WORLD TRADE  
ORGANIZATION  WT/DS268/AB/R 
29 November 2004 
 (04-5184) 
 Original:   English 
   
 
     
 
    
 
    
UNITED STATES – SUNSET REVIEWS OF  
ANTI-DUMPING MEASURES ON OIL COUNTRY  
TUBULAR GOODS FROM ARGENTINA 
 
   
AB-2004-4 
 
 
    
 
     
Report of the Appellate Body 
  WT/DS268/AB/R 
 Page i 
 
 
 
I. Introduction................................................................................................................ .................1 
II. Arguments of the Participan ts and Third Participants ................................................................5 
A. Claims of Error by the United States – Appellant .........................................................5 
1. The Panel's Terms of Reference .......................................................................5 
2. The Sunset Policy Bulletin ...............................................................................8 
3. Waiver Provisions  of United States Laws and Regulations...........................11 
B. Arguments of Argentina – Appellee .............................................................................15 
1. The Panel's Terms of Reference .....................................................................15 2. The Sunset Policy Bulletin .............................................................................17 
3. Waiver Provisions of United States Laws and Regulations............................19 
C. Claims of Error by Argentina – Appellant ...................................................................22 
1. Factors to be Evaluated in a Likelihood-of-Injury Determination..................22 2. Cumulation in Sunset Reviews .......................................................................24 3. The Panel's Interpretation of the Term "Likely".............................................25 
4. Consistency of the USITC's Dete rmination with the Standard of 
"Likelihood" in Article 11.3 of the  Anti-Dumping Agreement ......................26 
5. The Timeframe in a Likelihood-of-Injury Determination ..............................29 6. Conditional Appeals .......................................................................................30 
D. Arguments of the United States – Appellee ..................................................................32 
1. Factors to Be Evaluated in a Likelihood-of-Injury Determination .................32 
2. Cumulation in Sunset Reviews .......................................................................34 
3. The Panel's Interpretation of the Term "Likely".............................................35 4. Consistency of the USITC's Dete rmination with the Standard of 
"Likelihood" in Article 11.3 of the  Anti-Dumping Agreement ......................36 
5. The Timeframe in a Likelihood-of-Injury Determination ..............................38 
6. Conditional Appeals .......................................................................................39 
E. Arguments of the Third Participants ............................................................................41 
1. European Communities...................................................................................41 2. Japan ...............................................................................................................44 3. Korea...............................................................................................................45 4. Mexico ............................................................................................................47 
III. Issues Raised in this Appeal .............................................................................................. .......49 
IV. The Panel's Term s of Reference ............................................................................................. ..52 WT/DS268/AB/R 
Page ii  
 
V. The Sunset Policy Bulletin.................................................................................................. ......61 
A. The Sunset Policy Bulletin as a "Measure" .................................................................62 
B. Consistency of Section II.A.3 of the Suns et Policy Bulletin with Article 11.3 of 
the Anti-Dumping Agreement ......................................................................................66 
C. Conditional Appeals of Argentina ...............................................................................77 
VI. Waiver Provisions of United States Laws and Regulations......................................................79 
A. Consistency of the Waiver Provisions with Article 11.3 of the Anti-Dumping 
Agreement ....................................................................................................................79 
B. Consistency of the "Deemed" Waiver Prov ision with Articles 6.1 and 6.2 of the 
Anti-Dumping Agreement ............................................................................................85 
C. Article 11 Claims Relating to the Panel's Findings on Waivers ..................................92 
1. Company-Specific and Order-W ide Likelihood Determinations ...................93 
2. The USDOC's Decision as to Whether a Submission Constitutes a 
"Complete Substantive Response"..................................................................96 
VII. Factors to be Evaluated in a Likelihood-of-Injury Determination..........................................100 
VIII. Cumulation in Sunset Reviews ............................................................................................. ..106 
IX. The Panel's Interpretation of the Term "Likely".....................................................................112 X. Consistency of the USITC's Determinati on with the Standard of "Likelihood" in 
Article 11.3 of the  Anti-Dumping Agreement ........................................................................115 
A. Standard of Review ....................................................................................................117 
B. Cumulative Assessment of Dumped Imports ..............................................................118 
C. Likely Volume of Dumped Imports ............................................................................121 
D. Likely Price Effects of Dumped Imports ....................................................................125 
E. Likely Impact of Dumped Imports on the United States' Industry .............................127 
XI. The Timeframe in a Likelihood-of-Injury Determination ......................................................129 
A. Standard of Continuation or Recurren ce of Injury Within a Reasonably 
Foreseeable Time .......................................................................................................129 
B. Application of the Standard of Contin uation or Recurrence of Injury Within a 
Reasonably Foreseeable Time ...................................................................................131 
XII. Findings and Conclusions.................................................................................................. .....133 
Annex I Notification of an Appeal by the United States,  
WT/DS268/5, 31 August 2004 
Annex II Request for the Establishment of a Panel by Argentina,  
WT/DS268/2, 23 April 2003  WT/DS268/AB/R 
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TABLE OF ABBREVIATIONS USED IN THIS REPORT 
 
Abbreviation Definition 
Anti-Dumping Agreement  Agreement on Implementation of Article VI  of the General Agreement on Tariffs 
and Trade 1994  
DSB Dispute Settlement Body 
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
GATT 1994 General Agreement on Tariffs and Trade 1994 
NAFTA North American Free Trade Agreement 
OCTG oil country tubular goods 
Panel Report Panel Report,  United States – Sunset Reviews of Anti-Dumping Measures on Oil 
Country Tubular Goods from Argentina , WT/DS268/R and Corr.1, 16 July 2004  
panel request Request for the Establishment of a Panel by Argentina, WT/DS268/2, 23 April 
2003 (attached as Annex II to this Report) 
SAA Statement of Administrative Action to the Uruguay Round Agreements Act, 
H.R. Doc. No. 103-316 (1994), reprinted in  1994 USCAAN 3773, 4040 (Exhibit 
ARG-5 submitted by Argentina to the Panel) 
SPB;  Sunset Policy Bulletin Policies Regarding the Conduct of Five-year ("Sunset") Reviews of Antidumping 
and Countervailing Duty Orders, United States Federal Register , Vol. 63, No. 73 
(16 April 1998), p. 18871 (Exhibit ARG-35 submitted by Argentina to the Panel) 
USDOC United States Department of Commerce 
USDOC Regulations Procedures for Conducting Five-year ("Sunset") Reviews of Antidumping and 
Countervailing Duty Orders, United States Federal Register , Vol. 63, No. 54 
(20 March 1998), p. 13516 (Exhibit US-3 submitted by the United States to the 
Panel), codified in Title 19, Section 351.218 of the United States Code of Federal 
Regulations  
USITC United States International Trade Commission 
USITC Report Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico, 
Investigation Nos. 701-TA-364, 731-TA-711, and 713-616, Pub. 3434 (June 
2001) (Exhibit ARG-54 submitted by Argentina to the Panel) 
Working Procedures Working Pr ocedures for Appellate Review , WT/AB/WP/7, 1 May 2003 
WTO World Trade Organization 
WTO Agreement  Marrakesh Agreement Establishing  the World Trade Organization  
 WT/DS268/AB/R 
Page iv  
 
TABLE OF GATT AND WTO CASES CITED IN THIS REPORT 
 
Short Title Full Case Title and Citation 
Australia – Salmon Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327 
Canada – Aircraft  Appellate Body Report, Canada – Measures Affecting the Export of Civilian 
Aircraft , WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377 
Canada – Wheat Exports and 
Grain Imports Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment of 
Imported Grain ("Canada – Wheat Exports and Grain Imports "), WT/DS276/R, 
adopted 27 September 2004, as upheld by the Appellate Body Report, 
WT/DS276/AB/R 
EC – Asbestos Appellate Body Report, European Communities – Measures Affecting Asbestos and 
Asbestos-Containing Products , WT/DS135/AB/R, adopted 5 April 2001, DSR 
2001:VII, 3243 
EC – Hormones Appellate Body Report, EC Measures Concerning Meat and Meat Products 
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, 
DSR 1998:I, 135 
EC – Sardines Appellate Body Report, European Communities – Trade Description of Sardines , 
WT/DS231/AB/R, adopted 23 October 2002 
EC – Bed Linen (Article 21.5 – 
India ) Appellate Body Report, European Communities – Anti-Dumping Duties on Imports 
of Cotton-Type Bed Linen from India, Recourse to Article 21.5 of the DSU by India , 
WT/DS141/AB/RW, adopted 24 April 2003 
EC – Tube or Pipe Fittings Appellate Body Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , WT/DS219/AB/R, adopted 
18 August 2003 
India – Patents (US) Appellate Body Report, India – Patent Protection for Pharmaceutical and 
Agricultural Chemical Products , WT/DS50/AB/R, adopted 16 January 1998, 
DSR 1998:I, 9 
Japan – Agricultural Products II  Appellate Body Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/AB/R, adopted 19 March 1999, DSR 1999:I, 277 
Japan – Apples Appellate Body Report, Japan – Measures Affecting the Importation of Apples , 
WT/DS245/AB/R, adopted 10 December 2003 
Korea – Alcoholic Beverages Appellate Body Report, Korea – Taxes on Alcoholic Beverages , WT/DS75/AB/R, 
WT/DS84/AB/R, adopted 17 February 1999, DSR 1999:I, 3 
Korea – Dairy Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of 
Certain Dairy Products , WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3 
Mexico – Corn Syrup  Panel Report, Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup 
(HFCS) from the United States , WT/DS132/R and Corr.1, adopted 
24 February 2000, DSR 2000:III, 1345 
Mexico –Anti-Dumping Measures on Beef and Rice Mexico – Definitive Anti-Dumping Measures on Beef and Rice , WT/DS295, panel 
proceedings ongoing 
Thailand – H-Beams Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non-Alloy Steel and H-Beams from Poland , WT/DS122/AB/R, 
adopted 5 April 2001, DSR 2001:VII, 2701 
US – 1916 Act  Appellate Body Report, United States – Anti-Dumping Act of 1916 , 
WT/DS136/AB/R, WT/DS162/AB/R, adopted 26 September 2000, DSR 2000:X, 
4793  WT/DS268/AB/R 
 Page v 
 
 
Short Title Full Case Title and Citation 
US – Carbon Steel Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R 
and Corr.1, adopted 19 December 2002 
US – Corrosion-Resistant Steel 
Sunset Review Appellate Body Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/AB/R, 
adopted 9 January 2004 
Panel Report, United States – Sunset Review of Anti-Dumping Duties on 
Corrosion-Resistant Carbon Steel Flat Products from Japan , WT/DS244/R, 
adopted 9 January 2004, as modified by the Appellate Body Report, 
WT/DS244/AB/R 
US – Countervailing Measures on Certain EC Products Appellate Body Report, United States – Countervailing Measures Concerning 
Certain Products from the European Communities , WT/DS212/AB/R, adopted 8 
January 2003 
US – Hot-Rolled Steel  Appellate Body Report, United States – Anti-Dumping Measures on Certain Hot-
Rolled Steel Products from Japan , WT/DS184/AB/R, adopted 23 August 2001, 
DSR 2001:X, 4697 
Panel Report, United States – Anti-Dumping Measures on Certain Hot-Rolled Steel 
Products from Japan , WT/DS184/R, adopted 23 August 2001, as modified by the 
Appellate Body Report, WT/DS184/AB/R, DSR 2001:X, 4769 
US – Lamb  Appellate Body Report, United States – Safeguard Measures on Imports of Fresh, 
Chilled or Frozen Lamb Meat from New Zealand and Australia , WT/DS177/AB/R, 
WT/DS178/AB/R, adopted 16 May 2001, DSR 2001:IX, 4051 
US – Oil Country Tubular Goods Sunset Reviews Panel Report, United States – Sunset Reviews of Anti-Dumping Measures on Oil 
Country Tubular Goods from Argentina , WT/DS268/R and Corr.1, 16 July 2004 
US – Section 337  GATT Panel Report, United States Section 337 of the Tariff Act of 1930 , adopted 
7 November 1989, BISD 36S/345 
US – Softwood Lumber V  Appellate Body Report, United States – Final Dumping Determination on Softwood 
Lumber from Canada , WT/DS264/AB/R, adopted 31 August 2004 
US – Superfund  GATT Panel Report, United States – Taxes on Petroleum and Certain Imported 
Substances , adopted 17 June 1987, BISD 34S/136 
US – Tobacco  GATT Panel Report, United States Measures Affecting the Importation, Internal 
Sale and Use of Tobacco , adopted 4 October 1994, BISD 41S/I/131 
US – Wheat Gluten Appellate Body Report, United States – Definitive Safeguard Measures on Imports 
of Wheat Gluten from the European Communities , WT/DS166/AB/R, adopted 
19 January 2001, DSR 2001:II, 717 
US – Wine and Grape Products  GATT Panel Report, Panel on United States Definition of Industry Concerning 
Wine and Grape Products , adopted 28 April 1992, BISD 39S/436 
US – Wool Shirts and Blouses Appellate Body Report, United States – Measure Affecting Imports of Woven Wool 
Shirts and Blouses from India , WT/DS33/AB/R and Corr.1, adopted 23 May 1997, 
DSR 1997:I, 323  WT/DS268/AB/R 
 Page 1 
 
 
WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
United States – Sunset Reviews of  
Anti-Dumping Measur es on Oil Country 
Tubular Goods from Argentina  
 
United States, Appellant/Appellee 
Argentina, Appellant/Appellee  
 
European Communities, Third Participant  
Japan, Third Participant   
Korea, Third Participant  
Mexico, Third Participant   
Separate Customs Territory of Taiwan, Penghu, 
Kinmen, and Matsu, Third Participant   AB-2004-4 
  Present:  
 Taniguchi, Presiding Member 
 Abi-Saab, Member   Ganesan, Member  
   
I. Introduction 
1. The United States and Argentina each appeals certain issues of law and legal interpretations 
developed in the Panel Report,  United States – Sunset Reviews of Anti-Dumping Measures on Oil 
Country Tubular Goods from Argentina  (the "Panel Report").
1  The Panel was established to consider 
a complaint by Argentina against the United States regarding the continuation of anti-dumping duties on oil country tubular goods ("OCTG") from Argentina following the conduct of a five-year, or 
"sunset", review of those duties. 
2. In June 1995, the United States Department of Commerce (the "USDOC") imposed anti-
dumping duties on OCTG from Argentina following an investigation that was initiated by the USDOC in 1994, before the entry into force of the Marrakesh Agreement Establishing the World 
Trade Organization  (the " WTO Agreement
 ").2  The anti-dumping duty order imposed an anti-
dumping duty of 1.36 per cent on Siderca, the only e xporter from Argentina that had participated in 
the investigation, and a residual duty at the sa me rate for all other exporters from Argentina.3  
Following the imposition of the anti-dumping duties,  Siderca ceased exporting OCTG to the United 
States.4  In the five years following the imposition of these anti-dumping duties, the USDOC initiated 
                                                      
1WT/DS268/R and Corr.1, 16 July 2004. 
2Panel Report, para. 2.1.   
3Ibid., para. 2.2. 
4Ibid., para. 2.3. WT/DS268/AB/R 
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four reviews of the anti-dumping duties on Siderca, at the request of the domestic producers in the 
United States.  In each of these reviews, the USDO C determined, on the basis of Siderca's statements, 
that Siderca "had not made any shipment  for consumption in the United States".
5  As Siderca was the 
sole exporter from Argentina for whom an administ rative review had been requested by the domestic 
producers, the USDOC "rescinded the administrative review" on OCTG from Argentina.6 
3. In July 2000, the USDOC initiated, on its ow n initiative, a sunset review of anti-dumping 
duties on OCTG from Argentina.7  In its determination of the lik elihood of continuation or recurrence 
of dumping8, the USDOC concluded that "dumping has con tinued over the life of the Argentine order 
and is likely to continue if the order were revoked".9  In its determination of the likelihood of 
continuation or recurrence of injury, the United Stat es International Trade Commission (the "USITC") 
cumulated imports from all sources subject to th e sunset review, including countries other than 
Argentina.  Based on its consideration of the likely volumes, price effects, and adverse impact of 
dumped imports from all sources on th e domestic industry, the USITC c oncluded that expiry of the 
duty "would be likely to lead to continuation or recu rrence of material injury to an industry in the 
United States within a reasonably foreseeable time".10 
4. Before the Panel, Argentina claimed that certain provisions of the Tariff Act of 1930 11, the 
Statement of Administrative Action (the "SAA")12, Section II.A.3 of the Sunset Policy Bulletin (the 
"SPB")13, and the USDOC "practice" relating to the conduct of sunset reviews 14, are inconsistent, as 
                                                      
5Panel Report, para. 2.4. 
6Ibid. 
7Ibid., para. 2.5.   
8In our discussion we refer at times to the USDOC's determination of the likelihood of continuation or 
recurrence of dumping as the "like lihood-of-dumping determination", and the USITC's determination of the 
likelihood of continuation or recurrence of injury  as the "likelihood-of-injury determination". 
9Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty Orders 
on Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea; Final Results, 31 October 2000 (Exhibit ARG-51 submitted by Argentina to the Panel), p. 5. 
10Oil Country Tubular Goods from Argentina, Italy, Japan, Korea, and Mexico, Investigation Nos. 701-
TA-364, 731-TA-711, and 713-616, Pub. 3434 (June 2001) (Exhibit ARG-54 submitted by Argentina to the Panel) ("USITC Report"), p. 1. 
11The statutory provisions challenged by Argentina before the Panel are Sections 751(c), 751(c)(4), 
752(a)(1), 752(a)(5), and 752(c) of the Tariff Act of 1930. (See Panel Report, para. 3.1(1)-(3))  These provisions 
correspond to Sections 1675(c), 1675(c)(4), 1675a(a) (1), 1675a(a)(5), and 1675 a(c) of Title 19 of the United 
States Code . 
12Statement of Administrative Action to the Uruguay Round Agreements Act, H.R. Doc. No. 103-316 
(1994), reprinted in  1994 USCAAN 3773, 4040 (Exhibit ARG-5 submitted by Argentina to the Panel). 
13Policies Regarding the Conduct of Five-year ("Sunset") Reviews of Antidumping and Countervailing 
Duty Orders;  Policy Bulletin, United States Federal Register , Vol. 63, No. 73 (16 April 1998), p. 18871 
(Exhibit ARG-35 submitted by Argentina to the Panel). 
14Panel Report, para. 3.1(3).  WT/DS268/AB/R 
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such, with Articles 3 and 11 of the Agreement on Implementation of Article VI of the General 
Agreement on Tariffs and Trade 1994  (the " Anti-Dumping Agreement ").  Argentina also claimed that 
Section 351.218(d)(2)(iii) of the USDOC Regulations15 is inconsistent, as such, with Articles 6.1, 6.2,  
and 11.3 of the  Anti-Dumping Agreement .16  Argentina claimed that the United States' sunset review 
determination on OCTG from Argentina—with respect to the USDOC's likelihood-of-dumping 
determination and the USITC's likelihood-of-injury determination—is incons istent with the United 
States' obligations under Articles 3, 6, 11, and 12 of the  Anti-Dumping Agreement  and Annex II 
thereto.17     
5. Argentina also argued that the United States is ac ting inconsistently with Article X:3(a) of the 
General Agreement on Tariffs and Trade 1994  (the "GATT 1994") because the USDOC fails to 
administer, in an impartial and reasonable manner, the United States' sunset review laws, regulations, 
decisions, and rulings.18  As a consequence of the alleged inconsistencies with the Anti-Dumping 
Agreement , Argentina further claimed that the United St ates acted inconsistently with Articles 1  
and 18 of the  Anti-Dumping Agreement , Article VI of the GATT 1994, and Article XVI:4 of the  
WTO Agreement .19 
6. In the Panel Report, circulated to Members of  the World Trade Organization (the "WTO")  
on 16 July 2004, the Panel found that Section 751( c)(4)(B) of the Tariff Act of 1930 and Section 
351.218(d)(2)(iii) of the USDOC Regulations are inc onsistent, as such, with Article 11.3 of the  
Anti-Dumping Agreement , and that Section II.A.3 of the SPB is inconsistent, as such, with 
Article 11.3 of the  Anti-Dumping Agreement .20  The Panel also found that Section 351.218(d)(2)(iii) 
of the USDOC Regulations is inconsistent, as such, with Articles 6.1 and 6.2 of the  Anti-Dumping 
Agreement .21  As to Argentina's "as applied"22 claims, the Panel found that the USDOC's likelihood-
of-dumping determination underlying th is dispute is inconsistent with Articles 11.3 and 6.2 of the  
                                                      
15The "USDOC Regulations", as they relate to sunset reviews, are found in Procedures for Conducting 
Five-year ("Sunset") Reviews of Anti dumping and Countervailing Duty Orders, United States Federal Register , 
Vol. 63, No. 54 (20 March 1998), p. 13516 (Exhibit US-3 submitted by the United States to the Panel), codified in Title 19, Section 351.218 of the United States Code of Federal Regulations . 
16Panel Report, para. 3.1(1)-(3). 
17Ibid., para. 3.1(4)-(6) and (8)-(11). 
18Ibid., para. 3.1(7). 
19Ibid., para. 3.1(12). 
20Ibid., paras. 8.1(a)(i)-(ii) and 8.1(b). 
21Ibid., para. 8.1(a)(iii). 
22By "as applied", we refer to the types of claims involving challenges to a Member's application of a 
general rule to a specific set of facts.  The "as applied"  claims in this dispute concern the application of United 
States rules governing sunset reviews in the course of likelihood-of-dumping and likelihood-of-injury 
determinations made with respect to imports of OCTG from Argentina. WT/DS268/AB/R 
Page 4  
 
Anti-Dumping Agreement
 23, but that it is not inconsistent with  Articles 6.1, 6.8, or 12, or with 
Annex II.24 
7. The Panel further found that Sections 752(a)(1 ) and 752(a)(5) of the Tariff Act of 1930, as 
well as the USITC's likelihood-of-injury determination, ar e not inconsistent with Articles 3.3, 3.7, 3.8, 
or 11.3 of the Anti-Dumping Agreement .25  The Panel exercised judicial economy with respect to the 
remainder of Argentina's claims, including Argentina' s challenges:  (1) to the administration by the 
USDOC of the United States' sunset review  laws, regulations, decisions, and rulings26;  and (2) to the 
USDOC "practice" relating to the conduct of sunset reviews.27  The Panel also declined Argentina's 
request to make a suggestion, pu rsuant to Article 19.1 of the  Understanding on Rules and Procedures 
Governing the Settlement of Disputes  (the "DSU"), that the United States bring its measures into 
conformity with its WTO obligatio ns "by revoking the anti-dumping order and repealing or amending 
the laws and regulations at issue".28 
8. The Panel accordingly recommended that the Di spute Settlement Body (the "DSB") request 
the United States "to bring its measures mentioned in  paragraph 8.1(a)(i), (ii), (iii), 8.1(b) and 
8.1(d)(i) [of the Panel Report] into conformity  with its obligations under the WTO Agreement".29 
9. On 31 August 2004, the United States notified the DSB of its intention to appeal certain 
issues of law covered in the Panel Report and certa in legal interpretations developed by the Panel, 
pursuant to paragraph 4 of Article 16 of the DSU, and filed a Notice of Appeal 30 pursuant to Rule 20 
of the Working Procedures for Appellate Review .31  On 13 September 2004, the United States filed its 
appellant's submission.32  On 15 September 2004, Argentina filed an other appellant's submission.  On 
27 September 2004, the United States and Arge ntina filed their appellee's submissions.33  On the same 
day, the European Communities, Japan, Korea,  and Mexico each filed a third participant's 
submission 34, and the Separate Customs Territory of Taiwan, Penghu, Kinmen, and Matsu notified 
                                                      
23Panel Report, para. 8.1(d)(i). 
24Ibid., para. 8.1(d)(ii). 
25Ibid., paras. 7.193, 8.1(c), 8.1(d)(ii), and 8.1(e). 
26Ibid., para. 7.169. 
27Ibid., para. 7.168. 
28Ibid., para. 8.3. 
29Ibid., para. 8.2. 
30WT/DS268/5, 31 August 2004 (attached as Annex I to this Report). 
31WT/AB/WP/7, 1 May 2003 (the " Working Procedures "). 
32Pursuant to Rule 21 of the  Working Procedures . 
33Pursuant to Rule 22 of the  Working Procedures . 
34Pursuant to Rule 24(1) of the  Working Procedures .  WT/DS268/AB/R 
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the Appellate Body Secretariat of its intention to appear and make an opening statement at the oral 
hearing as a third participant.35  
10. On 12 October 2004, Argentina filed a letter requ esting the Division hearing the appeal "to let 
the parties in this appeal know in advance of the hearing the order in which the ... Division plans to 
address the issues before appeal."36  Argentina supported its request by reference to a "practice [to this 
effect that] was followed in some previous appeal  proceedings".  The United States did not object to 
Argentina's request.  On 13 October 2004, the Divi sion responded to Argentina's request, stating that, 
although "it is not the practice of the Appellate Body to  inform the participants, in advance of the oral 
hearing, of the issues on which a Division intends to pose questions", the Division, exercising its 
discretion in the conduct of the oral hearing, had d ecided to provide and identify in advance the order 
in which the issues on appeal would be addressed during the questioning.  The Division emphasized, 
however, that "this order of questioni ng is general in nature, and that it is also subject to change, at the 
Division's discretion, as the Division's work on this appeal continues."37 
11. The oral hearing in the appeal was held on 15 and 16 October 2004.  The participants and 
third participants presented oral arguments (with th e exception of the Separate Customs Territory of 
Taiwan, Penghu, Kinmen, and Matsu)  and responded to questions by the Members of the Division 
hearing the appeal. 
II. Arguments of the Participants and Third Participants 
A. Claims of Error by the United States – Appellant 
1. The Panel's Terms of Reference  
12. The United States appeals the Panel's denial of  the United States' request for a preliminary 
ruling that certain of Argentina's claims elaborated in its first written submission had not been set out 
in Argentina's request for the establishment of a panel ("panel request")38, as required by Article 6.2 of 
the DSU.  The United States argues that these claims were not within the Panel's terms of reference 
and, accordingly, the Panel should not have reach ed conclusions with respect to these claims. 
                                                      
35Pursuant to Rule 24(2) of the  Working Procedures . 
36Letter from Argentina to the Director of the Appella te Body Secretariat, 12 October 2004, copied to 
the United States and the third participants. 
37Letter from the Director of the Appellate Body Secr etariat to the participants and third participants, 
13 October 2004. 
38WT/DS268/2, 4 April 2003 (attached as Annex II to this Report). WT/DS268/AB/R 
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(a) "As Such" Claims Relating to the United States Department of 
Commerce's Likelihood-of-Dumping Determination 
13. The United States challenges the Panel's findings that Argentina's panel request includes "as 
such" claims against Sections 751(c) and 752(c) of the Tariff Act of 1930, the SAA, and the SPB. 
14. The United States argues that it did not receive notice of these "as such" claims from 
Argentina's reference in the panel requ est to an "irrefutable presumption"
39 under United States law 
that dumping would be likely to continue or recur after termination of an anti-dumping order.  The 
United States points out that the heading of Secti on A of the panel request, as well as the sentence in 
which the phrase "irrefutable presumption" appears, refer to the WTO-inconsistency of the USDOC's 
"Determination" underlying this dispute and not to  United States law as such.  The United States notes 
further that in Section A.4 of the panel request, th e "practice" is described as "evidence[]" of the 
alleged presumption, and the SPB is stated as the "bas [is]" for the practice;  neither of these is stated 
to be the subject of a claim in itself.   
15. The United States also observes that the alle ged presumption is claimed to be based on 
"US law" 40, but the law being challenged—namely, the SAA, the SPB, a provision of the Tariff Act 
of 1930, or a combination of these—is not speci fied.  The United States argues that "page four"41 of 
the panel request cannot be used to clarify the clai ms purportedly set out in Section A.4.  The United 
States emphasizes that "page four", which appears in the panel request following the claims alleged in 
Sections A and B, states that Argentina " also" 42 considers certain provisions of United States law to 
be inconsistent with the United States' WTO obligati ons.  In the United States' view, this suggests that 
"whatever is 'claimed' on 'Page Four' is in addition to  and not a  clarification of  what is claimed in 
section A.4." 43  The text of the panel request makes clear that "page four" was intended to  add to ,  
rather than  clarify , the claims already made in Sections A and B of the panel request.  The United 
States submits that this understanding of "page four" of the panel request was confirmed by Argentina 
at the DSB meeting establishing the panel, where Ar gentina indicated to the United States that the 
claims were set forth in Sections A and B of the pa nel request rather than in "page four".  Having 
encouraged the United States to read the panel re quest in this manner, the United States argues, 
                                                      
39Argentina's panel request, Section A.4. 
40Ibid. 
41See infra , footnote 217. 
42United States' appellant's submission, para. 94 (quo ting Argentina's panel request, p. 4). (emphasis 
added by the United States)  
43Ibid., para. 94. (original emphasis)  WT/DS268/AB/R 
 Page 7 
 
 
Argentina may not subsequently rely on "page four" to "expand"44  the claims set out in Sections A 
and B.   
(b) "As Such" and "As Applied" Claims Relating to the United  
States International Trade Commission's Likelihood-of-Injury 
Determination 
16. If Argentina appeals the Panel's findings, under Articles 3.7 and 3.8, on the United States' 
laws relating to the timeframe for the evaluation of li kely injury by the USITC, and on the application 
of those laws in the underlying sunset review, the United States appeals the Panel's conclusions 
regarding the consistency of Argen tina's panel request with Article 6.2 of the DSU in respect of those 
claims. 
17. The United States asserts that, although Argentin a developed claims unde r paragraphs 7 and 8 
of Article 3 in its written submissions to the Panel, Section B.3 of the panel request cited "Article 3" 
without reference to any of its paragraphs, thus indicating a cha llenge brought under the whole of 
Article 3.  According to the United States, such  "wholesale references to articles with multiple 
obligations"45 are inconsistent with the obligation under Article 6.2 of the DSU to "present the 
problem clearly".  The United States argues that, as Articles 3.7 and 3.8 address "threat of material 
injury", and as no threat determination was made in the underlying sunset review, it could not have 
known that those provisions would be the focus of  Argentina's claims.  The United States also 
contests the Panel's reasoning that appears to suggest  that Section B.3 contains textual similarities 
with Article 3.7, which should have informed th e United States of Argentina's challenge to the 
timeframe employed by the USITC when evaluating the likelihood of injury to the domestic industry.  
In the United States' view, the language in Section B.3 does not reflect Article 3.7, but rather, quotes 
the United States statute being challenged, thereby failing to identify the legal basis of Argentina's 
complaint.  
(c) Prejudice 
18. Finally, the United States challenges the Pa nel's finding that the United States did not 
establish that it had been prejudiced by any lack of cl arity in Argentina's panel request.  In support of 
this challenge, the United States first submits that the Panel did not cite any authority for the United 
States' obligation to establish prejudice as a prer equisite to a successful Article 6.2 challenge.  
                                                      
44United States' appellant's submission, para. 87. 
45Ibid., para. 102. WT/DS268/AB/R 
Page 8  
 
Secondly, the United States argues that, because of the "inherently prejudicial"
46 nature of Argentina's 
panel request, the United States did not know which  provision in "US law"47 was alleged to be 
inconsistent with what  WTO law.  This lack of clarity, according to the United States, was 
compounded by Argentina's initial indication to the United States that the entirety of Argentina's 
claims was to be found in Sections A and B of the panel request, whereas Argentina subsequently 
identified its claims before the Panel by re ference to "page four" of that document.48  Thirdly, the 
United States points to its inability to conduct su fficient research and assign adequate personnel to 
work on the present dispute in the light of uncertain ty about Argentina's claim.  These difficulties, the 
United States submits, are further evidenced by the fact that the United States was unable to address, 
until the first meeting with the Panel, the issue of the specific remedy requested by Argentina.  The 
United States further submits that, instead of having five months from the date of the panel request to 
prepare its submission, it effectively had only three weeks from the filing of Argentina's submission to 
do so.  In the United States' view, this loss of preparation time is relevant to a finding of prejudice, considering the nature and the number of claims rais ed in the first submission of Argentina that were 
not set out in the panel request. 
19. For these reasons, the United States requests the A ppellate Body to reverse the Panel's finding 
that Argentina's panel request includes, with resp ect to the alleged "irrefutable presumption", the "as 
such" claims against Sections 751(c) and 752(c) of the Tariff Act of 1930, the SAA, and the SPB.  
The United States also requests the Appellate Body to reverse the Panel's finding that the United 
States did not demonstrate the requisite prejudice to make out a successful claim under Article 6.2 of 
the DSU.  Should Argentina appeal the Panel's fi ndings, under Articles 3.7 and 3.8, relating to the 
timeframe employed by the USITC when making its  likelihood-of-injury determination, the United 
States further requests the Appellate Body to rever se the Panel's findings that these claims are within 
its terms of reference. 
2. The Sunset Policy Bulletin
 
20. The United States contests the Panel's findings th at the SPB is a "measure" subject to WTO 
dispute settlement and that Section II.A.3 of the SPB is inconsistent, as such, with Article 11.3 of the 
Anti-Dumping Agreement . 
                                                      
46United States' appellant's submission, para. 108. 
47Argentina's panel request, Section A.4. 
48United States' appellant's submission, para. 108.  WT/DS268/AB/R 
 Page 9 
 
 
(a) The Sunset Policy Bulletin as a "Measure" 
21. The United States argues that the Panel erred in  relying on the Appellate Body Report in  
US – Corrosion-Resistant Steel Sunset Review  because the Appellate Body did not conclude in that 
report that the SPB is a measure.  In that case, according to the United States, the Appellate Body 
reversed the panel's finding that the SPB is not  a measure only because the panel's analysis was 
insufficient, but the Appellate Body did not complete  the analysis, thereby leaving open the question 
of whether the SPB is a measure.  
22. The United States also submits that the Panel e rred in concluding that  the SPB is a measure 
because such a conclusion does not result from "an objective assessment" consistent with Article 11 
of the DSU.  The United States argues that the Pane l contravened Article 11 of the DSU because it did 
not explain why the findings of the Appellate Body in US – Corrosion-Resistant Steel Sunset Review , 
as to whether the SPB is a measure, would be persuasi ve given the factual record in this dispute.  For 
the United States, because the Panel simply relie d on the findings of the Appellate Body in  US – 
Corrosion-Resistant Steel Sunset Review  without providing an analysis on the basis of the factual 
record in this dispute, it made no assessment and, therefore, it cannot be said to have made an 
objective   assessment.  The United States adds that the Panel did not make an "objective assessment" 
as to whether the SPB is a measure because it failed to consider the United States' explanations that 
the SPB "has no functional life of its ow n and has no independent legal status"49, and because the 
Panel lacked the factual information necessary to conclude that the SPB is a measure. 
23. The  United States argues further that the SPB is not a measure because it "is not a legal 
instrument"50, and it "does not 'set[] forth rules or nor ms that are intended to have general and 
prospective application' ".51  The United States submits that no n-binding documents that simply 
express agency thinking and provide guidance to th e public, such as the SPB, should not be found to 
be measures. 
24. For these reasons, the United States requests the A ppellate Body to reverse the Panel's finding 
that the SPB is a "measure" subject to WTO dispute settlement. 
                                                      
49United States' appellant's submission, para. 11. 
50Ibid., paras. 11 and 13. 
51Ibid., para. 13 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 82). WT/DS268/AB/R 
Page 10  
 
(b) Consistency of the Sunset Policy Bulletin with Article 11.3 of the 
Anti-Dumping Agreement 
25. The United States argues that the Panel erred in concluding that Section II.A.3 of the SPB is 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement .   
26. The United States expresses the view that the ma ndatory/discretionary distinction is well 
established and has been consistently applied in GATT and WTO dispute settlement proceedings.  For 
the United States, the Panel properly frame d the question before it in terms of a 
mandatory/discretionary analysis when it stated th at it had to decide whether Section II.A.3 of the 
SPB directs the USDOC to treat evidence concerning "dumping margins" and "import volumes" as conclusive in its likelihood determ inations.  However, according to the United States, the Panel 
misapplied the test it had set out by conducting an "a rtificial and incorrect" interpretive analysis based 
on a "misreading" of the Appellate Body's findings in  US – Corrosion-Resistant Steel Sunset 
Review .
52  The United States submits that the SPB is pa rt of United States municipal law, and that the 
meaning of a WTO Member's municipal law is a ques tion of fact that requires an examination of the 
status and meaning of the measure at issue with in the municipal legal system of the Member 
concerned.  The United States argues that the appr oach employed by the Panel in reviewing the 
practice of the USDOC was "superficial"53, with no basis in the United States legal system.  For the 
United States, the analysis of the meaning of th e SPB performed by the Panel did not reflect an 
"objective assessment" under Article 11 of  the DSU because it "neglected"54 the status of the SPB 
within the municipal legal system of the United States, and "ignore[d]"55 the municipal legal 
principles that define the meaning of the SPB. 
27. The United States reiterates that the SPB is "simply a transparency tool" that provides 
guidance to the public and the private sector and, therefore, it was "inaccurate [for the Panel] to 
conclude that the SPB requires  that [the USDOC] do anything at all".56  Inasmuch as the SPB does not 
require the USDOC to "do anything", it cannot be sai d to breach the obligations at issue in this 
dispute. 
                                                      
52United States' appellant's submission, para. 18. 
53Ibid., para. 23. 
54Ibid., para. 4. 
55Ibid., para. 23. 
56Ibid., para. 25. (original underlining)  WT/DS268/AB/R 
 Page 11 
 
 
28. The United States disagrees with the Panel's analysis of the "consistent application" 57 of the 
SPB.  The United States points out that there is no principle of interpretation in United States law 
which provides that a previously non-binding doc ument becomes, through repeated application, 
binding.  The United States adds that if the USDO C has discretion to apply a law in a particular 
manner, the fact that, to date, it has not exercised its discretion in that manner would not change the 
fact that the USDOC has the discretion to do so.  The United States emphasizes that the Panel's 
conclusion that the three scenarios of Section II.A.3 of the SPB are conclusive is based solely on an 
analysis of statistics on the application of the SPB in past sunset reviews.  The statistical analysis on 
which the Panel relied does not reflect an "objec tive assessment" in its own right because the Panel 
did no more than note a "correlation" between the results in particular sunset reviews and the 
scenarios set forth in the SPB.58  According to the United States, the Panel did not ask the question of 
whether the SPB caused the determinations in question, as it simply assumed a cause and effect 
relationship.59 
29. Therefore, the United States requests the Appella te Body to reverse the Panel's finding that 
Section II.A.3 of the SPB is inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement . 
3. Waiver Provisions 60 of United States Laws and Regulations  
(a) Argentina's Prima Facie Case 
30. The United States alleges that Argentina failed to make out a  prima facie  case that Section 
751(c)(4)(B) of the Tariff Act of 1930 and Sec tion 351.218(d)(2)(iii) of the USDOC Regulations  
are inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement , and that Section 
351.218(d)(2)(iii) of the USDOC Regulations is inconsis tent, as such, with Articles 6.1 and 6.2 of the  
Anti-Dumping Agreement . 
31. The United States recalls the statement of the Appellate Body, in  US – Carbon Steel ,  that 
"[t]he party asserting that another party's municipal la w, as such, is inconsistent with relevant treaty 
obligations bears the burden of introducing evidence as to the scope and meaning of such law to substantiate that assertion."
 61  The United States argues that Arge ntina failed to satisfy this burden 
because it introduced merely one case before the Panel in support of its allegations as to the meaning 
                                                      
57Panel Report, heading to paras. 7.158-7.165. 
58United States' appellant's submission, para. 31. 
59Ibid. 
60See infra , para. 223. 
61United States' appellant's submission, para. 77 (quoting Appellate Body Report, US – Carbon Steel , 
para. 157). WT/DS268/AB/R 
Page 12  
 
of the waiver provisions.  In addition, the United St ates contends that Argentina failed to establish that 
the company-specific 
62 determinations made by the USDOC as a result of the operation of the waiver 
provisions "had an impact" 63 on the agency's order-wide 64 determinations.  Nevertheless, according to 
the United States, the Panel not only decided "to fill in the gaps in Argentina's claim", but it also "willfully ignored" the contradicting evidence introduced by the United States.
65  In the United States' 
view, by making findings on issues for which Argentina had not made out a prima facie  case, the 
Panel failed to meet its obligati ons under Article 11 of the DSU. 
(b) Consistency of the Waiver Provisi ons with Article 11.3 of the Anti-
Dumping Agreement 
32. The United States claims that the Panel erred in  finding that Section 751(c)(4)(B) of the Tariff 
Act of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations do not allow the USDOC to 
make an order-wide likelihood determinati on consistent with Article 11.3 of the Anti-Dumping 
Agreement.  
33. The United States recalls the Appellate Body's  finding in US – Corrosion-Resistant Steel 
Sunset Review  that Article 11.3 does not prohibit sunset review determinations  from being made on 
an order-wide basis.  In the light of this readi ng, and given that the USDOC makes sunset review 
determinations on an order-wide basis, the United States submits that the Panel should have evaluated 
whether the waiver provisions prevent the USDOC from making an order-wide  determination 
consistent with Article 11.3.  Instead, the Pane l examined the WTO-consistency of the waiver 
provisions as they relate to  company-specific  determinations made by the USDOC.  After doing so, 
according to the United States, the Panel "imputed " to order-wide determin ations the alleged WTO-
inconsistency of the  company-specific  determinations that result from the operation of the waiver 
provisions.66 
34. The United States points out that if a respondent waives its participation in a sunset review, 
the USDOC makes an affirmative lik elihood-of-dumping determination  exclusively  for that 
respondent.  The United States argues that this   company-specific  determination, however, does not 
influence the order-wide  determination because the latter is conducted "independent ly" of individual 
company-specific determinations.67  In this regard, the United States emphasizes that under United 
                                                      
62See infra , footnote 327. 
63United States' response to questi oning at the oral hearing. 
64See infra , footnote 326. 
65United States' appellant's submission, para. 79. 
66Ibid., para. 38. 
67Ibid., paras. 42 and 48.  WT/DS268/AB/R 
 Page 13 
 
