts the 
respondent and its authority in an untenable position, forcing them to respond, without ex post facto  
reasoning, in the context of a WTO dispute and after the facts at  issue, to arguments that were 
never raised during the investigation.94 
 
88 Morocco's comments on Tunisia's responses to the Panel's questions, para. 20.  
89 Morocco's comments on Tunisia's responses to the Panel's questions, para. 72.  
90 Morocco's se cond written submission, para. 21.  
91 Morocco's second written submission, para. 22.  
92 Morocco's second opening statement, para. 65.  
93 Morocco's first written submission, para. 60.  
94 Morocco's first written submission, para. 61.  WT/DS578/R/Add.1  
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  57. The Panel should reject such an attempt and should declare inadmissible all Tunisia's claims 
regarding arguments that Tunisia or its exporters could have brought before the authori ty, but were 
not.95 
2. The arguments in support of the claim based on the inclusion of the 
"distribution cost" were never specifically invoked before the authority  
58. By putting forward arguments in support of the claim based on the inclusion of the "dist ribution 
cost" when constructing the normal value of certain models of SOTEFI exercise books, Tunisia is also 
seeking a de novo review.  
59. Despite long exchanges between SOTEFI and the authority, and, in particular, despite the 
reference to SOTEFI in foot notes 100 and 102 of the Excel file containing the margin of dumping 
calculation (SOTEFI) submitted with the Essential Facts,96 the claim concerning the distribution costs 
was never raised before the authority.97 
60. Thus, Tunisia's claim requires a de novo review of the evidence by the Panel because, despite 
having numerous opportunities to comment on the authority's methodology, the exporters never 
specifically invoked this argument with regard to the data that they themselves provided, and for 
that re ason, Morocco respectfully requests that the Panel reject the claim at issue.98 
C. Interpretation of Article 2.2.2 and its application in this particular case  
61. Tunisia's interpretation of Article 2.2.2 is flawed, and the Panel should reject its claim be cause 
Article 2.2.2 is not consequential and incidental , and, in any event, it does not apply in this particular 
case. 
1. Tunisia's interpretation of Article 2.2.2 is flawed  
62. With regard to the interpretation of Article 2.2.2, Tunisia's position is flaw ed. 
63. Article 2.2.2 obliges an authority to ensure that "the amounts for administrative, selling and 
general costs and for profits shall be based  on actual data pertaining to production and sales ". 
(Emphasis added). In other words, prima facie , Article 2 .2.2 does not require an authority to 
necessarily accept each exporter's specific internal accounting categories with regard to the 
categories listed in Article 2.2.2.99 Moreover, Article 2.2.2 refers to actual data pertaining to 
production and sales , and not to any other data;100 the exporters' calculation of their own "profit 
margin" does not, in any way, constitute "actual data" within the meaning of Article 2.2.2.101 
64. For the interpretation and application of Article 2.2.2, Article 2.2.2 (iii) provides  some 
additional context: there is no single methodology that is required by Article 2.2.2 to determine a 
profit margin, as the provision refers only to "any other reasonable method". In fact, Article  2.2.2 
(iii) provides for a ceiling that is based on the  "profit normally realized by other exporters" and not 
on each exporter's own internal accounting categories.102 
65. Furthermore, it should be noted that the obligation "shall be based on  actual data" in 
Article  2.2.2 has been an undisputed principle of WTO  law since the Hormones  case,103 that this 
obligation is by no means an obligation to "conform to" or to "use directly" and that this principle, 
 
95 Morocco's first written su bmission, para. 62.  
96 Essential Facts. (MOR -7) 
97 Morocco's first written submission, para. 64.  
98 Morocco's first written submission, para. 65.  
99 Morocco's second written submission, para. 112.  
100 Morocco's second written submission, para. 112.  
101 Morocco's s econd written submission, paras. 106 -125. 
102 Morocco's second written submission, para. 113.  
103 Report of the Appellate Body, EC - Hormones , para. 164.  WT/DS578/R/Add.1  
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  as the Panel in US - Softwood Lumber V  observed,104 is also relevant to data provided by exporters 
in the context  of Article 2.2.2.105 
66. Morocco therefore respectfully requests that the Panel reject Tunisia's interpretation of 
Article  2.2.2.  
2. Article 2.2.2 is not consequential and incidental  
67. Tunisia seems to argue that when a panel finds that a profit margin i s "inflated" - presumably 
under other provisions of the Anti -Dumping Agreement - this "inflated" profit margin cannot be 
considered to be based on "actual data". Nevertheless, nothing in Article 2.2.2 points to such a 
conclusion.106 
68. Article 2.2.2 contains a limited and circumscribed obligation according to which the authority 
must base its calculation of the amounts at issue on actual underlying data provided by the 
exporters, whereas Article 2.2 provides for a qualitative assessment ("reasonable") of the amounts 
at issue and Article 2.2.2 (iii) requires a "reasonable method " and sets an upper limit for the profit 
margin when the data are unusable for the purposes of calculating the amounts .107 
69. In the present case, for all its calcu lations, the authority used the data submitted to it by the 
exporters, and only the data pertaining to production and sales , so there is no doubt that "the 
amounts for administrative, selling and general costs and for profits" were " based  on actual data 
pertaining to production and sales ".108 
70. The Panel need not make findings under Article 2.2.2 because Tunisia put forward this 
argument too late in the proceedings, but also because Tunisia's initial interpretation of that 
provision was flawed, and above all because Tunisia has admitted that the allegation of a violation 
is unavailing.109 
71. Furthermore, Tunisia has not contested the interpretation and clarification proposed by 
Morocco with regard to Article 2.2.2. If the Panel agrees with Morocco,110 Tunisia's responses confirm 
that Morocco has acted in accordance with Article 2.2.2.111 
3. Article 2.2.2 does not apply in this particular case  
72. With regard to the watermarked exercise books, the parties agree that they could not be 
exported  under Tunis ian legislation; the Essential Facts state in this regard "these exercise books 
are sold only on the domestic market and it is strictly forbidden to export them. Thus, in view of the 
foregoing, sales of these types of exercise books have not been taken int o account when calculating 
the normal value, insofar as there are no comparable types of exercise books sold for export to 
Morocco."112 
73. The matter at issue with respect to the watermarked exercise books is based entirely on the 
authority's specific  determination on watermarked exercise books113 and the fact that Article  2.2.2 
does not require an authority to examine the products that, pursuant to the laws of the exporting 
country, are not allowed to be exported.114 
74. During an anti -dumping investigation,  the exported product is the product concerned; 
accordingly, the exported product is the focus of any dumping calculation, so that Tunisia's 
 
104 Report of the Panel, US — Softwood Lumber V , para. 7.263.  
105 Morocco's second opening statement, para. 52 . 
106 Morocco's comments on Tunisia's responses to the Panel's questions, para. 56.  
107 Morocco's comments on Tunisia's responses to the Panel's questions, para. 58.  
108 Morocco's comments on Tunisia's responses to the Panel's questions, para. 59.  
109 Morocco's comments on Tunisia's responses to the Panel's questions, para. 73.  
110 Morocco's responses to the Panel's questions of 12 October 2020, para. 37 -44. Morocco's second 
written submission, paras. 112 -127. 
111 Morocco's comments on Tunisia's responses to the Panel's questions, para. 65.  
112 Essential Facts, para. 89. (MOR -7) 
113 Morocco's first written submission, para. 71.  
114 Morocco's second opening statement, para. 66.  WT/DS578/R/Add.1  
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  argument, in the event that it is accepted, would mean that after the initiation of the investigation, 
an authority  would have to identify not only those products sold on the domestic market that are 
similar to the exported products, but also, in this case , products that are, by definition, unlikely to 
be exported.115 
75. Tunisia's claim would lead to a ludicrous outcom e for the anti -dumping investigation, as that 
outcome would mean that, for the purposes of the dumping calculation, products would have to be 
taken into account which, under the legislation of the exporters' host country, cannot be exported 
and, ipso facto , cannot be dumped.116 
76. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under 
Article  2.2.2.  
D. Interpretation of Article 2.4 and its application in this particular case  
77. Tunisia's interpretation and application of the fi rst and third sentences of Article 2.4 is flawed.  
78. First, with regard to Tunisia's claim concerning the weighting methodology, this must be 
rejected because the first sentence of Article 2.4 does not apply in this particular case and, in any 
event, the exporters have never specifically raised the matter of the weighting methodology with 
the authority.  
79. Second, with regard to Tunisia's claim concerning the licensed exercise books, this must also 
be rejected because the exporters and Tunisia have not ar gued, nor have they demonstrated, that 
there was an impact on prices on the domestic market, and because Tunisia's belated attempt to 
introduce new procedural requirements under the third sentence of Article 2.4 amounts to a breach 
of the letter of this pr ovision.  
1. Tunisia's claim concerning the weighting methodology must be rejected  
80. Tunisia's interpretation and application of the scope of the first sentence of Article 2.4 is 
flawed and, moreover, Tunisia is seeking a de novo review.  
a) Tunisia's flawed interpretation and application of the scope of 
the first sentence of Article 2.4  
81. First, there is clearly no specific requirement in the Anti -Dumping Agreement that individual 
margins (calculated on the basis of weighted averages) be weighted by value, as Tunisia submits.117 
The Panel in EC - Bed Linen  noted that the Anti -Dumping Agree ment provisions that refer to the 
weighted average (Articles 2.2.1 and 2.4.2) do not contain any guidance on the factor or factors to 
be used in weighting the average to be calculated, and that the most logical conclusion to be drawn 
is that the choice of factor is up to the investigating authority.118 Moreover, weighting by volume is 
statistically correct when, as in the present case, exporters' sales are quantified by volume ; the 
distributive character of the multiplications and divisions allows the invest igating authority to carry 
out certain mathematical steps in the order it considers most appropriate when calculating the 
margin of dumping, with the result remaining the same.119 
 
82. Second, Tunisia's interpretation of the scope of the first sentence of A rticle 2.4 is flawed 
because there is no basis, either in the letter of the first sentence of Article 2.4, or in the reports 
cited by Tunisia,120 for asserting that the first sentence of Article 2.4 alone can be used to address 
all the claims of problems wi th the mathematical formulas that are not associated with zeroing, or 
the alleged problems with the weighted average in specific cases.121 
 
