WORLD TRADE
ORGANIZATIONWT/DS122/4
23 October 2000
(00-4494)
Original:  English
THAILAND – ANTI-DUMPING DUTIES ON ANGLES, SHAPES AND SECTIONS OF
IRON OR NON-ALLOY STEEL AND H-BEAMS FROM POLAND
Notification of an Appeal by Thailand under
paragraph 4 of Article 16 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU)
The following notification, dated 23 October 2000, sent by Thailand to the Dispute Settlement
Body (DSB), is circulated to Members.  This noti fication also constitutes the Notice of Appeal, filed
on the same day with the Appellate Body, pursuant to the  Working Procedures for Appellate Review .
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Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU") and Rule 20 of the Appellate Body's Working Procedures for
Appellate Review , the Kingdom of Thailand hereby notifies its decision to appeal to the Appellate
Body certain issues of law covered in the panel report on  Thailand – Anti-Dumping Duties on Angles,
Shapes and Sections of Iron or Non-Alloy Steel and H-Beams from Poland  (WT/DS122/R) and certain
legal interpretations developed by the Panel.  Thailand seeks review of certain findings of the Panel
and the Panel's failure to make certain findings, in violation of Thailand's fundamental due process
rights, Articles 12.7 and 19.2 of the DSU, the standard of review under Article 17.6 of the Agreement
on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "Anti-
Dumping Agreement"), and/or other provisions of the Anti-Dumping Agreement and the DSU.
1. Thailand seeks review of the Panel's finding not to dismiss the Republic of Poland's "claims"
of violation of Articles 2, 3, and 5 of the Anti-Dumping Agreement based on the insufficiency
of Poland's request for establishment of a panel under Article 6.2 of the DSU.  This finding is
in error, and is based upon erroneous findings on issues of law and on related legalinterpretations contained in paragraphs 7.11 to 7.47 of the Panel's Report, including, but not
limited to:
(a) the Panel's finding that the sufficiency of a complaining Member's request for
establishment of a panel is dependent on whether such Member's allegations wereapparent from the time of its first written submission;
(b) the Panel's finding that the consideration of  issues raised before the Thai investigating
authorities in the course of the underlying anti-dumping investigation could constitute
a justification, or the only justification, for finding that the request was sufficientunder Article 6.2 of the DSU;
(c) the Panel's finding that the repetition of text from subparagraph 1 of Article 3 of the
Anti-Dumping Agreement is sufficient to meet the minimum requirements of
Article 6.2 of the DSU, because it relates to the text of Articles 3.1, 3.2, 3.4, and 3.5of the Anti-Dumping Agreement;WT/DS122/4
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(d) the Panel's interpretation of the concept of "claim" and the scope of the matter subject
to its terms of reference;
(e) the Panel's failure to determine whether Poland's request for establishment of a panel
was sufficient to inform third parties of the legal basis of the complaint;
(f) the Panel's failure to establish the appropriate standard for determining how a
defending party may demonstrate prejudice as a result of the complaining party's
failure to comply with its obligations under Article 6.2 of the DSU;
(g) the Panel's failure to consider the evid ence provided by Thailand (and referred to in
Annex 2-6 of the Panel's report containing Thailand's responses to questions 2(b)
and 7(b) from the Panel) regarding why Thailand's ability to defend itself had been
prejudiced;
(h) the Panel's erroneous inference that Thailand's capable participation in certain parts of
the Panel proceedings or up to a certain point in the proceedings is conclusive
evidence that Thailand was not prejudiced during the course of the Panel's
proceedings;
(i) the Panel's finding that Thailand was not permitted to contend that Poland violated
Article 6.2 of the DSU with respect to certain "claims", if it did not do so in its First
Written Submission or otherwise at the same time as it contended that Poland violated
Article 6.2 of the DSU with respect to all other "claims";  and
(j) the Panel's conflicting findings that Thailand was obligated to participate in good faith
in these proceedings under Article 3.10 of the DSU, including taking steps to identify
claims against it before immediately asserting a procedural objection, but that
Thailand must raise all procedural objections under Article 6.2 of the DSU in its First
Written Submission.