 
States law, the USDOC is required to base its or der-wide determination on all the record evidence 
before the agency, including evidence from incomplete  submissions of responden ts that are deemed to 
have waived their participation.  Because the orde r-wide determination is based  on such totality of the 
evidence, in the United States' view, the waiver provisions do not prevent the USDOC from arriving 
at a likelihood-of-dumping determination consis tent with the requirements of Article 11.3. 
35. The United States, therefore, requests the Appe llate Body to reverse the Panel's finding  
that Section  751(c)(4)(B) of the Tariff Act of 1930 and Section  351.218(d)(2)(iii) of the USDOC 
Regulations are inconsistent with Article 11.3 of the  Anti-Dumping Agreement.  
(c) Consistency of the "Deemed" Waiver Provision with Articles 6.1 and 
6.2 of the Anti-Dumping Agreement 
36. The United States also appeals the Panel's finding that Section 351.218(d)(2)(iii) of the 
USDOC Regulations (the "deemed" waiver provision 68) is inconsistent with Articles 6.1 and 6.2 of 
the  Anti-dumping Agreement .  The United States claims that Section 351.218(d)(2)(iii), in contrast to 
Articles 6.1 and 6.2, "does not address the issue of the kind of information that can be provided in a 
sunset review".69  Rather, Section 351.218(d)(2)(iii) specifi es the consequences of a respondent's 
failure to file a complete respon se, namely, that the respondent will be deemed to have waived its 
right to participation in the dumping phase of the sunset review.  The United States points to other 
USDOC regulations that provide numerous opportu nities for respondents to submit information and 
respond to other parties' arguments during the course of  a sunset review proceeding.  In the light of 
these regulations, the United States submits, the Pane l erred in concluding that respondents are not 
given the opportunity provided for in Articles 6.1 and 6.2 of the  Anti-Dumping Agreement   by virtue 
of Section 351.218(d)(2)(iii) of the USDOC Regula tions.  In the United States' view, the Panel's 
interpretation of the deemed waiver provisions provi des parties with an "indefinite right" to present 
evidence and request a hearing during a sunset review.70 
(d) Article 11 Claims Relating to the Panel's Findings on Waivers 
37. The United States claims that the Panel acted in consistently with Article 11 of the DSU in 
two respects:  first, in assessing the relationship between company-specific and order-wide determinations under United States law;  a nd secondly, in assessing how the USDOC determines 
whether a respondent's submission qualifies as a "complete substantive response" under 
Section 351.218(d)(2)(iii) of the USDOC Regulations. 
                                                     
 
68See infra , para. 223. 
69United States' appellant's submission, para. 51. 
70Ibid., para. 55. WT/DS268/AB/R 
Page 14  
 
38. With regard to the first claim, the United States argues that the Panel erred in concluding that 
the waiver provisions are inconsistent with Article  11.3 "[t]o the extent" that order-wide likelihood 
determinations are based on company-specific determinations.
71  According to the United States, the 
record before the Panel contains several clarif ications by the United States that the order-wide 
determinations are not "based on"72 company-specific determinations, and that the USDOC is required 
to consider  all  the record evidence when making an or der-wide likelihood determination.  The 
United States claims that, even assuming  arguendo  that the USDOC arrived at an improper 
company-specific determination, the other reco rd evidence may be sufficient for the USDOC to 
support a reasoned and adequate order-wide determ ination. The United States contests the Panel's 
reliance on one statement by the United States, in response to questioning from the Panel, that a 
company-specific determination " may  affect" the order-wide likelihood determination.73  According 
to the United States, it does not follow from this st atement that the former is "dispositive" of the 
latter.74   
39. The United States perceives the "same defective technique" in the Panel's analysis of the 
consistency of the deemed waiver provi sion with Articles 6.1 and 6.2 of the  Anti-Dumping 
Agreement .75  The United States observes that the Panel referred to the USDOC "practice" as support 
for its findings, but cited only one case submitted by Argentina.76  In addition, the United States 
alleges a "lack of objectivity" on the part of the Panel because it "ignored" the United States' contrary 
explanations and examples concerning its own practice 77, which reflected how the incomplete 
information submitted by a respondent, although not used in the company-specific determination, 
would be considered on the order-wide level. 
40. With regard to its second claim under Article 11 of the DSU, the United States challenges the 
Panel's conclusion that, in order for a submission to  be considered a "complete substantive response" 
by the USDOC, it must include information on  all  of the items listed in Section 351.218(d)(3) of the 
USDOC Regulations.  The United States alleges th at in so concluding, the Panel "ignored"78 
explanations submitted by the United States, although they clearly showed that:  determining whether 
                                                      
71United States' appellant's submission, para. 58 (quoting Panel Report, para. 7.101). 
72Ibid., paras. 59 and 61-63. 
73Ibid., para. 61 (quoting United States' response to Question 4(b) posed by the Panel at the Second 
Panel Meeting (Panel Report, Annex E, p. E-93, para. 3)). (original emphasis) 
74Ibid., para. 61. 
75Ibid., para. 65. 
76Ibid., para. 66 (quoting Panel Report, para. 7.126). 
77Ibid., para. 66. 
78Ibid., para. 75.  WT/DS268/AB/R 
 Page 15 
 
 
a submission is incomplete is assessed on a case-by- case basis;  the USDOC has the authority under 
its regulations to waive deadlines for respondents;   and, in certain circumstances, a submission 
containing incomplete information may nevertheless be  treated as a "complete substantive response".  
Moreover, according to the United States, Argentin a provided no evidence to the Panel contradicting 
the United States' explanations as to the discr etion afforded the USDOC to accept incomplete 
submissions as "complete substantive responses".   
41. In the light of these arguments, the United St ates requests the Appellate Body to reverse the 
Panel's finding that Section 751(c)(4)(B) of the Ta riff Act of 1930 and Secti on 351.218(d)(2)(iii) of 
the USDOC Regulations are inconsistent, as such, with Article 11.3 of the Anti-Dumping Agreement .  
The United States also requests the Appellate Body  to reverse the Panel's finding that Section 
351.218(d)(2)(iii) of the USDOC Regulations is inconsis tent, as such, with Articles 6.1 and 6.2 of the  
Anti-Dumping Agreement . 
B. Arguments of Argentina – Appellee 
1. The Panel's Terms of Reference  
42. Argentina agrees with the Panel's conclusion that the claims raised by Argentina in its written 
submissions, including the "as such" claims relating to the "irrefutable presumption" and the "as such" 
and "as applied" claims under Articles 3.7 and 3.8 of the  Anti-Dumping Agreement , fall within the 
Panel's terms of reference.  Argentina therefor e requests the Appellate Body to uphold the Panel's 
findings rejecting the United States' prel iminary ruling requests on these issues. 
(a) "As Such" Claims Relating to the United States Department of 
Commerce's Likelihood-of-Dumping Determination  
43. Argentina argues that its "as such" claims re lating to the "irrefutable presumption" under 
United States law are located in Section A.4 of  the panel request, which, by referring to the 
"irrefutable presumption under US law as such", info rmed the United States that Argentina would be 
making an "as such" challenge.  Given the referen ces to the alleged presumption in United States law 
and practice, in addition to the underlying sunset re view determination, Argentina claims that "it is 
axiomatic that in order fo r the [USDOC's] application  of the presumption to be WTO-inconsistent, the 
U.S. law establishing  such a presumption must also be WTO-inconsistent as such".79  Furthermore, 
according to Argentina, "page four" of the pane l request makes clear which provisions of United 
                                                      
79Argentina's appellee's submission, para. 121. (original underlining;  italics omitted) WT/DS268/AB/R 
Page 16  
 
States law are the subject of challenge.  In Argen tina's view, the United States' arguments ignore the 
requirement that Article 6.2 claims must be evalua ted by looking at the panel request "as a whole".
80   
(b) "As Such" and "As Applied" Claims Relating to the United  
States International Trade Commission's Likelihood-of-Injury 
Determination  
44. With respect to the United States' "contingent" 81 claim that the panel request did not 
sufficiently specify Argentina's challenge under Ar ticles 3.7 and 3.8, Argentina agrees with the 
Panel's reasoning.  In Argentina's view, the Panel co rrectly recognized that the reference to Article 3 
in Section B.3 of the panel request placed the Unite d States on notice that Argentina's claim about the 
temporal limitation of a sunset review determin ation necessarily related, in part, to Articles 3.7 
and 3.8.  Argentina also argues that a complaini ng party may satisfy the requirements of Article 6.2 
by listing only the treaty articles it considers to have been infringed by the respondent Member.82  In 
this regard, Argentina recalls th e Appellate Body's decision in  Korea – Dairy  and states that the 
listing of treaty articles "will be considered to be  insufficient only in cases where the defending party 
is able to demonstrate to the Panel that it has su ffered actual prejudice during the course of the panel 
proceedings".83 
(c) Prejudice 
45. Argentina submits that the United States has not demonstrated prejudice resulting from the 
purported lack of clarity in Argentina's panel requ est.  According to Argentina, a demonstration of 
prejudice is a " sine quo non " 84 of a successful challenge under Article 6.2 of the DSU, and the United 
States appears to agree with this requirement, as ev idenced by the United States' argumentation before 
the panels in  Canada – Wheat Exports and Grain Imports  and  Mexico – Anti-Dumping Measures on 
Beef and Rice .85  Argentina argues that the "ill-defined complaints about delay" made by the United 
States are insufficient to satisfy the requirement to demonstrate prejudice.86  Moreover, Argentina 
claims, the United States' participation in the pane l proceedings belies its complaint about its inability 
to defend itself because of the alleged vagueness of Argentina's panel request. 
                                                      
80Argentina's appellee's submission, para. 119. 
81United States' appellant's submission, heading IV.B.2. 
82Argentina's appellee's submission, para. 142 (quoting United States' appellant's submission, para. 
102). 
83Ibid., para. 147. 
84Ibid., para. 148. 
85Ibid., paras. 151-152. 
86Ibid., para. 185.  WT/DS268/AB/R 
 Page 17 
 
 
46. Argentina therefore requests the Appellate B ody to find that Argentina's panel request 
satisfies the requirements of Article 6.2 and to uph old the Panel's findings that the claims raised by 
Argentina in its written submissions to the Pane l fell within the Panel's terms of reference. 
2. The Sunset Policy Bulletin  
47. Argentina submits that the Panel correctly foun d that the SPB is a "measure" for purposes of 
WTO dispute settlement and that Section II.A.3 of th e SPB is inconsistent, as such, with Article 11.3 
of the  Anti-Dumping Agreement . 
(a) The Sunset Policy Bulletin as a "Measure" 
48. Argentina argues that the United States' inte rpretation of the Appellate Body Report in  US – 
Corrosion-Resistant Steel Sunset Review   is erroneous.  For Argentina, the Appellate Body clarified in 
that case that a "measure", for the purpose of WT O challenges, includes administrative instruments 
such as the SPB.  Argentina submits that the fact that the Appellate Body in  US – Corrosion-
Resistant Steel Sunset Review   did not have a sufficient evidentiary basis to complete the analysis with 
respect to some of Japan's claims, does not cast doub t on its conclusion that the SPB is a measure that 
could, with an appropriate evidentiary basis, give  rise to a finding of inconsistency, as such, with 
Article 11.3.  Argentina points out that the Appe llate Body proceeded, as a second step, to complete 
the analysis with respect to Japan's claim of incons istency, as such, of Section II.A.3 of the SPB with 
Article 11.3 of the  Anti-Dumping Agreement , only after having concluded, as a first step, that the 
SPB is a measure challengeable, as such, in WTO dispute settlement. 
49. Argentina contests the United States' claim that the Panel did not comply with its obligations 
under Article 11 of the DSU when concluding that the SPB is a measure.  Argentina argues that the 
reasoning of the Appellate Body in US – Corrosion-Resistant Steel Sunset Review   was directly 
relevant to the Panel's analysis of the issue befo re it, and that the Panel was correct in using the 
Appellate Body's findings in that case as a tool fo r its own reasoning.  Argentina submits that the 
USDOC "consistent practice", as set forth in Exhibits ARG-63 and ARG-64 87, demonstrates that the 
USDOC considers the SPB to be binding.88  According to Argentina, "[t]he U.S. assertions that the 
SPB 'does not "do" anything,' that it is 'not a legal instrument,' and that it is 'non-binding' do not survive even routine scrutiny when they are viewed against the text  of the sunset determinations, 
representative of the [USDOC] practice, taken from [Exhibit] ARG-63."
 89  Argentina adds that the 
                                                      
87See infra , para. 203. 
88Argentina's appellee's submission, para. 20. 
89Ibid., para. 22 (quoting United States' appellant's subm ission, paras. 11 and 13). (footnotes omitted) WT/DS268/AB/R 
Page 18  
 
factual record, including the evidence in Exhibit ARG-63 and the Panel's findings, must be evaluated 
in the light of the standard under Article 11 of the DSU, and that "the bar for DSU Article 11 
challenges is quite high" as there must be a delibe rate disregard of or refusal to consider the 
evidence.
90  According to Argentina, the United States did not put forward any credible argument that 
would suggest that the Panel did not meet the "high" standard of Article 11 of the DSU. 
(b) Consistency of Section II.A.3 of the Sunset Policy Bulletin with 
Article 11.3 of the Anti-Dumping Agreement 
50. Argentina contends that it submitted extens ive evidence to the Panel of the USDOC's 
"consistent application" of Section II.A.3 of the SPB.91  Argentina argues that, under the guidance 
provided by the Appellate Body in  US – Corrosion-Resistant Steel Sunset Review , the Panel had 
before it ample evidence to discern the meaning of S ection II.A.3 and to find that the three criteria 
therein are inconsistent, as such, with Article 11. 3.  According to Argentina, Exhibits ARG-63 and 
ARG-64 demonstrate that the USDOC follows the in structions of Section II.A.3 in every sunset 
review, and that each time it finds that at least one  of the three criteria is satisfied, the USDOC makes 
an affirmative finding of likely dumping without cons idering additional factors.  For Argentina, the 
USDOC's "consistent application" of the provisions of Section II.A.3 of the SPB indicates that the three scenarios of Section II.A.3 are conclusive of  the likelihood of continuation or recurrence of 
dumping.
92  Argentina underscores the Panel's finding th at the United States had failed to rebut 
Argentina's arguments, as well as the evidence in Exhibits ARG-63 and ARG-64 underlying those 
arguments, that the USDOC always treats as conclusive  the fact that the margin and volume data in a 
given case fall under one of the three scenarios.  For Argentina, because Section II.A.3 of the SPB 
requires the USDOC to apply a mechanistic presumption of likely dumping, Section II.A.3 is inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement . 
51. Argentina maintains that the a ssessment that led the Panel to conclude that the SPB is 
inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement   was proper under Article 11 
of the DSU.  According to Argentina, Article 11 of  the DSU did not require the Panel to defer to the 
United States' representations as to the meaning of the SPB.  Thus, Argentina rejects the United 
States' contention that the Panel's analysis of th e SPB did not reflect an "objective assessment" under 
Article 11 of the DSU on the ground that it neglected the status and meaning of the SPB within the 
                                                     
 
90Argentina's appellee's submission, para. 23. 
91Ibid., para. 27. 
92Ibid., para. 32.  WT/DS268/AB/R 
 Page 19 
 
 
municipal legal system of the United States.  For Argentina, the assertions made by the United States 
that the SPB has "no independent legal status" and does not "do" anything  are not sufficient to 
overcome the evidence presented by Argentin a on the operation and effect of the SPB.93 
52. Argentina accordingly requests the Appellate Body to uphold the Panel's findings that the 
SPB is a "measure" subject to challenge in WTO di spute settlement, and that Section II.A.3 of the 
SPB is inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement . 
3. Waiver Provisions of United States Laws and Regulations  
53. Argentina argues that the Panel did not err in concluding that Section 751(c)(4)(B) of the 
Tariff Act of 1930 and Section 351.2 18(d)(2)(iii) of the USDOC Regulations are inconsistent, as such, 
with Article 11.3 of the  Anti-Dumping Agreement .  Argentina also agrees with the Panel's conclusion 
that Section 351.218(d)(2)(iii) of the USDOC Regulati ons is inconsistent, as such, with Articles 6.1 
and 6.2 of the  Anti-Dumping Agreement .  
(a) Argentina's Prima Facie Case 
54. Argentina contends that, contrary to the Unite d States' claim on appeal, Argentina submitted 
sufficient evidence to make out its  prima facie  case of inconsistency with Articles 6.1, 6.2, and 11.3.  
Argentina points to the text of the waiver provision s as evidence of their "mandatory nature" and to 
show that they require action not pe rmitted by Articles 6.1, 6.2, and 11.3.94  With respect to the 
relationship between  company-specific  and order-wide  likelihood determinations under United 
States law, Argentina refers to various sections of  its written submissions and oral statements before 
the Panel, wherein Argentina addressed this relations hip in connection with particular USDOC sunset 
review determinations.95  Argentina also notes that the United States did not rebut the statistics 
provided by Argentina to the Panel in relation to the USDOC's sunset review determinations 
contained in Exhibits ARG-63 and ARG-64.  As such, Argentina claims that it established the  prima 
facie  case necessary for the Panel to draw its conclusi ons as to the WTO-consistency of the waiver 
provisions.  
                                                      
93Argentina's appellee's submission, para. 44 (quoting United States' closing statement at the Second 
Panel Meeting, para. 2). 
94Ibid., para. 95. 
95Argentina's responses to questi oning at the oral hearing. WT/DS268/AB/R 
Page 20  
 
(b) Consistency of the Waiver Provisi ons with Article 11.3 of the Anti-
Dumping Agreement 
55. Argentina argues that Section 751(c)(4)(B) of the Tariff Act of 1930 requires the USDOC to 
make an affirmative determinati on of likely dumping with respect to respondents that waive their 
right to participation in a sunset review.  Accordi ng to Argentina, this requi rement applies to those 
respondents that submit affirmative waivers, pursu ant to Section 751(c)(4)(B), as well as to those 
respondents that are deemed by the USDOC, pursuant to Section 351.218(d)(2)(iii) of the USDOC Regulations, to have waived their right to particip ate.  Argentina contends that the mandated finding 
of a likelihood of dumping is inconsistent with Ar ticle 11.3, which requires a determination to be 
based on an investigation and evaluation of the evidence rather than on assumptions.  Given this 
inconsistency, Argentina argues that the United Stat es' characterization of the waiver provisions as a 
mechanism to permit respondents to focus their reso urces on the injury phase of the sunset review is 
not persuasive. 
56. In Argentina's view, "[t]hat the waiver provisi ons affect the order-wide determination cannot 
be disputed."
 96  Argentina posits, in particular, cases wh ere there may be only one respondent, or 
where all the respondents waive their right to pa rticipation, as examples where the order-wide 
determination could not be made c onsistently with the obligations under Article 11.3.  In addition, 
Argentina observes that the United States agrees that the company-specific determination "may 
affect" the order-wide likelihood determination.97  Therefore, Argentina claims that the waiver 
provisions prevent the United States' from making or der-wide likelihood determin ations in the manner 
required by Article 11.3.  
(c) Consistency of the "Deemed" Waiver Provision with Articles 6.1 and 
6.2 of the Anti-Dumping Agreement 
57. According to Argentina, the USDOC, under Section 351.218(d)(2)(iii) of the USDOC 
Regulations, deems a respondent to have waived its right to participation in the dumping phase of the 
sunset review where a respondent files no submissi on or an incomplete submission in response to the 
notice of initiation of the sunset review.  Arge ntina argues that once th e USDOC makes such a 
finding, it is required to make an affirmative likelih ood-of-dumping determination with respect to that 
respondent, notwithstanding that "respondent's attemp ts to participate in the sunset proceeding".98  
Thus, Argentina submits, a respondent deemed to have  waived its right to participation does not have 
                                                      
96Argentina's appellee's submission, para. 64. 
97Ibid. (quoting United States' appellant's submission, para. 61;  in turn quoting United States' response 
to Question 4(b) posed by the Panel at the Second Panel Meeting (Panel Report, Annex E, p. E-93, para. 3)). 
98Ibid., para. 76.  WT/DS268/AB/R 
 Page 21 
 
 
adequate opportunity to defend its interests, as re quired by Articles 6.1 and 6.2.  Argentina states 
further that the United States fails to identify in its  appellant's submission any allegation of legal error 
with respect to the Panel's analysis  of this issue.  Consequently, in Argentina's view, the Appellate 
Body has "no basis" to rule on the United States' claim on appeal.99 
(d) Article 11 Claims Relating to the Panel's Findings on Waivers 
58. Argentina argues that a successful claim under Article 11 of the DSU requires a showing of 
"deliberate disregard of, or refusal to consider" evidence submitted by the Member.100  The challenges 
of the United States to the Panel's evaluation of Ar gentina's claims as to the waiver provisions does 
not satisfy this requirement.  With respect to the relationship between company-specific and order-
wide determinations of dumping,  Argentina submits that, given the United States' admission that a 
company-specific determination may affect the orde r-wide determination, the United States' challenge 
amounts to a complaint about the Panel's appreciati on of the evidence before it.  Argentina claims 
that, even if the mandated affirmative likelihood de termination is made only with respect to a 
particular respondent, the final or der-wide determination would not sa tisfy the "exacting obligations" 
of Article 11.3.101 
59. Argentina also contests the United States' argument that the Panel failed to properly evaluate 
what constitutes a "complete substantive response"  under the USDOC Regulations.  Argentina argues 
that the relevant aspect of the Panel's analysis relates to the " effect  of a deemed waiver in light of the 
requirements of Articles 6.1 and 6.2".102  As such, the United States' emphasis on the conditions under 
which the USDOC deems a respondent to have waiv ed its right to participation is inapposite.  
Argentina therefore argues that th e United States' claims under Artic le 11 of the DSU do not satisfy 
the standard established by the Appellate Body for fi nding that a panel acted inconsistently with its 
obligations under that provision. 
60. Argentina therefore requests the Appellate Body  to uphold the Panel's findings that Section 
751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations are 
inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement .  Argentina also requests the 
Appellate Body to uphold the Panel's finding that Section 3 51.218(d)(2)(iii) of the USDOC 
Regulations is inconsistent, as such, with Articles 6.1 and 6.2 of the  Anti-Dumping Agreement . 
                                                      
99Argentina's appellee's submission, para. 78. 
100Ibid., para. 81 (quoting Appellate Body Report, EC – Hormones , para. 133). 
101Ibid., para. 87 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 113).  
102Ibid., para. 91. (original emphasis) WT/DS268/AB/R 
Page 22  
 
C. Claims of Error by Argentina – Appellant 
1. Factors to be Evaluated in a Likelihood-of-Injury Determination
 
61. Argentina argues that the Panel erred in not interpreting Article 11.3 of the  Anti-Dumping 
Agreement   to encompass certain "substantive disciplines" , and in consequently "failing to find" that 
the USITC's likelihood-of-injury determination in th e underlying dispute ("as applied") is inconsistent 
with Article 11.3 on the ground that  it did not apply these disciplines.103  Argentina submits that,  
"[i]n the alternative" 104, the Panel erred in finding that the disciplines contained in Article 3 do not 
apply to sunset reviews conducted pursuant to Ar ticle 11.3.  Argentina accordingly requests the 
Appellate Body to "complete the analysis" and to fi nd that the USITC's determination is inconsistent 
with Articles 3.1, 3.2, 3.4, and 3.5.105  
62. In Argentina's view, footnote 9 of the Anti-Dumping Agreement  sets out the definition  
of "injury", as that term is used throughout  the Agreement.  This is clear from the language of 
footnote 9, which states that the definition applies "[u] nder this Agreement" and that "the term 'injury' 
... shall be interpreted in accordance with the provi sions of this Article".  As a result, Argentina 
claims, Article 11.3, which requires an assessment of  the likelihood of continuation or recurrence of 
"injury", must incorporate the definition of "injury" found in footnote 9. 
63. Argentina argues that the Panel failed to r ecognize that Article 11.3 contains certain 
obligations with which the USITC failed to co mply in arriving at its likelihood-of-injury 
determination.  Argentina contends that the obliga tions of Article 11.3—to undertake a "review" and 
make a "determin[ation]" before extending anti-dum ping duties beyond five years—have been given 
further meaning in the decisions of the Appellate Body in US – Carbon Steel  and  US – Corrosion-
Resistant Steel Sunset Review .  Argentina submits that, consistent  with the aforementioned Appellate 
Body decisions, a sunset review determination under Article 11.3 "mus t have a sufficient factual basis 
to allow it to draw reasoned and adequate conclusi ons" concerning the likelihood of continuation or 
recurrence of dumping and injury.106  
64. Argentina claims that the "review" and "determin[ation]" mandated by Article 11.3 
encompass, "at a minimum", the following requirements:  (1) an objective examination of the volume of dumped imports and the effect of the dumped im ports on prices, as well as the consequent impact 
of the imports on domestic producers;  (2) an eval uation of all relevant economic factors having a 
                                                     
 
103Argentina's other appellant's submission, para. 144. 
104Ibid., para. 146. 
105Ibid., para. 214. 
106Ibid., para. 141.  WT/DS268/AB/R 
 Page 23 
 
 
bearing on the state of the industry;  (3) the demonstration of a causal relationship between the 
dumped imports and the injury to the domestic indu stry;  and (4) a determination based on facts and 
"not merely on allegation, conj ecture or remote possibility".107  In Argentina's view, an investigating 
authority that fails to comply with these requi rements cannot arrive at  a reasoned conclusion 
supported by a sufficient factual basis, as require d by Article 11.3.  Because the USITC's likelihood-
of-injury determination did not meet these require ments, Argentina argues, the determination is 
inconsistent with Article 11.3. 
65. As an "alternative" to its argument regardi ng the scope of obligations under Article 11.3, 
Argentina submits that the steps outlined in Article  3 for a determination of injury apply as well to 
sunset reviews under Article 11.3.108  Argentina claims that, by virtue of the definition of "injury" in 
footnote 9, any determination of injury, including a likelihood-of-injury determination, must be made 
according to the provisions of Article 3.  Argentina argues that the Panel's finding to the contrary with 
respect to footnote 9 "reduces to redundancy or inu tility" the Agreement-wide definition of injury set 
forth therein.109 
66. Argentina finds support for the applicability of Ar ticle 3 to sunset reviews in Article 3.1, 
which provides for a "determination of injury for purposes of Article VI of GATT 1994" to be made 
in accordance with the remaining paragraphs of Article 3.  Argentina claims that, because a 
likelihood-of-injury determination in sunset reviews is "unquestionably"110 such a "determination of 
injury", the disciplines of Article 3 apply to sunset reviews.  In this regard, Argentina argues that the 
Panel's distinction between a "determination of in jury" and a "determination of the likelihood of 
continuation or recurrence of injury", is not supported by the text of the  Anti-Dumping Agreement  
and is contrary to the definition of "injury" set forth in footnote 9. 
67. Argentina additionally claims that the Panel's fa ilure to find Article 3 applicable to sunset 
reviews is based on a "misinterpretation and misapp lication" of the Appellate Body's decision in  
US – Corrosion-Resistant Steel Sunset Review .111  In that case, Argentina argues, the Appellate Body 
distinguished "dumping margins" from "dumping dete rminations", finding that although Article 11.3 
does not require investigating authorities to ca lculate margins, the provision does mandate a 
determination as to the likelihood of dumping.  Arge ntina contends that the Appellate Body found that 
if dumping margins are nevertheless relied upon by an investigating authority in  sunset reviews, those 
                                                      
107Argentina's other appellant's submission, para. 143. 
108Ibid., para. 146. 
109Ibid., para. 148. 
110Ibid., para. 160. 
111Ibid., paras. 167-168. WT/DS268/AB/R 
Page 24  
 
margins must conform to Article 2.4 in order to render WTO-consistent the sunset review 
determination.  Given this finding with respect to a " discretionary  act"
112, that is, the reliance on 
dumping margins, Argentina argues, investigating authorities in sunset reviews must conform to 
Article 3 when making likelihood-of-i njury determinations, which are  required  by Article 11.3.   
68. Argentina contends that because the Panel erred in concluding that Article 3 does not apply to 
sunset reviews, the Panel consequently erred in failing to evaluate Argentina's claims under 
Articles 3.1, 3.2, 3.4, and 3.5 of the  Anti-Dumping Agreement .  Accordingly, Argentina requests the 
Appellate Body to "complete the analysis" and fi nd the USITC's likelihood-of-injury determination to 
be inconsistent with the United Stat es' obligations under these provisions.113  In this respect, Argentina 
incorporates on appeal the arguments it made before the Panel on these claims. 
69. In sum, Argentina requests the Appellate Body  to find that the Panel erred in failing to 
interpret Article 11.3 to encompass "substantive ob ligations" governing an investigating authority's 
likelihood-of-injury determination, and in failing to  find that the United States acted inconsistently 
with these obligations.  In the alternative, Arge ntina requests the Appellate Body to reverse the 
Panel's finding that Article 3 does not apply to sunset  reviews, and to find that the United States acted 
inconsistently with Articles 3.1, 3.2, 3.4, and 3. 5 in its likelihood-of-injury determination in the 
underlying dispute. 
2. Cumulation in Sunset Reviews  
70. Argentina argues that the Panel erred in finding that the  Anti-Dumping Agreement  "generally 
allows the use of cumulation" and that the conditions  set out in Article 3.3 for the use of cumulation 
do not apply to sunset reviews.114  
71. Argentina argues that the Anti-Dumping Agreement  permits cumulation only in original 
investigations.  Argentina claims that contrary  to the Panel's reading, the text of the  Anti-Dumping 
Agreement  is not silent on this issue.  Referring to the use of the term "duty" in the singular in 
Article 11.3, Argentina submits that the drafters of the Anti-Dumping Agreement  expected 
investigating authorities to focus their sunset an alysis on one anti-dumping measure, not "multiple 
antidumping measures".115  As such, in Argentina's view, Ar ticle 11.3 requires an investigating 
                                                      
112Argentina's other appellant's submission, para. 176. (original emphasis) 
113Ibid., para. 179. 
114Ibid., para. 251. 
115Ibid., para. 261.  WT/DS268/AB/R 
 Page 25 
 
 
authority to determine whether the expiry of a "duty", as applied to imports from a  single  WTO 
Member, would be likely to lead to a continuation or recurrence of injury. 
72. According to Argentina, the Panel's contrary interpretation is based on its view that the 
relevance of a cumulative analysis in original inves tigations applies equally in the context of sunset 
reviews.  Argentina submits that the Panel's reas oning fails to account for "important differences" 
between injury determinations in original inves tigations and likelihood-of-injury determinations in 
sunset reviews.116  Investigating authorities in original i nvestigations have a "f actual foundation" to 
evaluate the appropriateness of cumulating the effects of imports from multiple sources.117  However, 
according to Argentina, such a foundation may not exist for investigating authorities conducting 
sunset reviews because, for example, imports from a particular Member may no longer be present in the domestic market. 
73. Argentina observes that Article 3.3 is limited to  original investigations, and that Article 3.3 
contains no cross-reference to Article 11.  Given th is textual limitation, Argentina claims, Article 3.3 
serves as a limited authorization for cumulation solely  in the context of original investigations.  
Argentina finds further support for its view in the te xt of Article VI of the GATT 1994, which refers 
to injury caused by "products of one country", suggesting that a broad authorization for cumulation 
was not intended by the treaty drafters.  Without such broad authorization, and any specific language permitting cumulation in sunset reviews, Argentin a submits that investigating authorities are not 
permitted to engage in a cumulative analysis wh en making likelihood-of-injury determinations under 
Article 11.3. 
74. In Argentina's view, if cumulation were perm itted in sunset reviews, it follows that the 
conditions for cumulation in Artic le 3.3 "must equally apply" b ecause, without such conditions, 
investigating authorities would be given " carte blanche " in their conduct of sunset reviews, contrary 
to the "disciplines" on cumulation negotiated during the Uruguay Round.
118 
3. The Panel's Interpretation of the Term "Likely"  
75. Argentina claims that the Panel erred in appl ying an incorrect interpretation of the term 
"likely", as found in Article 11.3, and in refusing to consider as evidence the public acknowledgement 
of the USITC that it had not applied the proper un derstanding of the term "likely" when making its 
sunset review determinations. 
                                                      
116Argentina's other appellant's submission, para. 265. 
117Ibid. 
118Ibid., para. 278. WT/DS268/AB/R 
Page 26  
 
76. Argentina refers to the Appellate Body's decision in  US – Corrosion-Resistant Steel Sunset 
Review  to confirm that the ordinary meaning of th e term "likely", as used in Article 11.3, is 
"probable".  Argentina argues that, despite this cl ear interpretation of the Appellate Body, the Panel 
failed to interpret "likely" to mean "probable".  Argentina submits that the Panel emphasized the fact 
that the United States statute and the USITC's determ ination used the word "likely".  In Argentina's 
view, the mere use of this term could not establis h that the USITC had complied with Article 11.3.  
Rather, Argentina submits, the Panel should have in terpreted "likely" to mean "probable", before 
engaging in two "separate inquiries":  first, whether the USITC applied the proper "likely" standard, and second, whether the USITC applied this standard "in a WTO-consistent manner".
119   
77. Argentina argues that the USITC failed to  apply  the proper interpretation of the term "likely" 
when conducting its likelihood-of-injury determinati on.  Argentina observes that the SAA, which 
guides the USITC in its sunset review determinations, states that "[t]here may be more than one likely 
outcome following revocation or term ination [of the anti-dumping order]." 120  According to 
Argentina, the USITC, based on guidance found in the SAA, has consistently interpreted "likely" to 
mean less than  "probable".  Argentina submits that the USITC acknowledged before a North 
American Free Trade Agreement ("NAFTA ") dispute settlement panel that " it did not apply a 
probable standard in the present case ".121  Argentina also points to the admission of the USITC 
before a United States court that the agency had not employed a "probable" standard in several sunset 
reviews, including that relating to OCTG from Argen tina.  Argentina argues that the Panel erred in 
concluding, despite the admissions of the USITC to  the use of a WTO-inconsistent standard for 
evaluating likelihood of injury, that these admissions were not relevant to the Panel's analysis of 
Argentina's claim. 
4. Consistency of the USITC's Determinati on with the Standard of "Likelihood" 
in Article 11.3 of the  Anti-Dumping Agreement  
78. Argentina challenges the Panel's conclusion that the various analyses in the USITC's 
likelihood-of-injury determination do not render that determination in consistent with Article 11.3.  
Argentina contests, in particular, the Panel's findings  that the USITC did not act inconsistently with 
Article 11.3 in the following respects:  (1) deciding  to cumulate the effects of likely imports from 
Argentina with the effects of likely imports from other sources;  (2) determining that volumes of 
imports would be likely to increase;  (3) determini ng that future imports would be likely to depress or 
                                                      
119Argentina's other appellant's submission, para. 50. (Argentina's emphasis omitted) 
120Ibid., para. 27 (quoting SAA, p. 883). 
121Ibid., para. 29. (original italics,  underlining, and boldface)  WT/DS268/AB/R 
 Page 27 
 
 
suppress prices of the domestic like product;  and (4) determining that future imports would be likely 
to have an adverse impact on the domestic industry. 
79. Citing the Appellate Body's decision in US – Corrosion-Resistant Steel Sunset Review , 
Argentina argues that a sunset review determin ation under Article 11.3 must be supported by 
"positive evidence" and be the result of an "objective examination".  This requirement of Article 11.3, 
in Argentina's view, should be understood in the li ght of the standard of "likelihood" embodied in 
Article 11.3.  Argentina submits that the "likel y" standard "directly affects the investigating 
authority's obligation to establish the facts properl y, because the factual basis necessary to support a 
likely/probable finding is different from the facts necessary to support a finding that is less than 
probable."122  Argentina claims that, in evaluating the USITC's likelihood-of-injury determination in 
the present case, the Panel failed to recognize this relevance of the "lik ely" standard and, as a result, 
failed to assess the determination against the proper  standard set out in Article 11.3.  Instead, 
Argentina contends, the Panel considered several of  the factors cited by the USITC in the light of 
whether they were  possible . 
(a) Cumulative Assessment of Dumped Imports 
80. Argentina observes that the USITC's likelihood- of-injury determination is premised on its 
examination of cumulated imports rather than on imports from Argentina alone.  Argentina argues 
that, although it had raised the issue of the cons istency of the USITC's cumulation analysis with 
Article 11.3, the Panel failed to assess whether th e USITC's decision to conduct a cumulative analysis 
satisfied the requirements of Article 11.3. 
81. According to Argentina, the USITC acted inc onsistently with Article 11.3 in assessing one of 
the factors supporting its decision to conduct a cu mulative analysis, namely, the "simultaneous 
presence" of imports from all sources and the do mestic like product in the same geographical 
market.123  Argentina submits that the USITC's decision  on this factor was "based almost exclusively 
on an inference drawn from the original investigation".124  In Argentina's view, the USITC referred to 
the simultaneous presence of imports and the domestic like product at the time of the original 
investigation and concluded from this observation that imports and the domestic like product are 
likely to be simultaneously present in the same market in the future.  Such an "assumption"125, 
Argentina claims, is inconsistent with the require ment under Article 11.3 for investigating authorities 
                                                      
122Argentina's other appellant's submission, para. 63. 
123Ibid., para. 71 (quoting USITC Report, pp. 13-14). 
124Ibid., para. 73. 
125Ibid., para. 75. WT/DS268/AB/R 
Page 28  
 
to make a "fresh determination"
126 in sunset reviews instead of re lying solely on the determination 
made in the original investigation. 
(b) Likely Volume of Dumped Imports 
82. Argentina argues that the Panel erred in concl uding that the USITC's analysis of the likely 
volume of dumped imports was adequately supporte d to satisfy the requirement of Article 11.3.  
Argentina identifies several factors relied upon by the USITC in making its conclusion as to the likely 
volumes of dumped imports, including declining volumes following the issuance of the anti-dumping orders;  the consolidation of several foreign pro ducers;  the incentives for foreign producers to shift 
production to the subject merchandise;  barriers to the exports of the subject merchandise to other 
markets;  and barriers in the United States market  to products made in the same production facilities 
as the subject merchandise.  Argentina alleges that  the USITC's conclusion on these factors is not 
based on positive evidence, but on unreasonable inferences and "ignore[s]"
127 contrary evidence on 
the record submitted by Argentina.  Therefore, in Argentina's view, the USITC's conclusion with 
respect to likely volumes amounts to "speculation" and cannot constitute a proper establishment of the 
facts necessary to determine what is  probable  to occur. 128 
(c) Likely Price Effects of Dumped Imports 
83. Argentina challenges the Panel's conclusion that the USITC's analysis of likely price effects 
of dumped imports was not inconsistent with Ar ticle 11.3.  Argentina claims that the USITC 
erroneously relied solely on information collected during the original investigation when finding that 
price differences would be likely to cause purchasers to change supply sources, and that importers 
would be likely to engage in "aggressive pricing practices".129  In addition, Argentina submits, the 
USITC's finding that imports in the year preceding th e sunset review were generally priced lower than 
the domestic like product was not adequately suppo rted because the record evidence contained a 
"limited basis of information from which to draw such conclusions".130  The finding that foreign 
producers would seek to increase their market share by  lowering prices, in Argentina's view, was also 
"not objective" because it "contradicted" the theo ry relied upon by the USIT C to support its likely 
                                                      
126Argentina's other appellant's submission, para. 74 (quoting Appellate Body Report, US – Carbon 
Steel , para. 88). 
127Ibid., para. 94. 
128Ibid., paras. 83-84, 88, 90, 94, and 98. 
129Ibid., para. 111 (quoting USITC Report, p. 21, footnote 144). (Argentina's emphasis omitted) 
130Ibid., para. 109.  WT/DS268/AB/R 
 Page 29 
 
 
volumes analysis, namely, that higher prices in th e United States would provide incentives to foreign 
producers to ship to that market.131   
(d) Likely Impact of Dumped Imports on the United States' Industry 
84. Argentina submits that, having noted that the USITC had found the health of the domestic 
industry to be positive at the time of the sunset re view, "[t]his finding should  have led the Panel to 
conclude that an adverse impact was not probable."132  According to Argentina, the Panel failed to so 
conclude and, instead, upheld the USITC's impact finding on the basis that Article 11.3 would be 
satisfied provided that the agen cy's determination were based on a sufficient factual basis and an 
objective examination of the facts.  Argentina argu es the Panel's reasoning to be in error because an 
investigating authority "must also demonstrate, among other things, that  injury would be probable  if 
the order were revoked".133 
85. In the light of these alleged errors in sever al aspects of the USITC's likelihood-of-injury 
analysis, Argentina requests the Appellate Body to reverse the Panel's finding that the United States 
did not act inconsistently with Article 11.3 in de termining that revocation of the anti-dumping order 
on OCTG from Argentina would be likely to lead to continuation or recurrence of injury. 
5. The Timeframe in a Likelihood-of-Injury Determination  
86. Argentina claims that the Panel erred in findin g that Sections 752(a)(1) and 752(a)(5) of the 
Tariff Act of 1930, as such, as well as the application of these provisions in the underlying sunset review, are not inconsistent with Article 11.3. 
87. Argentina observes that footnote 9 of the  Anti-Dumping Agreement  requires the term 
"injury" to be interpreted "in accordance with the pr ovisions of" Article 3.  It follows, in Argentina's 
view, that the injury evaluated by the investigating authority must continue or recur "within the period 
of time beginning with the 'expiry' of the order but not exceeding circumstances deemed to be 
'imminent' within the meaning of Article 3.7".
134  According to Argentina, the investigating authority's 
failure to specify the time period in which injury is likely to continue or recur, which time period in 
any event must be less than "imminent", is also inconsistent with the obligation under Article 11.3 
                                                      