115 Moroc co's first written submission, para. 72.  
116 Morocco's first written submission, para. 73.  
117 Morocco's first opening statement, para. 142.  
118 EC - Bed Linen (Article 21.5 - India), para. 6.87.  
119 Morocco's first opening statement, para. 143.  
120 Morocco's comments on Tunisia's responses to the Panel's questions, paras. 140 -150. 
121 Morocco's comments on Tunisia's responses to the Panel's questions, para. 151.  WT/DS578/R/Add.1  
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  83. It should be noted that it is an incontrovertible, even irrefutable, fact that in the last 25 years 
and as a resul t of over 100 trade remedies, only one comparison method has been recognized as 
falling within the ambit of the first sentence of Article 2.4, which should lead the Panel to refrain 
from expanding the scope of the first sentence of Article 2.4 to cover "an y error in the calculation of 
the margin of dumping".122 
84. More importantly, Tunisia has not demonstrated that the first sentence of Article 2.4 applies 
to all comparison calculation errors (since it does not), nor has it provided an interpretative approa ch 
that would allow the Panel to determine which errors, beside those made in the context of zeroing, 
fall within the scope, or not, of the first sentence of Article 2.4 and why.123 
85. Furthermore, Tunisia's complaint of an "inflated margin of dumping" ill ustrates the absence of 
a proper interpretative approach to the legal provision at issue; even if the Panel were to confirm 
that the authority had made an error in its calculations, it is not "appropriate, nor feasible, for the 
Panel to assume the role of an investigating authority and analyse"124 what a correct  margin of 
dumping would be, and for that reason, the Panel is not in a position to determine whether the 
authority's margin of dumping was "inflated".  
86. Moreover, apart from the cases linked to zeroing, an argument that opens with an "inflated 
margin of dumping" is entirely rhetorical and no legal conclusion can be drawn from that 
description.125 In fact, according to United States - Orange Juice (Brazil) ,126 when it is demonstrated 
that a particular method is "inherently unfair" to the extent that it necessarily leads to a margin of 
dumping that is "artificially inflated", such a method is incompatible with Article 2.4, which is the 
case with zeroing.127 Never theless, Tunisia has not demonstrated that the weighted average method 
based on volume is "inherently unfair", because that is evidently not the case, nor has Tunisia 
demonstrated that the volume weighted average necessarily leads, in all cases, to an "art ificially 
inflated" margin of dumping (which was the case with zeroing), for the simple reason that it is not 
the case either.128 
87. Morocco therefore respectfully requests that the Panel reject Tunisia's interpretation and 
application of the first sentenc e of Article 2.4.  
b) Tunisia's arguments concerning the weighting methodology 
have never been raised specifically with the authority  
88. Presenting its arguments under Article 2.4 regarding the weighting methodology, Tunisia 
requests that the Panel underta ke a de novo review.  
89.  However, the exporters have never specifically raised these weighting methodology issues 
with the authority.129 
90. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under Article  2.4 
based on inadmissible arguments relating to the weighting methodology.  
2. Tunisia's claim regarding licensed exercise books must be rejected  
91. The Panel should reject Tunisia's claim regarding licensed exercise books because the 
exporters have failed to demonstra te the impact on domestic market prices, and because Tunisia is 
again seeking a de novo review.  Furthermore, Tunisia's belated attempt to introduce a new 
procedural requirement under the third sentence of Article 2.4 is a breach of the letter of that 
provision. 
 
122 Morocco's comments on Tunisia's response s to the Panel's questions, para. 169.  
123 Morocco's comments on Tunisia's responses to the Panel's questions, para. 172.  
124 Report of the Appellate Body, EC - Fastners , para. 520. [emphasis added]  
125 Morocco's comments on Tunisia's responses to the Panel's qu estions, para. 193 d).  
126 Report of the Panel, United States - Orange Juice (Brazil) , para. 7.156.  
127 Morocco's comments on Tunisia's responses to the Panel's questions, para. 163.  
128 Morocco's comments on Tunisia's responses to the Panel's questions, paras. 165-166. 
129 Morocco's first oral statement, para. 137.  WT/DS578/R/Add.1  
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  a) The exporters and Tunisia have failed to demonstrate the 
impact on domestic market prices  
92. Article 2.4 states that the burden of proof lies with the exporter; an exporter must 
demonstrate the impact on domestic market prices.130 Otherwise, shoul d the exporter fail to satisfy 
its burden of proof , the authority has "no obligation to make an adjustment".131 
93. In this particular case, neither the exporter nor Tunisia have made the case or, a fortiori , 
demonstrated to the authority or to the Panel, r espectively, that the contract had any impact on the 
prices in Morocco; in fact, Tunisia has even admitted that it was a question of the exporter's domestic 
market costs.132 
94. The exporter has nevertheless provided information on the quality  of licensed p roducts and 
on prices that were both higher and lower  than the price of unlicensed products, so without any 
additional arguments or evidence, the authority was unable to determine on the basis of raw data 
alone whether  and to what extent  the licenses were responsible for the observed pricing differences; 
the Panel is clearly not in a position to make that assessment itself.133 Lastly, the exporter based its 
position on licensed products solely on the contract but, given that the contract was not relevant  to 
the impact of licensing on domestic prices, the investigating authority had "no obligation to make 
an adjustment"134 or a different classification.135 
95. Morocco therefore respectfully requests that the Panel reject the claim at issue.  
b) Tunisia's arguments concerning the licenses Excel file have 
never been specifically raised with the authority  
96. Presenting its arguments under Article 2.4 concerning the licenses Excel file, Tunisia once 
again invites the Panel to undertake a de novo rev iew. 
97. The Excel file figures were never specifically cited by SOTEFI.136 However, despite this 
oversight by SOTEFI, the authority still examined the Excel file and noted that the price of one of 
the six exercise books was lower than that of the unlicense d exercise books.137 The authority also 
confirmed SOTEFI's assertions that the products concerned were of a better quality.138 In any case, 
the information presented in the Excel file does not, in itself, constitute an argument  that licenses 
had an impact on  prices.139 
98. Furthermore, not only did SOTEFI not refer to the Excel file, but SOTEFI also actively diverted 
the authority's attention away from the file by insisting firmly on the contract as the basis for its fair 
comparison legal arguments, so the evi dence and arguments presented by SOTEFI did not provide 
a sufficient basis for the authority to determine whether the licenses had an impact on domestic 
market prices by justifying a different classification.140 
99. Moreover, the information contained in the Excel file also revealed that licensed products 
accounted for just [[***]] of exports and that the impact of using licenses was insignificant.141 
100. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under Artic le 2.4 
based on inadmissible arguments with regard to the licenses Excel file.  
 
130 Morocco's comments on Tunisia's responses to the Panel's questions, para. 185.  
131 Report of the Appellate Body, EC - Fastners , para. 488. [emphasis added]  
132 Morocco's comments on Tunisia's responses to the Panel's questions, para. 185.  
133 Morocco's comments on Tunisia's responses to the Panel's questions, para. 193 c) 2).  
134 Report of the Appellate Body, EC - Fasteners , para. 488. [emphasis added]  
135 Morocco's c omments on Tunisia's responses to the Panel's questions, para. 193 c) 3).  
136 Morocco's comments on Tunisia's responses to the Panel's questions, para. 113 b).  
137 Morocco's responses to the Panel's questions, 15 February 2021, para. 14 f).  
138 Morocco's respons es to the Panel's questions, 15 February 2021, para. 16.  
139 Morocco's responses to the Panel's questions, 15 February 2021, para. 14 e); Report of the Appellate 
Body, United States - Gambling , para. 140.  
140 Morocco's comments on Tunisia's responses to the Pa nel's questions, para. 113 b).  
141 Morocco's comments on Tunisia's responses to the Panel's questions, para. 113 b).  WT/DS578/R/Add.1  
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  c) Tunisia's belated attempt to include a new procedural 
requirement under the third sentence of Article 2.4 amounts 
to a breach of the letter of this provision  
101. Lastly, the  Panel should not accede to Tunisia's request which deviates from the text and case 
law to include, erroneously, a requirement for "dialogue" under Article 2.4.142 
102. The Panel should reject Tunisia's request to include a new procedural requirement under 
Article 2.4, and to deviate from case law and redo the work of the authority, which, could potentially 
discredit the WTO's dispute settlement mechanism.143 
3. The first sentence of Article 2.4 does not apply in this particular case  
103. Morocco therefore re spectfully requests that the Panel reject Tunisia's claim under Article  2.4. 
V. TUNISIA'S CLAIMS UNDER ARTICLE 3 MUST BE REJECTED  
104. First, Tunisia's claims under Article 3.2 must be rejected because Tunisia's interpretation of 
Article 3.2 is flawed.  
105. Second, Tunisia's claim under Article 3.4 must be rejected because the arguments 
underpinning it are unsound.  
106. Third, Tunisia's claim under Article 3.5 must be rejected because it lacks any factual basis.  
A. Interpretation of Article 3.2 and its appl ication in this particular case  
107. The Panel should reject Tunisia's claims under Article 3.2 because: (1) the first sentence of 
Article 3.2 provides an alternative obligation; (2) Tunisia's approach to the examination of price 
effects is evidence of a mechanical reading of Article 3.2 rather than a dynamic analysis as called 
for by case law; (3) Tunisia's claim concerning the review period under Article 3.2 is flawed; (4) 
Tunisia's claim under Article 3.2 concerning the determination of the domestic ind ustry's profit 
margin is flawed; and (5) the authority's determination is consistent with Article 3.2 and the Panel 
may exercise judicial economy with regard to Tunisia's outstanding claims under Article 3.2.  
1. The first sentence of Article 3.2 provides a n alternative obligation  
108. First, Tunisia's claim regarding the examination of the "import volume in relative terms" must 
be rejected because there are two options for the examination required under Article 3.2: an 
authority must consider the volume effect either in absolute or relative terms, but in no way is it 
required to examine it cumulatively.144 
109. In fact, Tunisia does not claim that Morocco's examination of the volume effect in absolute 
terms violates Article 3.2.145 
110. Morocco therefore respectfully requests that the Panel reject Tunisia's claim relating to the 
examination of the import volume in relative terms.146 
 