2. Thailand seeks review of the Panel’s findings in paragraphs 7.136 to 7.152 of its Report that
Article 3.1 of the Anti-Dumping Agreement in conjunction with Article 17.6 of the Anti-Dumping Agreement require the Panel to consider  only the facts, evidence, and reasoning that
was disclosed to Polish firms (and/or their legal counsel) at the time of the final
determination.  The Panel's findings are in error, are applied in error, and are based on
erroneous findings on issues of law and on related legal interpretations, including, but not
limited to:
(a) the Panel's failure to interpret Articles 3.1 and 17.6 of the Anti-Dumping Agreement
in conjunction with Thailand's obligation under Article 6.5 of the Anti-Dumping
Agreement to protect the confidential information submitted by the single domestic
producer and the single foreign producer in this investigation;
(b) the Panel's findings that Article 17.6 (in conjunction with Article 17.5) of the Anti-
Dumping Agreement either requires or permits a panel to disregard facts, evidence,
and reasoning protected from disclosure as required under Article 6.5 of the Anti-
Dumping Agreement;  andWT/DS122/4
Page 3
(c) the Panel's review of the Thai authorities' establishment of the facts and evaluation
under Article 17.6(i) of the Anti-Dumping Agreement based only on disclosed
information, given that the Thai authorities' establishment of the facts and evaluation
during the investigation was actually based on both the disclosed information and the
information that Thailand was obligated to protect from disclosure under Article 6.5of the Anti-Dumping Agreement.
3. Thailand seeks review of the standard of review and the burden of proof established and
applied by the Panel.  The standard of review and burden of proof established by the Panel are
in error, are applied in error, and are based upon erroneous findings on issues of law and on
related legal interpretations contained and/or applied in paragraphs 7.48 - 7.54, 7.136 - 7.152,
7.199 - 7.203, 7.207 - 7.214, 7.222 - 7.256, 7.260 - 7.266, 7.284, and 8.3 of the Panel'sReport, including, but not limited to:
(a) the Panel's findings and interpretations  regarding the roles of the complaining
Member, the defending Member, and the Panel regarding the burden of proof
applicable to Poland's "claims";
(b) the Panel's findings and interpretations re garding its role pursuant to the applicable
standard of review under Article 17.6 of the Anti-Dumping Agreement;
(c) the Panel's findings that it must examine for itself the facts of the matter by making its
own determinations regarding the establishment of the facts and the evaluation
thereof, rather than imposing the burden on Poland to present a  prima facie   case that
the Thai authorities had failed to establish the facts properly and failed to evaluate the
facts in an unbiased and objective manner;
(d) the Panel's findings that it must examine for itself whether Thailand's determination of
injury was based on "positive evidence" and an "objective examination" of the
disclosed factual basis of the determination, rather than impose the burden on Poland
to present a  prima facie   case that the Thai authorities had failed to base their injury
determination on an objective examination of both aspects under Article 3.1 of the
Anti-Dumping Agreement;
(e) the Panel's failure under the applicable standard of review to determine whether
Article 3.4 of the Anti-Dumping Agreement admits of more than one interpretation;
(f) the Panel's failure under the applicable standard of review to determine whether the
only permissible interpretation of Article 3.4 of the Anti-Dumping Agreement is thatthe list of factors is mandatory;
(g) the Panel's failure under the applicable standard of review to determine whether the
only permissible interpretation of Article 3.4 of the Anti-Dumping Agreement is that
the list of factors is composed of fifteen factors;  and
(h) the Panel's finding that it must examin e whether and how the Thai investigating
authorities evaluated all the relevant factors under Article 3.4 of the Anti-Dumping
Agreement.
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