131Argentina's other appellant's submission, para. 110. 
132Ibid., para. 116. 
133Ibid., para. 118. (original emphasis) 
134Ibid., para. 221. (Argentina's emphasis omitted) WT/DS268/AB/R 
Page 30  
 
that investigating authorities must base their sun set review determinations on a "firm evidentiary 
foundation".
135 
88. Argentina alleges that Sections 752(a)(1) a nd 752(a)(5) of the Tariff Act of 1930 are 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement  because they provide for the 
investigating authority to evaluate the likelihood of injury to the domestic industry occurring within a 
"reasonably foreseeable time".136  Argentina points to language in the United States statute and the 
SAA that requires the USITC to consider injury beyond an "imminent" time period but sets no 
specific limits on when that injury may occur.  Arge ntina submits that this "unbridled discretion" to 
evaluate the likelihood of injury recurring at some undetermined point in the future is incompatible 
with the requirements of Article 11.3.137  In Argentina's view, the exercise of such discretion in a 
manner consistent with Article 11.3 requires that an  investigating authority articulate the period of 
time that forms the basis for its likelihood-of-injury de termination.  In addition, Argentina argues that, 
by allowing the continued imposition of anti-dumping du ties during the time period after expiry of the 
order—when there may be no present injury or th reat of material injury—Sections 752(a)(1) and 
752(a)(5) create a "gap"138, which is contrary to the requirement in Article 11.1 that duties be imposed 
only when necessary "to counteract dumping which is  causing injury".139   
89. Because Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930 require the USITC to 
evaluate injury beyond an "imminent" 140 time period, and the USITC employed such an unlimited and 
unspecified time period in its likelihood-of-injur y determination, Argentina requests the Appellate 
Body to reverse the Panel's finding that these stat utory provisions and their application in the 
underlying sunset review are not inconsistent with Article 11.3 of the  Anti-Dumping Agreement . 
6. Conditional Appeals  
90. If the Appellate Body were to reverse any of  the Panel's conclusions on the basis of the 
arguments of the United States, Argentina requests th e Appellate Body to address two issues that the 
Panel declined to resolve for reasons of judicial  economy:  (1) the consistency, as such, of the 
USDOC "practice" in sunset reviews with Article 11.3 of the  Anti-Dumping Agreement ;  and (2) the 
                                                      
135Argentina's other appellant's submission, para. 232 (quoting Appellate Body Report, US – Corrosion- 
Resistant Steel Sunset Review , para. 178). 
136Ibid., para. 220. 
137Ibid., para. 223. 
138Ibid., para. 238. 
139Ibid., para. 237 (quoting Anti-Dumping Agreement , Article 11.1). (underlining added by Argentina) 
140Ibid., para. 221 (quoting Anti-Dumping Agreement , Article 3.7).  WT/DS268/AB/R 
 Page 31 
 
 
consistency of the USDOC's administration of  anti-dumping laws and other measures with 
Article X:3 of the GATT 1994. 
(a) Challenge to the USDOC "Practice" 
91. Argentina claims that the USDOC "practice" in sunset reviews is inconsistent with 
Article 11.3 because the "practice" reveals a WTO-inconsistent presumption that dumping would be likely to continue or recur whenever there is a "historical" dumping margin or a decline in import 
volumes following the imposition of the anti-dumping duties.
141  Argentina points to the 223 USDOC 
sunset review determinations c onducted through September 2003, subm itted to the Panel as Exhibits  
ARG-63 and ARG-64, as evidence in support of its allegation.  Argentina argues that the United 
States has not rebutted its evidence, and thus, th e determinations in Exhibits ARG-63 and ARG-64 
should be accepted as undisputed facts by the Appellate Body.   
92. According to Argentina, this evidence dem onstrates that the USDOC has followed the 
scenarios set out in Section II.A.3 of the Sunset Policy Bulletin to make an affirmative likelihood 
determination in every  instance of "historical" dumping margins or declining (or no) import 
volumes.142  As such, in Argentina's view, these determ inations show that the finding by the USDOC 
that a case falls under one of the sc enarios set out in Section II.A.3 of the SPB is "conclusive" of the 
likelihood of dumping.143  Argentina submits that, because th e USDOC does not consider additional 
factors, the USDOC "practice" is inconsistent with  the requirement in  Article 11.3 to "determine" on 
the basis of all relevant evidence whether dumping would be likely to continue or recur.    
(b) Challenge under Article X:3(a) of the GATT 1994 
93. Argentina claims that the United States is acti ng inconsistently with Article X:3 of the  
GATT 1994 because the USDOC fails to administer anti-dumping laws and other measures in a uniform, impartial and reasonable manner.  The measu res identified by Argentin a in this respect are 
those contained in Argentina's panel request, incl uding the underlying likelihood determinations by 
the USDOC and the USITC, as well as certain statutory and regulatory provisions, procedures, and administrative provisions.  Referring to the USDOC sunset review determin ations contained in 
Exhibits ARG-63 and ARG-64, Argentina argues that  it is "not credible" that an investigating 
authority, basing its reasoned analysis on positive ev idence, could arrive at an affirmative likelihood 
determination in 100 per cent of the cases where the domestic industry sought to extend the anti-
                                                     
 
141Argentina's other appellant's submission, para. 285. 
142Ibid., para. 286. 
143Ibid. WT/DS268/AB/R 
Page 32  
 
dumping measure beyond five years.
144  Such a record, in Argentin a's view, reflects a "clear and 
undeniable pattern of biased and unreasonable decision making".145 
D. Arguments of the United States – Appellee 
1. Factors to Be Evaluated in a Likelihood-of-Injury Determination  
94. The United States agrees with the Panel's interp retation of "injury" under Article 11.3 of the  
Anti-Dumping Agreement , particularly as it concerns the factors required to be analyzed by an 
investigating authority conducting a likelihood-of-injury inquiry. 
95. The United States submits, first, that the US ITC's determination meets the standards of 
Article 11.3, as set forth by the Appellate Body in  previous decisions.  In this respect the United 
States points to the extensive data-gathering complete d by the USITC in the underlying sunset review 
and the evidentiary underpinning of the agency's  determination as reflecting the "positive evidence", 
"rigorous examination", and "reasoned and ade quate conclusions" required by Article 11.3.146 
96. The United States supports the Panel's finding that Article 3 of the  Anti-Dumping Agreement  
does not apply generally to sunset reviews.  The United States emphasizes the "different nature" of 
original investigations when compared to sunset reviews.147  The United States observes that original 
investigations focus on the  current  condition of the domestic industry in order to ascertain present 
injury or threat of material injury.  However, sunset reviews under Article 11.3 are "counterfactual in 
nature" and require a "decidedly different analysis", focusing  not on present injury—which could 
well no longer exist—but on the "likely impact of  a prospective change in the status quo".148  This 
distinction between original investigations and su nset reviews, the United States claims, has been 
recognized by the Appellate Body in  US – Carbon Steel  and  US – Corrosion-Resistant Steel Sunset 
Review .149 
97. The United States further argues that, contrary to Argentina's claim, the Panel properly 
understood the implications of the Appellate Body's decision in  US – Corrosion Resistant Steel 
Sunset Review  for the resolution of this issue.  In the Un ited States' view, the Appellate Body in that 
case found that investigating authorities are not requi red to calculate dumping margins in a likelihood-
                                                      
144Argentina's other appellant's submission, para. 296. 
145Ibid., para. 296. 
146United States' appellee's submission, para. 87. 
147Ibid., para. 90. 
148Ibid., para. 94. 
149Ibid., para. 95 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
paras. 106-107;  in turn quoting Appellate Body Report, US – Carbon Steel , para. 87).  WT/DS268/AB/R 
 Page 33 
 
 
of-dumping determination, but that if they choose to  perform such calculations, they must be done in 
accordance with Article 2.4.  The United States subm its that, in the context of likelihood-of-injury 
determinations, the parallel reasoni ng would suggest that investigating authorities are not required to 
make a determination of present injury during a sun set review, but if they choose to make such a 
determination, they must observe the disciplines of Article 3.  In addition, the United States points 
out, the Appellate Body made it clear in US – Corrosion-Resistant Steel Sunset Review  that 
Article 11.3 prescribes no specific methodology for the conduct of sunset reviews, providing 
additional support for its view that the analyses in Article 3 do not necessarily apply to sunset reviews.   
98. The United States argues that the Panel's unders tanding of the relationship between Article 3 
and Article 11.3 accords with the text of the  Anti-Dumping Agreement .  The United States disagrees 
with Argentina's argument that footnote 9 incorpor ates the disciplines of Article 3 into Article 11.3.  
The United States notes that the provisions of Article 3 apply to a "determination of injury for purposes of Article VI of the GATT 1994", as stated in Article 3.1.  Article  VI provides for dumping 
to be counteracted where "it causes or threatens ma terial injury to an established industry in the 
territory of a contracting party or materially re tards the establishment of a domestic industry."  
Therefore, in the United States' view, the analyses prescribed in Article 3 apply only to the "three 
bases for an affirmative determination in an original injury investigation", that  is, to present injury, 
threat of injury, and material retardation of the establishment of a domestic industry.
150  The United 
States additionally claims that the determinations ma ndated by the paragraphs of Article 3 are "wholly 
out of place" in a sunset review and woul d lead to "ludicrous" or "absurd" results.151 
99. Finally, the United States submits that even if the Appellate Body were to reverse the Panel's 
finding that Article 3 applies to sunset reviews,  it could not complete the analysis because of the 
limited factual findings by the Panel and the insufficient facts undisputed by the parties. 
100. The United States accordingly requests th e Appellate Body to uphold the Panel's 
interpretation of the term "injury" in Article  11.3 of the  Anti-Dumping Agreement  as not 
incorporating the requirements of Article 3 for sunset reviews. 
                                                      
150United States' appellee's submission, para. 109. 
151Ibid., para. 112. WT/DS268/AB/R 
Page 34  
 
2. Cumulation in Sunset Reviews
 
101. The United States argues that the Panel did not err in finding that cumulation in sunset 
reviews is not prohibited by the  Anti-Dumping Agreement , and that the prerequisites set out in 
Article 3.3 do not apply to a cumulative analysis conducted in the course of a sunset review.   
102. With respect to the permissibility of cumulation in sunset reviews, the United States argues 
that the text of the  Anti-Dumping Agreement  is "silent" on this issue and that "Members are free to 
do that which is not prohibited." 152  Contrary to Argentina, the United States does not find instructive 
the use of the term "duty", in the singular, in Artic le 11.3.  The United States contends that the same 
term is used in Article VI:6 of the GATT 1994, pu rsuant to which—prior to the conclusion of the 
Uruguay Round—cumulation was "widespread" among investigating authorities.153  The United 
States also observes that the heading of Article 11 of the  Anti-Dumping Agreement  uses the term 
"duties" instead of "duty", suggesting that the term "duty" in the singular does not carry the 
significance ascribed to it by Argentina.   
103. The United States argues that prohibiting cumulati on in sunset reviews would be "illogical" in 
the light of the rationale for cumulation recognized by the Appellate Body in  EC – Tube or Pipe 
Fittings .154  According to the United States, just as dumped imports from several sources 
simultaneously might cause injury collectively in an  original investigation, so, too, might the 
simultaneous termination of anti-dumping duties impo sed on products from several sources be likely 
to cause continuation or recurrence of injury, as dete rmined in a sunset review.  In the United States' 
view, Argentina's attempt to distinguish the rationale  for cumulation in original investigations from its 
use in sunset reviews is unavailing because Argentin a's distinction is based on "hypothetical facts 
[that] are inapposite to this case".155   
104. With respect to the existence of conditions pl aced on an investigating authority's resort to 
cumulation, the United States claims that Article 3.3 is plainly limited to original investigations, and 
that the  Anti-Dumping Agreement  provides no cross-reference that would render Article 3.3 
applicable in sunset reviews.  The United States fi nds significant this lack of cross-reference between 
the prerequisites in Article 3.3 and the obligati on in Article 11.3 to conduct a sunset review, 
particularly in the light of the relevance attached  by the Appellate Body to the technique of cross-
referencing in  US – Carbon Steel .  Finally, the United States argu es that the "negligibility standard" 
                                                      
152United States' appellee's submission, para. 157. 
153Ibid., para. 163. 
154Ibid., para. 165. 
155Ibid., para. 168.  WT/DS268/AB/R 
 Page 35 
 
 
of Article 5.8, incorporated by reference as one of the prerequisites contained in Article 3.3, would be 
"unworkable" in sunset reviews because such thresholds are premised on  existing  imports, whereas 
sunset reviews are of a "predictive nature" and address  likely  imports.156  According to the United 
States, the inapplicability of this prerequisite to s unset reviews further confirms that Article 3.3 and 
the conditions contained therein are li mited to original investigations. 
105. Therefore, the United States requests the Appella te Body to uphold the Panel's finding that 
cumulation is not prohibited in sunset reviews a nd that the prerequisites to cumulation set out in 
Article 3.3 of the Anti-Dumping Agreement  do not apply in the context of sunset reviews. 
3. The Panel's Interpretation of the Term "Likely"  
106. The United States requests the Appellate Body to uphold the Panel's findings concerning the 
Panel's interpretation of the "likely" standard in Article 11.3 of the  Anti-Dumping Agreement . 
107. The United States argues that the fact that th e Panel did not discuss synonyms for "likely" 
does not constitute a legal error.  In the United States' view, Argentina seeks to exaggerate the 
relevance of the Appellate Body's findings in  US – Corrosion-Resistant Steel Sunset Review   in order 
to claim that the Panel failed to apply the correct st andard.  The United States underscores that there is 
no evidence that the Panel did not interpret "likely" as "probable" in the sense that the Appellate Body 
used that term in  US – Corrosion-Resistant Steel Sunset Review . 
108. The United States adds that the Panel's deci sion to focus on whether the USITC's sunset 
determination actually met the "likely" standard was well founded.  The United States emphasizes that 
the only way to determine whether the USITC's sunset  determination was consistent with the "likely" 
standard of Article 11.3 was to examine what the USITC actually did. 
109. The United States submits that it was not a lega l error for the Panel to discount Argentina's 
arguments regarding past USITC statements in other fora as to the meaning of "likely".  First, the 
United States contends that the Panel's dismissal of these statements is the result of the Panel's weighing of the evidence.  According to the United States, Argentina should have based this claim on 
appeal on Article 11 of the DSU;  as Argentina failed to do so, its claim should be rejected.  Secondly, 
the United States argues that, as a substantive matter, Argentina's claim is without merit.  According 
to the United States, the past USITC statements  to which Argentina refers were based on the 
understanding of some USITC Commissioners that th e term "probable" connoted a very high degree 
of certainty.  The United States adds that the courts  in the United States ev entually clarified that 
"probable" was synonymous with the statutory term " likely", and that the views of the majority of the 
                                                     
 
156United States' appellee's submission, para. 178. WT/DS268/AB/R 
Page 36  
 
USITC Commissioners as to the standard applicable  in sunset reviews were  consistent with the 
standard articulated by the United States courts. 
4. Consistency of the USITC's Determinati on with the Standard of "Likelihood" 
in Article 11.3 of the  Anti-Dumping Agreement  
110. The United States submits that the Panel correctly found the USITC's determinations with 
respect to cumulation, volumes, price effects, and im pact of subject imports, to be consistent with 
Article 11.3 of the  Anti-Dumping Agreement . 
111. For the United States, the "likely" standard of Article 11.3 applies to the overall assessment of 
future injury by the authorities, based on their consideration of the record as a whole.  Article 11.3 
does not require each item of information considered by the USITC to satisfy individually the "likely" 
standard of Article 11.3.  The United States subm its that the Panel properly evaluated whether the 
USITC's findings were based on an objective examin ation of the record and that, by doing so, the 
Panel addressed Argentina's argument that the USIT C applied the wrong standard.  According to the 
United States, "whether Argentina calls it 'eva luating whether the [US]ITC applied the wrong 
standard' or whether the Panel calls it 'assessing th e basis of the evidence,' it amounts to the same 
thing, and the question is ultimately whether the [US]ITC's establishment and assessment of the facts 
supported its finding." 157  The United States maintains that the Panel examined that issue and 
correctly concluded that the USITC's establishm ent and assessment of the facts did support its 
conclusion that injury was likely to continue or recu r.  The United States adds that in the light of the 
Panel's approach, Argentina's clai m amounts to a request to re-weigh the evidence befo re the Panel, 
which is beyond the scope of appellate review under Article 17.6 of the DSU. 
(a) Likely Volume of Dumped Imports 
112. The United States submits that, in any event, the Panel did not err in concluding that the 
USITC's findings on volume were based on a proper establishment of the facts and an objective evaluation of those facts.  The United States reject s Argentina's argument that the Panel erred because 
it allegedly applied a standard less than "likely" in  evaluating the evidence.  For the United States, the 
Panel did not act in a manner inconsistent with the "likely" standard of Article 11.3 when it 
recognized that, as a factual matter, shifting production was physically possible and that producers would have every reason to do so if the orders were revoked as a matter of pure business logic.  The 
United States adds that, overall, the evidence strongly supports the USITC's finding that imports of 
OCTG were likely to increase in volume if  the anti-dumping orders were revoked. 
                                                     
 
157United States' appellee's submission, para. 27.  WT/DS268/AB/R 
 Page 37 
 
 
(b) Likely Price Effects of Dumped Imports 
113. As regards the USITC's findings on price, the United States submits that the Panel correctly 
found that the USITC's establishment and evaluation of the facts was proper.  The United States 
underscores that the Panel discussed at length the rele vance of the price comparisons that formed the 
basis for the underselling findings and that it c oncluded that they were  adequate under the 
circumstances, in the light of the diminished impor ts into the market after imposition of the order.  
The United States also points out that the Panel re jected Argentina's argument that the USITC's 
consideration of price as an important factor in purchasing decisions was flawed.  According to the 
United States, the USITC's findings on likely price e ffects were correct;  Argentina's approach to  
them is flawed because Argentina focuses on a few isolated factors, and simply asserts that the 
USITC's findings are WTO-inconsistent.  The United States explains that the USITC made an objective examination of the evidence on the record as it "relied on a number of factors in reaching  
its likely price effects finding, including:  the likel y significant volume of imports;  the high level of 
substitutability between the subject imports and the domestic like product;  the volatile nature of U.S. 
demand; and underselling by the subject imports in  the period examined in the sunset review."
 158 
(c) Likely Impact of Dumped Imports on the United States Industry 
114. With respect to the Panel's findings on the USIT C's determination of the likely adverse impact 
of dumped imports on the domestic industry, the Un ited States maintains that the Panel took the 
evidence of the current state of the industry into account, as did the USITC, but found that it was not 
dispositive of the likely outcome if the order we re revoked.  According to the United States, 
Argentina's claim is not a claim of legal error by the Panel, but rather, it relates to the weighing of 
evidence.  Moreover, Argentina's view that an order must be terminated if the industry has 
experienced improvement during the life of the orde r cannot be reconciled with the plain text of 
Article 11.3 and the concept underpin ning sunset reviews, because it is  expected that the condition of 
the domestic industry will improve under the discipline of  the order.  In the view of the United States, 
Article 11.3 anticipates that a domestic industry might not be injured at the time the sunset review is 
initiated. 
(d) Cumulative Assessment of Dumped Imports 
115. With respect to the USITC's decision to make  a cumulative assessment of the imports, the 
United States argues that "[e]ven if, as Argentin a claims, the Panel failed to discuss the factual 
underpinnings of the [US]ITC's cumulation dete rmination, the DSU does not provide for the 
                                                      
158United States' appellee's submission, para. 67. WT/DS268/AB/R 
Page 38  
 
Appellate Body to make factual findings that the Panel failed to make."
 159  Furthermore, the United 
States submits that Argentina has distorted the ev idence and the record.  In particular, the United 
States points out that, as regards the issue of the likely simultaneous presence of imports from each  
of the subject countries, Argentina omitted any reference to footnote 82 of the USITC Report.160  
According to the United States, this footnote was critical as it explained that the imports from each of the subject countries were simultaneously present in the United States market since 1996. 
116. The United States therefore requests the Appellate  Body to uphold the Panel's finding that the 
USITC's likelihood-of-injury determination—in partic ular, its analysis of cumulation, volume, price 
effects, and impact of dumped imports—is not  inconsistent with Article 11.3 of the  Anti-Dumping 
Agreement . 
5. The Timeframe in a Likelihood-of-Injury Determination
 
117. According to the United States, the Panel co rrectly found that the "reasonably foreseeable 
time" standard of the United States statute is  not inconsistent with Article 11.3 of the  Anti-Dumping 
Agreement .  The United States submits that Article 11.3 does not mention the timeframe on which the 
investigating authorities should base their sunset review determination, nor does Article 11.3 require them to specify the timeframe on which their likelih ood determinations are based.  The United States 
adds that the words "to lead to" in Artic le 11.3 affirmatively indicate that the  Anti-Dumping 
Agreement   contemplates the passage of some period of  time between the revocation of the order and 
the continuation or recurrence of injury.  For the United States, Article 11.3 contemplates that an 
order will have been in place for at least five years,  and that the consequences of revocation of that 
order may not be immediate. 
118. The United States also contends that "Argentina a ttempts to inject the 'imminent' and 'special 
care' terms from Articles 3.7 and 3.8 into an Article 11.3 sunset review."
 161  The United States 
submits that the Panel correctly found that no substantive requirements of Article 3 apply to 
Article 11.3 sunset reviews.  The United States further submits that the Panel's rejection of 
Argentina's claim is based upon a correct textual an alysis of Articles 3.7, 3.8, and 11.3 of the  Anti-
Dumping Agreement , and that the determinations set out in  Articles 3.7 and 11.3 are substantively 
different from one another. 
                                                      
159United States' appellee's submission, para. 180. (footnote omitted) 
160See supra , footnote 10. 
161United States' appellee's submission, para. 126.  WT/DS268/AB/R 
 Page 39 
 
 
119. In the United States' view, Argentina's challenge  to the United States statute is largely based 
on conjecture by Argentina as to how the USITC might apply the statute.  The United States adds that, 
at most, Argentina may have shown that the statute gives the USITC discretion to produce a 
determination that might create a question of WTO-consistency.  For the United States, even if that were so, Argentina has not shown that the statute " mandates "
162 the USITC to look beyond a future 
period of time such that this would be inconsistent with Article 11.3. 
120. The United States views as flawed Argentina's contention that the time period on which the 
investigating authority must focus its likely analysis is as of the time of the expiry of the dumping order.  According to the United States, Arge ntina's position would render meaningless the " would be 
likely to lead to "
 163 language of Article 11.3, because the inv estigating authority would be left with 
only one option:  determining how the lifting of the order will affect the industry at the moment the 
order is lifted.  The United States underscores th at Article 11.3 does not state that investigating 
authorities must determine whether injury would continue or recur upon expiry of the duty.  
According to the United States, Article 11.1 and the last sentence of Article 11.3 do not support 
Argentina's position because these provisions address the timing of removal of the duty in the event of 
a negative determination, not the length of the time period between potential revocation and the 
consequences of such revoca tion for the domestic industry. 
121. The United States rejects Argentina's argument th at the USITC acted in a manner inconsistent 
with Article 11.3 because it did not explicitly state what the outer limits of the "reasonably 
foreseeable time" were for the purpose of the unde rlying sunset review on OCTG from Argentina.  
For the United States, there is nothing in the  Anti-Dumping Agreement   requiring the investigating 
authority to specify the temporal context of its likelihood-of-injury determination. 
122. The United States therefore requests the Appella te Body to uphold the Panel's finding that 
Sections 752(a)(1) and 752(a)(5) of the Tariff Ac t of 1930, as well as their application in the 
underlying sunset review, are not inconsistent with Article 11.3 of the  Anti-Dumping Agreement . 
6. Conditional Appeals  
(a) Challenge to the USDOC "Practice" 
123. The United States submits that the Appellate B ody should decline the conditional appeal of 
Argentina on the claim that the USDOC "practice" is  inconsistent, as such, with Article 11.3 of the  
                                                      
162United States' appellee's submission, para. 138. (original emphasis) 
163Ibid., para. 140 (quoting Anti-Dumping Agreement , Article 11.3). (emphasis added by the United 
States) WT/DS268/AB/R 
Page 40  
 
Anti-Dumping Agreement   for three reasons.  First, the United States argues that Argentina's claim 
was not within the terms of reference of this dis pute.  Secondly, the United States points out that the 
Panel made no findings regarding whether a "pr actice" is a measure subject to WTO dispute 
settlement.  According to the United States, the Appe llate Body would have to complete the analysis 
in this respect.  The United Stat es submits that the Appellate Body could not do so given the lack of 
factual findings by the Panel.  Thirdly, the United States maintains that the USDOC "practice", in the 
form of agency precedents, is not a measure subject  to WTO dispute settlement.  In this respect, the 
United States underlines that it disputes the probativ e value and the relevance of the statistics 
provided in Exhibits ARG-63 and ARG-64.  Accord ing to the United States, these exhibits do not 
demonstrate that the USDOC failed to take addi tional factors into account, nor do they support 
Argentina's argument that the USDOC "practice" no t to consider additional factors exists and is 
WTO-inconsistent. 
(b) Challenge under Article X:3(a) of the GATT 1994 
124. The United States submits that the Appellate B ody also should decline the conditional appeal 
of Argentina on the claim that the USDOC acted in a manner inconsistent with Article X:3(a) of the 
GATT 1994 for three reasons.  First, the United States argues that the claim is not within the terms of 
reference of this dispute.  Secondly, the United Stat es points out that Argentina never specified in the 
panel request or before the Panel which laws, regulations, decision, a nd rulings were administered in a 
manner inconsistent with Article X:3(a).  Accordi ng to the United States, Argentina, by referring 
vaguely in its other appellant's submission to all of the measures mentioned in its panel request, seeks 
to expand, at the appellate stage, the measure alleged to be inconsistent with Article X:3(a).  Thirdly, 
the United States submits that Argentina's claim does not establish a violation of Article X:3(a).  For 
the United States, if the only measure subject to Argentina's claim under Article X:3(a) is the USDOC's sunset determination underlying this dispute,  that claim must fail, because Article X:3(a) 
pertains to the administration of the laws and Ar gentina has offered no evidence that this specific 
determination has had a "significant impact"
 164 on the United States' administration of its sunset 
review laws.  The United States adds that Argentina' s claim under Article X:3(a)  must also fail, even 
if it includes other measures, because Argentina has not attempted to provide evidence that any of the 
affirmative sunset review determ inations, with the exception of the current one, were erroneous or 
reflected bias or lack of reasonableness. 
                                                      
164United States' appellee's submission, para. 197 (quoting Panel Report, US – Corrosion-Resistant 
Steel Sunset Review , para. 7.307).  WT/DS268/AB/R 
 Page 41 
 
 
E. Arguments of the Third Participants 
1. European Communities  
125. The European Communities agrees with the Panel's conclusions regarding the WTO-
consistency of the waiver provisions and of the SPB  and therefore contests the United States' appeal 
as to these issues.  The European Communities also supports the Panel's conclusion that cumulation is 
permitted in the context of sunset reviews.  In the European Communities' view, however, the Panel 
erred in its interpretation of the terms "likely" an d "injury" as found in Artic le 11.3 and, accordingly, 
the Appellate Body should grant Argentina's requ est in its cross-appeal to reverse the Panel's 
interpretation of these terms.   
126. The European Communities disagrees  with the United States' cha llenge to the Panel's findings 
with respect to the waiver provisions.  Relying on the fact that the waiver provisions, as a matter of 
United States law, mandate a company-specific a ffirmative likelihood determination, the European 
Communities claims that, in a situation where ther e is only one exporter in a country subject to a 
dumping order, the waiver provisions "require[] " the USDOC to make an affirmative likelihood 
determination with respect to that c ountry, that is, on an order-wide basis.165  The European 
Communities argues that, contrary to the understandi ng of the United States, the Panel found that,  
in the situation of a sole exporter, th e company-specific determination is " likely to be conclusive " of 
the order-wide determination, not that the company-specific determination  is conclusive .166  T h e  
European Communities submits that this Panel finding is a finding of fact and that the United States 
failed to rebut the evidence underlying this finding.   In the European Communities' view, the United 
States' "bare assertion before the Panel … carries no evidential weight".167 
127. In addition, the European Communities contends  that the United States incorrectly reads the 
Panel's findings to mean that company-specific determinations are  determinative  of order-wide 
determinations, whereas the Panel in fact found merely that the USDOC "consider[s]" country-
specific determinations when arriving at an order-wide determination.168  The European Communities 
again claims that the United Stat es failed to adduce ev idence to rebut the evidence supporting this 
factual finding of the Panel. 
                                                      
165European Communities' third participant's submission, para. 23. 
166Ibid., para. 27 (quoting Panel Report, para. 7.102) . (emphasis added by the European Communities) 
167Ibid., para. 29. 
168Ibid., para. 31 (quoting Panel Report, para. 7.101). WT/DS268/AB/R 
Page 42  
 
128. The European Communities agrees with the United States that the Panel erred in assessing the 
WTO-consistency of the  company-specific  determinations made pursuan t to the waiver provisions.  
The European Communities asserts that Article 11.3 does not require an investigating authority to 
make a company-specific likelihood determinati on.  Therefore, according to the European 
Communities, the Panel "beg[ged] the question"
169 when it examined whether the USDOC'S 
company-specific determinations satisfy the obligat ions of Article 11.3.  The European Communities  
argues that this erroneous approach led the Panel to conclude that company-specific determinations 
are "improperly established"170 by virtue of the waiver provisions.  The European Communities 
therefore requests that this finding of the Pa nel be modified by the Appellate Body.   
129. In the European Communities' view, however, th e Panel's legal error in evaluating the WTO-
consistency of company-specific determinations does not undermine the Panel's conclusion that the 
waiver provisions are inconsistent, as such, with Article 11.3.  The European Communities contends 
that two elements of the Panel's reasoning remain va lid despite the aforementioned analytical error:  
(1) the "lack of a determination"171 at the company-specific stage of the sunset review;  and (2) the 
fact that, at least in the situation where there is only one exporter from a given country, the results of 
the USDOC's analysis at th e company-specific stage are "likely to be conclusive"172 with respect to 
the order-wide stage, "with the result that there will also be no determination in the second stage".173  
As a result, the European Comm unities claims, the order-wide de termination cannot satisfy the 
requirements of Article 11.3. 
130. The European Communities also contests the Unite d States' appeal of th e Panel's conclusion 
that the deemed waiver provision is inconsistent, as such, with Articles 6.1 and 6.2.  With respect to 
Article 6.1, the European Communities claims that it is insufficient for an investigating authority to 
provide  an  opportunity to present evidence;  rather, Article 6.1 requires that "ample" opportunity be 
provided, which the European Communities understands to be an opportunity "more tha[n] sufficient, 
abundant, large in size, extent or amount".174  The European Communities emphasizes that the 
obligation under Article 6.2 to provide interested parties " full opportunity for the defence of their 
interests" applies " throughout  the anti-dumping investigation".175  In the light of this understanding of 
                                                      
169European Communities' third participant's submission, para. 35. 
170Ibid. (quoting Panel Report, para. 7.101). 
171Ibid., para. 36. 
172Ibid. (citing Panel Report, para. 7.102). 
173Ibid., para. 36. 
174Ibid., para. 60 (quoting Collins Dictionary of the English Language , G.A. Wilkes (ed.) (Wm. Collins 
Publishing, 1979), p. 48).  
175Ibid., para. 61 (quoting Anti-Dumping Agreement , Article 6.2). (emphasis added by the European 
Communities)  WT/DS268/AB/R 
 Page 43 
 
 
the obligations in Articles 6.1 and 6.2, the Eur opean Communities sees "no reason for the Appellate 
Body to disturb the Panel's conclusion[s]".176   
131. The European Communities challenges the United St ates' appeal of the Panel's findings that 
the SPB is a "measure" and that it is inconsiste nt with Article 11.3.  The European Communities 
claims that whether a provision placed before a panel constitutes a "measure" is a "legal 
characterization".177  In the European Communities' view, the Panel did not assume the SPB to be a 
measure, but instead, relied on and incorporated the reasoning of the Appellate Body in US – 
Corrosion-Resistant Steel Sunset Review .  The Appellate Body's attempts to complete the analysis 
with respect to the WTO-consistency of the SPB, according to the European Communities, could only 
have been undertaken after the Appella te Body had concluded that the SPB is a measure.  
Furthermore, the European Communities argues that where a municipal provision requires WTO-
inconsistent action, the discretion of the inv estigating authority not to use the provision is 
"irrelevant".178  According to the European Communities,  whatever may be the more difficult 
circumstances of other cases, "[t]his [case] is an uncontroversial, 'black and white', almost 
mathematical example."179 
132. The European Communities also addresses certain as pects of Argentina's cross-appeal.  With 
respect to Argentina's claims relating to the term "l ikely" as it is used in Article 11.3, the European 
Communities submits that the definition of the term " likely" was relevant to the Panel's analysis and 
that the Panel erred in failing to state its understanding of the te rm it was applying when evaluating 
Argentina's claim.  The proper meaning of "likel y" in this regard, according to the European 
Communities, is "probable" and not "possible or plausible".180  The European Communities argues 
that the Panel further erred in failing to distinguish  between the claim that th e investigating authority 
applied the wrong standard and the "qualitatively di fferent" claim that the investigating authority 
erred in determining that the standard had been met.181  Finally, the European Communities claims 
that the Panel erroneously failed to consider as re levant evidence the statements made by the USITC 
in other fora about how it in terpreted the standard in the particular sunset review at issue.  Given these 
errors of the Panel, in the European Communitie s' view, the Appellate Body should "modif[y]" the 
                                                      
176European Communities' third participant's submission, para. 60. 
177Ibid., para. 63. 
178Ibid., para. 69. 
179Ibid. 
180Ibid., para. 73. 
181Ibid., para. 74. WT/DS268/AB/R 
Page 44  
 
Panel's findings accordingly and "complete the anal ysis" by evaluating whether the USITC applied 
the wrong legal standard when conducting its likelihood-of-injury determination.
182 
133. As to the term "injury" used in Article  11.3, the European Communities agrees with 
Argentina's arguments in support of the view that the provisions of Article 3 set forth part of the Agreement-wide definition of "injury".  The Europ ean Communities contends that a determination of 
"past" injury "almost inevitabl[y] ... forms the foundation" for a likelihood-of-injury determination.
183  
According to the European Communities, although a likelihood-of-injury determination is based on 
different facts and evidence from an injury determin ation in original investigations, this difference 
does not alter the applicability of the definition of "injury" throughout the  Anti-Dumping Agreement .  
Therefore, the European Communities argues, the volume, price, and impact analyses set out in 
Article 3 should be adapted to apply to the different  facts relevant in a likelihood-of injury review. 
134. As to cumulation, the European  Communities contends that the Anti-Dumping Agreement  
embodies no requirement for investigating authorities to examine the likelihood of continuation or 
recurrence of injury resulting from dumped imports of a particular exporting country.  Thus, the European Communities agrees with the United States that, contrary to Argentina's appeal, the Panel 
correctly determined cumulation to be perm itted in the context of sunset reviews. 
2. Japan
 
135. Japan supports the Panel's conclusions that th e waiver provisions and Section II.A.3 of the 
SPB are inconsistent, as such, with the United States' obligations under the  Anti-Dumping Agreement .  
Japan claims that the Panel erred, however, in c oncluding that Article 3 does not apply to likelihood-
of-injury determinations under Artic le 11.3.  As a result, Japan s upports Argentina's request for the 
Appellate Body to reverse the Panel's finding on this issue. 
136. Japan submits that the Appellate Body, in  US – Corrosion-Resistant Steel Sunset Review ,  
concluded that the SPB is a measure before continui ng to evaluate the WTO-consistency of the SPB.  
In Japan's view, the Panel, in this case, examined the text of the SPB, and the application of the SPB 
by the USDOC, to substantiate its view that the SPB  is a measure subject to WTO dispute settlement.  
Japan argues that the Panel properly concluded th at the practice of the USDOC reveals that the 
USDOC treats the three scenarios in Section II.A.3 as determinative.  In support of this view, Japan 
relies on the fact that the USDOC arrived at an affirmative likelihood determination whenever the 
facts of a particular case fell under one of the thr ee scenarios.  Japan submits that the "mechanistic 
                                                      
182European Communities' third participant's submission, para. 76. 
183Ibid., para. 78. (European Communities' emphasis omitted)  WT/DS268/AB/R 
 Page 45 
 
 
application" of the SPB, demonstrated by the eviden ce submitted by Argentina, is inconsistent with 
Article 11.3 because it does not permit the USDOC to c onsider the particular facts of individual cases 
and cannot constitute, as such, a "rigorous examination".184   
137. Japan also agrees with the Panel's findings c oncerning the inconsistency of the affirmative 
and deemed waiver provisions with Ar ticles 6.1, 6.2, and 11.3 of the  Anti-Dumping Agreement .  First, 
Japan submits that both waiver provisions mandate  an affirmative likeli hood determination without 
reviewing any positive evidence.  Japan considers "irrelevant"185 the United States' claim that order-
wide determinations are "made independently of"186 company-specific determinations because, in 
Japan's view, the waiver provisions preclude the USDOC from taking into account positive evidence 
as to  either  determination, inconsistent with the requir ements of Article 11.3.  Second, Japan argues 
that, because respondents that file an incomplete submission in response to a notice of initiation are 
precluded from presenting further evidence or participating in a hearing, the deemed waiver provision 
is inconsistent with Articles 6.1, 6.2, and 11.3.    
138. Finally, Japan requests the Appellate Body to reverse the Panel's finding that Article 3 does 
not normally apply to sunset reviews.  Japan agrees with Argentina that the rationale of US – 
Corrosion-Resistant Steel Sunset Review  supports the applicability of Article 3 to sunset reviews 
under Article 11.3.  According to Japan, footnote 9 of the  Anti-Dumping Agreement   provides that, 
throughout the Anti-Dumping Agreement ,  the provisions of Article 3 define the term "injury" and 
that, accordingly, an investigating authority examining the likelihood of continuation or recurrence of 
"injury" under Article 11.3 must conduct its examinat ion in accordance with Article 3.  Japan further 
submits that the reference in Article 11.3 to "continua tion or recurrence" of injury requires an analysis 
of both the  present  state of the domestic industry as well as its  future  state.  Japan argues that the 
term "continuation" requires, in order for injury to  continue, a finding that the domestic industry is 
currently injured, and that the term "recurrence" requir es, in order for injury to recur, a finding that the 
domestic industry is not currently injured.  The an alyses set out in Article 3, in Japan's view, are 
therefore required in likelihood-of-injury determinations. 
3. Korea  
139. Korea requests the Appellate Body to uphold the Panel's findings that Section 751(c)(4)(B) of 
the Tariff Act of 1930 and Section 351.281(d)(2)(iii) of  the USDOC Regulations are inconsistent, as 
                                                      
184Japan's third participant's submission, para. 15 (quoting Appellate Body Report, US – Corrosion-
Resistant Steel Sunset Review , para. 113). 
185Ibid., para. 22. 
186Ibid. (quoting United States' appellant's submission, para. 48). WT/DS268/AB/R 
Page 46  
 
such, with Article 11.3 of the  Anti-Dumping Agreement .  Korea argues that, by virtue of the waiver 
provisions, the USDOC conducts its likelihood determination on a company-specific basis for those 
respondents that waive their right to participate in the sunset review.  As such, in Korea's view, the 
relevant question is whether the company-specific determination made by th e USDOC is consistent 
with Article 11.3.  Korea agrees with the Panel that a company-specific determination resulting from 
the waiver provisions cannot satisfy the requirement  of Article 11.3 because it is not "supported by 
reasoned and adequate conclusions based on the facts".
187  Furthermore, Korea submits that because 
the USDOC's likelihood determination is not made  purely on an order-wide basis but, "at least in 
part" 188, on a company-specific basis, and the latter is not WTO-consistent, the entire USDOC 
likelihood determination is "contaminated".189 
140. Korea also requests the Appellate Body to reve rse the Panel's finding that the USITC applied 
the "likely" standard as required under Article 11.3 of the  Anti-Dumping Agreement .  Korea argues 
that the fact that the USITC nominally applied the "likely" standard, as stated in its determination, 
does not mean that the agency in fact did appl y the correct standard when conducting its likelihood-
of-injury determination.  Indeed, Korea submits, in the light of the USITC's admissions in other fora 
that it did not apply the "likely" standard to mean  "probable", the Panel should have been aware that 
the USITC did not apply the standard required by Article 11.3.  Korea claims that the Panel misunderstood Argentina to be claiming that the USITC erred in determining that the "likely" 
standard was met under the facts of this case and, as a result, considered the USITC's admissions as 
"not relevant".
190  In Korea's view, the failure of the Panel to recognize the significant relevance of 
these admissions and to find accordingly that the US ITC did not apply the pr oper standard in the 
underlying sunset review constituted an error that  should be reversed by the Appellate Body. 
141. Korea claims that the Appellate Body should re verse the Panel's finding that the "reasonably 
foreseeable time" in which the likeli hood of injury should be considered  to continue or recur, set out 
in Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930, is not inconsiste nt with Article 11.3 of 
the  Anti-Dumping Agreement .  Korea submits that, by virtue of footnote 9, the provisions of Article 3 
apply mutatis mutandis  to Article 11.  In particular, Korea argues, as a result of the reference in 
footnote 9 to "threat of material injury", the Pane l should have interpreted Article 11.3 "in conjunction 
with"191 Article 3.7.  Furthermore, Korea contends that the requirement in Article 3.7 for injury to be 
                                                      
187Korea's third participant's submission, para . 16 (quoting Panel Report, para. 7.102). 
188Ibid., para. 14. 
189Ibid., para. 15. 
190Ibid., para. 22 (quoting Panel Report, para. 7.285). 
191Ibid., para. 29.  WT/DS268/AB/R 
 Page 47 
 
 
"clearly foreseen and imminent" sets a "higher threshold"192 than the "reasonably foreseeable time" 
standard provided for in United States law, whic h grants unduly broad discretion to the USITC.  
Korea also proposes a "more objective"193 time period by which an investigating authority should 
consider the continuation or recurrence of injury , namely, the "near future" standard provided in 
footnote 10 of the  Anti-Dumping Agreement .194 
142. Finally, Korea requests the Appellate Body to  find that the Panel erred in finding that 
cumulation is permitted in sunset reviews.  Agreeing w ith Argentina in this regard, Korea refers to the 
fact that Article 11.3 uses the word "duty" and not  "duties" as reflecting the intent of the treaty 
drafters that sunset reviews are to be conducted w ith respect to each particular order, or source of 
imports.  In the light of this specific language in  Article 11.3, Korea argues, the Panel erred in 
considering that the existence of a provision pe rmitting cumulation under certa in conditions during an 
original investigation, reveals no intention to prohib it or limit the use of cumulation in other contexts, 
including sunset reviews.   
4. Mexico  
143. Mexico supports Argentina's request for the Appellate Body to uphold the Panel's findings 
with respect to Article 6.2 of the DSU and to th e WTO-consistency of the waiver provisions and the 
SPB.  Mexico also agrees with Argentina's request  for the Appellate Body to reverse the Panel's 
findings with respect to Argentina's injury -related "as such" and "as applied" claims. 
144. With respect to the waiver provisions, Mexico  agrees with the Panel's findings and with 
Argentina's arguments in support thereof.  As to  the SPB, Mexico submits that the Panel properly 
found that the SPB is a measure subject to challe nge in WTO dispute settlement and that the SPB is 
inconsistent, as such, with Article 11.3.  Mexico ar gues that, contrary to the United States' assertions, 
the Panel did not rely solely on the finding of the Appellate Body in  US – Corrosion-Resistant Steel 
Sunset Review   in order to conclude that the SPB is a "measure".  Instead, acco rding to Mexico, the 
Panel based its conclusion on an evaluation of each of  the United States' arguments, in addition to the 
text of the SPB.  Mexico also contests the United States' reading of the Appellate Body's decision in 
that dispute because, in that decision, the Appellate  Body would not have attempted to complete the 
analysis with respect to the WTO-consistency of the SPB had it not already determined that the SPB 
was a "measure" that could be challenged in the WTO. 
                                                      