142 Morocco's comments on Tunisia's responses to the Panel's questions, para. 196.  
143 Morocco's comments on Tunisia's responses to the Panel's q uestions, para. 197.  
144 Morocco's request for a preliminary determination, para. 52.  
145 Morocco's request for a preliminary determination, para. 52.  
146 Morocco's first written submission, para. 14.  WT/DS578/R/Add.1  
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  2. Tunisia's approach to the examination of price effects is evidence of a 
mechanical reading of Article 3.2  rather than a dynamic analysis as called 
for by case law  
111. Tunisia's interpretation of the price effects of Article 3.2 should be rejected by the Panel 
because Tunisia requests that the Panel endorse a purely formalistic finding on the basis of a term  
- "actual price" - which does not appear anywhere in Article 3 or in the Anti -Dumping Agreement.147 
112. Morocco suggests that the correct approach to evaluating the examination of evidence of the 
price effects of dumped imports should instead be drawn fro m the letter of Articles  3.1 and 3.2: (a) 
Did the authority have "positive evidence" of at least one of the phenomena identified in Article  3.2? 
(b) Was the authority's methodology for considering the evidence before it justified in the light of 
the comple xity of the required analysis? and (c) Has the authority explained its methodology 
adequately?148 
113. Article 3.2 should be interpreted in the light of market realities taking into consideration the 
complexity of pricing strategies, but also in the light o f the object and purpose of Article 3.2.149 
114. In this case, the central issue was the fact that, in the face of imported products, the domestic 
industry's sales were made at a loss,150 thus the authority reasonably concluded that "the domestic 
industry's terms of sale or marketing for the exercise books seem to have been unusually affected 
so that a comparison based on actual sales price would be conclusive for the purposes of a price 
undercutting assessment".151 Consequently, the authority undertook an add itional step in order to 
produce a comprehensive and relevant analysis of market realities by asking the following question: 
would undercutting have occurred even if the domestic price reflected normal market conditions?152 
115. With regard to the reasonabl e profit margin, the authority relied exclusively on the data before 
it, since they were for producers of similar exercise books with sales in a market similar to Morocco's, 
but not affected by dumped imports.153 The analysis revealed significant price unde rcutting, 
particularly in the final part of the period of investigation.154 
116. Thus, the authority carried out an active examination of the evidence before it, taking into 
account the reality of price dynamics in a competitive market .155 
117. Morocco there fore respectfully requests that the Panel reject Tunisia's purely formalistic 
approach and reject its claim under Article 3.2 regarding the examination of the price effect.  
3. Tunisia's claim concerning the review period under Article 3.2 is flawed  
118. Tunisia's claim concerning the review period is flawed because Tunisia appears to confuse the 
dumping investigation period and the injury data collection period. For the purposes of a price 
comparison, the domestic price is compared with the price of the dum ped imports, which is 
determined by reference only to the dumping investigation period, so the authority's choice of 
1 May 2016 to 31 April 2017 was quite appropriate.156 
119. In addition, Tunisia's use of case law in support of its claim is both erroneous and irrelevant,157 
but more importantly, Articles 3.1 and 3.2 do not stipulate a particular period of investigation.158 
 
147 Morocco's first written submission, para. 131.  
148 Morocco's first written submission, para. 132.  
149 Morocco's second opening statement, para. 82.  
150 Final Report, para. 134 (MOR -1): "examination of the data collected from the domestic industry has 
revealed t hat, during the injury investigation period, the domestic industry sold exercise books at a loss."  
151 Final Report, para. 134. (MOR -1) 
152 Morocco's first written submission, para. 118.  
153 Morocco's first written submission, para. 120.  
154 Morocco's first writte n submission, para. 121.  
155 Morocco's first written submission, para. 125.  
156 Morocco's first written submission, para. 135.  
157 Morocco's first written submission, paras. 136 -138. 
158 Morocco's first written submission, para. 139.  WT/DS578/R/Add.1  
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  120. Moreover, Tunisia's invitation to the Panel to read into Article 3 a "same period" requirement 
is misleading, because that approach is not supported by the letter or the context of Article  3, not 
even in the vast WTO case law on Articles 3.1, 3.2, 3.4 and 3.5, and is, in addition to being legally 
inadmissible, institutionally imprudent, as it is impossible for this particular Panel to anticipate all 
the factual circumstances in which this issue might arise in the future.159 The ill -considered 
interpretative approach proposed by Tunisia is in sharp contrast to the care with which the Panel in 
Mexico — Anti-Dumping Measures on Ric e assumed its interpretation responsibility.160 
4. Tunisia's claim under Article 3.2 concerning the determination of the 
domestic industry's  profit margin must be rejected  
121. Tunisia's claim under Article 3.2 concerning the determination of the domestic industry's profit 
margin must be rejected since the authority constructed a target price because the domestic industry 
sold at a loss,161 a situation that does not reflect normal market sales conditions; the sole purpose 
of constructing a target do mestic sales price was to reproduce those normal conditions, in order to 
conduct a relevant analysis of the price effect of the dumped imports in accordance with 
Article  3.2.162 
122. Based on its in -depth knowledge of not only its own market but also the re gional market and 
stakeholders, those companies that use practically the same distribution channels (large retail stores 
sometimes from the same chain, such as Carrefour , bookshops), the authority determined the most 
relevant value in the light of the evid ence before it – the profit margin of businesses of a similar size 
in a similar market in the same region – and explained its reasoning in sufficient detail, pursuant to 
Russia — Commercial Vehicles .163 
123. In the absence of any instructions in Article 3.2  on methodology or evidence, in this case , the 
authority chose to consider the evidence relating to lost sales under the heading "price undercutting", 
and as nothing in the letter of Article 3.2 requires an authority to make a definitive determination  in 
either of the categories, the authority's only obligation is to examine  evidence of price developments 
in at least one category164 and that is what the authority did.165 The price of the dumped imports , 
during the dumping investigation period, was higher than  the domestic price; the domestic price 
was a price below cost , and given that loss -making prices over a prolonged period do not provide 
an appropriate basis for comparisons, the authority therefore used a constructed price to analyse 
whether the import pr ice had the effect of undercutting what would have been a sustainable market 
price; which was revealed to be the case.166 
124. Morocco therefore respectfully requests that the Panel reject Tunisia's claim under Article  3.2 
concerning the determination of th e domestic industry's profit margin.  
5. The authority's determination is consistent with Article 3.2 and the Panel 
may exercise judicial economy with regard to Tunisia's outstanding 
claims under Article 3.2  
125. Morocco respectfully requests that the Pane l find that the authority's determination is not 
inconsistent with Article 3.2 because the authority took into account the price effects of the dumped 
imports in its findings and the methodology used by Morocco was reasonable  and objective .167 
 
159 Morocco's comments on Tunisia's responses to the Panel's questions, para. 213.  
160 Morocco's responses to the Panel's questions, 15 February 2021, para. 38; Report of the Appellate 
Body, Mexico — Anti-Dumping Measures on Rice , para 165.  
161 Final Report, para . 134 (MOR -1): "examination of the data collected from the domestic industry has 
revealed that, during the injury investigation period, the domestic industry sold exercise books at a loss."  
162 Morocco's first written submission, para. 143.  
163 Morocco's first  written submission, para. 144.  
164 Report of the Panel, US — Countervailing Duty Investigation on DRAMs , para. 7.265.  
165 Morocco's second written submission, para. 209.  
166 Morocco's second written submission, para. 209.  
167 Morocco's second written submission, para. 211; EC — Countervailing Measures on DRAM Chips, 
para. 7.336.  WT/DS578/R/Add.1  
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  126. Lastly, regarding Tunisia's other claims under Article 3.2, Morocco respectfully requests that 
the Panel exercise judicial economy in terms of the cumulative nature of the examination 
requirement.168 
B. The arguments in support of the claim under Article 3.2 are un sound  
127. First, Tunisia's argument regarding the "upward trends" of certain factors is flawed because 
these "upward trends" are not illustrative of either "positive developments" or a "healthy industry".  
128. Second, the Panel should reject Tunisia's "seasonality" argument because the comparison of 
periods was not an issue.  
129. Third, the Panel should also reject Tunisia's argument regarding the domestic industry's 
alleged "strategy", because it is simply a baseless assumption.  
1. The "upwar d trends" of certain factors are not illustrative of either 
"positive developments" or a "healthy industry"  
130. Tunisia's argument in support of its claim relating to Article 3.4 with respect to the alleged 
"upward trends" of certain factors is flawed.  
131. A 137% increase in inventories of an industry that is, as Tunisia noted, seasonal and depends 
on rapid production and sales, is not a "positive" increase but a rise that, on the contrary, shows an 
industry in poor health  that is no longer able to clear its stock even though it has been selling at a 
loss since the arrival of the dumped goods on the market, and this, more than an increase in 
inventories, incurs capital costs, causing the situation of the domestic industry to deteriorate 
further.169 
132. Similarly, a significant increase in investments may, under certain circumstances, be a sign of 
a "healthy industry"; in this case , the domestic industry invested more in 2015 and 2016 (up 790% 
in 2015 and 145% in 2016) in order to remain competitive in th e face of higher volumes of dumped 
imports on the market. Nevertheless, despite these investments, the increase in productive capacity 
and price cuts, the domestic industry was still unable to sell its products, so its stock levels inevitably 
grew.170 
133. Morocco therefore respectfully requests that the Panel reject Tunisia's arguments in support 
of its claim relating to Article 3.4 regarding the "upward trends".  
2. The comparison of periods was not an issue in the light of the "seasonal" 
nature  
134. Tunisi a's argument in support of its claim relating to Article 3.4 regarding the comparison of 
periods in the light of "seasonality" is flawed.  
135. This would have been a relevant argument if and only if the authority had compared the first 
four months of 2017 to the last four months of 2016, and whether there was evidence that these 
two periods have different seasonal characteristics. Nevertheless, the fact that in 2017 Tunisian 
exporters sold more than during the same "season" in 2016 is in no way evidence tha t comparing 
these same periods is problematic because this comparison does not take "seasonality" into 
account.171 
136. Morocco therefore respectfully requests that the Panel reject Tunisia's arguments in support 
of its claim relating to Article 3.4 on the comparison of periods.  
 