192Korea's third participant' s submission, para. 30. 
193Ibid., para. 31. 
194Ibid. WT/DS268/AB/R 
Page 48  
 
145. Mexico agrees with the Panel's finding that S ection II.A.3 of the SPB is perceived by the 
USDOC to be conclusive or determinative.  In Mexico's view, the United States failed to submit any 
evidence that contradicts the mean ing ascribed to the SPB by the Panel on the basis of the Panel's 
analysis of the text and "consistent application" of the SPB.  Mexico additionally submits that the 
"cause and effect" relationship between the SPB and the USDOC's sunset review determinations is 
clear from a "plain reading" of those determinati ons, in which the USDOC "systematically" refers to 
the SPB to justify its conclusions of likelihood.
195   
146. Mexico requests the Appellate Body to reject the United States' claims under Article 6.2 of 
the DSU.  Mexico argues, first, that the United States' challenge to Argentina's "as such" claims 
relating to the "irrefutable presumption" is based on a "misread[ing]" 196 of the panel request.  In 
Mexico's view, Section A.4 of the panel request cannot be read to contain only an "as applied" 
challenge to the USDOC's likelihood-of-dumping  determination because the "as applied" claim 
"would be meaningless"197 without the challenges to the laws on which the determination was based.  
In addition, Mexico claims that the reference to "U S law" in Section A.4 of the panel request does not 
leave open the question as to the specific source of  the "irrefutable presumption" because the last 
sentence of Section A.4 "clearly and expressly" 198 refers to the SPB.    
147. With respect to Section B.3 of the panel request , Mexico claims that nothing in Article 6.2 of 
the DSU precludes a complainant from citing a whole treaty article as the basis for a claim if that 
party believes that the respondent Member has acted  inconsistently with the multiple provisions of 
that Article.  Finally, Mexico points out that th e United States has failed to demonstrate prejudice 
resulting from the alleged lack of clarity in Argen tina's panel request.  As such, according to Mexico, 
the Panel correctly dismissed the United States' object ions raised under Article 6.2 of the DSU.   
148. Mexico disagrees with several of the Panel's conclusions relating to the likelihood-of-injury 
analysis performed by the USITC, in general, as we ll as in this particular case.  Mexico submits that 
the Panel should have taken into account the US ITC's admissions, made in the course of a NAFTA 
proceeding, that the agency had not interpreted "likely" to mean "probable" when conducting the 
underlying likelihood-of-injury determination on OCTG  from various sources.  Mexico contends that, 
because these admissions relate to the same determin ation challenged in this dispute, the Panel erred 
in concluding the admissi ons were "not relevant"199 to the evaluation of the issue before it.  Mexico 
                                                      
195Mexico's third participant's submission, para. 40. 
196Ibid., para. 48. 
197Ibid., para. 45. 
198Ibid., para. 46. 
199Ibid., para. 59 (quoting Panel Report, para. 7.285).  WT/DS268/AB/R 
 Page 49 
 
 
additionally argues that the USITC did not apply th e "likely" standard correctly in the underlying 
sunset review determination when analyzing likel y volume, price effects, and impact of dumped 
imports, and that the USITC's conclusions as to these analyses were not supported by positive 
evidence and a sufficient factual basis. 
149. Mexico also claims that the Panel erred in assessing the relationship between Articles 3  
and 11.3 of the  Anti-Dumping Agreement .  Mexico alleges that the Panel failed to consider, in the 
light of the Agreement-wide definition of "injury"  set out in footnote 9 and Article 3, whether the 
term "injury" in Article 11.3 imposes more particular  obligations on investigating authorities.  Mexico 
also claims that the Panel's re asoning contains "contradictions".200  Mexico bases this claim on the 
Panel's statements that:  (1) Article 3 does not appl y "normally" to sunset reviews;  (2) the provisions 
of paragraphs of Article 3 "do not necessarily apply" in sunset reviews;  and (3) Article 3 applies only 
in the context of a determination of  present  injury and not in  likelihood -of-injury determinations. 
150. According to Mexico, the Panel also erred in fi nding that the temporal focus of the USITC's 
underlying likelihood-of-injury determination and th e temporal standard mandated by United States 
statutes are not inconsistent with Article 11.3.  Me xico also finds erroneous the Panel's finding that, 
under Article 11.3, investigating authorities are permitte d to engage in a cumulative analysis and that 
the  Anti-Dumping Agreement  prescribes no prerequisites for such an analysis. 
151. Finally, Mexico asks the Appellate Body to agr ee to Argentina's request to "suggest" that the 
United States terminate the anti-dumping measures on OCTG.201  Mexico alleges that, because of the 
"exacting nature"202 of the Article 11.3 obligations fo und by the Appellate Body in  US – Corrosion-
Resistant Steel Sunset Review   and  US – Carbon Steel , "to permit a Member to 'cure' a violation of 
Article 11.3 would conflict directly  with [that provision's] intent".203 
III. Issues Raised in this Appeal 
152. The following issues are ra ised in this appeal: 
(a) whether the Panel erred in finding that Argentina's panel request satisfied the 
requirements of Article 6.2 of the DSU, in identifying claims that Sections 751(c) and 
752(c) of the Tariff Act of 1930, the SAA, a nd the SPB are inconsistent, as such, with 
                                                      
200Mexico's third participant's submission, para. 64. 
201Ibid., para. 70. 
202Ibid. (Mexico's emphasis omitted) 
203Ibid., para. 71. WT/DS268/AB/R 
Page 50  
 
Article 11.3 of the  Anti-Dumping Agreement , and, therefore, that such claims fell 
within the Panel's terms of reference;   
(b) as regards the SPB: 
(i) whether the Panel erred in finding that the SPB is a "measure" subject to 
WTO dispute settlement;  and 
(ii) whether the Panel erred in finding that Section II.A.3 of the SPB is 
inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement ; 
(c) as regards the waiver provisions of United States laws and regulations: 
(i) whether the Panel erred in finding that Section 751(c)(4)(B) of the Tariff Act 
of 1930 and Section 351.218(d)(2)(iii ) of the USDOC Regulations are 
inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement ; 
(ii) whether the Panel erred in finding th at Section 351.218(d)(2)(iii) of the 
USDOC Regulations is inconsistent, as  such, with Articles 6.1 and 6.2 of 
the  Anti-Dumping Agreement ;  and 
(iii) whether the Panel failed to satisfy its obligation under Article 11 of the DSU 
to "make an objective assessment of the matter before it, including an 
objective assessment of the facts of the case"; 
(d) whether the Panel erred in its interpretation of the term "injury" in Article 11.3 of 
the  Anti-Dumping Agreement , with respect to the factors to be considered by an 
investigating authority in its likelihood-of-injury determination; 
(e) as regards cumulation of the effects of dumped imports: 
(i) whether the Panel erred in finding that Article 11.3 of the  Anti-Dumping 
Agreement   does not preclude investigating authorities from cumulating the 
effects of likely dumped imports in the course of their likelihood-of-injury 
determinations;  and  
(ii) whether the Panel erred by finding that the conditions of Article 3.3 of the 
 Anti-Dumping Agreement   do not apply in the context of sunset reviews;  WT/DS268/AB/R 
 Page 51 
 
 
(f) whether the Panel erred in its interpretation of  the term "likely" in Article 11.3 of the  
Anti-Dumping Agreement , in the course of its analysis of the USITC's likelihood-of-
injury determination; 
(g) whether the Panel erred in finding that the conclusions of the USITC with respect to 
cumulation, likely volume, likely price effects, and likely impact of dumped imports, did not render the likelihood-of-injury determ ination inconsistent with Article 11.3 of 
the  Anti-Dumping Agreement ;  and 
(h) as regards the timeframe used by the USITC in its likelihood-of-injury determination: 
(i) whether the Panel erred in finding that  the standard of continuation or 
recurrence of injury "within a reasona bly foreseeable time", as provided in 
Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930, is not inconsistent 
with Article 11.3 of the  Anti-Dumping Agreement ;  and 
(ii) whether the Panel erred in finding that th e application of that standard in the 
USITC's likelihood-of-injury determin ation is not inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement . 
153. Argentina also conditionally appeals two issues on which the Panel found that it either did not 
need to rule because it w as an "alternative" claim submitted by Ar gentina, or declined to rule for 
reasons of judicial economy.  Argentina requests us  to address these issues if, based on the arguments 
of the United States, we reverse any of the Panel's conclusions.  The issues are: 
(i) whether the "practice" of the USDOC relating to likelihood-of-dumping 
determinations in sunset reviews is incons istent, as such, with Article  11.3 of the  
Anti-Dumping Agreement ;  and  
(ii) whether the USDOC, in its administrati on of United States anti-dumping laws, 
regulations, decisions, and rulings relating to the conduct of sunset reviews, has acted 
inconsistently with Article X:3(a) of the GATT 1994. 
154. The United States also requests us to rule on the following issues under Article 6.2 of the 
DSU, provided certain conditions are met: 
(i) whether the Panel erred in finding that Argentina's panel request satisfied the 
requirements of Article 6.2 of the DSU, in identifying claims that Sections 752(a)(1) 
and 752(a)(5) of the Tariff Act of 1930 are in consistent, as such, with Articles 3.7 and WT/DS268/AB/R 
Page 52  
 
3.8 of the  Anti-Dumping Agreement , and, therefore, that such claims fell within the 
Panel's terms of reference;   
(ii) whether Argentina's panel request sufficien tly identified "the legal basis of the 
complaint", as required by Article 6.2 of the DSU, with respect to Argentina's claim 
that the "practice" of the USDOC relating to  likelihood-of-dumping determinations in 
sunset reviews is inconsistent, as such, with Article  11.3 of the  Anti-Dumping 
Agreement ;  and 
(iii) whether Argentina's panel request sufficien tly identified "the legal basis of the 
complaint", as required by Article 6.2 of the DSU, with respect to Argentina's claim 
that the USDOC, in its administration of United States anti-dumping laws, regulations, decisions, and rulings relating to the conduct of sunset reviews, has acted 
inconsistently with Article X:3(a) of the GATT 1994. 
IV. The Panel's Terms of Reference 
155. We begin our analysis of the participants' cl aims in this dispute with the United States' 
challenge to the Panel's findings re lating to its terms of reference.   The United States requested the 
Panel to make preliminary rulings dismissing several  claims made by Argentina in its first and second 
written submissions.  The United States argued that th ese claims were not within the Panel's terms of 
reference because Argentina's panel request failed to  "provide a brief summary of the legal basis of 
[these claims] sufficient to present the problem clear ly", as required by Article 6.2 of the DSU.   
156. The Panel denied the United States ' request for preliminary rulings.
204  The Panel found that 
most of the claims contested by the United States were presented in a sufficiently clear manner in 
Argentina's panel request.205  The Panel declined to rule on whether the remaining claims contested by 
the United States were within its terms of refe rence because the Panel deemed such rulings 
unnecessary in the light of the fact that it made  no findings on the merits of those claims.206  I n  
particular, the Panel said that it did not need to  address the merits of Argentina's "alternative" 207 claim 
under Article X:3(a) of the GATT 1994.208  The Panel also exercised judicial economy with respect to 
                                                      
204Panel Report, paras. 7.40 and 7.70. 
205Ibid., paras. 7.22, 7.27, 7.32, 7.39, 7.47, 7.60, and 7.66.  
206Ibid., paras. 7.29, 7.34, 7.36, 7.44, 7.55, 7.63, and 7.69. 
207Ibid., para. 7.169. 
208In paragraph 7.169 of the Panel Report, the Pane l decided not to "address Argentina's alternative 
claim under Article X:3(a) of the GATT 1994" because the Panel had found th at Section II.A.3 of the SPB is 
inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement .  WT/DS268/AB/R 
 Page 53 
 
 
Argentina's challenge under Article 11.3 of the  Anti-Dumping Agreement  to the USDOC 
"practice".209   
157. On appeal, the United States argues, first, that the Panel erred in concluding that Argentina's 
"as such" claims regarding what Argen tina termed the "irrefutable presumption"210 were within the 
Panel's terms of reference.  In  this regard, the United States specifically challenges the Panel's 
findings that Argentina's claims against Sections  751(c) and 752(c) of the Tariff Act of 1930, the 
SAA, and the SPB, as set out in Argentina's panel re quest, satisfy the requirements of Article 6.2 of 
the DSU.  In addition, should we decide to a ddress Argentina's claim under Article 11.3 of the  
Anti-Dumping Agreement  regarding the USDOC "practice", or Argentina's claim under Article X:3(a) 
of the GATT 1994, the United States requests us to address its objection that these claims also are not 
within the Panel's terms of reference.211  Finally, should Argentina appeal the Panel's findings that 
Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930 are not inconsistent, as such or as applied, 
with Articles 3.7 and 3.8 of the  Anti-Dumping Agreement , the United States requests us to reverse the 
Panel's finding that Section B.3 of Argentina's pa nel request clearly sets out a claim under these 
provisions.212  
158. We examine first the United States' challenge to  Argentina's "as such" claims relating to the 
alleged "irrefutable presumption".  The Panel focused its analysis on Section A.4 of the panel request, 
which reads: 
The [USDOC's] Sunset Determinati on is inconsistent with Article 
11.3 of the Anti-Dumping Agreement, and Article X:3(a) of the GATT 1994 because it was based on a virtually irrefutable presumption under US law as such that termination of the anti-dumping duty measure would be like ly to lead to continuation or 
recurrence of dumping.  This unlawful presumption is evidenced by 
the consistent practice of the [USDOC] in sunset reviews (which practice is based on US law and the [USDOC's] Sunset Policy Bulletin).   
The Panel observed that Section A.4 "takes issue with  US law's provisions relating to the likelihood of 
continuation or recurrence of dumping".
213  The Panel also noted the explicit reference in Section A.4 
to the SPB and to the USDOC "practice" in sunset  reviews.  The Panel concluded that Section A.4 
                                                      
209In paragraph 7.168 of the Panel Report, the Panel stat ed that it did not consider it "necessary to rule 
on Argentina's claim" that the USDOC "practice" is inconsistent with Article 11.3 of the  Anti-Dumping 
Agreement  because the Panel had found that Section II.A.3 of the SPB is inconsistent, as such, with Article 11.3. 
210Argentina's panel request, Section A.4. 
211United States' appellant's submission, footnote 104 to para. 100. 
212Ibid., para. 101. 
213Panel Report, para. 7.27. WT/DS268/AB/R 
Page 54  
 
informed the United States that Argentina would be  making a claim that certain provisions of United 
States law, relating to determinations on the likeli hood of continuation or recurrence of dumping, are 
inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement  because of an "irrefutable 
presumption" contained in those provisions. 
159. The United States contends that Argentina's claims relating to the alleged "irrefutable 
presumption" are limited to a challenge to th e specific USDOC sunset review determination 
underlying this dispute, and not to pr ovisions of United States law "as such".
214  Furthermore, 
nowhere in the panel request does Argentina iden tify which legal measure or provision—United 
States statute, the SAA, or the SPB—e mbodies this "irrefutable presumption".215  To the extent that 
Section A.4 of the panel request mentions United States law or the SPB, the United States argues, it 
does so merely as  evidence  to support the "as applied" challenge to the USDOC's determination in 
the underlying sunset review.216  Argentina contends that "page four"217 of the panel request serves to 
clarify the claims set out in Sections A and B of th e panel request.  For Argentina, when read in the 
light of such clarification, Section A.4 sufficien tly identifies an "as such" challenge to certain 
provisions of United States law that are identified more  specifically on "page four".  In the view of the 
United States, "page four" of the panel request ca nnot sufficiently clarify Argentina's purported "as 
such" claim because the discussion on "page four" is clearly indicated to be a  supplement  to  the 
previous claims, not a  clarification  thereof. 218  Therefore, the United States argues, it was not made 
aware of the case it had to answer concerning Ar gentina's "as such" claims about the alleged 
"irrefutable presumption". 
160. A panel's terms of reference are governed by th e claims set out in the complaining party's 
panel request.219  Article 6.2 of the DSU provides that a panel request: 
... 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. 
As the Appellate Body observed in  US – Carbon Steel , under Article 6.2, a panel request must meet 
"two distinct requirements, namely identification of  the specific measures at issue , and the provision 
                                                     
 
214United States' appellant's submission, paras. 92 and 95. 
215Ibid., para. 92. 
216Ibid., para. 93. 
217"Page four" is how the parties and the Panel referre d to the section of the panel request following 
Section B.4, from the paragraph beginning "Argentina also considers ..." through the bullet point referring to Article XVI:4 of the WTO Agreement . (See Panel Report, footnote 13 to heading VII.B.1.(a)). 
218United States' appellant's submission, para. 94. 
219DSU, Article 7.1.  WT/DS268/AB/R 
 Page 55 
 
 
of a  brief summary of the legal basis of the complaint (or the  claims )".220  The United States claims 
that Argentina's panel request "failed to provide a br ief summary of the legal basis of [the complaint] 
sufficient to present the problem clearly".221 
161. The Appellate Body has explained previously the due process objectives behind the 
requirement for sufficient clarity in a panel request: 
Article 6.2 of the DSU calls for sufficient clarity with respect to the 
legal basis of the complaint, that is, with respect to the "claims" that 
are being asserted by the complaining party .  A defending party is 
entitled to know what case it has to an swer, and what violations have 
been alleged so that it can begin preparing its defence.  Likewise, 
those Members of the WTO who intend to participate as third  
parties in panel proceedings must be informed of the legal basis of the complaint.  This requirement of due process is fundamental  to ensuring a fair and orderly conduct of dispute settlement proceedings.
222 (emphasis added;  footnotes omitted) 
162. In  Korea – Dairy , the Appellate Body explained the dis tinction between the "legal basis of 
the complaint"—that is, the "claims" being asserted—and the arguments put forth by that party in support of its claims:   
By " claim " we mean a claim that the respondent party has violated, 
or nullified or impaired the bene fits arising from, an identified 
provision of a particular agreement.  Such a  claim of violation  must, 
as we have already noted, be distinguished from the  arguments  
adduced by a complaining party to demonstrate that the responding 
party's measure does indeed infringe upon the identified treaty provision.
223 (original emphasis;  footnote omitted) 
It follows, therefore, that, in order for a panel requ est to "present the problem clearly", it must plainly 
connect the challenged measure(s) with the provision (s) of the covered agreem ents claimed to have 
been infringed, so that the respondent party is aw are of the basis for the alleged nullification or 
impairment of the complaining party's benefits.  On ly by such connection between the measure(s) and 
the relevant provision(s) can a respondent "know what  case it has to answer, and ... begin preparing its 
defence" .224 
                                                      
220Appellate Body Report, US – Carbon Steel , para. 125. (original emphasis) 
221Panel Report, footnote 12 to para. 7.7 (citing Unite d States' response to Question 21 posed by the 
Panel at the Second Panel Meeting (Panel Report, Annex E, p. E-103, para. 37)). 
222Appellate Body Report, Thailand – H-Beams , para. 88. 
223Appellate Body Report, Korea – Dairy , para. 139.  
224Appellate Body Report, Thailand – H-Beams , para. 88. WT/DS268/AB/R 
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163. The Appellate Body stated in  US – Carbon Steel  that "compliance with the requirements of 
Article 6.2 must be demonstrated on the face of  the request for the establishment of a panel".
225   
164. In the light of the above, we look to Argentin a's panel request to determine whether, on the 
basis of the language used to make Argentina's cl aims therein, the United States should have known 
that it was to prepare a defence ag ainst an "as such" challenge to United States statutes, the SAA, and 
the SPB, which measures are claimed to contain an "irrefutable presumption" inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement .   
165. The resolution of this issue hinges on the inte rpretation of Section A.4, which is the only 
paragraph in the panel request that specifically mentions an "irrefutable presumption".  The opening 
phrase of this paragraph indicates an "as applied" challenge, on the basis of Article 11.3, to the 
USDOC's likelihood-of-dumping determ ination on OCTG from Argentina.  Argentina then refers to 
an "irrefutable presumption" as the basis for this challenge, and states that the presumption is "under 
US law  as such ". (emphasis added)  We note, first, that  the term "as such" is well understood in WTO 
dispute settlement parlance.  As the Appellate Body observed in  US – 1916 Act , a long line of cases 
under the GATT "firmly established" 226 the principle that complaining parties were permitted to 
challenge measures "as such"—by which it was unde rstood that the challenged measures operate in 
general, without regard to their application in a sp ecific instance, or at times even without regard to 
whether the measures were yet in effect.227  This understanding continues in the WTO.228  There can 
thus be little doubt that Argentina's reference to "U S law as such" incorporated a challenge to certain 
provisions of United States law, as such , in addition to a challenge to the USDOC's likelihood-of-
dumping determination  as applied  in the sunset review at issue.  
166. Secondly, the logic of Section A.4 also suggests an "as such" challenge to certain provisions 
of United States law, in addition to an "as app lied" challenge.  Argentina's allegation of WTO-
inconsistency is founded on what it refers to as an "irrefutable presumption".  This presumption is not 
presented as flowing from the sunset review determina tion at issue;  rather, it is presented as deriving 
from the "US law" applied by the USDOC in making th at determination.  Therefore, to establish the 
WTO-inconsistency of the USDOC's likelihood-of-d umping determination, Argentina could proceed 
                                                      
225Appellate Body Report, US – Carbon Steel , para. 127. 
226Appellate Body Report, US – 1916 Act , para. 60. 
227See, for example, GATT Panel Report, US – Wine and Grape Products , para. 4.1;  GATT Panel 
Report, US – Superfund , paras. 5.2.9-5.2.10;  GATT Panel Report, US – Section 337 , para. 5.1;  and GATT 
Panel Report, US – Tobacco , para. 118. 
228See, for example, Appellate Body Report, US – Softwood Lumber V , para. 63;  Appellate Body 
Report, US – Corrosion-Resistant Steel Sunset Review , para. 82;  Appellate Body Report, US – Countervailing 
Measures on Certain EC Products , paras. 146-147 and 150;  Appellate Body Report, US – Lamb , para. 173;  
and Appellate Body Report, US – 1916 Act , paras. 60-61.  WT/DS268/AB/R 
 Page 57 
 
 
by establishing the WTO-inconsistency of the "irrefu table presumption" itself, that is, of the United 
States legal provision(s) embodying that presumption.  In doing so, Argentina would establish, as a 
consequence, that the ensuing sunset review determin ation is also inconsistent with the United States' 
WTO obligations.  Given the wording and logic of Section A.4, it is difficult for us to see how the United States could not have been aware of the "as such" claim.   
167. The United States emphasizes that the term "Deter mination" in the heading of Section A of 
the panel request, under which Section A.4 falls, ma kes it clear that the claims in Section A are 
limited to "as applied" challenges.  We are unable to  agree.  Although the heading of Section A refers 
to "as applied" claims, it is clear on reading the fi rst two sentences of Section A.1 that an "as such" 
claim is also being advanced.  Indeed, the United States appears to have acknowledged before the 
Panel that an "as such" claim is evident in Section A.1, albeit it addresses other provisions of United 
States law.
229  Having acknowledged that Section A.1 cont ains a number of "as such" claims, the 
United States must have been aware that the term "Determination" in the heading of Section A could 
not be read to limit Argentina's claims in Section A. 4 to "as applied" claims.  We are therefore of the 
view that Section A.4 should have placed the Un ited States on notice that Argentina was alleging 
certain provisions of United States law to be incons istent, as such, with Article 11.3, because of an 
"irrefutable presumption" found in those provisions.   
168. We now turn to the question whether Argentin a's panel request clearly identifies where in 
"US law" Argentina finds an "irrefutable presumption" .  The United States argues that the reference in 
Section A.4 to "US law" is overly broad because it fails to specify the provisions of United States law 
that contain the alleged presumption.  We agree that such a broad reference to "US law" would not, in 
and of itself, "present the problem clearly" in or der for a respondent party to be able to begin 
preparing its defence.  However, we note that Se ction A.4 of Argentina's pa nel request does not refer 
                                                      
229In response to one of the Panel's questions, the United States stated: 
The claims identified in Sections A an d B of the Panel Request are limited 
to: 
As such claims:  
- 19 USC. 1675(c)(4), in violation of Articles 11.1, 11.3, 11.4, 2.1, 2.2, 
2.4, 6.1, 6.2, 6.6, 6.8, .69, 6.10, 12.2, 12.3, and Annex II of the Anti-Dumping Agreement;
12 
- 19 C.F.R. 351.218(e), in violation of Articles 11.1, 11.3, 11.4, 2.1, 2.2, 2.4, 6.1, 6.2, 6.6, 6.8, 6.9, 6.10, 12.2, 12.3, and Annex II of the Anti-
Dumping Agreement;
13 
 12  Section A.1. 
 13  Section A.1. 
(United States' response to Question 22 posed by th e Panel at the Second Panel Meeting (Panel Report, 
Annex E, p. E-103, para. 38 and footnotes 12 and 13 thereto))  The United States cited Section A.1 of the Panel 
Request as the basis for these two "as such" claims.   WT/DS268/AB/R 
Page 58  
 
to "US law" in isolation.
230  Section A.4 explicitly mentions the "[USDOC's] Sunset Policy Bulletin" 
in addition to referring to "US law as such".  More over, Section A.4 makes it clear that the "US law" 
under challenge is the United States law that rela tes to the issue whether "termination of the 
anti-dumping duty measure would be likely to lead to  continuation or recurrence of dumping".  Based 
on this language, the challenge to "US law as such" could not be understood to refer to any provisions 
of United States law other than those governing the substantive determination of the USDOC as to the 
likelihood of continuation or recurrence of dumping.  
169. Recalling the Appellate Body's observation that  panel requests must be read "as a whole" 231, 
we note that "page four" of Argentina's panel requ est specifically identifies the "US laws, regulations, 
policies, and procedures" that Argentina claims "are  inconsistent with US WTO obligations".  These 
provisions are the following:  Sections 751(c) and 7 52 of the Tariff Act of 1930;  the SAA;  the SPB;  
and Section 351.218 of the USDOC Re gulations.  Not all of these provisions, however, relate to the 
standards used by the USDOC when examining whether "termination of the anti-dumping duty 
measure would be likely to lead to continuation or recurrence of dumping".232  Of the provisions 
identified by Argentina on "page four" of the panel request, Section 351.218 of the USDOC 
Regulations clearly addresses the  procedural —rather than the  substantive —aspects of USDOC 
sunset reviews, for example, setting out the contents  and deadlines for interested parties' submissions.  
Therefore, the United States should have been aware that Section 351.218 of the USDOC Regulations was not the subject of Argentina's challenge to an alleged "irrefutable presumption" in "US law". 
170. As for the remaining provisions identified by Argentina on "page four" of its panel request, 
the United States contests that Sections 751(c) and 752(c) of the Tariff Act of 1930, the SAA, and the SPB are within the panel's terms of reference.  Howe ver, a review of these provisions reveals that they 
form the basis of Argentina's challenge with respect  to the alleged "irrefutable presumption".  Section 
751(c) of the Tariff Act of 1930 sets forth the gene ral obligation for the USDOC "to determine, in 
accordance with [Section 752], whether revocation of the … antidumping duty order … would be 
                                                     
 
230Argentina's panel request contrasts with the complain ing party's panel request that was considered by 
the Appellate Body in  India – Patents (US) : 
With respect to Article 63 [of the TRIPS Agreement ], the convenient phrase 
[in the panel request], "including but not necessarily limited to", is simply 
not adequate to "identify the specific measures at issue and provide a brief 
summary of the legal basis of the complaint sufficient to present the 
problem clearly" as required by Article  6.2 of the DSU.  If this phrase 
incorporates Article 63, what Article of the TRIPS Agreement  does it not 
incorporate?  Therefore, this phrase is  not sufficient to bring a claim relating 
to Article 63 within the term s of reference of the Panel. 
(Appellate Body Report, India – Patents (US) , para. 90) 
231Appellate Body Report, US – Carbon Steel , para. 127. 
232Section A.4 of Argentina's panel request.  WT/DS268/AB/R 
 Page 59 
 
 
likely to lead to continuation or recurrence of dum ping".  Section 752 provides more detailed rules for 
the determinations required to be made in sunset re views, and paragraph (c) of this Section is entitled 
"Determination of likelihood of continuation or r ecurrence of dumping".  The SAA contains a section 
entitled "Likelihood of Dumping", which explains th e basis for Section 752(c) of the Tariff Act  
of 1930.  Finally, the SPB is explicitly mentione d in Section A.4 of Argentina's panel request.  
Section II.A of the SPB is entitled "Determination of Likelihood of Continuation or Recurrence of 
Dumping".  Section II.A.3 of the SPB provides that the USDOC "normally will determine that 
revocation of an antidumping order or termination of  a suspended dumping investigation is likely to 
lead to continuation or recurrence of dumping" wher e one of the three stated scenarios applies.   
171. These provisions thus set out the standards empl oyed by the USDOC in the course of making 
likelihood-of-dumping determinations.  As a resu lt, the United States could reasonably have been 
expected to understand that these provisions were th e focus of Argentina's ch allenge with respect to 
the alleged "irrefutable presumption".  Given the fact that Section A.4 alleges that an "irrefutable presumption" is found in United States law, as detailed above, and that this presumption is 
inconsistent with Article 11.3, we are of the view  that Argentina's panel request, read as a whole, 
states the legal basis for the alleged WTO-inconsiste ncy and adequately links the challenged measures 
to the WTO provision claimed to have been infringed.  
172. Although we do not disagree with the Panel's co nclusion in this regard, we nevertheless 
recognize that Argentina's panel request could have been drafted with greater precision and clarity.  In 
our view, "as such" challenges against a Member's  measures in WTO dispute settlement proceedings 
are serious challenges.  By definition, an "as such" claim challenges laws, regulations, or other 
instruments of a Member that have general and prospective application, asserting that a Member's 
conduct—not only in a particular instance that has occurred, but in future situations as well—will 
necessarily be inconsistent with that Member's WTO obligations.  In essence, complaining parties 
bringing "as such" challeng es seek to prevent Members  ex ante  from engaging in certain conduct.  
The implications of such challe nges are obviously more far-reaching than "as applied" claims.   
173. We also expect that measures subject to  "as such" challenges would normally have 
undergone, under municipal law, thorough scrutiny through various deliberative processes to ensure 
consistency with the Member's international obl igations, including those found in the covered 
agreements, and that the enactment of such a measu re would implicitly reflect the conclusion of that 
Member that the measure is not inconsistent w ith those obligations.  The presumption that WTO 
Members act in good faith in the implementation of th eir WTO commitments is particularly apt in the 
context of measures challenged "as such".  We w ould therefore urge complaining parties to be  
especially diligent   in setting out "as such" claims in thei r panel requests as clearly as possible.  In WT/DS268/AB/R 
Page 60  
 
particular, we would expect that "as such" cl aims state unambiguously the specific measures of 
municipal law challenged by the complaining party and the legal basis for the allegation that those 
measures are not consistent with particular provi sions of the covered agreements.  Through such 
straightforward presentations of "as such" claims, panel requests should leave respondent parties in 
little doubt that, notwithstanding their own consid ered views on the WTO-consistency of their 
measures, another Member intends to challenge t hose measures, as such, in WTO dispute settlement 
proceedings. 
174. We turn now to the Article 6.2 challenges th at the United States requests us to address 
provided that certain conditions obtain.  The United States asks us to find that Argentina's claim under 
Article 11.3 of the  Anti-Dumping Agreement  relating to the USDOC "practice", and the claim under 
Article X:3(a) of the GATT 1994 relating to the USDOC 's administration of the sunset review legal 
regime, are not within the Panel's terms of refe rence.  These requests of the United States are 
premised on our deciding to address the merits of these claims, which Argentina has conditionally cross-appealed.  We discuss these claims, including the United States' Article 6.2 challenges thereto, 
following our examination of the SPB below.
233   
175. With respect to the United States' allegation th at Section B.3 of Argentina's panel request 
does not set out "as such" or "as applied" claims under Articles 3.7 and 3.8 of the  Anti-Dumping 
Agreement , the United States requests a ruling only if Argentina were to appeal the Panel's findings 
that the United States did not act inconsistently with these provisions.234  Argentina has not cross-
appealed those findings.235  We therefore do not need to make a finding on this aspect of the United 
States' claim under Article 6.2 of the DSU. 
176. In the light of the above, we  uphold  the Panel's finding, in paragraph 7.27 of the Panel 
Report, that Section A.4 of Argentina's panel requ est, in accordance with Article 6.2 of the DSU, sets 
out with sufficient clarity Argentin a's claims that Sections 751(c) and 752(c) of the Tariff Act of 
1930, the SAA, and the SPB, are inconsistent, as such, with Article 11.3 of the  Anti-Dumping 
Agreement , by virtue of the alleged "irrefutable presump tion" contained in those provisions.  We also  
do not find it necessary  to make a finding on the United States' contingent challenge under Article 6.2 
of the DSU, with respect to  Argentina's claims under Articles 3.7 and 3.8 of the  Anti-Dumping 
Agreement , because Argentina does not appeal th e Panel's findings on those claims. 
 
                                                      
233Infra , paras. 216-221. 
234United States' appellant's submission, para. 101;  United States' response to questioning at the oral 
hearing. 
235Argentina's response to questi oning at the oral hearing.  WT/DS268/AB/R 
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V. The Sunset Policy Bulletin 
177. We now move to the issues concerning the SPB.  We consider it useful to recall briefly, at the 
outset, the requirements relating to reviews conducted pursuant to Article 11.3 of the  Anti-Dumping 
Agreement , generally referred to as "sunset reviews".  Article 11.3 provides, in relevant part: 
[A]ny definitive anti-dumping duty sh all be terminated on a date not 
later than five years from its imposition … unless  the authorities 
determine, in a review initiated before that date on their own 
initiative or upon a duly substantiated request made by or on behalf 
of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumpi ng and injury. (emphasis added; 
footnote omitted) 
178. Thus, the continuation of an anti-dumping duty, which is an "exception"
236 to the otherwise-
mandated expiry of the duty after five years, is su bject to certain conditions set out in Article 11.3.  
These conditions were identified by the Appellate Body as follows:   
[F]irst, that a review be initiated be fore the expiry of five years from 
the date of the imposition of the duty;  second, that in the review the authorities determine that the expiry of the duty would be likely to 
lead to continuation or recurrence of  dumping ;  and third, that in the 
review the authorities determine that the expiry of the duty would be likely to lead to continuation or recurrence of  injury .
237 (original 
emphasis) 
If any one of these conditions is not sa tisfied, the duty must be terminated. 
179. In  US – Corrosion-Resistant Steel Sunset Review , the Appellate Body emphasized the 
importance of the terms "determine" and "review" in Article 11.3, stating: 
The words "review" and "determine " in Article 11.3 suggest that 
authorities conducting a sunset review must act with an appropriate degree of diligence and arrive at a  reasoned conclusion  on the basis 
of information gathered as part of a process of  reconsideration and 
examination .
238 (emphasis added) 
                                                      
236Appellate Body Report, US – Carbon Steel , para. 88. 
237Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 104.  
238Ibid., para. 111. WT/DS268/AB/R 
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The Appellate Body also endorsed th at panel's description of the oblig ation contained in Article 11.3, 
which description the Appellate Body found "c losely resemble[d]" its own understanding: 
The requirement to make a "determination" concerning likelihood 
therefore precludes an investigating authority from simply assuming 
that likelihood exists.  In order to continue the imposition of the 
measure after the expiry of the five -year application period, it is clear 
that the investigating authority has to determine, on the basis of  positive evidence , that termination of the duty is likely to lead to 
continuation or recurrence of dumpi ng and injury.  An investigating 
authority must have a  sufficient factual basis  to allow it to draw 
reasoned and adequate conclusions  concerning the likelihood of 
such continuation or recurrence.
239 (emphasis added;  original 
footnotes omitted) 
180. The plain meaning of the terms "review" and "determine" in Article 11.3, therefore, compel 
an investigating authority in a sunset review to undertake an examination, on the basis of positive 
evidence, of the likelihood of continuation or recurrence of dumping and injury.  In drawing 
conclusions from that examination, the investigati ng authority must arrive at a reasoned determination 
resting on a sufficient factual basis;  it may not rely on assumptions or conjecture. 
181. Having confirmed our understanding of Article 11.3,  we turn to the United States' claims on 
appeal challenging the Panel's findings with respect to  the SPB.  First, we address the issue of whether 
the SPB is a "measure" subject to WTO dispute se ttlement.  Secondly, we analyze whether Section 
II.A.3 of the SPB is consistent with Article 11.3 of the  Anti-Dumping Agreement . 
A. The Sunset Policy Bulletin as a "Measure" 
182. The Panel considered the SPB to be a measure th at can be subject to WTO dispute settlement.  
The Panel relied on the Appellate Body Report in  US – Corrosion-Resistant Steel Sunset Review , 
which "stated that any legal instrument under a WT O Member's law could also be challenged as a 
measure before a WTO panel".240  The Panel observed that the Appellate Body "was addressing 
precisely the issue of the SPB"241, and concluded that "there can be  no doubt that the Appellate Body 
considers the SPB to be a measure that can be subject to WTO dispute settlement".242 
                                                      
239Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 114 (quoting Panel 
Report, US – Corrosion-Resistant Steel Sunset Review, para. 7.271). 
240Panel Report, para. 7.136. 
241Ibid. 
242Ibid.   WT/DS268/AB/R 
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183. The United States challenges this finding of the Pa nel, arguing that the Panel erred in relying 
on the Appellate Body Report in  US – Corrosion-Resistant Steel Sunset Review  because the 
Appellate Body did not conclude, in that Report, th at the SPB is a measure.  The United States argues 
that: 
[In  US – Corrosion-Resistant Steel Sunset Review , the] Appellate 
Body reversed the panel's finding that the SPB was not a measure 
because the panel's analysis was insu fficient.  However, in doing so, 
the Appellate Body did not go on to "complete the analysis," thus 
leaving the question of whether the SPB is a measure open.243 
(original emphasis;  footnote omitted) 
184. The United States underscores that the SPB is not a legal instrument under United States 
law 244, but "simply a transparency tool to pr ovide the private sector with guidance".245  The United 
States adds that the SPB does not set forth rules or norms that are intended to have general and 
prospective application;  it does not bind the US DOC and the USDOC "is entirely free to depart from 
[the] SPB at any time".246  Therefore, according to the United St ates, the SPB should not be viewed as 
a measure subject to WTO dispute settlement.247 
185. In addition, the United States submits that the Panel erred in concluding that the SPB is a 
measure because such a conclusion does not result from "an objective assessment" consistent with 
Article 11 of the DSU.  The United States argues th at the Panel contravened Article 11 of the DSU 
because it did not explain why the findings of the Appellate Body in US – Corrosion-Resistant Steel 
Sunset Review , as to whether the SPB is a measure, "would be  persuasive given the factual record in 
this dispute".248  The United States further contends that the Panel failed to consider the United States' 
explanations that "the SPB has no functional life of its own and has no independent legal status" 249, 
and that "the Panel lacked the factual informa tion necessary to ... conclude that the SPB is a 
measure".250   
                                                      
243United States' appellant's submission, para. 10. 
244Ibid., paras. 11 and 13. 
245Ibid., para. 11. 
246Ibid., para. 13. 
247Ibid. 
248Ibid., para. 8.  See also, ibid., para. 9. 
249Ibid., para. 11. (footnote omitted) 
250Ibid., para. 12. WT/DS268/AB/R 
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186. We turn first to the United States' understa nding of the Appellate Body's finding in  US – 
Corrosion-Resistant Steel Sunset Review .  We disagree with the United States' assertion  that, in  that 
case, the Appellate Body left open the question whether the SPB is a measure.
251  It is clear that by 
reversing the panel's finding that "the Sunset Policy Bulletin is not a measure that is challengeable, as 
such, under the  WTO Agreement " 252, the Appellate Body concluded that the SPB is a measure subject 
to WTO dispute settlement.  A review of the Appe llate Body's reasoning in that case confirms this 
view.  It will be recalled that the Appellate Body co mpleted the analysis with respect to Japan's claim 
that Section II.A.2 of the SPB was inconsistent , as such, with Articles 6.10 and 11.3 of the  Anti-
Dumping Agreement .253  The Appellate Body would not have done so had it not regarded the SPB to 
be a measure subject to WTO dispute settlement.  We  also observe that the Appellate Body declined 
to complete the analysis as regards Japan's claim that Sections II.A.3 and II.A.4 of the SPB were 
inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement .  However, the Appellate 
Body did so only "in view of the lack of relevant  factual findings by the Panel or uncontested facts on 
the Panel record".254  This suggests that the Appellate Body  treated the SPB as a measure subject to 
WTO dispute settlement.  In our view, therefore, the Panel was correct in its understanding of the 
Appellate Body's finding with respect to the SPB and was correct to rely on that finding in coming to 
the same conclusion in this case, without having to re-examine the very same question all over again.   
187. We note the argument of the United States that the SPB is not a legal instrument under United 
States law.  This argument, however, is not releva nt to the question before  us.  The issue is not 
whether the SPB is a legal instrument within the domestic legal system of the United States, but 
rather, whether the SPB is a measure that may be  challenged within the WTO system.  The United 
States has explained that, within the domestic legal system of the United States, the SPB does not bind 
the USDOC and that the USDOC "is entirely free to depart from [the] SPB at any time".255  However, 
it is not for us to opine on matters of United Stat es domestic law.  Our mandate is confined to 
clarifying the provisions of the  WTO Agreement   and to determining whether the challenged 
measures are consistent with those provisions.  As noted by the United States 256, in  US – Corrosion-
Resistant Steel Sunset Review , the Appellate Body indicated that "acts setting forth rules or norms that 
                                                      
251United States' appellant's submission, para. 10. 
252Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 100 (referring to Panel 
Report, US – Corrosion-Resistant Steel Sunset Review , para. 7.195).  See also, ibid., para. 212(a). 
253Ibid., paras. 147-157.  The Appellate Body rejected Japan's claim. 
254Ibid., para. 190. 
255United States' appellant's submission, para. 13. 
256Ibid.  WT/DS268/AB/R 
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are intended to have general and prospective app lication" are measures subject to WTO dispute 
settlement.257  We disagree with the United States' app lication of these criteria to the SPB.  In our 
view, the SPB has normative value, as it provides administrative guidance and creates expectations 
among the public and among private actors.258  It is intended to have general application, as it is to 
apply to all the sunset reviews conducted in the United States.  It is also intended to have prospective 
application, as it is intended to apply to sunset  reviews taking place after its issuance.  Thus, we 
confirm—once again—that the SPB, as such, is subject to WTO dispute settlement.   
188. Regarding the arguments presented by the United States relating to Article 11 of the DSU, we 
disagree with the United States that the Panel did not  assess objectively whether the SPB is a measure.  
In our view, such an assessment is a legal charact erization and not just a factual one, and the Panel 
correctly conducted its analysis.  The Panel refe rred first to the SPB, wh ich formed the factual 
information needed to conduct the exercise of legal characterization.  The Panel had before it exactly 
the same instrument that had been ex amined by the Appellate Body in  US – Corrosion-Resistant 
Steel Sunset Review ;  thus, it was appropriate for the Panel,  in determining whether the SPB is a 
measure, to rely on the Appellate Body's conclu sion in that case.  Indeed, following the Appellate 
Body's conclusions in earlier disputes is not only appropriate, but is what would be expected from 
panels, especially where the issues are the same.  Although the Panel may have expressed itself in a 
concise manner, we find no fault in its analysis that could justify ruling that the Panel failed to 
observe its obligations under Article 11 of the DSU. 
189. Accordingly, we  uphold  the Panel's finding, in paragraph 7.136 of the Panel Report, that the 
SPB is a "measure" subject to WTO dispute settlement. 
                                                      
257Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 82. (footnote omitted) 
258We note, in this regard, the introductory statement of the SPB: 
This policy bulletin proposes guidance regarding the conduct of sunset 
reviews.  As described below, the proposed policies are intended to 
complement the applicable statutory and regulatory provisions by providing 
guidance on methodological or analytical issues not explicitly addressed by the statute and regulations. 
(SPB, p. 18871)  This statement was also referenced by the Appellate Body in US – Corrosion-Resistant Sunset 
Review , at paragraph 74. WT/DS268/AB/R 
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B. Consistency of Section II.A.3 of the Sunset  Policy Bulletin with Article 11.3 of the 
Anti-Dumping Agreement 
190. The United States claims that the Panel erred in finding Section II.A.3 of the SPB to be 
inconsistent with Article 11.3 of the  Anti-Dumping Agreement .
259  According to Section II.A.3, the 
USDOC will "normally" make an affirmative de termination of likelihood of continuation or 
recurrence of dumping where one of three scen arios—centred around dumping margins and import 
volumes—obtains.  The relevant part of Section II.A.3 reads as follows: 
II. Sunset Reviews in Antidumping Proceedings  
A. Determination of Likelihood of Continuation or Recurrence of 
Dumping  
... 
3. Likelihood of Continuation or Recurrence of Dumping  
… 
 ... the Department normally will de termine that revocation of an 
antidumping order or termina tion of a suspended dumping 
investigation is likely to lead to continuation or recurrence of 
dumping where— 
 (a) dumping continued at any level above de minimis after the 
issuance of the order or the suspen sion agreement, as applicable;   
 (b) imports of the subject merchandise ceased after issuance of 
the order or the suspension agre ement, as applicable;  or  
 (c) dumping was eliminated after the issuance of the order or the 
suspension agreement, as applicable, and import volumes for the subject merchandise declined significantly.  
 The Department recognizes that, in  the context of a sunset review 
of a suspended investigation, the data relevant to the criteria under paragraphs (a) through (c), above, ma y not be conclusive with respect 
to likelihood. Therefore, the Depa rtment may be more likely to 
entertain good cause arguments under paragraph II.C in a sunset review of a suspended investigation.
260  
191. Sections II.A.4 and II.C of the SPB are also relevant to the United States' claim.  Section 
II.A.4 addresses the situations where the USDOC "normally" will make a determination of no 
likelihood of continuation or recurrence of dumping .  For its part, Section II.C provides that the 
                                                      
259Panel Report, para. 7.166. 
260SPB, p. 18872.  WT/DS268/AB/R 
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USDOC will consider "other price,  cost, market or economic factors" in anti-dumping sunset reviews 
if the USDOC determines that "good cause" to  consider such other factors "is shown".261   
                                                      
261The relevant parts of Sections II.A.4 and II.C of the SPB provide as follows: 
II. Sunset Reviews in Antidumping Proceedings  
A. Determination of Likelihood of Continuation or Recurrence of Dumping  
... 
4. No Likelihood of Continuation or Recurrence of Dumping  
… 
 ... the Department normally will determine that revocation of an 
antidumping order or termination of a suspended dumping investigation is 
not likely to lead to continuation or recurrence of dumping where dumping was eliminated after issuance of the or der or the suspension agreement, as 
applicable, and import volumes remain ed steady or increased. Declining 
margins alone normally would not qua lify because the legislative history 
makes clear that continued margins at any level would lead to a finding of 
likelihood. See section II.A.3, above. In analyzing whether import volumes 
remained steady or increased, the Department normally will consider companies' relative market share. Such information should be provided to 
the Department by the parties.  
 The Department recognizes that, in the context of a sunset review of a 
suspended investigation, the elimination of dumping coupled with steady or 
increasing import volumes may not be conclusive with respect to no likelihood. Therefore, the Department may be more likely to entertain good 
cause arguments under paragraph II.C in a sunset review of a suspended 
investigation.  
... 
C. Consideration of Other Factors  
 Section 752(c)(2) of the Act provides that, if the Department determines 
that good cause is shown, the Depart ment also will consider other price, 
cost, market or economic factors in determining the likelihood of 
continuation or recurrence of dumping. The SAA at 890, states that such 
other factors might include, 
the market share of foreign produ cers subject to the antidumping 
proceeding;  changes in exchange rates, inventory levels, production capacity, and capacity utilization;  any history of sales below cost of 
production;  changes in manufacturing technology in the industry;  and 
prevailing prices in relevant markets. 
The SAA at 890, also notes that the list of factors is illustrative, and that the 
Department should analyze such information on a case-by-case basis. 
Therefore, the Department will consider  other factors in AD sunset reviews 
if the Department determines that good cause to consider such other factors 
exists. The burden is on an interested party to provide information or evidence that would warrant consideration of the other factors in question. 
With respect to a sunset review of a suspended investigation, where the 
Department determines that good cause exists, the Department normally will conduct the sunset review consiste nt with its practice of examining 
likelihood under section 751(a) of the Act.   
(SPB, pp. 18872 and 18874) WT/DS268/AB/R 
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192. In  US – Corrosion-Resistant Steel Sunset Review , the Appellate Body had occasion to 
examine whether Sections II.A.3 and II.A.4 of the SPB are consistent, as such, with Article 11.3 of 
the  Anti-Dumping Agreement .  The Appellate Body stated: 
We believe that a firm evidentiary foundation is required in each case 
for a proper determination under Article 11.3 of the likelihood of continuation or recurrence of dumpi ng.  Such a determination cannot 
be based solely on the mechanistic application of presumptions.  We 
therefore consider that the consiste ncy of Sections II.A.3 and 4 of the 
Sunset Policy Bulletin with Article 11.3 of the Anti-Dumping 
Agreement  hinges upon whether those provisions instruct USDOC to 
treat dumping margins and/or import volumes as determinative or 
conclusive, on the one hand, or merely indicative or probative, on the 
other hand, of the likelihood of future dumping.
262 
193. Relying on these observations of the Appellate Body, the Panel began its analysis by setting 
out the standard for determining whether Section II.A.3 of the SPB is consistent, as such, with 
Article 11.3 of the  Anti-Dumping Agreement .  The Panel stated that a scheme that attributes a 
"determinative"/"conclusive" 263 value to certain factors in sunset determinations—as opposed to only 
an indicative value—is "likely to violate" Article 11.3 of the  Anti-Dumping Agreement .264  The Panel 
was of the view that if any of the three scenarios d escribed in Section II.A.3 of the SPB is regarded as 
determinative/conclusive for the purpose of determining the likelihood of continuation or recurrence 
of dumping, "it will follow that Section II.A.3 of  the SPB is inconsistent with Article 11.3".265  
However, if the scenarios are regarded as "simply indicative", Section II.A.3 of the SPB will be found to be consistent with Article 11.3.
266 
194. The United States does not object to the manner in which the Panel framed the issue;  the 
United States considers that the Panel correctly stat ed that it was charged with the task of evaluating 
whether the SPB  requires   the USDOC to treat the three scenarios involving dumping margins and 
import volumes as conclusive of likelihood of  continuation or recurrence of dumping.267  However, 
the United States is of the view that the Panel misapplied the standard it had set out.268  For the United 
                                                      
262Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 178. 
263Panel Report, para. 7.142 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset 
Review , para. 178). (Panel's emphasis omitted) 
264Ibid., para. 7.143. 
265Ibid., para. 7.155. 
266Ibid. 
267United States' appellant's submission, paras. 14, 16, and 18. 
268Ibid., para. 18.  WT/DS268/AB/R 
 Page 69 
 
 
States, the SPB is "simply a transparency tool " that provides guidance and, therefore, it was 
"inaccurate [for the Panel] to conclude that the SPB requires  that [the USDOC] do anything at all".269 
195. The United States' appeal is founded on the Pa nel's alleged failure to comply with its 
obligations under Article 11 of the DSU.  The Unite d States submits that the SPB is part of United 
States municipal law.  According to the United St ates, the import of a WTO Member's municipal law 
is a question of fact that requires an examination of  the "status and meaning" of the measure at issue 
within the municipal legal system itself.270  The analysis of the meaning of the SPB conducted by the 
Panel ignored "its actual status and meaning" 271 under United States law;  therefore, the United States 
argues, it cannot reflect an "objective assessment" under Article 11 of the DSU.272 
196. The United States submits that the Panel's conclu sion that the three scenarios in Section II.A.3 
of the SPB are regarded as conclusive of likeliho od of continuation or recurrence of dumping had for 
its sole basis "an analysis of statistics on 'the application' of the SPB in past sunset reviews".273  Such 
an analysis does not constitute an "objective assessment" because "[t]here is no principle of 
interpretation of U.S. law which provides that a previously non-binding document becomes, through 
repeated application, binding." 274  For the United States, "[i]f [the USDOC] has discretion to apply a 
law in a particular manner, the fact that it has, to date, not exercised its discretion in that manner 
would not change the fact that [the USDOC] has the discretion to do so." 275  The United States adds 
that the Panel's analysis is fundamentally flawed as "[t]he Panel [did] no more than note a correlation 
between the results in particular sunset re views and the scenarios set forth in the SPB" 276, but it did 
not "ask the question of whether the SPB  caused  the determinations in question".277 
197. In our view, the Panel correctly articulated the standard for determining whether Section 
II.A.3 of the SPB is inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement .  We 
therefore turn to the question whether the Panel erre d in applying that standard in the course of its 
interpretation of the SPB.  We note, in this respect, that the task of the Panel was to evaluate whether 
                                                      
269United States' appellant's submission, para. 25. (original underlining) 
270Ibid., para. 19. 
271Ibid.  
272Ibid., paras. 19 and 23. 
273Ibid., para. 14. 
274Ibid., para. 30. 
275Ibid.  
276Ibid., para. 31.  
277Ibid. (original emphasis) WT/DS268/AB/R 
Page 70  
 
the SPB complies with Article 11.3 of the  Anti-Dumping Agreement , and that the interpretation of the 
SPB had to be carried out in  that  light, rather than in the light of United States municipal law.   
198. In order to interpret the SPB so as to determ ine whether the three scenarios described in 
Section II.A.3 of the SPB are regarded as "determi native"/"conclusive", or "simply indicative", the 
Panel started its analysis with an examination of th e text of the SPB.  In so doing, it acted in a manner 
consistent with the Appellate Body's guidance in  US – Corrosion-Resistant Steel Sunset Review : 
When a measure is challenged "as such", the starting point for an 
analysis must be the measure on its face.
278 
199. The textual analysis led the Panel to conclude that the SPB was "not sufficiently clear as to 
whether the provisions of Section II.A.3 relating to  the three factual scenarios are determinative for 
purposes of the USDOC's likelihood determinations".279  The Appellate Body arrived at the same 
conclusion with respect to the SPB in  US – Corrosion-Resistant Steel Sunset Review , when it stated 
that "the language of Section II.A.3 is  not altogether clear on this point" 280 and that "when read in 
conjunction with the SAA, it seems that Section II.A.3 might  not  instruct USDOC to treat these two 
factors [import volumes and historical dumping margins] as 'conclusive' in every case".281  
200. We also note, as the Panel did, that Section II.A.3 provides that in the context of a sunset 
review of a suspended investigation, the three s cenarios "may not be conclusive with respect to 
likelihood".282  One might infer  a contrario  from this language that, in the context of a revocation 
of  an anti-dumping order (as opposed to the cont ext of termination of a suspended anti-dumping 
investigation), the three scenarios will be regard ed as conclusive.  Nevertheless, as the Appellate 
Body indicated in  US – Corrosion-Resistant Steel Sunset Review , such a reasoning is not sufficient 
to provide a definitive response to our inquiry.  Th erefore, we agree with the Panel that the text 
of the SPB is not dispositive of the question wh ether the three scenarios set out in the SPB are 
regarded  as determinative/conclu sive, or merely indicative in the USDOC's likelihood-of-dumping 
determinations. 
201. Having determined that the text of the SPB do es not "resolve[] the issue of whether Section 
II.A.3 of the SPB envisions that dumping margins and import volumes should be treated as conclusive 
                                                      
278Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 168. 
279Panel Report, para. 7.157. 
280Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 179. 
281Ibid., para. 181 (quoting Section II.A.3 of the SPB). (original emphasis) 
282SPB, Section II.A.3.  A similar sentence is contained in Section II.A.4 of the SPB.  WT/DS268/AB/R 
 Page 71 
 
 
in sunset reviews" 283, the Panel proceeded to "analyse eviden ce submitted by Argentina regarding the 
manner in which [Section II.A.3 had] so  far been implemented by the USDOC".284  In so doing, the 
Panel followed the Appellate Body's guidance in  US – Carbon Steel : 
The party asserting that another party's municipal law, as such, is 
inconsistent with relevant treat y obligations bears the burden of 
introducing evidence as to the scope and meaning of such law to 
substantiate that assertion.  Such evidence will typically be produced 
in the form of the text of the relevant legislation or legal instruments, which may be supported, as appropriate, by evidence of the consistent 
application of such laws , the pronouncements of domestic courts on 
the meaning of such laws, the opinions of legal experts and the 
writings of recognized scholars.  The nature and extent of the 
evidence required to satisfy the burden of proof will vary from case to case.
285 (emphasis added;  footnote omitted) 
202. It is well settled that, as a general rule, it rests upon the complaining party to establish the 
inconsistency of the measure it challenges with a particular provision of a WTO covered agreement.286  
In this case, the burden was therefore on Argentina to establish that the th ree scenarios in Section 
II.A.3 of the SPB are regarded by the USDOC as determinative/conclusive of likelihood of 
continuation or recurrence of dumping and, therefor e, that Section II.A.3 is inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement  because the ensuing determinations are not founded on 
rigorous examination or a sufficient factual basis.  In particular, as the text of the SPB is equivocal in 
this regard, Argentina had to estab lish that the consistent applicati on of the SPB revealed that the 
three scenarios in Section II.A.3 of the SPB are rega rded by the USDOC as determinative/conclusive 
for its likelihood determination. 
203. Argentina, as the complaining party, sought to  discharge its burden by filing Exhibits  
ARG-63 and ARG-64.  Exhibit ARG-63 is a compilati on of documents relating to 291 sunset review 
determinations made by the USDOC prior to the submission of Argentina's request for 
consultations.287  Exhibit ARG-64 is a compilation of documen ts relating to six sunset determinations 
made by the USDOC during the period following Argentina's request for consultations, up to 
December 2003.  In addition to the compilation of cases, Exhibits ARG-63 and ARG-64 include a 
spreadsheet, prepared by Argentina,  that presents statistical data, inter alia , on the results of the 
                                                      
283Panel Report, para. 7.158. 
284Ibid. 
285Appellate Body Report, US – Carbon Steel , para. 157.  This statement was also cited and confirmed 
by the Appellate Body in  US – Corrosion-Resistant  Steel Sunset Review , para. 168. 
286See, for example, Appellate Body Report, Japan – Apples , para. 152;  and Appellate Body Report, 
EC – Hormones , para. 98. 
287WT/DS268/1, G/L/572, G/ADP/D43/1, 10 October 2002. WT/DS268/AB/R 
Page 72  
 
determinations.  Argentina asserted before the Pa nel that "these statistics demonstrate that the 
USDOC has relied on one of the three factual scenarios set out in Section II.A.3 of the SPB in every 
sunset review in which it found likelihood"
288 and that this consistent practice proves that these 
scenarios contain an irrefutable presumption of li kelihood of continuation or  recurrence of dumping. 
204. Before the Panel, the United States contested Ar gentina's interpretation of the statistics.  It 
argued that the evidence presented in the individual cases could have dictated the result, rather than 
any alleged irrefutable presumption, but that "we simply do not know".289 Responding to the Panel's 
question as to whether the statistics were factually corr ect, the United States indicated that it had "not 
examined each and every sunset review cited by  Argentina" but that it had "no reason to believe  that 
the overall total of sunset revi ews conducted and the ultimate outcomes in those sunset reviews 
alleged by Argentina is significantly flawed ".290  The United States also stated that "these statistics 
can at best indicate a repeated pattern of similar res ponses to a set of circumstances" and that "the data 
submitted by Argentina focuses only on the results of  individual sunset reviews conducted by the 
USDOC and ignores the particular circumstances of each review." 291   
205. The Panel concluded that "the evidence s ubmitted by Argentina in exhibit ARG-63 
demonstrates that the USDOC does in fact perceive  the provisions of Section II.A.3 of the SPB as 
conclusive regarding the issue of likelihood of c ontinuation or recurrence of dumping in the case of 
revocation of an order." 292  The Panel said that it "based [its] an alysis on the statistics regarding the 
determinations made before the date of initiation of [the] panel proceedings" 293 (that is, on the data 
included in Exhibit ARG-63 only and not in Exhibit ARG-64).  The Panel jus tified its conclusion in 
one sentence: 
An analysis of the statistics provi ded by Argentina demonstrates that 
the USDOC applied the contested provisions of the SPB in each sunset review and found likelihood of continuation or recurrence in 
each one of these sunset reviews on the basis of one of the three 
scenarios contained in Section II.A.3 of the SPB.
294   
                                                      
288Panel Report, para. 7.158. 
289Ibid. (quoting United States' first written submission to the Panel, para. 186). 
290Ibid., para. 7.160 (quoting United States' response to Question 14(a) posed by the Panel following 
the Second Panel Meeting (Panel Report, Annex E, p. E-98, para. 16)). (underlining added by the Panel) 
291Ibid., para. 7.161 (citing United States' response to Question 14(b) posed by the Panel following the 
Second Panel Meeting (Panel Report, Annex E, p. E-98, paras. 18-19)).  
292Ibid., para. 7.165. 
293Ibid. 
294Ibid.  WT/DS268/AB/R 
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206. Before we evaluate the Panel's analysis in reaching its conclusion that "the USDOC does in 
fact perceive the provisions of Section II.A.3 of the SPB as conclusive" 295, we wish to note certain 
factual information gleaned from the Panel record  and through questions posed during the oral 
hearing, and on which there is no substantive disag reement between Argentina and the United States.  
Of the 291 sunset review determina tions contained in Exhibit ARG-63,  domestic interested parties did 
not participate in 74 cases, with the result that th e anti-dumping duty orders were revoked.  In the 
remaining 217 cases, the USDOC made affirmative likelihood determinations.  However, foreign 
respondent parties participated in the review proceedings in only 41 (or 43 296) of these 217 cases.  
Out of these 41 (or 43) cases, foreign respondent parti es introduced "other good cause factors" only in 
a limited number of them.297 
207. We also note that Section 752(c)(1) of the United States Tariff Act of 1930, which is the 
statutory provision of the United States law governi ng sunset review determin ations of likelihood of 
continuation or recurrence of dumping, lays do wn that, in making such determinations, the 
administering authority "shall consider": 
(A)   the weighted average dumping margins determined in the 
investigation and subse quent reviews, and  
(B)   the volume of imports of the subject merchandise for the period 
before and the period after the issuance of the antidumping duty order or acceptance of the suspension agreement.
298 
Section 752(c)(2) of the Act provides that: 
If good cause is shown, the administering authority shall also 
consider such other price, cost, market, or economic factors as it 
deems relevant.299   
The SAA, which provides an authoritative interpre tation of the statute, refers to these statutory 
provisions and indicates how the above-mentioned statutory provisions are to be followed by the 
investigating authority.  Before the Panel, Argen tina argued that Section 752(c) of the Tariff Act of 
                                                      
295Panel Report, para. 7.165. 
296In response to questioning at the oral hearing, th e United States identified 41 sunset review cases 
where the existence of likelihood of dumping was contes ted.  Argentina referred to 43 cases.  Argentina also 
explained that the difference between the two figures resulted from differences in methodology. 
297According to the United States, in about 300 sunset review determinations made so far by the 
USDOC under Article 11.3 of the  Anti-Dumping Agreement , foreign respondent parties have participated in the 
proceedings in about 15 per cent of th e cases only, and of those cases, "oth er good cause factors" have been 
introduced by them only in a limited number of cases.   
298Exhibit ARG-1 submitted by Argentina to the Panel, p. 1157. 
299Ibid. WT/DS268/AB/R 
Page 74  
 
1930 and the SAA are inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement   as 
they are the source of the alleged "irrefutable presu mption".  The Panel rejected Argentina's claims 
and found that Section 752(c) of the Tariff Act of 1930 and the SAA are not inconsistent, as such, 
with Article 11.3 of the  Anti-Dumping Agreement .  Argentina does not challenge these Panel findings 
on appeal. 
208. In our view, "volume of dumped imports" a nd "dumping margins", before and after the 
issuance of anti-dumping duty orders, are highly import ant factors for any determination of likelihood 
of continuation or recurrence of dumping in sunset  reviews, although other factors may also be as 
important, depending on the circumstances of the case.  The three factual scenarios in Section II.A.3 
of the SPB, which describe how these two factors w ill be considered in i ndividual determinations, 
thus have certain probative value,  the degree of wh ich may vary from case to case.  For example, if, 
under scenario (a) of Section II.A.3 of the SPB, dumping  continued  with substantial margins despite 
the existence of the anti-dumping duty order, this would be highly probative of the likelihood that 
dumping would continue if the anti-dumping order we re revoked.  Conversely, if, under scenarios (b) 
and (c) of Section II.A.3 of the SPB, imports ceased after issuance of the anti-dumping duty order, or 
imports continued but without dumping margins, th e probative value of the scenarios may be much 
less, and other relevant factors may have to be examined to determine whether imports  with dumping 
margins   would "recur" if the anti-dumping duty orde r were revoked.  The importance of the two 
underlying factors (import volumes and dumping marg ins) for a likelihood-of-dumping determination 
cannot be questioned;  however, our concern here is with the possibl e mechanistic application of the 
three scenarios based on these factors,  such that other factors that may be of equal importance are 
disregarded. 
209. In our view, therefore, in order to objectiv ely assess, as required by Article 11 of the DSU, 
whether the three factual scenarios of Sec tion II.A.3 of the SPB are regarded as 
determinative/conclusive, it is essential to examin e concrete examples of cases where the likelihood 
determination of continuation or recurrence of dump ing was based solely on one of the scenarios of 
Section II.A.3 of the SPB, even though the probati ve value of other factors might have outweighed 
that of the identified scenario.  Such an ex amination requires a qualitative assessment of the 
likelihood determinations  in individual cases. 
210. We find that, in reaching its conclusion on th e USDOC's consistent application of the SPB, 
the Panel relied solely on the overall statistics or aggregate results.  The Panel did not undertake a 
qualitative analysis of at least some of the indivi dual cases in Exhibit ARG-63 in order to see whether 
the USDOC's determinations in those cases were obj ective and rested on a sufficient factual basis.  WT/DS268/AB/R 
 Page 75 
 
 
211. A qualitative analysis of individual cases in all likelihood would have revealed a variety of 
circumstances.  There could well have been cases  where affirmative determinations were made 
objectively, based on one of the three scenarios.   There could have been other cases where the 
affirmative determinations were flawed because the USDOC made its decisions relying solely on one 
of the scenarios of the SPB, even though the probat ive value of other factors outweighed it.  There 
could have been yet other cases where the USDOC summarily rejected or ignored other factors 
introduced by foreign respondent parties,  regardless of their probative value. 
212. The Panel record does not show that the Pa nel undertook any such qualitative assessment of 
at least some of the cases of Exhibit ARG-63 with a view to discerning whether the USDOC regarded 
the existence of one of the factual scenarios of  the SPB as determinative/conclusive for its 
determinations.  The Panel also appears not to  have examined in how many cases the foreign 
respondent parties participated in the proceedings , in how many they introduced other "good cause" 
factors, and how the USDOC dealt with those factors when they we re introduced.  Such an inquiry 
would have enabled the Panel to identify and undertak e a qualitative analysis of at least some of those 
cases to see whether the affirmative determinations were made solely on the basis of one of the 
scenarios to the exclusion of other factors.  Th e Panel failed to undert ake any such qualitative 
assessment and relied exclusively on the overall statistics or aggregated results of Exhibit ARG-63.  The fact that affirmative determinations were made in reliance on one of the three scenarios in all the 
sunset reviews of anti-dumping duty orders where domestic interested parties took part
300 strongly 
suggests that these scenarios are me chanistically applied.  However,  without a qualitative examination 
of the reasons leading to such determinations, it is  not possible to conclude definitively that these 
determinations were based exclusively on th ese scenarios in disregard of other factors. 
213. In this context, we also note that Section 752(c)(2) of the Tariff Act of 1930, the SAA, and 
Section II.C of the SPB allow the USDOC to consider "other factors" if "good cause" is shown.  The 
USDOC Regulations also allow foreign respondent pa rties to introduce other factors in their responses 
to the notice of initiation of the sunset review pr oceedings.  Although good cause has to be shown by 
the respondent parties to the satisfaction of the USDO C to admit "other factors" , the fact remains that 
United States law provides for consideration of "other  factors".  Argentina has not challenged Section 
II.C of the SPB relating to consideration of "other factors" or "good cause" being shown.  Its case is 
that other factors must be taken into account by the USDOC on its own initiative, and that even where 
other factors are introduced by foreign respondent parties, the USDOC routinely rejects or ignores 
                                                      
300We note that in one case, Sugar and Syrups From Canada  (Final Results of Full Sunset Review: 
Sugar and Syrups From Canada, United States Federal Register , Vol. 64, No. 171 (3 September 1999), p. 48362 
(Tab 261 of Exhibit ARG-63 submitted by Argentina to the Panel)), the USDOC based its determination on 
other factors.  However, in that case, none of the three scenarios in Section II.A.3 of the SPB was present. WT/DS268/AB/R 
Page 76  
 
them because it applies solely the three scen arios of the SPB in a mechanistic fashion.
301  This line of 
argument of Argentina, concerning specific cases, again shows the need for qualitative assessment of 
individual cases on the part of the Panel to see whet her the USDOC's consistent application reveals 
such disregard of other factors. 
214. The Panel underscores that "the United States neither challenged nor disproved the factual 
correctness of [the] statistics" presented in Exhibit ARG-63.302  It is important to note, however, that 
although the United States did not question the f actual correctness of the spreadsheet included in 
Exhibit ARG-63, the United States argued, before th e Panel, that the statistics provided by Argentina 
in Exhibits ARG-63 and ARG-64 had no probative va lue with respect to the question whether the 
three scenarios in Section II.A.3 of the SPB are determinative/conclusive for purposes of sunset 
determinations.303  The United States also contended that the statistics in Exhibits ARG-63 and  
ARG-64 ignore the factual circumstances of the listed sunset reviews,  which underpinned the 
USDOC's ultimate findings.304  It is regrettable that the Unite d States did not substantiate these 
assertions with reference to cases where other factors constituted the basis of the USDOC's determination;  it is also unfortunate that  the United States did not identify cases where the 
circumstances were such that the probative value of  the identified scenario outweighed that of other 
factors introduced by interested parties, so as to counter the pr oposition that the USDOC applies the 
SPB scenarios in a mechanistic fashion.  Had th e United States furnished such information, the 
Panel's task would have been fac ilitated.  Nevertheless, the lack of  assistance from the United States 
cannot excuse the Panel from conducting an "objec tive assessment of the matter" as required by 
Article 11 of the DSU. 
215. In the light of the above, we  find  that the Panel did not "make an objective assessment of the 
matter", as required by Article 11 of the DSU.  It apparently reached its conclusion—that  the three 
scenarios in Section II.A.3 of the SPB are perceived by the USDOC to be determinative/conclusive of 
the likelihood of continuation or recurrence of dump ing—on the sole basis of the overall statistics in 
Exhibit ARG-63.  The Panel record reveals no qualita tive analysis of even some of the cases in 
Exhibit ARG-63, and the Panel Report contains only a single sentence justifying its conclusion based 
on the overall statistics.
305  Consequently, we  reverse   the Panel's findings, in paragraphs 7.166 
                                                      
301Argentina's appellee's submission, para. 32;  Panel Report, para. 7.159. 
302Panel Report, para. 7.165. 
303See United States' response to Question 14(b) posed by the Panel at the Second Panel Meeting 
(Panel Report, Annex E, p. E-98, paras. 17-19).  In response to questioning at the oral hearing, the United States 
confirmed that it took this position before the Panel. 
304United States' response to Question 14(b) posed by  the Panel at the Second Panel Meeting (Panel 
Report, Annex E, p. E-98, para. 18).   
305Panel Report, para. 7.165.  WT/DS268/AB/R 
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and 8.1(b) of the Panel Report, that Section II. A.3 of the SPB is inconsistent, as such, with 
Article 11.3 of the  Anti-Dumping Agreement.   We wish to emphasize that we have not thereby 
concluded that Section II.A.3 of the SPB is c onsistent, as such, with Article 11.3 of the  Anti-Dumping 
Agreement .  Rather, we have found that the Panel's conclu sion to the contrary must be reversed due to 
its failure to comply with Article 11 of the DS U.  Thus, our reasoning here does not exclude the 
possibility that, in another case, it could be properl y concluded that the three scenarios in Section 
II.A.3 of the SPB are regarded as determinative/c onclusive of the likelihood of continuation or 
recurrence of dumping.  However, such a conclu sion would need to be supported by a rigorous 
analysis of the evidence regarding the manner in wh ich Section II.A.3 of the SPB is applied by the 
USDOC. 
C. Conditional Appeals of Argentina 
216. Argentina has brought conditional appeals with respect to:  (1) Article X:3(a) of the GATT 
1994;  and (2) the "practice" of the USDOC regarding its likelihood determinations in sunset reviews.  
These appeals are conditioned on the reversal of e ither the Panel's conclusion that the SPB is a 
"measure" for purposes of WTO dispute settlement, or  the Panel's conclusion that Section II.A.3 of 
the SPB is inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement .  As we reverse 
the Panel's conclusion that Section II.A.3 of the SPB is inconsistent, as such, with Article 11.3 of the  
Anti-Dumping Agreement , we examine these two conditional claims of Argentina. 
217. Argentina claims that the USDOC has conducte d sunset reviews in a biased and unreasonable 
manner, in violation of Article X:3(a) of the GATT 1994.  This provision states that every WTO Member "shall administer in a uniform, impartia l and reasonable manner al l its laws, regulations, 
decisions and rulings".  We observe, first, that allegations that the conduct of a WTO Member is 
biased or unreasonable are serious under any circumst ances.  Such allegations should not be brought 
lightly, or in a subsidiary fashion.  A claim unde r Article X:3(a) of the GATT 1994 must be supported 
by solid evidence;   the nature and the scope of the claim, and the evidence adduced by the 
complainant in support of it, should reflect the gravity of the accusations inherent in claims under 
Article X:3(a) of the GATT 1994.   
218. The conditional appeal of Argentina is based  on Exhibits ARG-63 and ARG-64.  Argentina 
relies on these exhibits to contend that:  "[a] reco rd of 223 wins and 0 losses (or even 35 wins and 0 
losses to use the U.S. figures of so-called 'contested ' cases) for the U.S. industry demonstrates a lack 
of impartiality, and the unreasonable administrati on of national laws, regulations, decisions, and 
rulings."
 306  Argentina submits that "[Exhibits] ARG-63  and ARG-64 demonstrate[] that every time 
                                                      
306Argentina's other appellant's submission, para. 296. WT/DS268/AB/R 
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(in 100 percent of the cases) where the [USDOC] finds th at at least one of the three criteria of the SPB 
is satisfied, the [USDOC] makes an affirmative finding of likely dumping without considering 
additional factors."
 307   
219. In order to prove its allegation, Argentin a had to establish that the SPB had been 
"administered" by the USDOC in a partial or unreaso nable manner.  However, as we have explained 
above, the Panel record does not reveal that ther e has been any qualitative assessment of individual 
cases found in Exhibit ARG-63.  In the circumstances,  it would be impossible to conclude on the basis 
of the overall statistics alone that the determinations were flawed due to lack of objectivity on the part 
of the USDOC.  We also note that the United Stat es challenges Argentina's "factual demonstration": 
... the exhibits Argentina supplied to the Panel in no way 
demonstrated that [the USDOC] fa iled to take "additional factors" 
into account.  The "evidence" in these exhibits demonstrated at best a correlation  between the existence of one of the factors in the Sunset 
Policy Bulletin ("SPB") and the outcome in a given dispute; it 
demonstrated nothing about [the USDOC's] consideration of 
additional factors in any of the de terminations allegedly illustrating 
this "practice."
 308 (original emphasis) 
The factual premise of Argentina's claim under Article X:3(a) is thus not undisputed.  We therefore  
find  that the record does not allow us to complete the analysis of Argentina's conditional appeal with 
respect to Article X:3(a) of the GATT 1994. 
220. We move now to Argentina's conditional appeal  concerning the "practice" of the USDOC.  
This conditional claim of Argentina is also based on the factual premise that "[Exhibits] ARG-63 and 
ARG-64 demonstrate[] that every time (in 100 percen t of the cases) where the [USDOC] finds that at 
least one of the three criteria of the SPB is satisfied, the [USDOC] makes an affirmative finding of likely dumping without considering additional factors."
 309  Here again, we note that the Panel record 
reveals no qualitative assessment of individual cases f ound in Exhibit ARG-63.  As we noted above, 
this factual premise (particularly "without consider ing additional factors") is challenged by the United 
States and is not undisputed.310  Therefore, even assuming  arguendo   that a "practice" may be 
challenged as a "measure" in WTO dispute settle ment—an issue on which we express no view here—
we  find  that the record does not allow us to complete  the analysis of Argentina's conditional appeal 
with respect to the "practice" of the USDOC regard ing the likelihood determination in sunset reviews. 
                                                      
307Argentina's other appellant's submission, para. 287.  
308United States' appellee's submission, para. 189. 
309Argentina's other appellant's submission, para. 287. 
310United States' appellee's submission, para. 189.  WT/DS268/AB/R 
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221. As the record does not allow us to complete th e analysis with respect to Argentina's claims 
concerning Article X:3(a) of the GATT 1994 and the "practice" of the USDOC, we  do not need  to 
make findings on the United States' challenge unde r Article 6.2 of the DSU to these two conditional 
claims of Argentina.311 
VI. Waiver Provisions of United States Laws and Regulations 
222. The United States claims that the Panel erred in  finding that Section 751(c)(4)(B) of the Tariff 
Act of 1930 and Section 351.218(d)(2)(iii) of the US DOC Regulations are inconsistent, as such, with 
Article 11.3 of the Anti-Dumping Agreement , and that Section 351.218(d)(2)(iii) of the USDOC 
Regulations is inconsistent, as such, with Articles 6.1 and 6.2 of the  Anti-Dumping Agreement .  The 
United States also submits claims under Article 11 of the DSU relating to these waiver provisions.  
We address first the Panel's findings under the  Anti-Dumping Agreement   and then the claim under 
Article 11 of the DSU. 
223. In our discussion, we adopt the Panel's termi nology and refer to Section 751(c)(4)(B) of the 
Tariff Act of 1930 and Section 351. 218(d)(2)(iii) of the USDOC Regulations, collectively, as the 
"waiver provisions".312  The Panel also characterized the waivers resulting from the operation of 
Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(i) of the USDOC Regulations
 313, jointly, as "affirmative waivers", and th e waivers resulting from the operation of 
Section 751(c)(4)(B) of the Tariff Act of 1 930 and Section 351.218(d)(2)(iii) of the USDOC 
Regulations, jointly, as "deemed waivers".314  In addition, we use the te rm "deemed waiver provision" 
when referring to Section 351.218(d )(2)(iii) of the USDOC Regulations. 
A. Consistency of the Waiver Provisions with Article 11.3 of the Anti-Dumping 
Agreement 
224. Before the Panel, Argentina argued that Artic le 11.3 requires investigating authorities to 
assume an "active role in sunset reviews" a nd "to gather and evaluate relevant facts".315  Because the 
waiver provisions under United States law—both affirmative and deemed waivers—prevent the 
USDOC from engaging in this "substantive review",  Argentina claimed, they are inconsistent, as 
                                                      
311See supra , para. 174. 
312Panel Report, para. 7.72. 
313Argentina did not challenge before the Panel the consistency of Section 351.218(d)(2)(i) of the 
USDOC Regulations with the United States' obligations under the Anti-Dumping Agreement . (See Panel Report, 
para. 3.1) 
314Ibid., para. 7.83. 
315Ibid., para. 7.72. WT/DS268/AB/R 
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such, with Article 11.3.
316  In addressing this claim, the Panel found it useful to analyze separately the 
case of deemed waivers from that of affirmative waivers.317 
225. As to deemed waivers, the Panel observed that Section 351.218(d)(2)(iii) of the USDOC 
Regulations provides: 
(2)  Waiver of response by a respondent interested party to a notice 
of initiation— 
... 
(iii)  No response from an interested party . The Secretary will 
consider the failure by a respondent interested party to file a 
complete substantive response to a notice of initiation under 
paragraph (d)(3) of this section as a waiver of participation in a 
sunset review before the Department.   
Thus, participation of a respondent in a likelihood-of-dumping inquiry in  a sunset review is deemed to 
have been waived by it where the respondent files either an incomplete submission or no submission 
at all.318   
226. Section 751(c)(4)(B) of the Tariff Act of 1930 provides: 
(B)  Effect of waiver  
In a review in which an interest ed party waives its participation 
pursuant to this paragraph, the administering authority shall conclude that revocation of the order or term ination of the investigation would 
be likely to lead to continuati on or recurrence of dumping or a 
countervailable subsidy (as the case may be) with respect to that 
interested party.  
Thus, any waiver, whether deemed or affirmative, automatically results in an affirmative likelihood 
finding as to that exporter.
319   
227. The Panel found that, where a respondent files an incomplete  submission, these two 
provisions of United States law, taken together—nam ely, Section 751(c)(4)(B) of the Tariff Act of 
1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations—require the USDOC to make an 
affirmative determination of  likelihood of continuation or recurrence of dumping, as to that 
respondent , without "taking into consideration, in [that]  determination ... , the facts submitted by that 
exporter (or any other facts before it that might be relevant to its determination), and [without] 
                                                      
316Panel Report, para. 7.72. 
317Ibid., para. 7.90. 
318Ibid., para. 7.91. 
319Ibid.  WT/DS268/AB/R 
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receiving, much less considering, any other facts relevant to this question".320  In the case where a 
respondent files  no  submission at all, the Panel found that these United States provisions direct the 
USDOC to make an affirmative lik elihood-of-dumping determination  as to that respondent  solely on 
the basis that the respondent filed  no  submission, without consideration of other evidence on 
record.321  Both of these "deemed waiver" situations, acco rding to the Panel, are inconsistent with the 
obligation in Article 11.3 for an investigating au thority to arrive at a likelihood determination 
"supported by reasoned and adequa te conclusions based on the facts before an investigating 
authority".322 
228. As to affirmative waivers, the Panel observe d that under Section 751(c)(4)(B) of the Tariff 
Act of 1930, the USDOC must make an affirma tive likelihood determination when a respondent 
declares its intention not to participate in a sunset review.323  The Panel was of the view that an 
investigating authority "can not simply assume, without further inquiry, that dumping is likely to 
continue or recur because the exporter c hose not to participate in the review."324  Accordingly, the 
Panel concluded, with respect to affirmative waivers, as it did with respect to deemed waivers, that 
Section 751(c)(4)(B) is incons istent with Article 11.3.325 
229. Finally, the Panel addressed the relevance of the fact that the USDOC's likelihood-of-
dumping determinations are made on an "order-wide"326 rather than "company-specific"327 basis.  The 
United States argued that, where respondents have wa ived the right to partic ipate, the USDOC makes 
company-specific determinations only as a first step in its analysis, but that the ultimate likelihood-of-
dumping determination, made as a second step, is on an order-wide basis.  The order-wide 
determination is based on all the evidence in the r ecord.  As a result, the United States claimed, "the 
waiver provisions do not violate Article 11.3 of the Agreement because they do not determine, in and 
of themselves, the final outcome of a sunset review ;  they only determine the outcome of the first 
                                                      