168 Morocco's first oral statement, title III, B, 5.  
169 Morocco's first written submission, para. 181.  
170 Morocco's first written submission, para. 182.  
171 Morocco's first written submission, p ara. 189.  WT/DS578/R/Add.1  
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  3. The alleged "strategy" of the domestic industry  is simply a baseless 
assumption  
137. Tunisia accepted that its argument concerning the domestic industry's alleged "strategy" is 
only an assumption, and on that basis alone, the Pane l should reject this argument because the 
issue before the Panel is not based on assumptions, but rather on evidence  before the authority. 
With regard to the domestic industry's alleged "business strategy", no evidence of that was 
submitted to the authorit y.172 
138. Tunisia argues that "Tunisia's explanation is a plausible explanation, that is consistent with 
the figures, unlike the explanation put forward by MIICEN",173 but a violation of the WTO  Agreement 
cannot be based on "a plausible explanation".174 
139. Morocco respectfully requests that the Panel reject Tunisia's contentious arguments under 
Article 3.4.  
C. Tunisia's claims under Article 3.5 must be rejected  
140. Tunisia's claims under Article 3.5 must be rejected because its argument regarding causation 
under Article 3.5 is unsound and because its argument on "non -attribution" is untenable.  
1. Tunisia's argument regarding causation under Article 3.5 is unsound  
141. Tunisia's arguments regarding causation under Article 3.5 are based175 on its argu ments 
relating to Articles 3.2176 and 3.4.177 
142. In the light of Morocco's arguments relating to Tunisia's claims under Articles  3.2 and  3.4, set 
out above, Morocco requests that the Panel reject Tunisia's derivative argument concerning 
"causation".  
2. Tunisia's argument on "non -attribution" is untenable  
143. Tunisia's "non -attribution" argument with regard to Imprimerie Moderne  must be rejected 
because the exporters, in this case , have made claims about competition in the market, but did not 
however submit  any evidence - not even an invoice, not even an affidavit from its trade 
representatives, not even any business information, not even a photograph of the exercise books of 
rival brands on shelves - in support of their claim of alleged "fierce competition"  from Imprimerie 
Moderne .178 
144. With regard to Article 3.5, the authority is required to examine only those factors for which 
evidence and arguments have been submitted to the authority,179 as was pointed out by the panel 
in the case of Thailand - H-Beams .180 
145. Furthermore, the authority considered that the evidence concerning Imprimerie Moderne 's 
share of domestic production  was accurate, appropriate and sufficient to initiate an investig ation 
into the dumping by SOTEFI and SIPEC. Following the initiation of the investigation, the authority 
sent letters to all interested parties, including Imprimerie Moderne , which did not however respond 
to the authority's questionnaire. So the only piece  of evidence before the authority was Imprimerie 
Moderne 's production volume during the final year of the injury data collection period and, as a 
result, there was no evidence regarding domestic sales, prices or exports. In these circumstances, 
 
172 Morocco's first oral statement, para. 100.  
173 Tunisia's responses to the Panel's written questions, para. 140.  
174 Morocco's second written submission, para. 239.  
175 Tunisia's first written submission, para. 7.11.  
176 Tunisia's first written submission, para. 7.12.  
177 Tunisia's first written submission, para. 7.13.  
178 Morocco's comments on Tunisia's responses to the Panel's questions, para. 245 a).  
179 Morocco's first oral statement, para. 108.  
180 Panel Report, Thailand - H-Beams , para. 7.273.  WT/DS578/R/Add.1  
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  and in the absence of any evidence from exporters, the authority could not be expected to speculate 
on Imprimerie Moderne 's business competition.181 
146. Morocco therefore respectfully requests that the Panel reject Tunisia's "non -attribution" claim 
under Article 3.5 with regard to Imprimerie Moderne . 
VI. TUNISIA'S CLAIMS UNDER ARTICLE 12.2.2 MUST BE REJECTED  
147. Tunisia has treated its claim under Article 12 as an afterthought and the Panel should not give 
any credence to this attempt and should therefore reject the request.182 
148. Furthermore, with regard to Article 12.2.2, the legal "position" of SOTEFI before the authority 
was based on the contract , it being specified that an Excel file does not in itself constitute a "position" 
or  "relevant information, on matter s of fact and law ". So, in this case , the authority set out all the 
relevant facts and arguments, as well as its reasoning in that regard, and it is only because the 
exporters chose not to bring arguments concerning facts before the authority or the author ity's 
treatment of those facts, that the authority, naturally, did not present any findings with regard to 
the arguments not submitted, and there was therefore nothing to be disclosed under Article  12.2.2, 
there is therefore no basis for a review under Art icle 12 and, by the same logic, there is nothing for 
the Panel to consider under Article 17.6.183 
149. Morocco therefore respectfully requests that the Panel reject Tunisia's claims under Article  12. 
VII. THE CLAIMS ABANDONED BY TUNISIA  
150. Tunisia's has abandoned the following claims set out in its request for the establishment of a 
panel: claims B.3 and B.4.  
A. Claim B.3  
151. Tunisia has maintained184 - and the Panel has also agreed185 - that the specific claim set out 
in paragraph B.3 is als o found in paragraph B.5. Morocco respectfully requests that the Panel resolve 
the tensions arising from this finding in the light of the principle of effectiveness of the claims as 
well as the presumption to avoid redundancy186 
152. Furthermore, Morocco requests that the Panel note that Tunisia has abandoned the claim set 
out in paragraph B.3.187 
B. Claim B.4  
153. Morocco respectfully requests that the Panel also note that Tunisia has abandoned the claim 
set out in paragraph B.4.188 
VIII. CONCLUSION  
154. Morocco respectfully requests that the Panel make the following findings:  
In the light of the Panel's jurisdiction,  
a. that claim B.5 in the panel request, according to which Morocco acted inconsistently with 
Articles 2.1, 2.2, 2.2.1.1 a nd 2.2.2, is inconsistent with Article 6.2 (i) because in the absence 
of clarification regarding the relevance of Article 2.2.1.1, the claim does not specify "a distinct 
 
181 Morocco's comments on Tunisia's responses to the Panel's questions, para. 245  b) 2).  
182 Morocco's second written submission, para. 307.  
183 Morocco's responses to the Panel's questions of 15 February 2021, para. 27.  
184 Tunisia's reply to Morocco's preliminary ruling request, para. 4.4.  
185 Preliminary ruling of the Panel, para. 3.46.  
186 Morocco's second written submission, para. 76.  
187 Morocco's second written submission, para. 77.  
188 Morocco's second written submission, para. 81. WT/DS578/R/Add.1  
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  and well defined obligation"; and (ii) because the wording of the claim is too impreci se given 
that it refers to provisions with multiple obligations;  
b. that claim B.6 in the panel request, according to which Morocco acted inconsistently with 
Article 2.4, is inconsistent with Article 6.2 because the wording of the claim is too imprecise 
given it refers to a provision with multiple obligations;  
With regard to the claims abandoned by Tunisia,  
c. that claim B.3 in the request for the establishment of a panel, according to which Morocco 
acted inconsistently with Articles 2.1, 2.2 and 2.2.1, was  abandoned by Tunisia;  
d. that claim B.4 in the request for the establishment of a panel, according to which Morocco 
acted inconsistently with Articles 2.1, 2.2, 2.4, 6.8 and paragraphs 3, 5, 6 and 7 of Annex  II 
of the Anti -Dumping Agreement, and Article V I:1 of GATT 1994, was abandoned by Tunisia;  
e. that Tunisia's claim under Article 5.3 must be considered to have been abandoned because 
Tunisia has stated that it is not pursuing its claim;  
f. that Tunisia's claim under Article 12.2.2 with regard to sales of numbered or watermarked 
exercise books must be considered to have been abandoned because Tunisia has stated that 
it is not pursuing its claim;  
With regard to Tunisia's outstanding claims,  
g. under Article 5  
i. on Article 5.2 , that Tunisia's claims  must be rejected because:  
a. Tunisia has failed to demonstrate that the authority had any obligation so its 
claims have no legal basis; and  
b. in any case, Tunisia has failed to establish a prima facie  case by ignoring the key 
condition of "reasonably ava ilable".  
ii. on Article 5.3 , that Tunisia's claims must be rejected because:  
a. in the light of the relationship between Articles 5.2 and 5.3, the fact that Tunisia 
ignores a fundamental requirement of Article 5.2, concerning the adequacy of the 
evidence, undermines Tunisia's arguments under Article 5.3; and  
b. Tunisia has not established that the authority acted inconsistently with Article 
5.3. 
h. under Article 2  
iii. on Article 2.1 , that Tunisia's claims must be rejected because:  
a. Article 2.1 is not an incidental obligation that can be invoked as a consequential 
argument in order to exacerbate the violation; and  
b. Tunisia has failed to establish a substantial violation of Article 2.1 such that its 
claims have no legal basis.  
iv. on Article 2.2 , that Tunisia's claims must be rejected because:  
a. the arguments relating to the claim based on the exclusion of administrative costs 
and certain expenses not included in the product price used to calculate the profit 
margin are outside the Panel's jurisdiction , pursuant to Article 17.6 of the WT/DS578/R/Add.1  
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  Anti-Dumping Agreement prohibiting any de novo review, to the extent that these 
arguments were never specifically submitted to the authority;  
b. the arguments relating to the claim based on the inclusion of the "distributi on 
cost" in constructing the normal value of certain models of exercise books by 
SOTEFI are outside the Panel's jurisdiction, pursuant to Article 17.6 of the 
Anti-Dumping Agreement prohibiting any de novo review, to the extent that these 
arguments were nev er specifically submitted to the authority;  
c. the arguments relating to the claim based on the mathematical formulas are 
outside the Panel's jurisdiction, pursuant to Article 17.6 of the Anti -Dumping 
Agreement prohibiting any de novo review, to the extent  that these arguments 
were never specifically submitted to the authority.  
v. on Article 2.2.2 , that Tunisia's claims must be rejected because:  
a. the exporters' calculation of their own "profit margin" is not "actual data" within 
the meaning of Article 2.2 .2, the authority is not required to use the data provided 
but it is required to base its calculations on those data;  
b. the letter of Article 2.2.2 does not allow this provision to be interpreted as being 
consequential and incidental; and  
c. Article 2.2.2  does not require an authority to examine products that, pursuant to 
the laws of the exporting country, are not allowed to be exported;  
vi. on Article 2.4 , that Tunisia's claims must be rejected because:  
a. Tunisia's claim relating to the weighting methodology has no legal basis in so far 
as the first sentence of Article 2.4 cannot be used to address all claims of 
problems with the mathematical formulas that are not associated with zeroing, 
or the alleged issues with the weighted average in  specific cases, and in any 
event, Tunisia is seeking a de novo review since Tunisia's arguments related to 
the weighting methodology have never been specifically submitted to the 
authority.  
b. Tunisia's claim concerning licensed exercise books must be rej ected because the 
exporters and Tunisia failed to demonstrate that there was an impact on domestic 
market prices in accordance with the third sentence of Article 2.4, and in any 
case, Tunisia is seeking a de novo review since its arguments relating to the 
licences Excel file were never specifically submitted to the authority.  
i. under Article 3:  
vii. on Article 3.2 , that Tunisia's claims must be rejected because:  
a. The first sentence of Article 3.2 provides an alternative obligation;  
b. Tunisia's interpret ation of Article 3.2 is flawed;  
c. Tunisia's claim concerning the review period is flawed;  
d. Tunisia's claim concerning the determination of the domestic industry's profit 
margin is flawed;  
e. The authority's determination is consistent with Article 3.2 a nd the Panel may 
exercise judicial economy with regard to Tunisia's outstanding claims under 
Article 3.2 on the cumulative nature of the obligation to conduct reviews.  
viii. on Article 3.4 , that Tunisia's claims must be rejected because:  WT/DS578/R/Add.1  
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  a. the arguments r elating to "upward trends", the alleged "seasonality" and to the 
domestic industry's alleged "strategy" are all devoid of any factual and legal basis.  
ix. on Article 3.5 , that Tunisia's claims must be rejected because:  
a. Tunisia's argument regarding causa tion is linked to Tunisia's arguments relating 
to Articles 3.2 and 3.4, and is therefore unsound because it is devoid of any legal 
basis;  
b. Tunisia's argument on "non -attribution" is untenable because it is devoid of any 
factual and legal basis, to the ex tent that the neither the exporters before the 
authority nor Tunisia before the Panel have met the condition expressly set out 
in Article 3.5.  
j. under Article 12  
x. on Article 12.2.2 , that the allegedly still active claim concerning the difference in the 
use of licences must be rejected because:  
a. Tunisia did not submit it in a timely manner, treating it instead as an afterthought; 
and 
b. the claim is devoid of any factual basis.  
 