320Panel Report, para. 7.93. 
321Ibid., para. 7.95. 
322Ibid., paras. 7.93 and 7.95. 
323Ibid., para. 7.96. 
324Ibid., para. 7.99. 
325Ibid. 
326When speaking of an "order-wide likelihood determination", we understand the United States to 
refer to the single determination of likelihood of continuation or recurrence of dumping made by the USDOC 
with respect to all exporters from a country that is the subject of an anti-dumping duty "order" under United 
States law.  The order-wide determination thus  applies to an exporting country as a whole.  
327We use the term "company-specific likelihood determination", in contrast to "order-wide likelihood 
determination", to refer to the determination of likelihood of continuation or recurrence of dumping made by the 
USDOC with respect to an individual respondent in a sunset review.  WT/DS268/AB/R 
Page 82  
 
step."
 328  The Panel disagreed, finding that, "[t]o the extent that the order-wide determination of 
likelihood is based in whole or in part upon a co mpany-specific determination that was improperly 
established", the order-wide determination cannot satis fy the requirements of Article 11.3 that the 
determination "be supported by reasoned and adequa te conclusions based on the facts before the 
investigating authority".329 
230. On appeal, the United States challenges the Pa nel's finding that the waiver provisions are 
inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement .  The United States contends 
that, as its likelihood-of-dumping dete rminations are made on an orde r-wide basis, a proper inquiry  
into Argentina's claim requires an examination of  whether the waiver provisions prevent the USDOC 
from arriving at an  order-wide   likelihood determinati on consistent with Article 11.3.  In the United 
States' view, the Panel erred by evaluating whether the  company-specific   determinations resulting 
from the operation of the waiver provisions were cons istent with Article 11.3 and then "imput[ing]" 
that finding of inconsistency to  order-wide  determinations made by the USDOC.330  The United 
States acknowledges that its waiver procedure result s in an affirmative likelihood determination for 
the non-participating respondent, but emphasizes that  such a company-specific determination does not 
automatically lead to a final affirmativ e order-wide determina tion under Article 11.3.331  Instead, the 
United States submits, its law requires the USDOC to base its order-wide likelihood determination on 
the totality of record evidence, which satisfies th e requirement of a sufficient basis for the final 
determination, notwithstanding the company-specific determinations made as a result of the waiver 
provisions.  Therefore, the United States argues,  the USDOC is not precluded from arriving at a 
likelihood-of-dumping determination that is consistent with the requirements of Article 11.3. 
231. We recall, at the outset, that, in  US – Corrosion-Resistant Steel Sunset Review , the Appellate 
Body found that Members are not required by Article 11.3 to make their likelihood-of-dumping 
determinations on a company-specific basis, and th erefore, that Section II.A.3 of the SPB is not 
inconsistent with Article 11.3 on the ground that it  requires the USDOC to make its sunset review 
determinations on an order-wide basis.332  Thus, as the United States 333 and the European 
Communities 334 correctly observe, because the United States has chosen to make order-wide 
determinations in sunset reviews, an allegation th at a measure prevents the United States from making 
                                                      
328Panel Report, para. 7.100. (footnote omitted) 
329Ibid., para. 7.101. 
330United States' appellant's submission, para. 38. 
331Ibid., para. 41. 
332Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 149-157. 
333United States' appellant's submission, para. 38. 
334European Communities' third participant's submission, para. 35.  WT/DS268/AB/R 
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a likelihood determination consiste nt with Article 11.3 must be evaluated by reference to the 
relevance of that measure for the  order-wide  determination.   
232. In this case, the Panel began its analysis of Argentina's claim by focusing on the  company-
specific  likelihood determinations.335  The Panel found that these affirmative company-specific  
determinations are mandated by th e waiver provisions without any further inquiry on the part of the 
USDOC and without regard to the record evid ence—whether that evidence is submitted by the 
respondent or by another interested party.336  The Panel then concluded, on this basis, that the waiver 
provisions are inconsistent, as such, with Article 11.3.337  In our view, it was neither necessary nor 
relevant for the Panel to draw a conclusion as to the WTO-consistency of the  company-
specific  determinations resulting from the waiver provisi ons.  As we have observed, the relevant 
inquiry in this dispute is whether the order-wide  likelihood determina tion would be rendered 
inconsistent with Article 11.3 by virtue of the ope ration of the waiver provisions.  It appears to us, 
therefore, that the Panel could not have properly a rrived at a finding of consistency or inconsistency 
with Article 11.3  until  it had examined how the operation of the waiver provisions could affect the 
order-wide determination.  Had the Panel ceased its inquiry with the finding that the company-specific 
determinations are not "supported by reasoned and ade quate conclusions based on the facts before an 
investigating authority"338, the Panel would not have had a ba sis to conclude that the waiver 
provisions are inconsistent, as such, with Article 11.3.  
233. The Panel, however, did not base its ultimate c onclusion of inconsistency with Article 11.3 on 
its assessment of only the company-specific  determinations made pursuant to the waiver provisions.  
Instead, the Panel correctly continued its analysis and examined the impact of the company-specific 
determinations on the order-wide  determination.  The Panel observed that, in the case where the 
respondent that waives its right to participate is the sole exporter from a country subject to a dumping 
order, the company-specific determination "is likely to be conclusive" with respect to the order-wide 
determination.339  The Panel also noted that "[t]he Un ited States concedes that company-specific 
                                                      
335Panel Report, paras. 7.90-7.99. 
336Ibid., paras. 7.93, 7.95, and 7.99. 
337Ibid., para. 7.93 ("In our view, this can not be a determination supported by reasoned and adequate 
conclusions based on the facts before an investigating authority");  para. 7.95 ("In our view, an affirmative 
determination based exclusively upon the fact that the exporter did not respond to a notice of initiation, and 
which disregards entirely even the possibility that other relevant information might be in the record, is not supported by reasoned and adequate conclusions based on the facts before an investigating authority, 
inconsistently with Article 11.3");  and para. 7.99 ("In our view, therefore, the provi sions of US law relating to 
affirmative waivers are also inconsistent with the obligation to determine likelihood of continuation or 
recurrence of dumping under Artic le 11.3 of the Agreement"). 
338Ibid., paras. 7.93, 7.95, and 7.99. 
339Ibid., para. 7.102. WT/DS268/AB/R 
Page 84  
 
likelihood determinations are 'considered' when  making an order-wide likelihood determination".
340  
As support for this statement, the Panel quoted th e United States' response to one of the Panel's 
questions.341  In addition, the Panel recalled that, in r esponse to questioning from the Panel, the United 
States was unable to cite one example of a sunset  review in which the USDOC had arrived at a 
negative order-wide  determination after making affirmative company-specific  determinations with 
respect to respondents that had waived the right to participate.342  The Panel concluded that, "[t]o the 
extent that" the company-specific determinati ons were taken into account in the order-wide 
determination, the order-wide determination c ould not "be supported by reasoned and adequate 
conclusions based on the facts befo re the investigating authority".343 
234. We agree with the Panel's analysis of the impact of the waiver provisions on order-wide 
determinations.344  Because the waiver provisions require  the USDOC to arrive at affirmative 
company-specific determinations without regard to  any evidence on record, these determinations are 
merely  assumptions  made by the agency, rather than findings supported by evidence.  The United 
States contends that respondents waiving the right to participate in a sunset review do so "intentionally", with full knowledge that, as a result of their failure to subm it evidence, the evidence 
placed on the record by the domestic industry is likel y to result in an unfavourable determination on 
an order-wide basis.
345  In these circumstances, we see no fault in making an unfavourable order-wide 
determination by taking into account evidence provide d by the domestic industry in support thereof.  
However, the USDOC also takes into account, in  such circumstances, statutorily-mandated  
assumptions .  Thus, even assuming that the USDOC takes into account the totality of record evidence 
                                                      
340Panel Report, para. 7.101 (quoting the United States' response to Question 4(b) posed by the Panel at 
the Second Panel Meeting (Panel Report, Annex E, p. E-93, para. 3)). 
341In response to questioning by the Panel, the United States said: 
The United States has not argued that a waiver "does not affect" the final 
order-wide likelihood determination.  While the individual affirmative 
likelihood determinations may affect the order-wide likelihood determination, they do not determine, in and of themselves, the ultimate 
outcome of the order-wide analysis.  [The USDOC] considers all the 
information on the administrative record, including prior agency determinations and the information submitted by the interested parties or 
collected by [the USDOC], as well as any individual affi rmative likelihood 
determinations, when making the order-wide likelihood determination. 
(Panel Report, footnote 42 to para. 7.101 (quoting the United States' response to Question 4(b) posed by the 
Panel at the Second Panel Meeting (Panel Report, Annex E, p. E-93, para. 3))) 
342Ibid., para. 7.102. 
343Ibid., para. 7.101. 
344The United States challenges the Panel's analysis of the relationship between company-specific and 
order-wide determinations as inconsistent with the Pane l's obligation under Article 11 of the DSU.  As we 
discuss below in paragraphs 255-260, we find no error by the Panel in this regard. 
345United States' appellant's submission, para. 44.  WT/DS268/AB/R 
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in making its order-wide determination, it is clear that, as a result of the operation of the waiver 
provisions, certain  order-wide  likelihood determinations made by the USDOC will be based, at least 
in part, on statutorily-mandated  assumptions  about a company's likelihood of dumping.  In our view, 
this result is inconsistent with the obligation of an  investigating authority under Article 11.3 to "arrive 
at a reasoned conclusion" 346 on the basis of "positive evidence".347   
235. Therefore, we  uphold  the Panel's findings, in paragraphs 7. 103, 8.1(a)(i), and 8.1(a)(ii) of the 
Panel Report, that Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the 
USDOC Regulations are inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement . 
B. Consistency of the "Deemed" Waiver Provis ion with Articles 6.1 and 6.2 of the Anti-
Dumping Agreement 
236. Argentina claimed before the Panel that Secti on 351.218(d)(2)(iii) of the USDOC Regulations 
is inconsistent, as such, with Articles 6.1 and 6.2 of the  Anti-Dumping Agreement .348  (Argentina 
made no claim under Articles 6.1 and 6.2 with respect to affirmative waivers under Section 
751(c)(4)(B) of the Tariff Act of 1930.349)  In examining the deemed waiver provision, the Panel 
observed that two factual situations might arise th rough the operation of this regulation:  first, a 
respondent may submit an incomplete response;  and second, a respondent may submit nothing at 
all.350  The Panel found that a submission by a respondent  will not be considered by the USDOC to be 
"complete" unless it contains  all  of the information set out in Section 351.218(d)(3) of the USDOC 
Regulations.351  The Panel then determined that, under the first situation (that is, incomplete 
response), the USDOC must conclude that, with respect to that respondent, there is a likelihood of 
continuation or recurrence of dumping, and the USDO C must do so without any consideration of the 
"incomplete" information submitted by the respondent.352  The Panel also found that, under both 
situations (that is, incomplete response and no r esponse), the respondent is precluded from submitting 
evidence at a later date during the sunset review proceeding 353 and is not permitted to participate in 
hearings or to confront adverse parties in any other manner.354   
                                                      
346Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 111. 
347Ibid., para. 114 (quoting Panel Report, US – Corrosion-Resistant Steel Sunset Review , para. 7.271). 
348Panel Report, para. 7.104. 
349Ibid., para. 7.106. 
350Ibid., para. 7.119. 
351Ibid., para. 7.84 and footnote 34 to para. 7.93.   
352Ibid., paras. 7.92-7.93 and 7.121. 
353Ibid., para. 7.121. 
354Ibid. WT/DS268/AB/R 
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237. The Panel concluded that the deemed waiver  provision is inconsistent, as such, with 
Articles 6.1 and 6.2, because no provision in the  Anti-Dumping Agreement  allows an investigating 
authority to deny the procedural rights contained in  Articles 6.1 and 6.2 solely on the basis that a 
respondent files an incomplete submission, or no submission at all, in response to a notice of 
initiation.
355  Finally, the Panel rejected the United Stat es' argument that the USDOC's consideration 
of the information contained in a respondent's incomplete submission, when making an order-wide 
determination, satisfies Article 6. 1.  The Panel found instead that "the violations of Articles 6.1 
and  6.2 at the company-specific level w ould necessarily taint the USDOC's order-wide 
determination".356 
238. On appeal, the United States argues that  Section 351.218(d)(2)(iii) of the USDOC 
Regulations does not address "the kind of informa tion that can be provided in a sunset review".357  It 
follows, in the view of the United States, that this  provision cannot be found to be inconsistent with 
Articles 6.1 and 6.2.358  The United States also observes that its  regulations provide interested parties 
with numerous opportunities to provide evidence to the agency.359  In this regard, the United States 
submits that an interested party that fails to  take advantage of those opportunities should be 
"accountable for its failure to exercise that right".360  The United States asserts that the Panel appears 
to have " assumed " that interested parties have an "indefi nite right" under Articles 6.1 and 6.2 to 
present evidence and request a hearing.361  The right under those provisions is not "indefinite", the 
United States argues, and an interested party's "failure  to exercise that right" cannot alter the fact that 
the United States provides sufficient opportunity  for an interested party to participate.362 
239. We begin by recalling that the Appellate Body h as held previously that claims under Article 6 
may be made in relation to sunset review determinations on the basis of the cross-reference to Article 
6 found in Article 11.4.363 
                                                      
355Panel Report, paras. 7.122-7.123 and 7.127. 
356Ibid., para. 7.125. 
357United States appellant's submission, para. 51. 
358Ibid. 
359Ibid., paras. 53-54. 
360Ibid., para. 55. 
361Ibid. (original emphasis) 
362Ibid.  
363Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 152.  WT/DS268/AB/R 
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240. Article 6.1 of the  Anti-Dumping Agreement  provides: 
All interested parties in an anti- dumping investigation shall be given 
notice of the information which the authorities require and ample 
opportunity to present in writing all evidence  which they consider 
relevant in respect of the investig ation in question. (emphasis added) 
Article 6.2 of the  Anti-Dumping Agreement  provides: 
Throughout the anti-dumping investigation all interested parties shall 
have a  full opportunity for the defence of their interests .  To this end, 
the authorities shall, on request, provide opportunities for all 
interested parties to meet those par ties with adverse interests, so that 
opposing views may be presented and rebuttal arguments offered.  
Provision of such opportunities must take account of the need to preserve confidentiality and of the co nvenience to the parties.  There 
shall be no obligation on any party to attend a meeting, and failure to 
do so shall not be prejudicial to that  party's case.  Interested parties 
shall also have the right, on justif ication, to present other information 
orally. (emphasis added) 
241. These provisions set out the fundamental due process rights to which interested parties 
are  entitled in anti-dumping investigations and reviews.
364  Articles 6.1 and 6.2 require that the 
opportunities afforded interested parties for presentati on of evidence and defence of their interests be 
"ample" and "full", respectively.  In the cont ext of these provisions, these two adjectives suggest 
there  should be liberal opportunities for respondent s to defend their interests.  Nevertheless, we 
agree with the United States that Articles 6.1 and 6.2 do not provide for "indefinite" rights 365, so as to 
enable respondents to submit relevant evidence, at tend hearings, or participate in the inquiry as and 
when they choose.  Such an approach would "p revent the authorities of a Member from proceeding 
expeditiously"366 in their reviews, contrary to Article 6.14.  It would also affect the rights of other 
interested parties.  In this regard, we recall th at the Appellate Body has previously recognized the 
                                                      
364We are not faced here with the question of the consistency of th e deemed waiver provision with 
Article 6.8 or Annex II of the  Anti-Dumping Agreement .  We therefore limit our discussion to the obligations 
arising under Articles 6.1 an d 6.2 of that Agreement. 
365United States' appellant's submission, para. 55. 
366Anti-Dumping Agreement , Article 6.14. WT/DS268/AB/R 
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importance for investigating authorities of establishing deadlines and controlling the conduct of their 
investigations.
367 
242. Therefore, the "ample" and "full" opportun ities guaranteed by Articles 6.1 and 6.2, 
respectively, cannot extend indefinitely and must, at some point, legitimately cease to exist.368  This 
point must be determined by reference to the right of investigating authorities to rely on deadlines in 
the conduct of their investigations and reviews.  Where the continued granting of opportunities to 
present evidence and attend hearings would impinge on an investigating author ity's ability to "control 
the conduct" of its inquiry and to "carry out the multiple steps" required to reach a timely completion 
of the sunset review 369, a respondent will have reached the limit of the "ample" and "full" 
opportunities provided for in Articles 6.1 and 6.2 of the  Anti-Dumping Agreement .   
243. We now examine the consistency of Section 351.218(d)(2)(iii) of the USDOC Regulations 
with Articles 6.1 and 6.2, keeping in mind the need to balance respondents' rights and obligations with 
those of investigating authorities and other interested parties.  We set out again, for ease of reference, 
the text of the deemed waiver provision: 
(2)  Waiver of response by a respondent interested party to a notice 
of initiation — 
... 
(iii)  No response from an interested party . The Secretary will 
consider the failure by a respondent interested party to file a 
complete substantive response to a notice of initiation under 
paragraph (d)(3) of this section as a waiver of participation in a 
sunset review before the Department.   
                                                      
367In  US – Hot-Rolled Steel , the Appellate Body stated: 
  Investigating authorities must be able to control the conduct of their 
investigation and to carry out the multiple steps in an investigation required to 
reach a final determination.  Indeed, in  the absence of tim e-limits, authorities 
would effectively cede control of investigations to the interested parties, and could find themselves unable to complete their investigations within the time-
limits mandated under the  Anti-Dumping Agreement . ... We, therefore, agree 
with the Panel that "in the interest of orderly administration investigating 
authorities do, and indeed must establish such deadlines." 
(Appellate Body Report, US – Hot-Rolled Steel , para. 73 (quoting Panel Report, US – Hot-Rolled Steel , 
para. 7.54)) (emphasis added by the Appellate Body) 
368Argentina and the United States agree that, at some point, an investigating authority may limit the 
rights set out in Articles 6.1 and 6.2 in order to enfor ce a deadline. (Argen tina's and the United States' responses 
to questioning at the oral hearing) 
369Appellate Body Report, US – Hot-Rolled Steel , para. 73 (quoting Panel Report, US – Hot-Rolled 
Steel , para. 7.54).  WT/DS268/AB/R 
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244. When evaluating this claim of Argentina, the Panel divided its analysis in two parts 370, the 
first addressing deemed waivers resulting from incomplete submissions 371, and the second addressing 
deemed waivers resulting from the absence of a submission.372  We find this distinction useful and 
adopt it for our discussion below. 
245. We consider, first, whether the due process right s of Articles 6.1 and 6.2 are denied to those 
respondents who file  incomplete  submissions  in response to the USDOC notice of initiation.  We 
recall that the Panel found that the USDOC consider s submissions to be incomplete, for the purposes 
of Section 351.218(d)(2)(iii) of the USDOC Regulations, where  all  of the requested information is 
not contained in the respondent's submission.373  An incomplete submission might contain relevant 
evidence in support of the respondent's position, ye t fall short of the information required by the 
USDOC Regulations in order to be considered "complete" by the USDOC.  The Panel assumed  
arguendo  that, as the United States claimed, the USDOC uses this "incomplete" information in 
making its  order-wide  sunset determination. 374  Nevertheless, the Panel found, and the United States 
agrees on appeal 375, that "the USDOC is precluded from taking into consideration, in its 
determination  with respect to a given exporter , the facts submitted by that exporter [in an incomplete 
response]".376  As the United States acknowledges 377, and as discussed above 378, the company-
specific determination is "consider[ed]" by th e USDOC when making its subsequent order-wide 
evaluation and is relevant to, even if not dete rminative of, the outcome of the sunset review. 
246. It is clear, therefore, that with respect to at least one part of the USDOC's analysis underlying 
the order-wide determination, evidence "presented" by a respondent is  disregarded  and an 
affirmative likelihood determinati on is made for that respondent.  In our view, disregarding a 
respondent's evidence in this manner is incompatible with the respondent's right, under Article 6.1, to 
present evidence that it considers relevant in respect  of the sunset review.  The agency is clearly 
notified of a respondent's interest in participating in the sunset review by virtue of the respondent 
                                                      
370Panel Report, para. 7.119. 
371Ibid., paras. 7.122-7.126. 
372Ibid., para. 7.127. 
373Ibid., para. 7.84, and footnote 34 to para. 7.93.  We note that the United States challenges this 
finding of the Panel.  We address this challenge  infra , at paragraphs 261-267. 
374Panel Report, para. 7.125. 
375United States' response to questi oning at the oral hearing. 
376Panel Report, para. 7.93. (emphasis added) 
377United States' appellant's submission, para. 61 (quoting United States' response to Question 4(b) 
posed by the Panel at the Second Panel Meeting (Panel Report, Annex E, p. E-93, para. 3);  and citing United States' responses to questions posed by the Panel at the First Panel Meeting (Panel Report, Annex E, pp. E-18 
and E-43, paras. 3, 20, 24, and 29)). 
378Supra , paras. 233-234. WT/DS268/AB/R 
Page 90  
 
having filed a response—albeit an incomplete one.  Moreover, the respondent will also be denied any 
opportunity to confront parties with adverse interest s in a hearing, notwithstanding this respondent's 
clear expression of interest in participating in the s unset review.  As a result, this respondent is denied 
its rights, pursuant to Article 6.2, to the "full opportunity for the defence of [its] interests".  The United States claims that the USDOC "takes all record evidence into account, including evidence in 
incomplete submissions, when maki ng the order-wide determination".
379  This does not alter the fact 
that evidence in incomplete submissions is disr egarded in the course of the USDOC's analysis, 
namely, when making company-specific determinations, thereby denying respondents their rights under Articles 6.1 and 6.2.     
247. We acknowledge the United States' argument befo re the Panel and on appeal that the USDOC 
has discretion to treat incomplete submissions as a "complete substantive response".
380  The United 
States contends that such discretion exists notw ithstanding the requirement in Section 351.218(d)(3) 
of the USDOC Regulations that a respondent's su bmission contain certain prescribed information.381  
However, as discussed below in our analysis of  the United States' claim under Article 11 of the 
DSU 382, it appears that this discretion may be exercised only in limited circumstances and, therefore, 
does not permit the USDOC, in all cases, to avoid acting inconsistently with the United States' WTO 
obligations.  We therefore agree with the Pa nel that Section 351.218(d)(2)(iii) of the USDOC 
Regulations is inconsistent, as such, with Articles 6.1 and 6.2 of the  Anti-Dumping Agreement , in 
respect of the first factual situation, namely, deemed waivers resulting from the filing of an 
incomplete submission in response to the USDOC notice of initiation. 
248. We now turn to evaluate whether those respondents that do not respond  at all  to the USDOC 
notice of initiation are also denied opportuniti es guaranteed by Articles 6.1 and 6.2.  These 
respondents will also face automatic affirmative company-specific determinations, be precluded from 
submitting evidence in the remainder of the sunset proceeding, and not be allowed a hearing with 
adverse parties.  Unlike the case of respondents who file  incomplete submissions , however, there will 
be no evidence submitted by that respondent that th e USDOC would disregard.  Thus, the sole basis 
on which such respondents may claim a denial of righ ts under Articles 6.1 and 6.2 is the denial of the 
opportunity to participate in later stages of the pro ceeding, including the right to request a hearing and 
submit evidence subsequent to the filing d eadline of the initial submission.     
                                                      
379United States' appellant's submission, para. 60. 
380Ibid., para. 71. 
381Ibid., para. 74. 
382Infra , paras. 265-269.  WT/DS268/AB/R 
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249. In this case, the claim under Article 6 centres on the  initiation  stage of the proceeding.383  In 
our view, an investigating authority may have at  the initiation stage particular concerns about 
enforcing its deadline for receiving notifications of a respondent's interest in participating.  The 
submissions filed by respondents a nd domestic interested parties frame the scope of the sunset review 
for the investigating authority.  These submissions info rm the agency as to the extent of the issues and 
company-specific data that may need to be inv estigated and adjudicated upon in the course of the 
sunset review.  To this end, we recall the observation of the Appellate Body in  US – Corrosion-
Resistant Steel Sunset Review : 
[T]he Anti-Dumping Agreement assigns a prominent role to 
interested parties as well and contemplates that they will be a  primary source of information in  all proceedings conducted under 
that agreement.  Company-specific data relevant to a likelihood 
determination under Article 11.3 can  often be provided only by the 
companies themselves.  For example, as the United States points out, it is the exporters or producers themselves who often possess the best evidence of their likely future pricing behaviour—a key element in the likelihood of future dumping.
384 
Thus, the initial submissions enable an investigati ng authority to conduct sunset reviews in a fair and 
orderly manner. 
250. Respondents' initial submissions also serve to in form other interested parties of the critical 
issues in dispute in the sunset review.  Particular ly where company-specific behaviour is relevant to 
the final likelihood-of-dumping determination—for exam ple, in respect of an individual respondent's 
dumping margins and volume and value of exports —respondents' submissions may provide factual 
information necessary for other interested parties to defend their interests adequately before the 
agency.  In this regard, we observe that the US DOC Regulations require re spondents to include in 
their initial submissions, inter alia , data on the volume and value of exports of the subject 
merchandise to the United States.385  Because respondents' initial subm issions effectively contribute to 
establishing the parameters of the sunset review—for  the investigating authority as well as for other 
interested parties—the investigating authority has a significant interest in requiring respondents to 
comply with the deadline for notification of inter est in participating at the initial stage of the 
proceeding. 
                                                      
383Previous Appellate Body Reports have addressed Artic le 6 challenges in the context of later stages 
of the relevant anti-dumping proceed ing.  See Appellate Body Report, US – Hot-Rolled Steel , paras. 64-68;  
Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 116-117 and 134-135;  and Appellate 
Body Report, EC – Tube or Pipe Fittings , paras. 119 and 142. 
384Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 199. 
385USDOC Regulations, Section 351.218(d)(3)(iii). WT/DS268/AB/R 
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251. Under the legal regime governing sunset revi ews in the United States, the investigating 
authority, at the beginning of the sunset review , publicly informs all interested parties—including 
domestic interested parties and r espondents—that they must file a submission by a certain date.
386  
Argentina has not alleged that the d eadline set for these submissions is  per se  unreasonable.387  
Moreover, we note that there is no allegation that respondents are not made aware of the requirement 
to make an initial submission, of the content of th at submission, or of the consequences for failing to 
file a submission at all.   
252. In our view, the rights to present evidence and re quest a hearing cannot be said to be "denied" 
to a respondent that is given an opportunity to submit an initial response to the notice of initiation 
simply because it must do so by a deadline that is conceded to be reasonable.  We do not see it as an 
unreasonable burden on respondents to require them to file a timely submission in order to preserve 
their rights for the remainder of the sunset review.  Indeed, even an incomplete submission will serve 
to preserve those rights.388  Accordingly, we are of the view that, if a respondent decides not to 
undertake the necessary initial steps to avail itself of  the "ample" and "full" opportunities available for 
the defence of its interests, the fault lies with  the respondent, and not w ith the deemed waiver 
provision. 
253. Therefore, with respect to respondents that file  incomplete  submissions in response to the 
USDOC's notice of initiation of a sunset review, we  uphold   the Panel's findings, in paragraphs 7.128 
and 8.1(a)(iii) of the Panel Report, that Secti on 351.218(d)(2)(iii) of the USDOC Regulations is 
inconsistent, as such, with Articles 6.1 and 6.2 of the Anti-Dumping Agreement .  However, with 
respect to respondents that file  no  submission in response to the US DOC's notice of initiation, we do 
not agree with the Panel that the failure to accord  those respondents the rights detailed in Articles 6.1 
and 6.2 renders the deemed waiver provision inconsistent, as such, with those provisions. 
C. Article 11 Claims Relating to the Panel's Findings on Waivers 
254. The United States advances two sets of claims unde r Article 11 of the DSU with respect to the 
Panel's evaluation of the United States' waiver provi sions.  The first relates to the conclusion drawn 
by the Panel as to the consistency of the USDOC's order-wide  likelihood determinations with 
                                                      
386Panel Report, para. 7.84. 
387We note that Section 351.218(d)(3)(i) of the USDOC Regulations provides: 
A complete substantive response to a notice of initiation, filed under this 
section, must be submitted to the Department not later than 30 days  after the 
date of publication in the F EDERAL REGISTER  of the notice of initiation.  
(emphasis added) 
388See supra , para. 246.  WT/DS268/AB/R 
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Article 11.3, based on the Panel' s consideration of the USDOC's company-specific  likelihood 
determinations.  The second relates to the Panel' s evaluation of the manner in which the USDOC 
determines the "completeness" of a respondent's submission under Section 351.218(d)(2)(iii) of the 
USDOC Regulations. 
1. Company-Specific and Order-Wide Likelihood Determinations  
255. As to the first set of claims, the United States  argues that Argentina failed to establish, as  
part of its  prima facie  case, that the USDOC relies on  company-specific  likelihood determinations 
when making its  order-wide  likelihood determination.389  According to the United States, Argentina's 
argument before the Panel was limited to the alleged inconsistency of the company-specific  
determinations, resulting from the operation of  the waiver provisions, with Article 11.3.390  Because 
Argentina did not submit evidence in support of the connection between company-specific and order-wide determinations, the United States argues that the Panel had no basis to draw a conclusion as to 
the consistency of the  order-wide  determinations with Article 11.3.
391 
256. The United States further submits that, even if a  prima facie  case had been established, "the 
Panel made erroneous findings of fact regardi ng the relationship under U.S. law between company-
specific and order-wide determinations in sunset reviews." 392  The United States argues that the 
record evidence does not support the Panel's conclu sion that the USDOC's order-wide determinations 
are "based on" 393 the company-specific determinations.  The United States refers to its statements 
before the Panel that the company-specific determina tions are only one factor considered in the final 
order-wide determination, that is, that company-spec ific determinations are not determinative of the 
order-wide determination.394  Because the Panel erroneously assumed that United States law required 
the USDOC to base its order-wide determination on a company-specific determination, in the absence 
of evidence to that effect, the United States claims th e Panel failed to fulfil its obligations under 
Article 11 of the DSU. 
257. The Appellate Body has defined a  prima facie  case as "one which, in the absence of effective 
refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the 
                                                      
389United States' response to questi oning at the oral hearing. 
390Ibid. 
391Ibid. 
392United States' appellant's submission, para. 58. 
393Ibid., para. 59. 
394Ibid., para. 60. WT/DS268/AB/R 
Page 94  
 
complaining party presenting the  prima facie  case".
 395  As to what would constitute a  prima facie   
case, the Appellate Body has observed that "the natu re and scope of evidence required to es tablish a  
prima facie   case 'will necessarily vary from measure to measure, provision to provision, and case to 
case' ".396  Specifically, as to the nature of the burde n placed on complaining parties when challenging 
measures "as such", the Appellate Body has stated that those parties are required to present evidence as to the scope and meaning of the challenged measure,  including, for example, the text of the measure 
supported by evidence of it s consistent application.
397    
258. In this dispute, with respect to the waiver provisions, Argentina was required to make out a 
prima facie  case that the operation of Section 751(c)(4)(B ) of the Tariff Act of 1930 and Section 
351.218(d)(2)(iii) of the USDOC Regulations results in  order-wide  determinations that do not satisfy 
the requirements of Article 11.3.398  Thus, to the extent that Ar gentina had shown that company-
specific determinations were based on assumpti ons rather than evidence, as discussed above 399, the 
burden on Argentina was then to show—with ev idence to substantiate its claim—how these 
affirmative company-specific determinations affect ed the order-wide determinations of the USDOC.  
259. Argentina points to various portions of its wr itten submissions and openi ng statements before 
the Panel in support of its assertion that it introduced evidence in support of a  prima facie  case that 
the waiver provisions preclude th e USDOC from arriving at order-wid e determinations consistent 
with Article 11.3.400  In its second written submission before the Panel, Argentina stated: 
[I]n this case, the ultimate effect  is the same whether waiver is 
applied on a company-specific or order-wide basis.  In this case, the Department deemed the Argentina e xporters to have waived, and thus 
issued a determination that dumping was likely to continue or recur pursuant to the waiver provisions.  Therefore, waiver on the 
company-level was equivalent to waiver on an order-wide basis 
because the Department deemed the companies accounting for 100 
percent of the alleged exports to  have waived participation. 
… 
                                                     
 
395Appellate Body Report, EC – Hormones , para. 104.  See also Appellate Body Report, Canada – 
Aircraft , para. 192:  "A  prima facie  case, it is well to remember, is a case  which, in the absence of effective 
refutation by the defending party ..., requires a panel, as a matter of law, to rule in  favour of the complaining 
party presenting the  prima facie  case." 
396Appellate Body Report, Japan – Apples , para. 159 (quoting Appellate Body Report, US – Wool 
Shirts and Blouses , p. 14, DSR1997:I, 323 at 335). 
397Appellate Body Report, US – Carbon Steel , para. 157. 
398Supra , para. 231. 
399Supra , para. 234. 
400Argentina's response to questi oning at the oral hearing.  WT/DS268/AB/R 
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The sunset review of antifriction bearings from Sweden illustrates the "efficient" use of the waiver provisions and highlights the direct conflict with Article 11.3 – where th ere is no review, no analysis, and 
no determination by the Department.  In that case the Department stated, "given that … respondent in terested parties have waived their 
right to participate in this review before the Department, we 
determine that dumping is likely to  continue if the orders were 
revoked."
401 
Thus, the Panel had before it the USDOC's determina tions in the underlying sunset review on OCTG 
from Argentina and in the sunset review on antifriction bearings from Sweden.402  In our view, this 
would have permitted the Pa nel to conclude that Argentina had met its  prima facie  obligation to 
show that company-specific determinations are cons idered by the USDOC in the course of making its 
order-wide determinations. 
260. With respect to the Panel's factual finding regarding the relations hip between order-wide 
likelihood determinations and company-specific de terminations, the United States alleges that the 
Panel arrived at the incorrect conclusion that, under United States law, the former are "based on" 403 or 
"dispositive of" 404 the latter.  We do not agree with the United States' characterization of the Panel's 
reasoning.  As noted above 405, in explaining how company-specific determinations may be relevant to 
order-wide determinations, the Panel accepted the poi nt of United States law that the United States 
argued before it, which it repeated on appeal, that  is, that company-specific determinations are 
"consider[ed]" by the USDOC in the course of making its order-wide likelihood determinations.406  
We also explained earlier 407 that we found no error in the Panel's finding that company-specific 
determinations are taken into account when making order-wide dete rminations—even if the company-
specific determinations were not determinative—and th at this is sufficient in this case to lead to a 
conclusion of inconsistenc y with Article 11.3.  It follows, th en, that we see no basis for the United 
States' allegation that the Panel drew its c onclusions about company-specific and order-wide 
                                                      
401Argentina's second written submission to the Panel,  paras. 43 and 47 (quoting Antifriction Bearings 
from Sweden, United States Federal Register , Vol. 64, No. 213 (4 November 1999), p. 60282 (Tab 6 of Exhibit 
ARG-63 submitted by Argentina to the Panel), at pp. 60282 and 60284. 
402See Issues and Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty 
Orders on Oil Country Tubular Goods from Argentina, Italy, Japan, and Korea;  Final Results, 31 October 2000 
(Exhibit ARG-51 submitted by Argentina to the Panel), p. 6;  and Antifriction Bearings from Sweden, United 
States Federal Register , Vol. 64, No. 213 (4 November 1999), p. 60282 (Tab 6 of Exhibit ARG-63 submitted by 
Argentina to the Panel), at pp. 60282 and 60284. 
403United States' appellant's submission, paras. 59 and 61. 
404Ibid., para. 61. 
405Supra , para. 233. 
406See United States' appellant's submission, para. 61 (quoting the United States' response to Question 
4(b) posed by the Panel at the Second Panel Meeting (Panel Report, Annex E, p. E-93, para. 3)). 
407Supra , para. 234. WT/DS268/AB/R 
Page 96  
 
determinations in a manner contrary to evidence on  the record.  We therefore see no merit in this 
aspect of the United States' Article 11 claim. 
2. The USDOC's Decision as to Whether a Submission Constitutes a "Complete 
Substantive Response"  
261. Turning to the United States' second set of clai ms under Article 11 of the DSU with respect to 
the waiver provisions, the United States argu es that Argentina failed to make out a  prima facie  case 
that Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the USDOC Regulations are inconsistent, as such, with Article 11.3, and that Section 351.218(d)(2)(iii) of the 
USDOC Regulations is inconsistent, as such, with  Articles 6.1 and 6.2.  In the view of the 
United  States, Argentina failed to meet its bur den in this case because Argentina offered only 
one  determination of the USDOC as evidence of the meaning of how the USDOC determines 
whether a respondent's submission constitutes a "complete substantive response" under Section 
351.218(d)(2)(iii) of the USDOC Regulations.
408  The United States submits that, by relying on this 
one determination to derive the meaning of the wa iver provisions, the Panel "reliev[ed] Argentina of 
its burden to make a  prima facie  case".409 
262. The United States argues further that, even if Argentina made a  prima facie  case as to the 
meaning of "complete substantive response", the Pa nel erred in finding that the USDOC considers a 
submission "complete", for purposes of Section 351.218(d)(2)(iii) of the USDOC Regulations, only 
when it contains all of the information specified in Section 351.218(d)(3).410  The United States 
submits that the Panel came to this understanding on the basis of an alleged "practice" of the 
USDOC.411  Argentina provided only one determina tion as evidence of this point, which is 
insufficient, according to the United States, to constitute a "practice".412  The United States submits 
that the one sunset review determination proffere d by Argentina cannot form the basis for the Panel's 
understanding of what the USDOC considers a "c omplete" response, because one determination 
"cannot serve as conclusive evidence of [USDOC ] practice, let alone the true meaning of the 
measures at issue".413  In addition, the United States argue s that the Panel "disregard[ed]" and 
"willfully ignor[ed]" relevant evidence submitted by the United States on this point, as a result of 
                                                      
408United States' appellant's submission, para. 78. 
409Ibid., para. 79. 
410Ibid., para. 67. 
411Ibid., para. 66 (quoting Panel Report, para. 7.126). 
412Ibid.  
413Ibid., para. 78.  WT/DS268/AB/R 
 Page 97 
 
 
which the Panel came to a misunderstanding of Un ited States law and acted inconsistently with 
Article 11 of the DSU.414  
263. In our view, the United States mischaracteri zes what is required to make out a  prima facie  
case.  As the Appellate Body indicated in  US – Carbon Steel ,  the obligation to make out a  prima 
facie  case may be satisfied in certain cases simply by submitting the text of the measure or, 
particularly where the text may be unclear, with supporting materials.415  Before the Panel, Argentina 
submitted the text of Section 751 of the Tari ff Act of 1930 and Section 351.218 of the USDOC 
Regulations.416  Included in these texts is Section 351.218(d)(3)(ii) and (iii) of the USDOC 
Regulations, which sets out the "[r]equired informati on to be filed [by respondents in a] substantive 
response to a notice of initiation".  We understand the Panel to have examined the provisions of 
United States law submitted by Argentina, and to have determined that these provisions speak for 
themselves and set out with sufficient clarity enough aspects of the waiver provisions for the Panel to 
have drawn its conclusions as to their operation.   
264. In addition to the texts of the challenged provi sions, Argentina discussed before the Panel one 
determination, as the United States acknowledges 417, where the USDOC concluded that the 
respondent had not filed a "complete substantive response".418  The USDOC stated the following in 
that determination: 
Duferco's and FAFER's responses were in complete because they did 
not provide the Department the in formation required of respondent 
interested parties in a sunset review.  As such, the Department could 
not determine whether the respondents'  five year average percentage 
of exports to the U.S. vis-a-vis the total exports of the subject 
merchandise, during the relevant period, was above or below the 
normal 50 percent threshold requirement  for  conduct of a full sunset 
review.  Therefore, [o]n October 21, 1999, pursuant to 19 CFR 351.218(e)(1)(ii)(A), the Departme nt determined to conduct an 
expedited (120-day) sunset review of this order. 
... 
                                                     
 
414United States' appellant's submission, para. 76. 
415Appellate Body Report, US – Carbon Steel , para. 157. 
416See Sections 751 and 752 of the Tariff Act of 1930 (Exhibit ARG-1 submitted by Argentina to the 
Panel);  and Section 351.218 of the USDOC Regulations (Exhibit ARG-3 submitted by Argentina to the Panel). 
417United States' appellant's submission, para. 78. 
418Argentina's second written submission to the Panel, footnote 68 to para. 48 (discussing, inter alia , 
the USDOC's sunset review determination in Cu t-to-Length Carbon Steel Plate from Belgium, United States 
Federal Register , Vol. 65, No. 68 (7 April 2000), p. 18292 (Tab 82 of Exhibit ARG-63 submitted by Argentina 
to the Panel). WT/DS268/AB/R 
Page 98  
 
In addition to consideration of  the guidance on likelihood cited 
above, section 751(c)(4)(B) of the Act provides that the Department shall determine that revocation of an order is likely to lead to 
continuation or recurrence of dumping where a respondent interested party waives its participation in the sunset review.  In the instant 
review, the Department did not receive an adequate response from any respondent interested party . Pursuant to section 351.21 
8(d)(2)(iii) of the Sunset Regulations, this constitutes a waiver of 
participation .
419  (emphasis added;  footnote omitted) 
Together with the text of Secti on 351.218(d)(2)(iii), this one exam ple provides support for Argentina's 
understanding of how the USDOC determines whether a response is not "complete" so as to consider 
the respondent to have waived participation in the su nset review.  Therefore, the Panel did not "take it 
upon itself" to make out Argentina's  prima facie  case by agreeing with Argentina's understanding of 
the "completeness" standard in Section 3 51.218(d)(2)(iii) of th e USDOC Regulations.420 
265. The United States' more fundamental claim on this issue appears to be its disagreement with 
the conclusion the Panel drew from this evidence.  The United States refers to answers it provided in 
response to the Panel's questions, in which the United States explained that the USDOC does not 
automatically reject incomplete submission, but in fact has the " flexibility " 421 to grant respondents 
more time to complete their submission or to accept a submission that did not contain all the requested 
information.422  In these answers, the United States referred to the Preamble to its regulations 
governing sunset reviews as the basis for this "fle xibility".  The relevant portion of the Preamble 
provides: 
A complete substantive response is one which contains all of the 
information required under [Section 351.218(d)(3)].  The Department 
may consider a substantive response that does not contain all of the information required under [Section 351.218(d)(3)] to be complete where a party is unable to report certain required information and 
provides a reasonable explanation as to why it is unable to provide 
such information.
423 
                                                      
419Issues and Decision Memo for the Expedited Sunset Review of the Antidumping Order on Cut-to-
Length Carbon Steel Plate from Belgium, 29 March 2000 (Tab 82 of Exhibit ARG-63 submitted by Argentina to 
the Panel), pp. 2-3 and 5. 
420United States' appellant's submission, para. 79. 
421Ibid., para. 71. (original emphasis) 
422Ibid., paras. 68-74. 
423Procedures for Conducting Five-year ("Sunset") Reviews of Antidumping and Countervailing Duty 
Orders, United States Federal Register , Vol. 63, No. 54 (20 March 1998), p. 13516 (Exhibit US-3 submitted by 
the United States to the Panel), Preamble, at p. 13518.  WT/DS268/AB/R 
 Page 99 
 
 
The United States also cited Section 351.302(b) of the USDOC Regulations as authorizing the 
USDOC to extend deadlines "for good cause": 
Unless expressly precluded by statute, the Secretary may, for good 
cause, extend any time limit established by [Section 351 of the 
USDOC Regulations].424 
266. The United States argues on appeal that these ex planations were "ignored" by the Panel, 
which made its decision "contrary to the evidence" before it.425  As the United States acknowledges, 
however, the Panel posed a question on this issue in it s first set of questions to the United States, and 
then followed up with a question in the second set of  questions to the United States, based explicitly 
on the response the United States had provided previously.426   
267. Moreover, we are of the view that the Pane l did not find the United States' explanations 
relevant to its reasoning.  As discussed above , the Panel based its conclusion as to the WTO-
consistency of the waiver provisions on the fact th at they require the USDOC to rely, in part, on 
unfounded company-specific likelihood determinations427, and to deny due process rights to 
respondents that failed to file a "complete substantive response".428  Thus, although the USDOC may 
be able to accept incomplete submissions in certai n circumstances, thee provisions cited by the United 
States do not permit the USDOC to avoid, in  all  cases, applying the waiver provisions in a WTO-
inconsistent manner.   
268. First, as the United States acknowledged before the Panel and on appeal429, the Preamble to 
the sunset review regulations allows the USDOC to treat an incomplete submission as "complete" 
only "where that interested party is unable to report the required information and provides [an] 
explanation" for such inability.430  Thus, if a respondent is cons idered by the USDOC as being  able  
to file all the required information, the Preamble doe s not appear to authorize the USDOC to treat that 
respondent's incomplete submission as though it were  "complete".  Second, as the United States again 
                                                      
424USDOC Regulations, Section 351.302(b);  cited in United States' appellant's submission, para. 41. 
425United States' appellant's submission, para. 75. 
426Ibid., paras. 69-73 (quoting United States' responses to questions posed by the Panel at the First 
Panel Meeting (Panel Report, Annex E, pp. E-18 and E-43, paras. 40-42);  and United States' response to 
Question 9 posed by the Panel at the Second Panel Meeting, (Panel Report, Annex E, pp. 96-97, paras. 12-13)). 
427Supra , para. 233. 
428Supra , paras. 236-237. 
429United States' appellant's submission, para. 70 (quoting United States' response to Question 8 posed 
by the Panel's at the First Panel Meeting (Panel Report, Annex E, pp. E-18 and E-43, para. 41 and footnote 33 
thereto);  in turn citing USDOC Regulations, Sectio n 351.218(d)(3) and Preamble to the USDOC's Sunset 
Review Regulations, supra , footnote 423, p. 13518.   
430United States' appellant's submission, para. 70 (quoting United States' response to Question 8 posed 
by the Panel's at the First Panel Meeting (Panel Report, Annex E, pp. E-18 and E-43, footnote 33 to para. 41)). WT/DS268/AB/R 
Page 100  
 
acknowledged before th e Panel and on appeal
 431, Section 351.302(b) of the USDOC Regulations only 
permits the USDOC to  extend the time limit   for submission of substantive responses.  The United 
States does not contend that this provision allows the USDOC to consider a submission as "complete" 
when it does not contain all of the information prescribed by Section 351.218(d)(3) of the USDOC 
Regulations.  Therefore, the USDOC will still be pr ecluded from treating the incomplete submissions 
as "complete" when they fall outside the ambit of the Preamble.   Nor will the USDOC be entitled to 
treat incomplete submissions as "complete" by virtue of Section 351.302(b).   
269. As a result, in respect of respondents to wh ich those provisions cannot be applied, the 
USDOC will continue to make automatically an affirmative company-specific determination and to 
deny the rights afforded by Articles 6.1 and 6.2 of the  Anti-Dumping Agreement .  Viewed in this 
light, the explanations and citations provided by the United States regarding the "completeness" of a 
substantive response had no bearing upon the Panel's analysis.  Accordingly, we see no error in the 
Panel's reliance on the evidence submitted by Arge ntina and in its apparent understanding that the 
evidence submitted by the United States was not relevant to the Panel's reasoning. 
270. In the light of the above, we  find  that the Panel did not fail to "make an objective assessment 
of the matter before it, including an objective ass essment of the facts of the case", as required by 
Article 11 of the DSU, in ascertaining the rela tionship between company-specific and order-wide 
determinations and in examining the basis on which the USDOC conclud es that a respondent's 
submission constitutes a "complete substantive response". 
VII. Factors to be Evaluated in a Li kelihood-of-Injury Determination 
271. We begin our analysis of Argentina's in jury-related claims on appeal by addressing 
Argentina's claim that investigating authorities are re quired to consider certain specific factors in the 
course of making likelihood- of-injury determinations. 
272. Argentina raised before the Panel several claims  of inconsistency with  various provisions of 
Article  3 of the Anti-Dumping Agreement  with respect to the USITC's likelihood-of-injury 
determination on OCTG from  Argentina.  The Panel commenced its analysis of these claims by 
evaluating "the applicability of Article 3 in sunset reviews".432  The Panel observed that neither 
Article 3 nor Article 11.3 contains an explicit cross -reference to the other provision.  Nevertheless, the 
                                                      
431United States' appellant's submission, para. 70 (quoting United States' response to Question 8 posed 
by the Panel's at the First Panel Meeting (Panel Report, Annex E, pp. E-18 and E-43, para. 41 and footnote 33 
thereto);  in turn citing USDOC Re gulations, Section 351.320(b)).   
432Panel Report, para. 7.269.  WT/DS268/AB/R 
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Panel acknowledged that the text of Article 3, including Article 3.1 and footnote 9, "may suggest" that 
the provisions of Article 3 "define the scope of injury determinations throughout the Agreement".433 
273. Referring to the Appellate Body's decision in  US – Corrosion-Resistant Steel Sunset Review , 
the Panel noted the differences in the nature of th e inquiries in original investigations and in 
sunset  reviews.  The Panel distinguished betw een injury determinations and likelihood-of-injury 
determinations.  The Panel stated:  "Just as the Appella te Body stated that an investigating authority is 
not required to make a dumping determination in a s unset review, we consider that an investigating 
authority is not required to make an in jury determination in a sunset review." 434  Having decided that 
determinations of existing injury are not required in sunset reviews, the Panel concluded that the 
obligations contained in the various paragraphs of Article 3 do not "normally" apply to sunset 
reviews.435  However, the Panel found that, to the extent that an investigating authority relies on a 
determination of injury when conducting a sunset re view, the obligations of Article 3 would apply to 
that determination. 
274. On appeal, Argentina argues, first, that Article 11.3, in and of itself ,  imposes "substantive 
obligations" 436 on investigating authorities to make their sun set review determinations in a particular 
manner, and that the Panel erred in failing to r ecognize the existence of these obligations.  "In the 
alternative"437, Argentina argues that the provisions of Article 3 apply to sunset reviews under 
Article 11.3 because Article 3 deals with injury determinations for the entire Anti-Dumping 
Agreement .  We consider it useful to begin our analys is with Argentina's "alternative" argument, 
before addressing the argument regarding the "subs tantive obligations" mandated by Article 11.3. 
275. Argentina argues that, by virtue of footnote 9 of the  Anti-Dumping Agreement 438, which sets 
forth the definition of injury "under this Agreemen t", the term "injury" must have the same meaning 
throughout the Anti-Dumping Agreement , including in the context of sunset reviews under 
                                                      
433Panel Report, para. 7.270. 
434Ibid., para. 7.273 (citing Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 123). 
435Ibid., para. 7.273.   
436Argentina's other appellant's submission, p. 35, heading b. 
437Ibid., para. 129. 
438Footnote 9 of the  Anti-Dumping Agreement  provides: 
Under this Agreement the term "injury" shall, unless otherwise specified, be 
taken to mean material injury to a domestic industry, threat of material injury to a domestic industry or material retardation of the establishment of 
such an industry and shall be interp reted in accordance with the provisions 
of this Article. WT/DS268/AB/R 
Page 102  
 
Article 11.3.
439  Argentina notes that the definition of "injury" in footnote 9 provides that the term 
"injury" "shall be interpreted in accordance with the provisions of [Article 3]".  Based on this 
language, Argentina claims that "any  reference in the Agreement to 'injury', including a determination 
of likelihood of continuation or recurrence of injury under Article 11.3, requires that such a determination be made in conformity with the provisions of Article 3."
 440  Relying on the Appellate 
Body Report in  US – Corrosion-Resistant Steel Sunset Review , Argentina submits that the terms 
"review" and "determine" in Article 11.3 contemplate "diligence and rigor" on the part of 
investigating authorities 441, and preclude those authorities from arriving at a sunset review 
determination in the absence of a "sufficient f actual basis" from which "reasoned and adequate 
conclusions" may be drawn.442  According to Argentina, it follo ws from these requirements that an 
investigating authority, in its likelihood-of-i njury analysis, must consider "at a minimum" 443, the 
following elements: 
• ... [A]ny determination under Ar ticle 11.3 must be based on 
positive evidence, and involve an  objective examination of the 
volume of dumped imports and the effect of the dumped imports 
on prices, as well as the consequent impact of the imports on 
domestic producers. 
• An Article 11.3 review requires an examination of the impact of 
the dumped imports on the domestic industry concerned, and must include an evaluation of all relevant economic factors having a bearing on the state of the industry…. 
• The requirement … to demonstrate a causal relationship between 
the dumped imports and the injury to the domestic industry.
444 
Argentina therefore requests the Appellate Body to reverse the Panel's finding that Article 3 does not 
normally apply to a sunset review, and to "complete the analysis" under Article 3 by finding that the 
USITC's determination is inconsistent with Article s 3.1, 3.2, 3.4, and 3.5 because of its improper 
examination of "injury".445 
276. At the outset, we would agree with Argentina that, by virtue of its opening phrase, footnote 9 
defines "injury" for the whole of the  Anti-Dumping Agreement .  The United States also agrees that 
                                                      
439Argentina's other appellant's submission, paras. 132-135.   
440Ibid., para. 147. 
441Ibid., para. 138. 
442Ibid., para. 139 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 114). 
443Ibid., para. 143. 
444Ibid. 
445Ibid., paras. 179 and 214.  WT/DS268/AB/R 
 Page 103 
 
 
this definition of "injury" is a pplicable throughout the Agreement.446  Therefore, when Article 11.3 
requires a determination as to the likelihood of continuation or recurrence of "injury", 
the investigating authority must consider the con tinuation or recurrence of "injury" as defined in 
footnote 9.   
277. It does not follow, however, from this single definition of "injury", that all of the provisions 
of Article 3 are applicable in their entirety to s unset review determinati ons under Article 11.3.   
In arguing to the contrary, Ar gentina incorrectly equates the definition  of "injury" with the  
determination of  "injury".  Notwithstanding footnote 9, the paragraphs of Article 3 are not an 
elaboration of the meaning of "injury".  Rather , Article 3 lays down the steps involved and the 
evidence to be examined fo r the purposes of making a  determination of  injury.  This is evident from 
the title of the Article ("Determination of Injury").  The focus of Article 3 on the determination  of 
injury, rather than on its  definition , is confirmed in the French and Spanish versions of Article 3.1, 
which translate "determination of  injury", respectively, as " la détermination de l'existence d'un  
dommage " and " la determinación de la existencia de  daño ".447   
278. Argentina submits that likelihood-of-injury determ inations are "determinations of injury" for 
purposes of the  Anti-Dumping Agreement .  In our view, however, the Anti-Dumping Agreement  
distinguishes between "determination[s] of injury",  addressed in Article 3, and determinations of 
likelihood of "continuation or recurrence ... of injury",  addressed in Article 11.3.  In addition, Article 
11.3 does not contain any cross-reference to Article 3 to the effect that, in making the likelihood-of-
injury determination, all the provisions of Artic le 3—or any particular provisions of Article 3— must  
be followed by investigating authorities.  Nor does any provision of Article 3 indicate that, wherever 
the term "injury" appears in the Anti-Dumping Agreement , a determination of injury must be made 
following the provisions of Article 3.   
279. The lack of a sufficient textual basis to apply Article 3 to likelihood-o f-injury determinations 
is not surprising given "the different nature and purpose of original investigations, on the one hand, 
and sunset reviews, on the other hand", which the Appellate Body emphasized in  US – Corrosion-
Resistant Steel Sunset Review .448  Original investigations require an investigating authority, in order to 
 impose  an anti-dumping duty, to make a determinati on of the existence of dumping in accordance 
with Article 2, and subsequently to determine, in accordance with Article 3, whether the domestic 
industry is facing injury or a threat thereof at the time of the original investigation.  In contrast, 
Article 11.3 requires an investigating authority, in order to  maintain  an anti-dumping duty, to review 
                                                      
446United States' response to questi oning at the oral hearing. 
447French and Spanish versions of Article 3.1 of the  Anti-Dumping Agreement . (underlining added)   
448Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 124. WT/DS268/AB/R 
Page 104  
 
an anti-dumping duty order that has already been established—following the prerequisite 
determinations of dumping and in jury—so as to determine whether th at order should be continued or 
revoked.   
280. Given the absence of textual cross-references, and given the different nature and purpose of 
these two determinations, we are of the view that, fo r the "review" of a determination of injury that 
has already been established in accordance with Article 3, Article 11.3 does not require that 
injury  again be determined in accordance with Article 3.  We therefore conclude that investigating 
authorities are not  mandated  to follow the provisions of Article 3 when making a likelihood-of-
injury determination. 
281. Turning to the obligations under Article 11.3,  we recall the following statement of the 
Appellate Body in  US – Corrosion-Resistant Steel Sunset Review : 
Article 11.3 does not expressly prescribe any specific methodology 
for investigating authorities to use in making a likelihood 
determination in a sunset review.  Nor does Article 11.3 identify any 
particular factors that authorities must take into account in making such a determination.
449 
Although the Appellate Body made this statemen t in the context of a likelihood-of-dumping 
determination, it applies equally with respect  to a likelihood-of-injury determination.   
282. Argentina does not contest the fact that the additional requirements it posits 450, which are 
identical to the requirements contained in the paragra phs of Article 3, are not to be found explicitly in 
the text of Article 11.3.  Rather, Argentina deri ves these requirements from the terms "determination" 
and "review" in Article 11.3.  Argentina argues th at, given the implications of these terms discussed 
above 451, the requirements it finds in Article 11.3 follow "logically" from the "rigorous, diligent 
examination" to be undertaken by the investigating authority.452  Argentina submits that permitting an 
investigating authority to conduct a sunset re view without following these requirements would 
undermine  the very obligation to make a likelihood-of-injury "determination" in a "review" of the 
anti-dumping duties.453 
                                                      
449Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 123. 
450Supra , para. 275. 
451Supra , paras. 179-180.   
452Argentina's other appellant's submission, para. 143. 
453Ibid.  WT/DS268/AB/R 
 Page 105 
 
 
283. The Appellate Body has concluded previously that the terms "determine" and "review" are 
critical to understanding the obligations of an investigating authority in sunset reviews.454  T h e  
ordinary meanings of these terms necessitate a "reasoned conclusion on the basis of information 
gathered as part of a process of reconsideration and examination".455  As the Appellate Body stated in  
US – Corrosion-Resistant Steel Sunset Review 456, however, the requirement for an investigating 
authority to arrive at a "reasoned conclusion" as to  the likelihood of continuation or recurrence of 
injury does not have to be satisfied through a speci fic methodology or the consideration of particular 
factors in every case.  We are not persuaded by th e argument of Argentina that a likelihood-of-injury 
determination can rest on a "sufficient factual basi s" and can be regarded as a "reasoned conclusion" 
only  after undertaking all the analyses detaile d in the paragraphs of Article 3.  
284. This is not to say, however, that in a sunset revi ew determination, an investigating authority is 
never required to examine any of the factors listed in  the paragraphs of Article 3.  Certain of the 
analyses mandated by Article 3 and necessarily relevant  in an original investigation may prove to be 
probative, or possibly even required, in order for an i nvestigating authority in a sunset review to arrive 
at a "reasoned conclusion".  In this  respect, we are of the view that the fundamental requirement of 
Article 3.1 that an injury determination be based on "positive evidence" and an "objective 
examination" would be equally rele vant to likelihood determinations under Article 11.3.  It seems to 
us that factors such as the volume, price effects,  and the impact on the domestic industry of dumped 
imports, taking into account the conditions of comp etition, may be relevant to varying degrees in a 
given likelihood-of-injury determination.  An inv estigating authority may also, in its own judgement, 
consider other factors contained in Article 3 when  making a likelihood-of-injury determination.   But 
the necessity of conducting such an analysis in a given case results from the requirement imposed by   
Article 11.3 —not Article 3—that a likelihood-of-injury de termination rest on a "sufficient factual 
basis" that allows the agency to dr aw "reasoned and ade quate conclusions". 
285. In the light of the above, we  uphold  the Panel's finding, in paragraph 7.273 of the Panel 
Report, that the obligations set out in Article 3 do not apply to likelihood-of injury determinations in 
sunset reviews.  Consequently, we  need not  "complete the analysis" and make findings with respect 
to Argentina's claims that the USITC acted inconsiste ntly with Articles 3.1, 3.2, 3.4, and 3.5 of the  
Anti-Dumping Agreement .  We also  find  that the Panel did not err in its interpretation of the term 
"injury" in Article 11.3 of the  Anti-Dumping Agreement , or in its analysis with respect to the factors 
that an investigating authority is required to examine in a likelihood-of-injury determination. 
                                                      
454Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 110-112. 
455Ibid., para. 111. 
456Ibid., para. 123. WT/DS268/AB/R 
Page 106  
 
 
VIII.  Cumulation in Sunset Reviews  
286. We turn now to address Argentina's claim that  the Panel erred in finding that the USITC's 
cumulative analysis, made in the course of co nducting its likelihood de termination, was not 
inconsistent with Articles 3.3 and 11.3 of the  Anti-Dumping Agreement . 
287. Argentina argued before the Panel that the Anti-Dumping Agreement   authorizes investigating 
authorities to engage in a cumulative analysis in orig inal investigations by virtue of Article 3.3, but 
that no such authorization exists for sunset review s.  As an alternative argument, Argentina submitted 
that, if cumulation were permitted in sunset review s, investigating authorities must first satisfy the 
conditions set out in Article 3.3(a) and (b).  The United States argued that, as the  Anti-Dumping 
Agreement  does not prohibit the use of cumulation, investigating authorities are permitted to engage 
in a cumulative analysis in likelihood-of-injury determ inations in sunset reviews.  As to the conditions 
set out in Article 3.3, the United States argued that they apply only in the context of original investigations. 
288. The Panel began its analysis by observing that  Article 11.3 and Article 3.3 do not speak to 
whether cumulation is permitted beyond the context of  original investigations.  In the Panel's view, 
"the lack of a clear provision in the Agreement as to whether cumulation is generally allowed [means] 
that cumulation is permitted in sunset reviews."
 457  In support of its understanding, the Panel stated 
that the consistent use of the term "dumped imports " in the remainder of Article 3, without specifying 
that such imports would originate from a single s ource, reflects the position that investigating 
authorities would normally base injury determinations on imports from all investigated sources cumulatively.  The Panel rejected Argentina's ar gument that the use of the singular "duty" in 
Article 11.3 indicates an intent not to authorize cu mulation in sunset reviews, finding the attribution 
of such a "far-reaching substantive meaning" to the u se of the singular as opposed to the plural term to 
be implausible.
458  The Panel then found that cumulation, wh en used in sunset reviews, does not need 
to satisfy the conditions of Article 3.3 because " by its own terms Article 3.3 limits its scope of 
application to investigations". 459  As a result, the Panel found that the USITC's cumulative analysis in 
the underlying sunset review determination was not inconsistent with Articles 3.3 and 11.3 of the 
Anti-Dumping Agreement .460   
                                                      
457Panel Report, para. 7.332. 
458Ibid., para. 7.334. 
459Ibid., para. 7.336. 
460Ibid., para. 7.338.  WT/DS268/AB/R 
 Page 107 
 
 
289. Argentina argues that the Panel erred:  (1) in  finding that cumulation is permitted in sunset 
reviews;  (2) in finding that the conditions set out in Article 3.3 for the use of cumulation do not need 
to be satisfied in the context of sunset reviews;  and (3) in dismissing Argentina's claim as to the 
consistency of the USITC's recourse to cumulation with the "likelihood" standard in Article 11.3. 
290. As to the first error, Argentina refers to th e use of the term "duty" in the singular in 
Article 11.3 as evincing the intent of the treaty drafte rs to have sunset review determinations focus on 
one  anti-dumping measure applied to  one  source.  Thus, according to Argentina, investigating 
authorities are required to determine whether the expiry of  each  duty, as applied to imports from  
individual  Members, would lead to a continuation or recurrence of injury.461  Furthermore, according 
to Argentina, the rationale for permitting cumulati on in original investigations does not apply in 
sunset reviews.  Because investigating authorities in original investigations lo ok to evidence of past 
behaviour, Argentina argues, they will have a "factual  foundation" to examine relevant issues, such as 
the conditions of competition among exporters from different sources, and thereby be able to 
determine whether cumulation is appropriate.462  In sunset reviews, Argentina submits, the changed 
circumstances in the five years since the imposition of anti-dumping duties, and the prospective nature 
of the inquiry, preclude an agency from having a factual basis to consider the appropriateness of 
cumulation.463   
291. With respect to the applicability of the prerequi sites in Article 3.3, Argentina argues that if 
cumulation is permissible in sunset review s, the prerequisites "must equally apply".464  In Argentina's 
view, to conclude otherwise, as did the Panel, w ould permit investigating authorities to engage in a 
cumulative analysis in sunset reviews without the "disciplines" Members negotiated during the 
Uruguay Round.465  Finally, Argentina argues that the Panel erred in declining to address Argentina's 
claim as to the consistency with Article 11.3 of th e USITC's use of cumulation.  Argentina observes 
that WTO obligations may apply on a "concurrent and overlapping basis" 466 and that, as such, the 
Panel was incorrect in dismissing Argentina's Article 11.3 claim on the basis that it would create 
"extra substantive obligations" in Ar ticle 3.3 for investigating authorities.467 
                                                      
461Argentina's other appellant's submission, paras. 257-260. 
462See  ibid., para. 265. 
463Ibid., paras. 266-267. 
464Ibid., para. 278. 
465Ibid. 
466Ibid., para. 280. (Argentina's emphasis omitted) 
467Ibid. (quoting Panel Report, para. 7.337). WT/DS268/AB/R 
Page 108  
 
292. We begin our analysis by recalling that the text of Article 11.3 of the  Anti-Dumping 
Agreement   makes no reference to cumulation or to Article 3.3.
468  Turning to Argentina's argument 
regarding the use of the singular, "duty", as opposed to the plural, "duties", we observe that this 
argument is premised on Argentina's understanding that the term "duty" in Article 11.3 refers to a  
single  anti-dumping measure imposed on  one  Member, whereas the term "duties" refers to  multiple  
anti-dumping measures imposed on  more than one   Member.   
293. In our view, the  Anti-Dumping Agreement   does not ascribe to the singular and plural forms 
of the word "duty" the significance claimed by Ar gentina.  Even where a Member issues an anti-
dumping duty order applicable to products from one country, that order assigns separate duties to 
individual exporters from that country.  Duties also vary from country to country.  In this respect, we note, for example, the use of the term "duty", in the singular, in Article 9.2, which states, in part: 
When an anti-dumping duty is imposed in respect of any product, 
such anti-dumping  duty  shall be collected in the appropriate 
amounts in each case, on a non-discriminatory basis on imports of 
such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted.  (emphasis added) 
Article 9.2 provides that a "duty", in the  singular , can be "collected ... on imports of [the investigated 
product] from  all  sources", although such duty may vary from source to source.  It follows that a 
"duty", in the singular—as used in Article 11.3—is not necessarily limited to a duty that is imposed with respect to one Member only, but may also  refer to duties imposed with respect to  multiple  
sources of the imported product.  We are, therefore, of the view that the mere use of the term "duty", 
in the singular, in Article 11.3 does not necessarily suggest that likelihood-of-injury determinations 
must be made on a Member-by-Member basis.  
294. We next examine "the only provision in the  Anti-Dumping Agreement  that specifically 
addresses the practice of cumulation".
469  Article 3.3 provides: 
                                                      
468Supra , para. 177.   
469Appellate Body Report, EC – Tube or Pipe Fittings , para. 108.  WT/DS268/AB/R 
 Page 109 
 
 
Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the investigating authorities may cumu latively assess the effects of such 
imports only if they determine that (a) the margin of dumping 
established in relation to the imports  from each country is more than  
de minimis   as defined in paragraph 8 of Article 5 and the volume of 
imports from each country is not negligible and (b) a cumulative 
assessment of the effects of the imports is appropriate in light of the conditions of competition between  the imported products and the 
conditions of competition between th e imported products and the like 
domestic product. 
This provision plainly speaks to the situation "[ w]here imports of a product from more than one 
country are simultaneously subject  to anti-dumping investigations ". (emphasis added)  It makes no 
mention of injury analyses undertaken in any proceedi ng other than original investigations;  nor do we 
find a cross-reference to Article 11, the provisi on governing reviews of anti-dumping duties, which 
itself makes no reference to cumulation.  We theref ore find Articles 3.3 and 11.3, on their own, not to 
be instructive on the question of the permissibility of cumulation in sunset reviews.  The silence of the 
text on this issue, however, cannot be understood to  imply that cumulation is prohibited in sunset 
reviews.   
295. We recall that, in  EC – Tube or Pipe Fittings , the Appellate Body discussed the "apparent 
rationale" behind the practice of cumulation: 
A cumulative analysis logically is premised on a recognition that the 
domestic industry faces the impact of the "dumped imports" as a whole and that it may be injured by the total impact of the dumped imports, even though those imports originate from various countries.  
If, for example, the dumped imports from some countries are low in volume or are declining, an excl usively country-specific analysis 
may not identify the causal relationship between the dumped imports 
from those countries and the injury suffered by the domestic industry.  The outcome may then be that, b ecause imports from such countries 
could not  individually  be identified as causing injury, the dumped 
imports from these countries would not be subject to anti-dumping 
duties, even though they are in fact causing injury.  In our view, 
therefore, by expressly providing for cumulation in Article 3.3 of the 
Anti-Dumping Agreement , the negotiators appear to have recognized 
that a domestic industry confronted with dumped imports originating 
from several countries may be injure d by the cumulated effects of 
those imports, and that those effects may not be adequately taken into 
account in a country-specific analysis of the injurious effects of 
dumped imports .470 (original italics;  underlining added) 
                                                      
470Appellate Body Report, EC – Tube or Pipe Fittings , para. 116. WT/DS268/AB/R 
Page 110  
 
296. Although  EC – Tube or Pipe Fittings   concerned an original investigation, we are of the view 
that this rationale is equally applicable to likeliho od-of-injury determinations in  sunset reviews.  Both 
an original investigation and a sunset review must consider possible sources of injury:  in an original 
investigation, to determine whether to impos e anti-dumping duties on products from those sources, 
and in a sunset review, to determin e whether anti-dumping duties should  continue  to be imposed on 
products from those sources.  Injury to the domestic industry—whether  existing  injury or  likely 
future  injury—might come from several sources simulta neously, and the cumulative impact of those 
imports would need to be analyzed for an injury determination.  
297. Therefore, notwithstanding the differences be tween original investigations and sunset 
reviews, cumulation remains a useful tool for inves tigating authorities in both inquiries to ensure that 
all sources of injury and their cumulative impact on the domestic industry are taken into account in an 
investigating authority's determination as to whether to impose—or continue to impose—anti-
dumping duties on products from those sources.  Given the rationale for cumulation—a rationale that 
we consider applies to original investigations as well  as to sunset reviews—we are of the view that it 
would be anomalous for Members to have lim ited authorization for cumulation in the  Anti-Dumping 
Agreement  to original investigations.   
298. Argentina argues, however, that a logical basi s exists for allowing cumulation in original 
investigations, but not in sunset reviews.  Argentina considers that an investigating authority in an original investigation has a sufficient "factual foundation" to determine whether cumulation is 
appropriate because those facts relate to the past and are therefore verifiable.
471  In contrast, Argentina 
submits, the investigating authority in a sunset review will not have the facts to know whether 
cumulation is appropriate because any such assessment—relating to  future  market conditions—will 
be inherently speculative. 
299. In our view, Argentina's distinction between th e factual bases in original investigations  
and those in sunset reviews is without merit.  A sunset review determination, although "forward-
looking"472, is to be based on existing facts as well as pr ojected facts.  Even where the focus of the 
inquiry is  likely future  injury, an investigating authority must  have a "sufficient factual basis" to 
arrive at its conclusion.473  Therefore, it does not follow from the fact that sunset reviews evaluate  
likelihood   of injury that an investigating authority w ill not have an evidentiary basis for considering 
whether cumulation is appropriate in a given case.   
                                                      
471Argentina's other appellant's submission, para. 265. 
472Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 105. 
473Ibid., para. 114 (quoting Panel Report, US – Corrosion-Resistant Steel Sunset Review , para. 7.271).  WT/DS268/AB/R 
 Page 111 
 
 
300. Given the express intention of Members to perm it cumulation in injury determinations in 
original investigations, and given the rationale behind cumulation in injury determinations, we do not 
read the  Anti-Dumping Agreement  as prohibiting cumulation in sunset reviews. 
301. Turning to Argentina's argument that the prere quisites specified in Article 3.3(a) and (b) 
should be satisfied by investigating authorities when performing cumulative analyses in sunset 
reviews, we note that Argentina offers no textua l support for its claim.  Indeed, as we observed 
above 474, the opening text of Article 3.3 plainly limits its applicability to original investigations.   
302. Argentina suggests that the following conse quences would arise if conditions were not 
imposed on the resort to cumulation in sunset reviews: 
To decide otherwise would vitiate the disciplines on cumulation 
negotiated during the Uruguay Round and provide a  carte blanche  
to investigating authorities during sunset reviews – contrary to the plain text, as well as the object and purposes, of Articles 3 and 11.
475 
We disagree.  As the Appellate Body has observed,  a sunset review determ ination under Article 11.3 
must be based on a "rigorous examination" 476 leading to a "reasoned conclusion". 477  S u c h  a  
determination must be supported by "positive evidence" 478 and a "sufficient factual basis".479  These 
requirements govern all aspects of an investigating authority's likelihood determination, including the 
decision to resort to cumulation of the effects of likely dumped imports.  As a result, Argentina's 
concerns that investigating authorities will be given " carte blanche " to resort to cumulation when 
making likelihood-of-injury determinat ions is unfounded.  We, therefor e, conclude that the conditions 
of Article 3.3 do not apply to likelihood-of-inj ury determinations in sunset reviews.   
303. Finally, Argentina submits that the Panel erred in dismissing Argentina's claim that the 
USITC's recourse to cumulation was inconsistent with the "likely" standard of Article 11.3.480  We 
address this aspect of Argentina's cumulation-relate d claim under Article 11.3 in Section X.B of this 
Report, in the context of addressing Argentina's othe r challenges to the standa rd of likelihood applied 
by the USITC in its sunset review determination. 
                                                      
474Supra , para. 294. 
475Argentina's other appellant's submission, para. 278. 
476Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 113. 
477Ibid., para. 111. 
478Ibid., para. 114 (quoting Panel Report, US – Corrosion-Resistant Steel Sunset Review , para. 7.271). 
479Ibid. (quoting Panel Report, US – Corrosion-Resistant Steel Sunset Review , para. 7.271). 
480Panel Report, para. 7.337. WT/DS268/AB/R 
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304. In the light of the above, we  uphold   the Panel's findings, in para graphs 7.335 to 7.337 of the 
Panel Report, that Article 11.3 of the  Anti-Dumping Agreement   does not preclude investigating 
authorities from cumulating the effects of likely dumped imports in the course of their likelihood-of-
injury determinations, and that the conditions of Article 3.3 of the  Anti-Dumping Agreement   do not 
apply in the context of sunset reviews. 
IX. The Panel's Interpretation of the Term "Likely" 
305. We now turn to the issue whether the Panel made  an error of interpretation regarding the term 
"likely" in Article 11.3 of the  Anti-Dumping Agreement . 
306. The Panel stated the following with respect to  Argentina's claims relating to the USITC's 
determinations regarding the likely volume of dum ped imports, their likely price effects, and their 
likely impact on the United States' domestic industry: 
We note that the standard set out in  Article 11.3 of the Agreement for 
the investigating authorities' sunset determinations is "likely".  This 
standard applies to the likelihood of continuation or recurrence of dumping as well as injury determin ations in sunset reviews, and this 
is precisely the standard that the USITC applied .  It seems to us that 
the essence of Argentina's claim is not that the USITC applied the 
wrong standard, but that it erred in determining that the likely standard was met.  Our task is to reach a decision on Argentina's 
allegation that the USITC erred in the instant sunset review in the application of the likely standard of Article 11.3.
481 (emphasis added) 
307. Argentina argues that, in making this statement, the Panel made an error in its interpretation 
of Article 11.3, as it did not interpret "likely" to mean "probable".482  In support of its position that 
"likely" means "probable", Argentina refe rs to the Appellate Body Report in  US – Corrosion-
Resistant Steel Sunset Review , where it was stated that: 
... an affirmative likelihood determination may be made only if the 
evidence demonstrates that dumping would be  probable  if the duty 
were terminated—and not simply if the evidence suggests that such  
a result might be  possible or plausible . 483  
According to Argentina, the  practice  of the USITC "is not  to apply a 'probable' standard".484  
Argentina argues that, by stating that the USITC app lied the "likely" standard set out in Article 11.3, 
                                                      
481Panel Report, para. 7.285. 
482Argentina's other appellant's submission, para. 18. 
483Ibid., para. 21 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 111). (emphasis added by Argentina) 
484Ibid., para. 34. (original underlining)  WT/DS268/AB/R 
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and that it was the correct standard to apply, the Pa nel failed to interpret "likely" to mean "probable" 
and, thus, made an error of interpretation rega rding the "likely" standard under Article 11.3 of 
the  Anti-Dumping Agreement .  Argentina emphasizes that the Panel erred in failing to consider the 
USITC's statements before United States courts a nd before a NAFTA panel that the USITC did not 
apply a "probable" standard.485 
308. We agree with Argentina that, in US – Corrosion-Resistant Steel Sunset Review , the Appellate 
Body equated "likely", as it is used in Article 11.3,  with "probable".  We also agree with Argentina 
that this interpretation of "likely" as "probable" is authoritative in relation to injury as well, given that 
the term "likely" in Article 11.3 applies equally to dumping and to injury.486  The United States also 
agrees that " 'probable' [is] synonymous with the statutory term 'likely'." 487  H o w e v e r ,  w e  d o  n o t  
consider that the Panel, in its analysis, made an e rror of interpretation regarding the term "likely" in 
Article 11.3 of the  Anti-Dumping Agreement .  We set out our reasons below. 
309. The Panel stated that the standard set out in Artic le 11.3 is the "likely" standard;  this is plain 
from the text of the provision itself.  Although the Panel did not elaborate with respect to the meaning of "likely", or expressly state that "likely" mean s "probable",  we see nothing in the Panel Report to 
suggest that the Panel was of the view that "likely"  does not mean "probable", or that "likely" means 
"anything less than probable". 
310. The Panel also stated that the USITC applied th e "likely" standard.  The wording of the final 
determination
 488, on its face, suggests that the USITC app lied the "likely" standard.  The question 
then remains whether the USITC  actually   applied that standard in the sunset review at issue.  This 
question, however, does not relate to the manner in which the Panel interpreted the term "likely" in 
Article 11.3;  rather, it concerns the Panel's re view of the basis on which the USITC made its 
determination concerning injury, an issue we discu ss separately in Section X of this Report.   
                                                      
485Argentina's other appellant's submission, paras. 29 and 34;  Panel Report, para. 7.285. 
486Ibid., paras. 21-22. 
487United States' appellee's submission, para. 21. 
488The USITC's final determination reads as follows: 
Based on the record in these five-yea r reviews, we determine under section 
751(c) of the Tariff Act of 1930, as amended ("the Act"), that revocation of 
the antidumping duty orders on Oil Country Tubular Goods ("OCTG") other than drill pipe ("casing and tubing") fr om Argentina, Italy, Japan, Korea, 
and Mexico and of the countervailing duty order on casing and tubing from 
Italy would be  likely to lead to continuation or recurrence   of material 
injury to an industry in the United States within a reasonably foreseeable 
time. 
(USITC Report, p. 1) (emphasis added) WT/DS268/AB/R 
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311. As we have already mentioned, Article 11.3 requ ires that a determination of "likely" injury 
rest upon a sufficient factual basis that would permit  the investigating authority to draw reasoned and 
adequate conclusions.  We agree with the United St ates that because the USITC had explicitly stated 
in its final determination that it applied the "lik ely" standard, "the only way for the Panel to assess 
whether that standard was in fact applied was to  evaluate whether the facts supported that finding".
489  
Thus, by carrying out the task of evaluating whethe r the USITC's determination of likely injury was 
supported by a sufficient factual basis, the Panel responded to the question whether the USITC  
actually   applied the "likely" standard in the sunset re view.  We examine this issue in the next section 
of this Report. 
312. We move now to the question whether the Pane l erred in failing to consider the USITC's 
statements before United States courts or before a NAFTA panel regarding the meaning of "likely" as 
used in Article 11.3 of the Agreement.490  We agree with Argentina that the USITC's statements 
before United States courts or before a NAFTA pane l are not, in principle, inadmissible evidence in 
WTO dispute settlement proceedings as such.491  However, we disagree with Argentina's 
understanding of the Panel's position.  The task of the Panel was to decide whether the determination 
of "likely" future injury rested, in  this specific case, on a sufficient factual basis to allow the USITC to 
draw reasoned and adequate conclusions.  In order to perform this  exercise properly, the Panel did not 
need to resort to the statements of the USITC before domestic courts or  before a NAFTA panel, 
because the Panel's assessment necessarily had to be  based on the meaning of "likely" within the 
WTO legal system—namely the meaning attributed to this term by the Appellate Body in  US – 
Corrosion-Resistant Steel Sunset Review .  Therefore, it was not unreasona ble for the Panel to consider 
that the USITC's statements to which Argentina refers were "not relevant" 492 in the task of assessing 
the application of the "likely" standard in Article 11. 3 with respect to injury in the sunset review at 
issue.   
313. In any event, we consider that the Panel's deci sion not to rely on the statements of the USITC 
before domestic courts and before a NAFTA pa nel relates to the weighing of evidence.  In EC – 
Hormones , the Appellate Body observed that: 
                                                      
489United States' appellee's submission, para. 27. 
490Panel Report, para. 7.285. 
491Argentina's other appellant's submission, paras. 47-48 (quoting Panel Report, Mexico – Corn Syrup , 
para. 7.32).  
492Panel Report, para. 7.285.  WT/DS268/AB/R 
 Page 115 
 
 
[the d]etermination of the credibility and weight properly to be ascribed to (that is, the appreciation of) a given piece of evidence is part and parcel of the fact finding process and is, in principle, left to the discretion of a panel as the trier of facts.
493   
The Appellate Body has consistently emphasized th at, within the confines of their obligation under 
Article 11 of the DSU to make "an objective assessment of the facts of the case", panels enjoy a "margin of discretion" as triers of facts.
494  Accordingly, we see no reason to interfere with the Panel's 
treatment of the USITC's statements before domestic courts and be fore a NAFTA panel. 
314. In the light of these considerations, we  find  that the Panel did not err in its interpretation of 
the term "likely" in Article 11.3 of the  Anti-Dumping Agreement . 
X. Consistency of the USITC's Determination with the Standard of "Likelihood" in 
Article 11.3 of the  Anti-Dumping Agreement 
315. We now move to the issue of whether the Pane l erred in finding that the likelihood-of-injury 
determination made by the USITC is not inconsistent with Article 11.3 of the  Anti-Dumping 
Agreement . 
316. The determination of the USITC—that the re vocation of the anti-dumping duty orders on 
casing and tubing from Argentina, Italy, Japan, Ko rea, and Mexico would be likely to lead to 
continuation or recurrence of injury to the dom estic industry—was based essentially on analyses of 
the likely volume of dumped imports, the likely price effects of dumped imports, and the likely 
impact of dumped imports on the United States' indust ry.  The Panel examined separately the USITC's 
analyses with respect to the likely volume of du mped imports, the likely price effects of dumped 
imports, and the likely impact of dumped imports on the United States industry.  As regards the 
finding of the USITC that "in the absence of the orders, the likely volume of cumulated subject imports, both in absolute terms and as a share of the U.S. market, would be significant"
 495, the Panel's 
analysis focused on the main justification given by the USITC in support of its finding, namely that subject producers have incentives to devote more of their productive capacity to producing and 
shipping casing and tubing to the United States market.  The Panel found that the USITC's 
determination that the subject producers could shif t their productive capacity from other pipe and tube 
                                                     