_______________  
 WT/DS578/R/Add.1  
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  ANNEX C  
ARGUMENTS OF THE THIRD  PARTIES  
Table of content s Page  
Annex C -1 Integrated executive summary of the arguments of Canada  81 
Annex C -2 Integrated executive summary of the arguments of the United States  84 
Annex C -3 Integrated executive summary of the arguments of Japan  87 
Annex C -4 Integrated executive summary of the arguments of the European Union  91 WT/DS578/R/Add.1  
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  ANNEXE C -1 
 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF CANADA* 
 
I. ANALYSIS OF SIGNIFICANT PRICE UNDERCUTTING  
1.  Article 3 of the Anti-Dumping Agreement does not prescribe specific methodologies as to how 
an investigating authority is to analyse the effects of dumped imports on the prices of domestic like 
products. The investigating authority, therefore, has a measure of discretion a s to how it chooses to 
conduct this assessment.1 However, this discretion is bound by the general provisions of Article 3.1,  
which stipulates that any injury determination must be based on positive evidence and must involve 
an objective examination.2 
2. The phenomena covered by Article 3.2 – price undercutting, price depression and price 
suppression – involve different factual situations and therefore will need to be examined differently. 
This difference is highlighted by the fact that the terms "or" and  "otherwise" separate the significant 
undercutting of prices from the other phenomena covered by Article 3.2, "indicating that the 
elements relevant to the consideration of significant price undercutting may differ from those 
relevant to the consideration of significant price depression and suppression".3 
3. Price undercutting involves "situations where imports are being sold at prices lower than the 
domestic like products".4 Therefore, as the Appellate Body indicated in China – GOES, examining 
price unde rcutting in accordance with Article  3.2 involves comparing the prices of the subject imports 
and the domestic like products.5 
4. Nevertheless, as the examination provided for under Article 3.2 focuses on the effects  of 
dumped imports, the examination of p rice undercutting should not be limited to a mere mathematical 
comparison. As the Appellate Body explains, "Article 3.2 requires a dynamic assessment of price 
developments and trends in the relationship between the prices of the dumped imports and those 
of like domestic products over the duration of the period of investigation".6 
5. Contrary to the analysis of price suppression, examination of significant price undercutting is 
not based on a hypothetical scenario of what might have occurred in the absence of dumping. This 
aspect of price suppression analysis is highlighted by the words " which otherwise would have 
occurred", in reference to price increases.7 Such words denote a hypothetical situation with regard 
to analysis of price undercutting. Canada is thus of the view that any examination of significant price 
undercutting should be based on real prices and not on hypothetical prices in a situation where there 
is no import dumping.  
6. Construction of a target price to reflect the price at which domestic products would have been 
sold in the absence of the subject imports is based on the idea that the real price is distorted as a 
result of the price effects  of the imports. Therefore, even if the examination provided for under 
Article 3.2 is intended to determine if the imports had any effects on prices, the target price 
construction method is based on the premise that the imports did have such effects. In ot her words, 
 
* In French original language.  
1 Appellate Body Report, Korea – Pneumatic Valves (Japan) , para . 5.233; Panel Reports, Thailand — H 
Beams , para . 7.159; EU — Biodiesel (Indonesia) , para . 7.137; EC — Fasteners (China) , para . 7.328; and China 
– Broiler Products , para . 7.474.  
2 Appellate Body Report, Korea – Pneumatic Valves (Japan) , para . 5.233; Panel Report, EU — Biodiesel 
(Indonesia) , para . 7.137. See also Panel Reports, China – Broiler Products , para . 7.476; China – X-Ray 
Equipment , para . 7.41; China – Cellulose Pulp , para . 7.62; and Korea – Pneumatic Valves (Japan) , para . 
7.266.  
3 Appellate Body Report, China — GOES , para . 137; and Panel Reports, China – HP-SSST (Japan)/China 
– HP-SSST (EU) , para . 7.124.  
4 Appellate Body Report, China – HP-SSST (Japan)/China – HP-SSST (EU) , para . 5.160 ( emphasis  
omitted).  
5 Appellate Body Report, China — GOES , para . 136 ( emphasis  omitted).  
6 Appellate Body Report, China – HP-SSST (Japan)/China – HP-SSST (EU) , para. 5.160.  
7 Article 3.2 of the Anti -Dumping Agreement.  WT/DS578/R/Add.1  
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  in the context of price undercutting, resorting to a constructed price presupposes that the dumped 
imports had an effect on the price of like domestic products.  
7. The target price construction method may be appropriate for determining if there is price 
suppression or prevention of price increases. This is so because examination of these price 
phenomena is based on comparison with a situation where there is no dumping of imports. In this 
context, the investigating authority must ask itself how th e prices of domestic products would have 
evolved in the absence of the subject imports.  
8. However, for the examination of price undercutting, Canada considers that the comparison 
between the real price of imports and a constructed target price of like dom estic products is not 
appropriate. This comparison should rather be based on the real prices of the subject imports and 
those of the domestic like products.  
II. LEGAL STANDARD FOR THE INITIATION OF AN INVESTIGATION  
9. Article 5 of the Anti-Dumping Agreement sets out the conditions governing the initiation of an 
anti-dumping investigation and imposes obligations on the applicant and the investigating authority 
in this regard.  
10. Article 5.2 of the Anti -Dumping Agreement imposes an oblig ation on the applicant as to the 
content of the request to justify initiating an anti -dumping investigation. It requires the petition to 
include evidence of dumping, injury and a causal link between dumped imports and the alleged 
injury.  
11. By virtue of t his Article, the applicant is required to provide only the information reasonably 
available to it. As the Panel in US – Softwood Lumber V highlighted , Article 5.2 does not require 
the applicant to provide all the information reasonably available to it, but  only such information 
that substantiates a prima facie  case of dumping, injury and causal link.8 
12. Article 5.2 also stipulates that simple assertion, unsubstantiated by relevant evidence, cannot 
be considered sufficient to meet the requirements of this  provision. In this sense, Article 5.2 imposes 
a minimum threshold of sufficiency with regard to the evidentiary weight of information reasonably 
available to the applicant that it is bound to provide in its application.  
13. Article 5.3 requires the author ities 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 investigation9. During its examination, the investigating authority shall examine nota bly if the 
application meets the requirements set forth in Article 5.2. The matter of sufficiency of evidence to 
justify the initiation of an investigation is incumbent on the investigating authority by virtue of Article 
5.3 of the Anti -Dumping Agreement.  
14. Although it has an obligation to examine the evidence provided by the applicant, the 
investigating authority does not need to limit itself to such evidence to determine whether an 
investigation should be initiated. Indeed, the authority may collect inf ormation on its own initiative 
to meet the requirement set forth in Article 5.3.10 Thus, the authority may conduct its own research 
to supplement the information provided by the applicant, which may in itself be insufficient, to justify 
the initiation of a n investigation.11 Consequently, the threshold of sufficiency of the evidence for the 
purposes of initiating an investigation is determined on the basis of the evidence provided by 
applicant in its application, and any evidence that the authority may have gathered.  
15. This is also so because, by virtue of Article 5.2, the applicant is only bound to present in its 
application information that may be reasonably available to it. Should the investigating authority 
limit itself to the content of the application  to rule on whether or not to initiate an investigation, an 
 
8 Panel Report, US – Softwood Lumber V, para. 7.87.  
9 Panel Report s, Guatemala – Cement II , para . 8.31; US – Softwood Lumber V , para . 7.79; and 
Argentina – Poultry anti -dumping duties , para . 7.60.  
10 Panel Reports, Guatemala – Cement II , para . 8.62; and US – Softwood Lumber V , para . 7.75. 
11 Panel Report, Guatemala – Cement I , para . 7.53. WT/DS578/R/Add.1  
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  investigation can only be opened in cases where "sufficient evidence" is reasonably available to the 
applicant.  
16. If it is satisfied that there is sufficient evidence to justify the initiation o f an anti -dumping 
investigation pursuant to the provisions of Article 5, the investigating authority is required to issue 
a public notice of initiation of an investigation in conformity with Article 12.1 of the Anti -Dumping 
Agreement.  
17. In accordance wit h the provisions of Article 12.1.1, this notice, or a separate report, shall 
contain adequate information, including the basis of the dumping allegation made in the application 
and a summary of the factors on which the injury allegation is based.  
18. Article 12.1 does not require the investigating authority to explain, in the notice of initiation 
of the investigation, the conclusions it has reached in determining if there is sufficient evidence to 
justify initiation of an investigation.12 
19. Nevertheless,  the fact that Article 12.1 makes explicit reference to Article 5 demonstrates that 
the substantial obligation contained in Article 5.3 on initiation of an investigation is relevant to 
understanding the procedural obligation of Article 12.1. For example, t he time at which the notice is 
to be published under the terms of Article  12.1 depends on the time at which the investigating 
authority determines that there is sufficient evidence to initiate an investigation, in conformity with 
Article 5.3. Similarly, th e information contained in the notice of initiation of an investigation, in 
particular information on which the dumping and injury allegations are based, depend on the 
information which the investigating authority has examined or gathered during its examin ation in 
accordance with Article 5.3.  
 
 
 
12 Panel Report , Mexico – Corn Syrup , para. 7.88.  WT/DS578/R/Add.1  
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  ANNEX C -2 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF THE UNITED STATES* 
EXECUTIVE SUMMARY OF U.S. THIRD PARTY SUBMISSION  
1. As set out in Article 11 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU"), the Panel is to "make an objective assessment of the ma tter before 
it, including an objective assessment of the facts of the case and the applicability of and conformity 
with the relevant covered agreements". Pursuant to the Panel's terms of reference, as established 
by Article 7.1 of the DSU, the Panel is the n to "make such findings as will assist the DSB in making 
the recommendations or in giving the rulings provided for" in the covered agreements, as required 
by Article 19.1 of the DSU.  
2. With respect to the specific standard of review for anti -dumping meas ures under Article 17.6 
of the Anti -Dumping Agreement, it is the Panel's task to assess whether the investigating authority 
properly established the facts and evaluated them in an unbiased and objective way. The Panel's 
task is not to determine whether it would have reached the same results as the investigating 
authority. Put differently, the Panel's task is to determine whether a reasonable, unbiased person, 
looking at the same evidentiary record as the investigating authority, could have —not would have —
reached the same conclusions that the investigating authority reached.  
3. The Panel must not conduct a de novo  evidentiary review. It would be inconsistent with a 
panel's function under Article 11 of the DSU to go beyond its role as reviewer and instead subs titute 
its own assessment of the evidence and judgment for that of the investigating authority.  
EXECUTIVE SUMMARY OF U.S. THIRD PARTY ORAL STATEMENT  
4. Article 3 of the Anti -Dumping Agreement does not prescribe a particular methodology or 
mandatory set of factors to be considered in an underselling analysis by the authority.  
5. In the context of an underselling analysis by the authority, Article 3.2 directs an authority to 
examine whether subject imports significantly undercut the prices of like domestic pr oducts and 
Article 3.1 provides that a determination of injury shall be based on positive evidence and involve 
an objective examination.  
6. In addition, Articles 3.1 and 3.2 require the authority to ensure comparability between the 
domestic and subject imp orted products for which prices are being examined by making adjustments 
where required to reflect any material differences.  
7. Article 3 of the Anti -Dumping Agreement does not prescribe a particular methodology for an 
authority to analyse impact of dumped  imports on the domestic industry.  
8. With respect to an authority's obligation to ascertain the impact of dumped imports on the 
domestic industry, Article 3.4 mandates that "[t]he examination of the impact of dumped imports 
on the domestic industry concer ned shall include an evaluation of all relevant economic factors and 
indices having a bearing on the state of the industry", and lists a series of factors to be evaluated. 
As the text of Article 3.4 states, no one injury factor is necessarily "decisive".  
9. Article 3.4 does not dictate the methodology that should be employed in conducting the 
examination under this article, or the manner in which the results of this evaluation are to be set 
out. 
10. The United States also notes that a negative material inju ry determination is not compelled 
merely because a domestic industry has reported a number of positive or improving injury indicators 
during the POI. As the  EU – Footwear  panel explained, it is "clear" that "it is not necessary that all 
 
* In the original English.  WT/DS578/R/Add.1  
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  relevant factors, o r even most or a majority of them, show negative developments in order for an 
investigating authority to make a determination of injury". Thus, an authority is not required to find 
that any certain number of injury factors declined during the POI in order to make an affirmative 
determination of injury.  
11. Article 3.5 of the Anti -Dumping Agreement does not prescribe a particular methodology for 
an authority to analyse non -attribution factors . 
12. The third sentence of Article 3.5 requires an authority to examine "any known factors other 
than the dumped imports which at the same time are injuring the domestic industry" to ensure that 
"the injuries caused by these other factors must not be attributed to the dumped imports". A non -
attribution ana lysis is therefore necessary only if (1) there are one or more other known factors 
other than the dumped imports that (2) are injuring the domestic industry (3) at the same time.  
13. In situations where there are such other injury -causing factors as define d in Article 3.5, the 
article does not require an investigating authority to utilize any particular methodology in examining 
such factors. In light of this, the Appellate Body has  acknowledged that an authority "is free to 
choose the methodology it will us e in examining the 'causal relationship' between dumped imports 
and injury".  
EXECUTIVE SUMMARY OF U.S. THIRD PARTY RESPONSES TO QUESTIONS  
14. Response on Question 3.1 : With respect to an investigating authority's obligation to ascertain 
the impact of dumpe d imports on the domestic industry, Article 3.4 of the AD Agreement mandates 
that "[t]he examination of the impact of dumped imports on the domestic industry concerned shall 
include an evaluation of all relevant economic factors and indices having a bearin g on the state of 
the industry", and lists a series of factors that must be evaluated if they are relevant and have a 
bearing on the state of the industry under investigation – including the "actual and potential decline 
in sales, profits, output, market s hare, productivity, return on investments, or utilization of capacity".  
15. The inquiry under Article 3.4 is not limited to its list of enumerated factors; as the text of 
Article 3.4 confirms, the list is "not exhaustive", and no one factor is necessarily "decisive". Rather 
than undertake a rote checklist as to whether each factor points to injury in an underlying 
investigation, an authority "must consider, in light of the interaction among injury indicators and the 
explanations given" whether a domestic in dustry is injured.  
16. Response on Question 3.2 : Article 3.1 of the AD Agreement provides that "[a] determination 
of injury for purposes of Article VI of GATT 1994 shall be based on positive evidence and involve an 
objective examination of ... the conseque nt impact of [dumped] imports on the domestic producers 
of [the like domestic] products". The approach taken by a number of panels is instructive with 
respect to applying the concepts of balancing negative and positive factors in a practical manner. 
For ex ample, the panel in EU – Footwear (China)  considered it "clear" that a negative material injury 
determination is not compelled merely because a domestic industry has reported a number of 
positive or improving injury indicators during the POI. As that panel  explained "it is not necessary 
that all relevant factors, or even most or a majority of them, show negative developments in order 
for an investigating authority to make a determination of injury".  
17. Response on Question 4.3 : Article 5.2 and Article 5.3 of the Anti -Dumping Agreement set out 
the following requirements for applications and obligations on investigative authorities in order to 
initiate an anti -dumping investigation. First, under Article 5.2, the application must contain evidence 
of dumping, i njury within the meaning of Article VI of GATT 1994 as interpreted in the Anti -
Dumping  Agreement, and a causal link between the dumped imports and the alleged injury. Article 
5.2 explains that the application shall contain such information that is reasonab ly available to the 
applicant on the items identified in 5.2(i) -(iv). Second, under Article 5.3 of the  
Anti-Dumping  Agreement, the investigative authority must examine the accuracy and adequacy of 
the evidence in the application to determine whether there  is sufficient evidence to justify initiation.  
18. The text of Articles 5.2 and 5.3 does not provide the Panel with a standard of review that is 
unique to initiations. Rather, Article 17.6 of the Anti -Dumping Agreement provides the applicable 
standard of r eview for anti -dumping disputes. In the context of Articles 5.2 and 5.3 of the  
Anti-Dumping Agreement, the Panel is to determine whether a reasonable, unbiased person, looking WT/DS578/R/Add.1  
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  at the same evidentiary record as the authority, could have —not would have —reached the same 
conclusions that the authority reached. In particular, whether a reasonable, unbiased person, after 
looking at the information contained in the application could reach the same decision to initiate an 
anti-dumping investigation.  
19. Response o n Question 4.7 : The use of the term "evidence" in Articles 5.2 and 5.3 of the  
Anti-Dumping Agreement does not dictate that the applicant or the investigating authority —at the 
point at which Article 5.2 or 5.3 is implicated in an antidumping proceeding —must demonstrate how 
the information provided justifies the initiation of an investigation. Of course, it befits the applicant 
to explain how the information in the application constitutes "evidence" of, and demonstrates, 
dumping, injury, and causation for pu rposes of the investigating authority examining the accuracy 
and adequacy of that evidence. However, neither of the aforementioned Articles require a 
demonstration at that stage. If the applicant fails to demonstrate that the information in the 
application  is sufficient to justify initiation of an investigation, it risks the investigating authority not 
initiating on the basis of the application.  
20. Response on Question 4.8 : As an initial matter, the evidence in the application need not 
"prove" the existence of all elements of dumping. As the panel in US Softwood Lumber V  stated, 
"[w]hat constitutes sufficient evidence to justify the initiation of an anti -dumping investigati on, is 
not defined in the Anti-Dumping Agreement ". Furthermore, "the quantity and quality of evidence 
required to meet the threshold of sufficiency of the evidence is of a different standard for purposes 
of initiation of an investigation compared to that r equired for a preliminary or final determination of 
dumping".  
21. An investigating authority may request supplemental information from the applicant. Indeed, 
an investigating authority's request for supplemental information from an applicant is fully consi stent 
with the Article 5.3 obligation that the investigating authority examine the accuracy and adequacy 
of the information contained in the application.  
 
 WT/DS578/R/Add.1  
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  ANNEX C -3 
INTEGRATED EXECUTIVE SUMMARY OF THE  
ARGUMENTS OF JAPAN* 
I. THE "LOGICAL PROGRESSION" UNDER ARTICLE 3 OF THE  
ANTI -DUMPING AGREEMENT  
1. The paragraphs of Article 3 of the Anti -Dumping Agreement have been described as 
contemplating a "logical progression of inquiry". The inquiries under Articles 3.2 and 3.4 are 
accordin gly required for the overall causation analysis contemplated in Article 3.5 and their outcomes 
form the basis of such analysis.1 Without a proper examination under these provisions, an affirmative 
finding of the effect of the dumped imports or the impact of the dumped imports would be neither 
reasonable nor objective because it would lack positive evidence inconsistently with Article 3.1. 
Japan therefore considers that an investigating authority must undertake thorough analyses of the 
price and volume effe cts and of the impact of dumped imports on the domestic industry, in order to 
properly determine the existence of injury and causation.  
II. THE ANALYSIS OF VOLUME EFFECTS UNDER ARTICLE 3.2 OF THE  
ANTI -DUMPING AGREEMENT  
2. Japan considers that an investiga ting authority should consider whether and to what extent 
dumped imports are increasing by substituting for the domestic like products in the market. As Japan 
sees it, an increase in the dumped imports, with no substitution effect, cannot be characterized as 
"significant". The absence of such an effect indicates that the sales quantity of the domestic like 
product would have been the same in the absence of the dumping, and logically, the domestic 
industry has not been injured by the dumped imports.  
3. With respect to the case at issue, if the market share of the dumped imports had fluctuated 
during the period of investigation ("POI"), it would be questionable whether it could be concluded 
that the increase during a period shorter than a year properly represe nts the true trend of the 
dumped imports, or that the dumped imports were increasing and replacing the domestic like 
products on a volume basis. In particular, considering that the product under investigation is school 
exercise books, it appears reasonable  to consider that there could have been seasonal trends. The 
Panel should carefully review whether Morocco's Ministry of Industry, Investment, Trade and the 
Digital Economy ( "MIICEN") took into account such a seasonal trend, as alleged, and the domestic 
market situation throughout the entire year when determining whether the imports increased 
relative to production or consumption.  
III. THE ANALYSIS OF PRICE EFFECTS UNDER ARTICLE 3.2 OF THE  
ANTI -DUMPING AGREEMENT  
A. Price Effect Analysis  
4. Prior panels and  the Appellate Body have underscored that the analysis under the 
second  sentence of Article 3.2 must be dynamic and must consider the interaction of the prices of 
dumped imports and domestic products in the specific market. In this regard, Japan is of the view 
that a mere demonstration of correlation between the prices of dumped imports and domestic prices 
does not provide a sufficient basis for the existence of price effects within the meaning of Article 3.2, 
because it does not show whether the price of d umped imports had an effect on the domestic like 
products and thus is not based on positive evidence. It is common knowledge that the correlation 
between two figures does not necessarily entail a causal relationship between the two.  
5. In Japan's view, for  all three types of price effects set out in Article 3.2 —that is, price 
undercutting, price depression, and price suppression —the key question is the same:  the price 
effects analysis must consider what the domestic price would have been without the dumped imports 
 
* In the original English.  
1 Appellate Body Report, China – GOES , para. 128.  WT/DS578/R/Add.1  
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  (i.e., if the imports had been priced at their normal value), compared to the actual price of the 
domestic like products where there are dumped imports . Article 3.2 requires a consideration of "the 
relationship between subject imports and domestic prices, so as to understand whether the former 
may have explanatory force" for the observed pricing trends, and an investigating authority may not 
"disregard evidence that calls into question the explanatory force of subject imports".2 Further, the 
analysis must be based on an objective examination and positive evidence.3 
6. In conducting the analysis contemplated in Article 3.2, the investigating authority would 
normally need to examine market interactions between subject imports and the domestic like 
products. Without such market interaction, there will be no positive evidence that the observed price 
differences of the domestic like products were caused by the dumped imports (i.e., constituting price 
effects), and the observation will  not provide a basis for the next step of the "logical progression".  
7. Specifically, the investigating authority should carefully consider factors that may explain why 
the domestic industry of the importing Member could not have raised its prices, or fact ors that show 
what the price would have been had it not been for the dumped imports, before finding that the 
dumped imports have price effects. This consideration must be reflected in the relevant documents 
of the investigating authority.4  
B. Price Undercutting  
8. Japan does not comment on the particular price effect analysis carried out by MIICEN in the 
case at issue. Having said that, as far as the legal standard for the "price undercutting" analysis is 
concerned, Japan first has doubts about MIICE N's understanding of the "comparability" reflected in 
the aforesaid analysis. The key question under Article 3.2 is again, whether the price of the domestic 
like products would have been higher but for the dumped imports. Japan requests that the Panel 
carefully examine whether MIICEN's approach conforms to the requirement of "comparability", in 
particular as regards the use of the profit margins earned by the exporters in Tunisia as a 
representative of the profit margins that should have been earned by the domestic producers.  
9. Japan's view is that the use of a constructed price is not per se inconsistent with Articles 3.1 
and 3.2. It is recognized that investigating authorities enjoy a certain discretion in adopting a 
methodology to guide their injury anal ysis.5 However, Japan also considers that the mere 
comparison with actual prices does not provide a sufficient basis for the affirmative finding of 
"significant" price undercutting. Even in the absence of an actual decrease in prices, where the 
investigat ing authority has found that prices are lower than they would have been (because the 
profit margin of domestic products was set lower than it would have been), to allow the "logical 
progression" leading to the subsequent impact and causal link inquiries, t he investigating authority 
would need to find that the lower -priced imports caused the domestic producers' inability to increase 
their sales price despite their cost increase.  
10. Leaving aside MIICEN's decision to use a constructed price, it does not appe ar that a 
reasonable explanation was provided for the use of the profit margins of Tunisian exporters in the 
case at hand. If the approach was based on an assumption that the profits of the domestic industry 
should have been higher than the actual profit b ecause the price of school exercise books of the 
domestic industry should have been higher, the finding cannot be considered adequate or reasonable 
unless the underlying assumption is otherwise established by positive evidence. There should be an 
explanati on based on positive evidence to substantiate that the domestic producers would have 
earned the same profit rate but for the dumped imports. A mere allegation that the Tunisian 
competitors were earning such a profit rate is insufficient to use the same pro fit rate to reach a 
constructed price of domestic producers.  
C. Price Depression  
11. In the case at issue, MIICEN found that the price of the like products was depressed every 
year during the POI. However, it is unclear whether the relationship between the  subject imports 
 
2 Appellate Body Report, China – GOES , para. 151.  
3 Appellate Body Report, China – GOES , para. 152.  
4 Appellate Body Report, China – GOES , para. 131. (original emphasis)  
5 See, for example, Appellate Body Report, Mexico – Anti-Dumping Measures on Rice , para. 204 and 
Panel Report, EC – Tube or Pipe Fittings , paras. 7.278 and 7.281.  WT/DS578/R/Add.1  
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  and the domestic prices was considered in determining whether the effect of subject imports was to 
depress domestic prices.  
D. Price Suppression  
12. Japan reiterates that, if the affirmative finding of price suppression is based solely on a mere 
price comparison, it must be concluded that the finding is not supported by positive evidence. An 
affirmative finding of "price suppression" must be based on an assessment of the market interaction 
between the dumped imports and the domestic like pr oducts. As the existence of domestic 
competitors, not included within the scope of the domestic industry in the investigation, has been 
pointed out when conducting the injury inquiries, for example, it should be carefully reviewed 
whether or not the price suppression is indeed caused by the dumped imports. Japan requests that 
the Panel examine these arguments from the aforesaid viewpoint.  
IV. INJURY ANALYSIS UNDER ARTICLE 3.4 OF THE ANTI -DUMPING AGREEMENT  
13. While Article 3.2 concerns the volume and price effect of dumped imports, Article 3.4 concerns 
"the consequent impact" of the dumped imports on the domestic industry. Japan understands that 
"the impact of" the dumped imports on the state of the domestic industry within the meaning of 
Article 3.4 refers to the impact of the volume/price effect identified under Article 3.2. Therefore, 
Japan considers that Article 3.4 requires an investigating authority to examine whether and to what 
extent the factors showing certain trends in the domestic industry can be explained as resulting from 
the identified effects of dumped imports (i.e., volume effects and price effects)  under Article 3.2.  
14. Further, if the investigating authority finds that the "impact of the dumped imports" is one 
that results from the volume/p rice effect of dumped imports, the investigating authority must also 
provide an adequate and reasonable explanation on why such impact demonstrates an injury to the 
domestic industry to satisfy the explanatory force requirement of Article 3.4.  
15. In this regard, while Japan does not take a position as to the facts of the case, if MIICEN 
engaged in a selective examination, and did not examine or provide a satisfactory explanation of 
certain factors and indices, it would have failed to undertake the examinat ion required by Article  3.4. 
In addition, if there were cost factors that impacted profits, the investigating authority should have 
explained how it considered such factors. Without such an explanation, it would be incorrect to 
assume that the impact on pr ofits reflects the impact of dumped imports.  
16. Japan does not believe that the mere presence of factors other than the dumped imports that 
explain in part certain negative trends necessarily denies the "explanatory force" of the dumped 
imports for the st ate of the domestic industry. However, it appears that MIICEN did not find any 
price effects or volume effects of the dumped imports other than that the domestic industry's profits 
were lower than what it would have earned without the dumped products. Ther e should be some 
explanation as to why the changes in production, sales, and market share reflect the impact of 
dumped imports when there appears to be no price or volume effect of dumped imports other than 
the impact on profits.  
V. ARTICLE 3.5 - CAUSAL LI NK 
17. In Japan's view, an investigating authority's consideration of other factors in the price effects 
analysis under Article 3.2 does not duplicate, but rather contributes to, the non -attribution analysis 
under the third sentence of Article 3.5. In fact , Article 3.5 requires that an  investigating authority 
"demonstrate[] that the dumped imports are, through the effects of dumping, as set forth in 
[Articles  3.2 and 3.4] , causing injury within the meaning of this Agreement".6 Therefore, factors that 
do not affect prices, and that accordingly are not considered within the price effect analysis, cannot 
constitute "factors attributable to dumped imports" by definition.  
18. If MIICEN had obtained information regarding domestic com petitors of the "domestic 
industry", the Panel should carefully consider whether there were any effects caused by the above 
 
6 Emphasis added.  WT/DS578/R/Add.1  
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  mentioned domestic competitors as alleged that should not have been attributed to the dumped 
imports.  
19. In addition, although Tuni sia does not appear to have raised the issue in this dispute, Japan 
has questions as to whether the determination of the scope of the "domestic industry" was 
appropriate. In the present case, had the MIICEN included all domestic producers within the scope 
of the "domestic industry", the competition among all domestic producers would have been 
appropriately considered within the injury determination, especially when considering the price 
effects of dumped imports under Article 3.2.  
VI. FINDING OF DUMPING UND ER ARTICLES 2.1 AND 2.4 OF THE  
ANTI -DUMPING AGREEMENT  
20. In order to determine a comparable price and to undertake a fair comparison in accordance 
with Articles 2.1 and 2.4, it is necessary to take into account the status of competition within the 
releva nt market. Although Japan does not take a position on the specific factual allegations made 
by the parties, Japan respectfully requests the Panel to examine carefully whether the calculation of 
the normal value by the MIICEN was indeed proper. If there is no explanation about how the 
authority compared several models taking into account market practices, seasonality and other 
factors that affect competition in the market, the lack of an explanation may suggest that the 
comparison is arbitrary.  
 WT/DS578/R/Add.1  
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  ANNEX C -4 
INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE EUROPEAN UNION * 
1. The European Union is exercising its right to participate as a third party in this dispute owing 
to its systemic interest in the proper and consistent interpretation and application of the covered 
agreements and other relevant documents, and the multilateral nature of the rights and obligations 
contained therein.  
2. With regard to the construction of normal value, Tunisia has detected two erro rs that the 
Moroccan authority, MIICEN, made in calculating the profit margin of Tunisian producers.  
3. The European Union understood the first error raised by Tunisia to be the fact that MIICEN 
included in the profit margin of producers certain costs and expenses that do not count as profits, 
such as taxes, duties, transport costs and the cost of credit. According to Articles 2 and 2.2.2 of the 
Anti-Dumping Agreement, the cost of production may only be increased by reasonable amounts for 
administrative, se lling and general costs, as well as profits, based, to the extent possible, on actual 
data. 
4. In the view of the European Union, the Panel is not prevented from considering the issue of 
interpretation of the Anti -Dumping Agreement raised by Tunisia due to  the mere fact that this issue 
was not previously submitted to the investigating authority. Article 17 of the Anti -Dumping 
Agreement does not require that matters referred to the Dispute Settlement Body first be submitted 
to the investigating authorities.  
5. An erroneous calculation of the reasonable profit margin could be considered by a Panel as an 
improper establishment of the facts by the investigating authority if the claim brought to the Panel 
concerns a calculation error that results from the facts e stablished in the course of the investigation 
or assessment. In this case, the claim must be examined by the Panel on the basis of "the facts 
made available in accordance with appropriate domestic procedures to the authorities of the 
importing Member" as r equired by Article 17.5(ii) of the Anti -Dumping Agreement, and in relation 
to the test under Article 17.6(i). Under this standard, in its assessment of the facts of the case, 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 if the Panel may have reached a 
different conclusion, the evaluation shall not be overturned. The European Union shares the view 
expressed by the United States regarding this measure1. 
6. However, if the allegation concerning the wrong calculation of the profit margin of the 
producers is not based on an error in the establishment of  the facts or their evaluation, but rather 
on an error of interpretation of the provisions of the Anti -Dumping Agreement applicable to the 
calculation of that margin, the Panel must examine this claim under Article 17.6(ii).  
7. With respect to the second e rror in the calculation of the profit margin of the producers alleged 
by Tunisia, the matter brought to the Panel appears to be of a completely different nature.  
8. The European Union considers the decision by MIICEN to exclude sales of numbered or 
waterma rked exercise books from the calculation of the profit margin of the producers can be 
justified due to the fact that these are product models or types of product whose export is strictly 
prohibited and is therefore not sold on the market of the importing c ountry. In this case, the 
exclusion of sales of this model from the calculation of normal value appears to be in conformity 
with the obligation under Article 2.4 of the Anti -Dumping Agreement to ensure a fair comparison 
between normal value and export pric e. Therefore, no breach of Articles 2.1, 2.2 and 2.2.2 can be 
found to exist as a result of this exclusion.  
 
* French original.  
1 United States ' third -party written submission, para.  6. WT/DS578/R/Add.1  
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  9. Tunisia's claim regarding determination of the normal value of SOTEFI  raises the question 
of whether "distribution cost" is part of the "administ rative and selling expenses" or "general costs" 
which, under Article 2.2 of the Anti -Dumping Agreement, may be added to the " production cost" to 
reconstruct the normal value of the product concerned in the country of origin. In the view of the 
European Un ion, this is a matter of interpretation of Article 2.2, which may be considered by the 
Panel, even if it was not raised during the investigation.  
10. Article 2.2 of the Anti -Dumping Agreement does not make an explicit reference to distribution 
costs. The o rdinary meaning of the terms "production cost" and "profits" does not appear a priori to 
cover costs associated with the distribution of products. However, doubts about what is covered by 
the ordinary meaning of the terms "administrative and selling expens es" and/or "general costs" 
could be justified.  
11. Article 2.2 of the Anti -Dumping Agreement must therefore be interpreted in its context, 
including the provisions of Article 2.4 in particular.  
12. According to Article 2.4 of the Anti -Dumping Agreement, th e fair comparison between the 
export price and the normal value, which the investigating authority must make, must be "made at 
the same level of trade, normally at the ex -factory level".  
13. If the fair comparison between the export price and the normal va lue is "normally" made at 
the "ex -factory level", it is reasonable to conclude that distribution costs, in particular the costs of 
transporting products to customers within the country of origin, should normally not be included in 
the constructed normal va lue in accordance with Article 2.2 of the Anti -Dumping Agreement.  
14. Nevertheless, the last sentence of Article 2.4 should also be taken into account, whereby the 
authorities "shall indicate to the parties in question what information is necessary to ensu re a fair 
comparison and shall not impose an unreasonable burden of proof on those parties". This provision 
would suggest that it is incumbent on the interested parties to provide the authorities with the 
necessary information to identify the domestic tran sport costs of the products concerned by the 
investigation, with a view to enabling a fair comparison between the export price and the normal 
value.  
15. With respect to the fair comparison stipulated under Article 2.4  of the Anti -Dumping 
Agreement, the Eur opean Union considers that a comparison methodology that results in collection 
from importers of anti -dumping duties in excess of the amount of the exporter's or foreign producer's 
margin of dumping cannot lead to a "fair comparison" within the meaning of the first sentence of 
Article 2.4, even if this is due to an error in the mathematical formula. When the investigating 
authority uses the so -called weighted -average comparison methodology, it must first establish the 
differences observed between export uni t prices and normal values for each model (which will then 
be weighted). These intermediate results are not "margins of dumping". As a result, they are 
correctly expressed in monetary terms, not as percentages, as MIICEN appears to have done. 
Expressing th ese intermediate results as percentages would amount to basing the calculations not 
on absolute values, but on relative values and thus could distort the calculations.  
16. On the use of licences, the European Union considers that the key question is the fa ct of 
whether the exporters did indeed provide, in the course of the investigation , sufficiently concrete 
elements of information to demonstrate that the use of licences actually affected price comparability. 
It is obviously not sufficient for the complain ing party to itself demonstrate this fact to the Panel.  
17. With regard to determination of injury,  the European Union submits that Article 3.2 of the 
Anti-Dumping Agreement enumerates three specific effects that the imported volumes may have on 
prices in the importing country, namely: significant price undercutting; significant price depression 
or significant price suppression.  
18. The European Union considers that the relationship between these three types of price effects 
is as follows:  
19. First, these three types of effects are alternatives. The concepts of price undercutting, price 
depression and price suppression describe three distinct forms of price development that may be 
caused by imports. The specificity of each of these three forms of price effe cts must be recognized.  WT/DS578/R/Add.1  
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  20. Second,  these three types of price effects are not completely set in stone as concepts; nor are 
they unrelated. These three types of effects may be present at the same time or may occur 
sequentially over time in a given market. The application of Article 3.2 of the Anti -Dumping 
Agreement must be balanced and must accurately reflect the economic reality.  
21. Price undercutting refers to a direct comparison between the prices of the imported products 
and the prices of the domestic industry products at issue. Such a comparison may well make it 
necessary to adjust observed price data, to ensure comparability. However, it is not consistent with 
the very idea of a price comparison to fully rebuild the price of domestic products. Rather,  
establishment of price undercutting should be based, in principle, on the actual prices observed in 
the markets.  
22. Examination of the state of the domestic industry in terms of Article 3.4 of the Anti -Dumping 
Agreement does not require an analysis of wh ether lack of profitability is due to causes other than 
import of dumped products.  
23. The European Union considers that the fact that certain factors or indicators relating to the 
domestic industry show positive developments during the period concerned do es not preclude a 
determination that dumped imports may have caused injury to that industry within the meaning of 
Article 3 of the Anti -dumping Agreement.  
24. However, the requirement to conduct an objective examination requires, in such a situation, 
that the investigating authority convincingly explain its examination of the various factors and 
indicators. The European Union does not, however, consider that Article 3 of the Anti -Dumping 
Agreement stipulates that the explanation provided by that authority in such a situation must be 
particularly in -depth.  
25. Lastly, regarding the initiation of the investigation,  the European Union considers that the 
standard of review under Article 5.2 (reasonably available elements) is different from that under 
Article 5.3 (sufficiency of evidence). Both obligations, nevertheless, are incumbent on the authorities 
of the Member c oncerned. It is up to the investigating authority to verify whether the petition on 
which it initiates the investigation satisfies the requirements of Article 5.2. Should an investigating 
authority initiate an investigation on the basis of a petition that does not meet the criteria of 
Article  5.2, this will constitute a breach of Articles 5.1 and 5.2 (as well as Article 1 and footnote 1) 
of the Anti -Dumping Agreement.  
26. The review under Article 5.3 of the Anti -Dumping Agreement establishes whether an unbi ased 
and objective authority, taking into account the accuracy and adequacy of the facts before it, could 
properly have determined that there was sufficient evidence to justify the initiation of an anti -
dumping investigation.  
27. The evidence referred to i n Article 5.3 are those referred to in the chapeau of Article 5.2, that 
is, evidence of the existence of (a) dumping; (b) injury; and (c) a causal link between the dumped 
imports and the alleged injury. The evidence relating to the three elements necessary  to impose an 
anti-dumping measure may be inferred in Article 5.3 from Article 5.2, by considering the contextual 
relevance of Articles 2 and 3 of the Anti -Dumping Agreement.  
28. Article 5.3 of the Anti -Dumping Agreement requires an investigating authority  to determine 
whether the initiation of an investigation is justified in light of the evidence that it can objectively 
possess. This obligation includes an examination of the petition and whether it meets the 
requirements of Article 5.2 or Article 5.4 of t he Anti -Dumping Agreement, but not only. The 
obligation to determine whether the initiation of an investigation is warranted also includes the 
possibility for an investigating authority to rely on other necessary evidence that the authority would 
have to d ecide on the initiation of an investigation. Article 5.3 does not rule on how to communicate 
the results of this analysis to the interested parties. The question of how much detail and at what 
stage of the proceedings the investigating authority must provi de the underlying facts and analyses 
in its decision to initiate the investigation is therefore governed by the general rules on the rights of 
defence of interested parties, and in particular Article 6 of the Anti -Dumping Agreement.  
29. With regard to the sufficiency of evidence in this dispute, the European Union notes that, 
where the product concerned consists of a multitude of models, other panels have previously WT/DS578/R/Add.1  
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  determined that an isolated piece of evidence, concerning an insignificant  sub-category of t he 
subject product or prices, without any effort by the investigating authority to establish its 
representativeness, is insufficient to justify the initiation of an investigation. Such jurisprudence may 
usefully guide the Panel in its consideration of this  dispute.  
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