 
493Appellate Body Report, EC – Hormones , para. 132. 
494Appellate Body Report, EC – Asbestos , para. 161.  See also, for example, Appellate Body Report,  
EC – Tube or Pipe Fittings , para. 125;  Appellate Body Report, EC – Bed Linen (Article 21.5 – India) , paras. 170, 
177, and 181;  Appellate Body Report, EC – Sardines , para. 299;  Appellate Body Report, Korea – Alcoholic 
Beverages , paras. 161-162;  Appellate Body Report, Japan – Agricultural Products II , paras. 141-142;  Appellate 
Body Report, US – Wheat Gluten , para. 151;  Appellate Body Report, Australia – Salmon , para. 266;  and 
Appellate Body Report, Korea – Dairy , para. 138.  
495USITC Report, p. 20.  WT/DS268/AB/R 
Page 116  
 
products to casing and tubing exported to the United St ates market, had a sufficient factual basis in 
the record.  Consequently, the Panel concluded th at Argentina failed to prove that the USITC's 
determination concerning the likely volume of dumped im ports is inconsistent with  Article 11.3 of the  
Anti-Dumping Agreement . 
317. With respect to the finding of the USITC that dumped imports "would compete on the basis 
of price in order to gain additional market shar e" and that "such price-based competition by subject 
imports likely would have significant depressing or  suppressing effects on the prices of the domestic 
like product"
 496, the Panel rejected Argentina's argument th at the price comparison carried out by the 
USITC was not adequate because of the limited numb er of comparisons involved.  For the Panel, "a 
price comparison made as part of a sunset determ ination does not necessarily require a threshold in 
terms of the number of comparisons used." 497  The Panel considered that the USITC's approach was 
adequate because the volume of export sales to the United States market was limited in the period 
under the anti-dumping orders.  Also, the Panel found th at the USITC did not err by stating that price 
was an important factor in purchasing decisions in the United States market.  Consequently, the Panel 
concluded that the USITC's determ ination regarding the likely price effects of dumped imports was 
based on an objective examination of  the evidence in the record and consistent with Article 11.3 of 
the  Anti-Dumping Agreement .498 
318. Regarding the likely impact of dumped imports on the United States industry, the Panel 
opined that the USITC's finding—that the state of the domestic industry as of the date of the sunset 
review at issue was positive—"[did] not preclude it from nevertheless finding that the US industry is 
likely to be affected by the increase in the volume and the negative effect of the prices of the likely 
dumped imports".499  The Panel found that, given the circumstances of the case at hand, it was "proper 
to conclude that the likely increased volume and ne gative price effect of dumped imports would also 
have a negative impact on the state of the US industry".500  Consequently, the Panel concluded that 
"the USITC's determinations regarding the likely c onsequent impact of the likely dumped imports on 
the US industry was not inconsistent with Article 11.3 of the  [ Anti-Dumping Agreement ]".501 
319. Argentina alleges that the Panel erred in failin g to find that the USITC's determinations on 
injury were not based on properly established facts,  positive evidence, or an objective examination.  
                                                      
496USITC Report, p. 21.  
497Panel Report, para. 7.303. 
498Ibid., para. 7.306. 
499Ibid., para. 7.311. 
500Ibid. 
501Ibid., para. 7.312.  WT/DS268/AB/R 
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In particular, Argentina contends that the USIT C's decision to conduct a cumulative assessment of 
imports was inconsistent with Artic le 11.3.  Argentina also argues th at the Panel erred in concluding 
that the USITC properly established the facts n ecessary to satisfy the "likely" standard for 
determinations relating to injury, and in not findin g that the USITC's determinations on likely volume, 
price, and adverse impact were not based on pos itive evidence or an objective examination.   
320. Our analysis proceeds in the following order:  (a) the standard of review the Panel had to 
apply in order to determine whether the USITC's determinations on injury were consistent with 
Article 11.3 of the  Anti-Dumping Agreement ;  (b) whether the Panel erred by failing to find that the 
USITC's decision to conduct a cumulative assessment of imports was inconsistent with Article 11.3;  
(c) whether the Panel erred by finding that the US ITC's determination concerning the likely volume of 
dumped imports was not inconsistent with Article 11.3;  (d) whether the Panel erred by finding that 
the USITC's determination concerning the likely pric e effects of dumped imports  was not inconsistent 
with Article 11.3;   and (e) whether the Panel erred by finding that the USITC's determination 
concerning the likely impact of dumped imports on the United States industry was not inconsistent 
with Article 11.3. 
A. Standard of Review 
321. In  US – Corrosion-Resistant Steel Sunset Review , the Appellate Body approved the 
description set out by the panel in that case of investig ating authorities' obligatio ns in a sunset review: 
The text of Article 11.3 contains  an obligation "to determine" 
likelihood of continuation or recurre nce of dumping and injury.  The 
text of Article 11.3 does not, however, provide explicit guidance 
regarding the meaning of the term "determine".  The ordinary 
meaning of the word "determine" is to "find out or establish precisely" or to "decide or settle".  The requirement to make a "determination" concerning likelihood therefore precludes an investigating authority from simply assuming that likelihood exists.  
In order to continue the imposition of the measure after the expiry of 
the five-year application period, it is clear that the investigating 
authority has to determine, on the basis of positive evidence , that 
termination of the duty is likely to  lead to continuation or recurrence 
of dumping and injury.  An investigating authority must have a 
sufficient factual basis to allow it to draw reasoned and adequate 
conclusions concerning the likeli hood of such continuation or 
recurrence.
502 (emphasis added) 
                                                      
502Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 114 (quoting Panel 
Report, US – Corrosion-Resistant Steel Sunset Review , para. 7.271 (footnotes omitted)).  The Appellate Body 
stated, in paragraph 115, that: 
[t]he Panel's description of the obligations of investigating authorities in 
conducting a sunset review closely resemb les our own, and we agree with it.  WT/DS268/AB/R 
Page 118  
 
322. These obligations of investigating authorities inform the task of a panel called upon to 
evaluate the consistency of an investigating aut hority's determination with Article 11.3 of the  Anti-
Dumping Agreement .  The task of the panel is to assess wh ether the investigating authorities properly 
established the facts and evaluated them in an unbiased and objective manner.
503  We agree with the 
Panel that "[its] task [was] not to perform a  de novo  review of the information and evidence on the 
record of the underlying sunset review, nor to  substitute [its] judgment for that of the US 
authorities".504  If the panel is satisfied that an investig ating authority's determination on continuation 
or recurrence of dumping or injury rests upon a suff icient factual basis to allow it to draw reasoned 
and adequate conclusions, it should co nclude that the determination at issue is not inconsistent with 
Article 11.3 of the  Anti-Dumping Agreement .505   
323. Under Article 11.3 of the  Anti-Dumping Agreement , a decision not to terminate an anti-
dumping duty must be based on determinations of  likelihood of continuation or recurrence of 
dumping and likelihood of continuatio n or recurrence of injury.  We agree with the United States that 
the "likely" standard of Article 11.3 applies to  the overall determinati ons regarding dumping and 
injury;  it need not necessarily apply to each factor  considered in rendering the overall determinations 
on dumping and injury.506  In this case, the USITC's overall conclusion that continuation or recurrence 
of injury was likely, was the result of three separ ate conclusions:  the likely volume of cumulated 
dumped imports;  the likely price effects of dum ped imports;  and the likely impact of dumped 
imports on the domestic industry, in the event the anti-dumping duties were terminated.  Therefore, 
given the manner in which the USITC structured its reasoning in this case—conducting a three-step 
approach to arriving at an overa ll determination—it was legitimate for the Panel to assess whether 
each of the three USITC conclusions r ested on a sufficient factual basis. 
B. Cumulative Assessment of Dumped Imports 
324. The Panel found that the USITC's determination concerning the likely volume of dumped 
imports was not inconsistent with Article 11.3 of the  Anti-Dumping Agreement .507  In its 
                                                      
503Anti-Dumping Agreement , Article 17.6(i). 
504Panel Report, para. 7.5. 
505There are analogies between this description of the panel's task and what the Appellate Body stated 
in  US – Lamb   in the context of the application of safeguard  measures.  In that case, the Appellate Body 
recalled that the applicable standard is neither  de novo  review, nor total deference, but rather the objective 
assessment of the facts. (Appellate Body Report, US – Lamb , para. 101)  The Appellate Body went on to state 
that "[f]irst, a panel must review whether competent authorities have evaluated  all relevant factors ,  and, 
second, a panel must review whether the authorities have provided a   reasoned and adequate explanation  of 
how the facts support th eir determination." ( Ibid., para. 103) (original emphasis;  footnote omitted) 
506United States' appellee's submission, para. 31. 
507Panel Report, para. 7.298.  WT/DS268/AB/R 
 Page 119 
 
 
determination, the USITC made a cumulative assessm ent of the imports from Argentina, Italy, Japan, 
Korea, and Mexico.508  On appeal, Argentina argues that  the USITC's decision to conduct a 
cumulative assessment was inconsistent with Article 11.3, and that the Panel erred by failing to reach 
this conclusion. 
325. We have already found, in Section VIII of this  Report, that recourse to a cumulative analysis 
of imports is permissible in sunset reviews.  Th e argument we are dealing with in this Section, 
however, is of a different nature.  Here, we ar e addressing Argentina's contention that recourse to 
cumulation in this case is inconsistent with Artic le 11.3 because the USITC's decision to cumulate 
imports was not based on a sufficient factual basis.509 
326. The USITC's decision to conduct a cumulative assessment was based principally on an 
analysis of four factors, namely:  (i) whether subject imports of casing and tubing from any of the 
subject countries were likely to have "no discer nible adverse impact on the domestic industry" 510;  
(ii) whether the imports from Argentina, Italy,  Korea, Japan, and Mexico, and the domestic like 
products, are fungible;  (iii) whether the imports fro m Argentina, Italy, Korea, Japan, and Mexico, and 
the domestic like products, would likely be sold through similar channels of distribution if the orders 
were revoked;  and (iv) whether the imports fro m all the subject countries and the domestic like 
products would be sold in the same geographic mark ets and simultaneously be present in the market if 
the orders were revoked.511  On appeal, Argentina focuses on the fourth factor.  Argentina contends 
that the USITC's decision to conduc t a cumulative assessment did not r est on a sufficient factual basis 
because "the [USITC's] decision regarding the important issue of whether the imports would be 
simultaneously present in the market was based almo st exclusively on an inference drawn from the 
original investigation." 512   
327. Argentina places great emphasis on the fact that in the analysis presented in support of the 
decision to cumulate imports, the USITC relied on info rmation related to the original investigation.  
For Argentina, in doing so, the USITC acted inconsis tently with the principle set out by the Appellate 
Body in  US – Carbon Steel : 
                                                      
508USITC Report, p. 14. 
509Argentina's other appellant's submission, para. 70. 
510USITC Report, p. 11. 
511Ibid., pp. 10-14. 
512Argentina's other appellant's submission, para. 73. WT/DS268/AB/R 
Page 120  
 
Mere reliance by the authorities on the injury determination made in the original investigation will not be sufficient.  Rather, a fresh 
determination, based on credible  evidence, will be necessary to 
establish that the continuation of the [measure] is warranted to remove the injury to the domestic industry.
513 (footnote omitted) 
328. We disagree with Argentina that the USITC's refe rences to information gleaned in the original 
investigation rendered WTO-inconsis tent its decision to cumulate the effects of dumped imports.   
In  US – Carbon Steel ,  the Appellate Body clarified that, in a sunset review, a "fresh determination" 
on the  likelihood  of future injury is necessary because "[t]he nature of th e determination to be made 
in a sunset review differs in certain essential resp ects from the nature of the determination to be made 
in an original investigation." 514  Therefore, "[m]ere reliance by the authorities on the injury 
determination made in the original investigation will not be sufficient." 515  US – Carbon Steel  does 
not, however, establish a prohibition on investigating authorities from referring in a sunset review to 
information related to the original investigation.  In this case, it seems to us that the information to 
which the USITC referred was relevant  to the decision to cumulate imports and, ultimately, to the task 
of assessing the likelihood of continuation or recurrence of injury.516  Moreover, the USITC referred 
to this information in the context of a fresh determ ination as to whether the expiry of the orders would 
be likely to lead to continuation or recurrence of injury.   
                                                      
513Appellate Body Report, US – Carbon Steel , para. 88 (cited in Argentina's other appellant's 
submission, para. 74).  
514Ibid., para. 87. 
515Ibid., para. 88. (footnote omitted) 
516We note that the USITC also referred to information subsequent to the original investigation.  The 
USITC noted that "[a]lthough the volume of subject im ports has generally declined since 1995, at least one 
producer in each subject country has access to an active channel of distribution in the United States".  (USITC 
Report, p. 10)  The USITC referred to the "prevailing conditions of competition in the U.S. market". ( Ibid., 
p. 10, and Part II )  According to the USITC, "[t]he current reco rd similarly indicates that subject imports and 
the domestic like products are relatively fungible and are made to the same specifications". ( Ibid., p. 12)  
Regarding channels of distribution, the USITC observed that "today, the majority of all OCTG continues to be 
sold by both domestic producers and importers to distributors". ( Ibid., p. 13)  With respect to simultaneous 
presence and sales in the same geographic market, the factor highlighted by Arge ntina on appeal, the USITC 
made the following comment: 
[W]e note that import data indicate that subject imports from Argentina and 
Italy were present in the U.S. market in  every year since the order went into 
effect.  Thus, the record in the presen t reviews indicates that the domestic 
like product and imports of the subject merchandise continue to be 
simultaneously present in the market and sold in the same geographic 
markets. 
(Ibid., p. 14, footnote 82)  Therefore, th is was not a situation of "mere reliance by the authorities on the injury 
determination made in the original investigation", as discussed in  US – Carbon Steel . (Appellate Body Report, 
US – Carbon Steel , para. 88)  WT/DS268/AB/R 
 Page 121 
 
 
329. In the light of these considerations, we  find  that the Panel did not err in not finding that the 
USITC's decision to cumulate the dumped imports was based on an insufficient factual basis, and in 
not finding that the USITC's decision on cumulation was inconsistent with Article 11.3 of the  Anti-
Dumping Agreement . 
C. Likely Volume of Dumped Imports 
330. The USITC's determination that, in the absen ce of the anti-dumping duty order, the likely 
volume of dumped imports would be significant, was based principally on the finding that the subject producers had incentive to devote more of their pr oductive capacity to producing and shipping more 
casing and tubing to the United States market.
517  As the Panel noted, the USITC identified five 
supporting factors for this conclusion: 
The USITC's determination reads, in relevant part: 
The recent*** capacity utilization rates represent a potentially 
important constraint on the ability of these subject producers to increase shipments of casing and tubing to the United States. 
Nevertheless, the record indicates that these producers have 
incentives to devote more of their productive capacity to producing and shipping more casing and tubing to the U.S. market. 
First, ... [w]hile the Tenaris companies seek to downplay the 
importance of the U.S. market rela tive to the rest of the world, 
they acknowledge that it is the largest market for seamless casing and tubing in the world.  Given Tenaris' global focus, it likely would have a strong incentive to have a significant presence in the U.S. market, including the supply of its global customers' OCTG requirements in the U.S. market. 
Second, casing and tubing are among the highest valued pipe 
and tube products, generati ng among the highest profit 
margins.... 
Third, the record in these re views indicates that prices for 
casing and tubing on the world market are significantly lower 
than prices in the United States...We have considered 
respondents' arguments that the domestic industry's claims of price differences are exaggerated, but nevertheless conclude that there is on average a di fference sufficient to create an 
incentive for subject producers to  seek to increase their sales of 
casing and tubing to the United States. 
Fourth, subject country producers also face import barriers in 
other countries, or on related products... 
Finally, we find that industries in ***of the subject countries 
are dependent on exports for the majority of their sales... 
                                                     
 
517USITC Report, p. 19.  WT/DS268/AB/R 
Page 122  
 
We therefore find that, in the absence of the orders, the likely 
volume of cumulated subject im ports, both in absolute terms 
and as a share of the U.S. market, would be significant.
518 
331. The Panel was of the view that these five supporting factors constituted a sufficient factual 
basis for the USITC's determination that subject  producers had incentive to devote more of their 
productive capacity to the United States market.  Thus, the Panel saw: 
... no element in the USITC's Final Determination which would 
support the assertion that the USITC's determination on this matter was based on an improper establishment of facts or a biased or unobjective evaluation thereof.
519 
332. On appeal, Argentina refers to some of the Panel's statements about the USITC's 
determination where the Panel used language such as " could shift its production capacity ", "might 
shift their production ", and "shifting was technically  possible ".520  Argentina relies on these quotes to 
argue that the Panel did not equate "lik ely" injury with "probable" injury. 
333. In Section IX of this Report, we addressed a nd rejected Argentina's argument that the Panel 
misinterpreted the term "likely" in Article 11.3.  In any event, we do not agree with Argentina that it 
can necessarily be inferred from the use of words su ch as "could", "might", or "possible" that the 
Panel erred in the interpretation or application of  the "likely" standard.  As we mentioned above 521, 
the "likelihood" standard set out in Article 11.3 applies to a likelihood-of-injury determination as a 
whole, not to each and every factor that the inve stigating authority considers in the course of its 
analysis. 
334. We see no reason to disturb the Panel's assessme nt that the USITC's determination regarding 
likely volume of dumped imports is not in consistent with Article 11.3 of the  Anti-Dumping 
Agreement .  According to the Panel, it was not unreas onable for the USITC to base its determination 
on the likely volume of dumped imports on an analysis of the question whether subject producers had incentive to devote more of their productive capac ity to producing and shipping casing and tubing to 
the United States market.  The finding of the USITC that subject producers had such an incentive rests 
upon its analysis of five factors.  For the Panel, th e issue was whether the USIT C's determination, that 
subject producers could shift their productive capacity , had "sufficient factual basis in the record".
522  
                                                      
518Panel Report, para. 7.291 (quoting USITC Report, pp.19-20 (footnotes omitted)). 
519Ibid., para. 7.297. 
520Argentina's other appellant's submission, para. 78 (quoting Panel Report, paras. 7.290 and 7.295). 
(emphasis added by Argentina) 
521Supra , para. 323.  
522Panel Report, para. 7.290.  WT/DS268/AB/R 
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In this respect, the Panel concluded that Argentina had not shown that the USITC's analysis of the five 
factors was not supported by positive evidence.  
335. We find no fault with the Panel's conclusion that  it was reasonable for the USITC to base its 
determination on an analysis of the incentive for subject producers to shift production.  Indeed, Argentina does not challenge this aspect of the Pane l's reasoning;  rather, its claim is based on an 
allegation that there was no positive evidence on the existence of such an incentive.  On appeal, 
Argentina points to specific passages of the USITC' s determination and contends that these specific 
passages are "based on speculation rath er than positive evidence of what was probable to occur".
523  
Argentina does not explain, however, how these alleged flaws of the USITC's determination 
undermine the Panel's reasoning.   
336. In its reasoning, the Panel noted that Argentina challenged the factual basis of two of the five 
factors:  trade barriers (the fourth factor) and price differences between the United States' and the 
world market (the third factor).  As regards trade barriers (the fourth factor), the Panel provided the 
following explanation: 
We note that the USITC referred to a number of trade barriers.  
However, of these barriers only one related to the subject product, i.e. Canadian anti-dumping measure on casing and tubing from Korea.  Others concerned related products , i.e. products that could be 
produced in the same production lines as casing and tubing.  The 
issue therefore is whether the USITC erred in considering that certain 
exporters that were subject to trad e barriers with respect to certain 
product types, which could be produ ced in the same production lines 
as casing and tubing, might shift their production to casing and tubing, which could enter the US market free of the anti-dumping measure at issue in these proceedings.  Given that it is undisputed 
between the parties that such shifting was technically possible, we 
see no reason why the USITC could not make such an inference in the circumstances of the instant sunset review.  It is only normal to expect a producer to seek to maximize its profits, which, in this case, would be possible through shifting production to casing and tubing in 
order to enter the US market free of the anti-dumping duty at issue 
had it been revoked.  We therefore consider that this aspect of the USITC's conclusion was reasoned in light of the evidence in the record.
524 
                                                      
523Argentina's other appellant's submission, para. 94.  See also, ibid., para. 83 ("sheer speculation");  
para. 84 ("unfounded speculation");  para. 86 ("the [USITC ] was simply speculating");  para. 88 ("these findings 
were based on speculation, rather than on positive evidence");    para. 90  ("This is simply unfounded 
speculation");  and para. 98 ("the [USITC] based its determination on speculation"). 
524Panel Report, para. 7.295. WT/DS268/AB/R 
Page 124  
 
337. We see no reason to disagree with the Panel that th e fourth factor had a factual basis, namely, 
that shifting production was technically possible.  In deed, Argentina does not dispute this.  Therefore, 
we find no error in the Panel's conclusion that the f ourth factor "was reasoned in light of the evidence 
in the record".
525 
338. With respect to price differences between the United States and the world market (the third 
factor), the Panel made the following statement: 
Next, Argentina submits that the USITC's analysis concerning the 
price differences between the US and the world markets was based 
on anecdotal evidence rather than independent reports.  We note that the USITC's report cites the testimony of three individuals in this sector as evidence of this price differentiation and it cites no objection raised by interested parties in this respect.  Argentina is not 
raising any argument as to the correctness of the substance of this 
testimony.  Nor has it brought to our attention another piece of evidence that might support the opposite finding in this regard.  Argentina's claim in this regard therefore is limited to the kind of evidence the USITC relied upon.  Keeping in mind our standard of review with respect to factual determinations by an investigating 
authority, and conscious that there are no rules in the Anti-Dumping 
Agreement as to the type of evidence that can support an investigating authority's findings, we are of the view that the USITC's reference to the testimonies of individuals who are knowledgeable in the relevant sector was proper.
526 (footnote 
omitted) 
339. The factual basis of the third factor identif ied by the Panel was the testimony of three 
individuals knowledgeable in the sector.  On appeal , Argentina does not challenge that the factual 
basis of the third factor was the testimonies, or  that these testimonies constitute positive evidence.  
We, therefore, find no fault with the conclusion of  the Panel that "the USITC's reference to the 
testimonies of individuals who are knowledg eable in the relevant sector was proper".527 
340. We observe that most of the arguments put fo rward by Argentina on appeal with respect to 
the application by the USITC of the standard of likel ihood is centred on the premise that some of the 
factors presented by the USITC are speculative.  In particular, Argentina seems to assume that 
positive evidence requires absolute certainty on what is  likely to occur in the future.  We have some 
difficulty with this line of reasoning.  Of course,  we agree with Argentina that the investigating 
                                                      
525Panel Report, para. 7.295. 
526Ibid., para. 7.296. 
527Ibid.  WT/DS268/AB/R 
 Page 125 
 
 
authority's likelihood determinations  under Article 11.3 must be based on "positive evidence".  As the 
Appellate Body stated in  US – Hot-Rolled Steel : 
The term "positive evidence" relates ... to the quality of the evidence 
that authorities may rely upon in making a determination.  The word 
"positive" means ... that the evidence must be of an affirmative, 
objective and verifiable character, and that it must be credible.528 
341. The requirements of "positive evidence" must, ho wever, be seen in the context that the 
determinations to be made under Article 11.3 are prospective in nature and that they involve a 
"forward-looking analysis".529  Such an analysis may inevitably entail assumptions about or 
projections into the future.  Unavoidably, theref ore, the inferences drawn from the evidence in the 
record will be, to a certain extent, speculative.  In  our view, that some of the inferences drawn from 
the evidence on record are projections  into the future does not necessarily  suggest that such inferences 
are not based on "positive evidence".  The Panel cons idered that the five factors addressed by the 
USITC were supported by positive evidence in the USIT C's record and, as we have explained, we see 
no reason to disagree with the Panel. 
342. Accordingly, we  uphold   the Panel's finding, in paragra ph 7.298 of the Panel Report, that 
"Argentina has failed to prove that the USITC's determinations concerning the likely volume of 
dumped imports were WTO-inconsistent". 
D. Likely Price Effects of Dumped Imports 
343. The USITC determined that, in the absence of the anti-dumping orders, casing and tubing 
from the subject producers "would compete on the basis of price in order to gain additional market 
share" and "that such price-based competition by subject imports likely would have significant depressing or suppressing effects on the prices of the domestic like product".
 530  The USITC based 
this determination on five factors:  (1) the likely significant volume of subject imports;  (2) the high 
level of substitutability between the subject impor ts and the domestic like products;   (3) the 
importance of price in purchasing decisions;  (4) the volatile nature of United States demand;  and (5) 
the underselling by the subject imports in the origin al investigations and during the current review 
period.   
                                                      
528Appellate Body Report, US – Hot-Rolled Steel , para. 192. 
529Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , para. 105. 
530USITC Report, p. 21. WT/DS268/AB/R 
Page 126  
 
344. The Panel concluded that "the USITC's determin ation regarding the likely price effect of 
dumped imports was based on an objective examination of the evidence in the record."
 531  I n  i t s  
reasoning, the Panel rejected Argentina's argument that the USITC's determination did not result from 
an objective examination of the evidence in th e record because the USITC's price-underselling 
analysis was based on a limited set of comparisons.532  For the Panel, "a price comparison made as 
part of a sunset determination does not necessarily require a threshold in terms of the number of 
comparisons used." 533  The Panel considered that "under the circumstances of this case the USITC's 
calculations were adequate because the volume of expor t sales into the US market [was] limited in the 
period of application of the measure." 534  Also, the Panel rejected Argentina's contention that "the 
USITC's determination that price was an important  factor in the purchasing decisions in the US 
market was flawed because the documents in the record show that purchasers attached a similar 
importance to factors other than price." 535  The Panel noted that "[t]he USITC did not state that price 
was the only  important factor, or even the most  important factor;  it just stated that it was an  important 
factor." 536  For the Panel, such a statement was c onsistent with the evidence in the record.537 
345. On appeal, Argentina argues that in endorsing a price-underselling analysis based on a limited 
set of comparisons, and in finding that the USITC stated that price was an  important factor among 
others, the Panel failed to apply the "likely" st andard when it considered the issue of pricing.538  In 
addition, Argentina refers to a series of speci fic passages from the USITC's determination, and 
submits that they are not based on positive evidence.539  
346. We see no reason to interfere in the Panel's conclusion that the price comparisons made by the 
USITC were adequate and supported its price-underselling analysis.  We agree with the Panel that the 
small volume of export sales into the United St ates market following the imposition of the anti-
dumping orders limited the number of comparisons  the USITC could make.  On appeal, Argentina 
seems to suggest that, merely because the price comparisons made by the USITC represented a 
                                                      
531Panel Report, para. 7.306. 
532Ibid., para. 7.300. 
533Ibid., para. 7.303. 
534Ibid. 
535Ibid., para. 7.304. 
536Ibid. (original underlining) 
537Ibid.  The Panel referred to the staff report that accompanied the USITC's determination.  The Panel 
indicated that the staff report showed that purchasers ranked eight factors between 1.8 and 2.0, and that price was ranked 1.8. 
538Argentina's other appellant's submission, paras. 99-104. 
539Ibid., paras. 105-114.  WT/DS268/AB/R 
 Page 127 
 
 
"limited basis of information", they cannot be viewed as "positive evidence".540  We disagree.  We 
endorse the Panel's view that "[t]he simple fact th at the number of price comparisons was limited does 
not make this aspect of the USITC's determina tion inconsistent with Article 11.3 of the [ Anti-
Dumping Agreement ]." 541 
347. The Panel also addressed, in its reasoning, the question whether the USITC's statement that 
price was an important factor rested on a sufficient factual basis.  The Panel pointed out that this 
statement was supported by a study on the percep tions of purchasers in the United States market, 
which was presented in the staff report that accompanied the USITC's determination.542  W e  f i n d  
nothing in Argentina's arguments to  suggest that such study could not constitute a sufficient factual 
basis for the USITC's position that price is an impor tant factor in the purchasing decisions in the 
United States market. 
348. Argentina has failed to show that the Panel erre d in its analysis of the USITC's determination 
on the likely price effects of dumped imports.  Therefore, we  uphold   the Panel's finding, in 
paragraph 7.306 of the Panel Report, that "the USIT C's determination regarding the likely price effect 
of dumped imports was based on an objective examination of the evidence in the record." 543 
E. Likely Impact of Dumped Imports on the United States' Industry 
349. The Panel was of the view that the USITC's de termination regarding the likely impact of 
dumped imports on the United States' industry me t the requirements of Article 11.3 of the Anti-
Dumping Agreement , as it rested upon a sufficient factual basi s and reflected an objective examination 
of the facts.  In this respect, th e Panel made the following statement: 
                                                      
540Argentina's other appellant's submission, para. 109. 
541Panel Report, para. 7.303. 
542See supra , footnote 537. 
543Panel Report, para. 7.306. WT/DS268/AB/R 
Page 128  
 
As long as the investigating authority 's determination is based on a 
sufficient factual basis and it reflects an objective examination of these facts, it will meet the requirements of Article 11.3.  In this case, the USITC found that imports were likely to increase and to have a negative effect on the prices of th e US industry in  the event of 
revocation of the measure at issue.  Then, the USITC found that this 
likely increase in imports and their likely price effect would have a negative impact on the US industry.  In the circumstances of the case 
at hand, we find it proper to c onclude that the likely increased 
volume and negative price effect of dumped imports would also have 
a negative impact on the state of the US industry.  Further, in our 
view, the USITC's observations regarding the state of the US industry as of the date of the sunset review at issue do not preclude it from nevertheless finding that the US industry is likely to be affected by the increase in the volume and the negative effect of the prices of the 
likely dumped imports.
544 
350. On appeal, Argentina argues that, given the positiv e state of the domestic industry at the date 
of the sunset review, the Panel should have conclu ded that an adverse impact was not probable.  
Argentina submits that the findings of the USIT C "disregard positive ev idence that injury was not 
probable ".545 
351. Argentina has not persuaded us that the Panel made  an error in its analysis.  It appears to us 
that the Panel was correct in its reasoning that th e USITC had a sufficient factual basis to conclude 
that adverse impact on the domestic industry was likely from a likely increase in the volume of 
dumped imports and their likely negative price effe ct.  The positive state of the domestic industry as 
of the date of the sunset review need not necessarily  be dispositive of the future when other adverse 
factors are present.  Also, Argentina does not expl ain, on appeal, why the Panel could not properly 
find a relationship of cause and effect between, on th e one hand, the USITC's determinations of likely 
increase in the volume of dumped imports and of lik ely negative price effect of dumped imports, and, 
on the other hand, likely adverse impact on the domestic industry.   
352. Argentina has failed to show that the Panel erre d in its analysis of the USITC's determination 
on the likely impact of dumped imports on the domestic industry.  Therefore, we  uphold  the Panel's 
finding, in paragraph 7.312 of the Panel Report, that  "under the circumstances of this sunset review, 
the USITC's determinations regarding the likely co nsequent impact of the likely dumped imports on 
the US industry [were] not inconsistent with Article 11.3 of the [ Anti-Dumping Agreement ]." 546  
 
                                                      
544Panel Report, para. 7.311. 
545Argentina's other appellant's submission, para. 121. (original emphasis) 
546Panel Report, para. 7.312.  WT/DS268/AB/R 
 Page 129 
 
 
XI. The Timeframe in a Likelihood-of-Injury Determination 
353. We consider next the legal issues relating to the timeframe of the likelihood-of-injury 
determination.  First, we assess whether the Panel e rred in finding that the standard of continuation or 
recurrence of injury  "within a reasonably foreseeab le time", as provided in Sections 752(a)(1) and 
752(a)(5) of the Tariff Act of 1930, is not inconsistent with Article 11.3 of the  Anti-Dumping 
Agreement .  Secondly, we address the issue of whethe r the Panel erred in finding that the  application   
of the standard of continuation or recurrence of injury within a reasonably foreseeable time   in the 
sunset review at issue is not inc onsistent with Article 11.3 of the  Anti-Dumping Agreement . 
A. Standard of Continuation or Recurrence of Injury Within a Reasonably Foreseeable 
Time 
354. Section 752(a)(1) of the Tariff Act of 1930 reads, in relevant part: 
(1)  In general 
... the Commission shall determine whet her revocation of an order, or 
termination of a suspended investiga tion, would be likely to lead to 
continuation or recurrence of material injury within a reasonably 
foreseeable time .547 (emphasis added) 
355. Section 752(a)(5) of the Tariff Act of 1930 reads, in relevant part: 
(5)  Basis for determination  
The presence or absence of any factor which the Commission is 
required to consider under this s ubsection shall not necessarily give 
decisive guidance with respect to the Commission's determination of 
whether material injury is likely to continue or recur within a 
reasonably foreseeable time  if the order is revoked or the suspended 
investigation is terminated.  In making that determination, the Commission shall consider that the effects of revocation or 
termination may not be imminent , but may manifest themselves only 
over a longer period of time .
548 (emphasis added) 
356. The Panel noted that Article 11.3 of the  Anti-Dumping Agreement   does not prescribe any 
timeframe for likelihood of continuation or recurren ce of injury;  nor does it require investigating 
authorities to specify the timeframe on which thei r likelihood determination is based.  The Panel 
                                                      
547Codified in Title 19, Section 1675(a)(1) of the United States Code  (Exhibit ARG-1 submitted by 
Argentina to the Panel).  
548Codified in Title 19, Section 1675(a)(5) of the United States Code  (Exhibit ARG-1 submitted by 
Argentina to the Panel). WT/DS268/AB/R 
Page 130  
 
consequently concluded that the standard of the "reasonably foreseeable time", set out in Sections 
752(a)(1) and 752(a)(5), does not conflict with Article 11.3 of the  Anti-Dumping Agreement .
549 
357. Argentina contends that this finding is in error.   According to Argentina, Article 11.3 contains 
a temporal limitation on the timeframe within which injury must be determined to be likely to 
continue or recur.  This temporal limitation, argues Argentina, flows from Article 3.7 of the  Anti-
Dumping Agreement , which relates to the notion of threat of material injury and provides that "[t]he 
change in circumstances which would create a s ituation in which the dumping would cause injury 
must be clearly foreseen and imminent." 550  For Argentina, an authority making an injury 
determination pursuant to Article 11.3 must base its findings on positive evidence that injury would 
be likely to continue or recur within the period of time beginning with the expiry of the order, but not 
exceeding circumstances deemed to be "immi nent" within the meaning of Article 3.7.551  Argentina 
posits that under the Tariff Act of 1930, a "reas onably foreseeable time" corresponds to a period that 
might exceed the "imminent" timeframe appli cable in a threat of  injury analysis.552  Argentina adds 
that the standard of the "reasonably foreseeable time" would create an "impermissible gap" during which an anti-dumping duty would remain in effect  without the existence of present or threatened 
material injury.
553 
358. The thrust of Argentina's argumentation on appeal is centred on footnote 9 of the Anti-
Dumping Agreement , which provides, inter alia , that "[u]nder this Agreement the term 'injury' ... shall 
be interpreted in accordance with the provisions of ... Article [3]."  A ccording to Argentina, by virtue 
of footnote 9, Article 3 of the  Anti-Dumping Agreement  applies to determinati ons relating to injury 
in sunset reviews.  In particular, the requirement set out in Article 3.7 that the threat of material injury 
be "imminent" is, Argentina argues, imported into Ar ticle 11.3 in the form of a temporal limitation on 
the timeframe within which "injury" must be determined  to continue or recur.  In Section VII of this 
Report, we have addressed the issue of whether Article 3 is applicable to sunset reviews and 
concluded that sunset reviews are not subject to th e detailed disciplines of Article 3, which include the 
specific requirement of Article 3.7.554   
                                                      
549Panel Report, para. 7.193. 
550Anti-Dumping Agreement , Article 3.7, second sentence. (footnote omitted) 
551Argentina's other appellant's submission, para. 221. 
552Ibid., para. 223. 
553Ibid., paras. 237-239. 
554See supra , paras. 276-283.  WT/DS268/AB/R 
 Page 131 
 
 
359. As to the "impermissible gap" alluded to by Ar gentina, in our view, this argument is nothing 
more than a theoretical possibility, which Argentin a builds from an abstract comparison between, on 
the one hand, the "imminent" manifestation of inju ry in the context of an original anti-dumping 
investigation and, on the other hand, the manifest ation of injury within a "reasonably foreseeable 
time" in the context of a sunset review.  The th eoretical possibility of a "gap" would necessarily apply 
only to the situation of likelihood of "recurrence" of injury in the future, and not to the situation of 
"continuation" of injury.  This mere theoretical  possibility  cannot justify the importation into 
Article 11.3 of an "imminent" standard for like lihood of recurrence of injury.  Moreover, as the 
Appellate Body indicated in  US – Corrosion-Resistant Steel Sunset Review , original investigations 
and sunset reviews are distinct processes with different purposes.555  The disciplines applicable to 
original investigations cannot, therefore, be automatically imported into review processes.   
360. In our view, the Panel correctly analyzed the tim eframe issue.  We agree with the Panel that 
an assessment regarding whether injury is likely to recur that focuses "too far in the future would be 
highly speculative" 556, and that it might be very difficult to justify such an assessment.  However, like 
the Panel, we have no reason to believe that the standard of a "reasonably foreseeable time" set out in 
the United States statute is inconsistent with the requirements of Article 11.3.    
361. In the light of these considerations, we uphold  the Panel's findings, in paragraphs 7.193 and 
8.1(c) of the Panel Report, that the standard of  continuation or recurrence of injury "within a 
reasonably foreseeable time", as provided in Sectio ns 752(a)(1) and 752(a)(5) of the Tariff Act of 
1930, is not inconsistent w ith Article 11.3 of the  Anti-Dumping Agreement . 
B. Application of the Standard of Continuation or Recurrence of Injury Within a 
Reasonably Foreseeable Time 
362. The Panel found that the USITC did not act inconsistently with Article 11.3 of the Anti-
Dumping Agreement  in its  application  of Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 
1930.557  For the Panel, this conclusion results from th e "finding that the US statutory provisions 
relating to the time-frame on the basis of which the USITC makes its likelihood determinations in 
sunset reviews are not WTO-inconsistent".558  In addition, the Panel rejected Argentina's argument 
that the USITC failed to apply Sections 752(a)(1) and 752(a)(5) of the Tariff Act of 1930 in a WTO-
                                                      
555Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , paras. 106-107;  Appellate 
Body Report, US – Carbon Steel , para. 87. 
556Panel Report, para. 7.185. 
557Ibid., paras. 7.259-7.260 and 8.1(e)(i). 
558Ibid., para. 7.258. WT/DS268/AB/R 
Page 132  
 
consistent manner because it did not specify the timeframe that it considered to be reasonably 
foreseeable for purposes of its likelihood determination in this sunset review.
559 
363. On appeal, Argentina argues that, even assuming, arguendo , that the standard in Sections 
752(a)(1) and 752(a)(5) of the Tariff Act of 19 30 is WTO-consistent, it is nevertheless WTO-
inconsistent as applied.  According to Argentina,  the USITC erred in the application of the legal 
standard because it did not indicate the timefra me that it considered to be applicable.560  Argentina 
submits that a determination that does not specify th e relevant timeframe for the injury determination 
is not a "properly reasoned and supported determination" 561 and does not have a "firm evidentiary 
foundation".562 
364. As we have noted above 563, the text of Article 11.3 does not establish any requirement for the 
investigating authority to specify the timeframe on which it bases its determination regarding injury.  
Thus, the mere fact that the timeframe of the inju ry analysis is not presented in a sunset review 
determination is not sufficient to undermine that  determination.  Article 11.3 requires that a 
determination of likelihood of cont inuation or recurrence of injury r est on a sufficient factual basis to 
allow the investigating authority to draw reasone d and adequate conclusions .  A determination of 
injury can be properly reasoned and rest on a sufficient factual basis even though the timeframe for 
the injury determination is not explicitly mentione d.  In this case, the Panel concluded that the 
USITC's determination with respect to injury rested  on a sufficient factual basis.  The Panel reached 
this conclusion in the absence of an y reference to the timeframe for th e injury analysis in the USITC's 
determination.  As we explained in Section X of  this Report, we see no reason to disagree with the 
Panel's conclusion that the USITC's determination rested on a sufficient factual basis.  Therefore, we  
uphold  the Panel's findings, in paragraphs 7.260 and 8.1(e)(i) of the Panel Report, that the USITC did 
not act inconsistently with Article 11.3 of the  Anti-Dumping Agreement  in its application of Sections 
752(a)(1) and 752(a)(5) of the Tariff Act of 1930. 
 
                                                      
559Panel Report, para. 7.259. 
560Argentina's other appellant's submission, para. 242. 
561Ibid. (quoting Panel Report, para. 7.185). 
562Ibid., para. 241 (quoting Appellate Body Report, US – Corrosion-Resistant Steel Sunset Review , 
para. 178). 
563Supra , paras. 358-359.  WT/DS268/AB/R 
 Page 133 
 
 
XII. Findings and Conclusions 
365. For the reasons set out in this Report, the Appellate Body: 
(a) as regards the Panel's terms of reference: 
(i) upholds  the Panel's finding, in paragraph 7.27 of the Panel Report, that 
Section A.4 of Argentina's panel requ est, in accordance with Article 6.2 of 
the DSU, sets out with sufficient clarity  Argentina's claims that Sections 
751(c) and 752(c) of the Tariff Act of 1930, the SAA, and the SPB, are inconsistent, as such, with Article 11.3 of the  Anti-Dumping Agreement , by 
virtue of the alleged "irrefutable presumption" contained in those provisions;  
(ii) does not need
 to make a finding on the United States' "contingent" challenge 
under Article 6.2 of the DSU, with respect to Argentina's claims under Articles 3.7 and 3.8 of the  Anti-Dumping Agreement , because Argentina 
does not appeal the Panel's findings on those claims;  and 
(iii) does not need
 to make findings on the United States' challenges under Article 
6.2 of the DSU to Argentina's conditio nal appeals (1) under Article 11.3 of 
the  Anti-Dumping Agreement , challenging the USDOC "practice" relating to 
likelihood-of-dumping determinations in sunset reviews, and (2) under 
Article X:3(a) of the GATT 1994, challenging the USDOC's administration 
of United States anti-dumping laws, re gulations, decisions, and rulings 
relating to the conduct of sunset reviews; 
(b) as regards the SPB: 
(i) upholds  the Panel's finding, in paragraph 7.136 of the Panel Report, that the 
SPB is a "measure" subject to WTO dispute settlement;  and 
(ii) finds  that the Panel did not "make an objective assessment of the matter",  
as required by Article 11 of the DSU, in reaching, on the sole basis of  the overall statistics in Exhibit ARG- 63, the conclusion that the three 
scenarios in Section II.A.3 of the SPB are perceived by the USDOC to be 
determinative/conclusive of the like lihood of continuation or recurrence of 
dumping.  Consequently, th e Appellate Body reverses
 the Panel's findings, in 
paragraphs 7.166 and 8.1(b) of the Pane l Report, that Section II.A.3 of the WT/DS268/AB/R 
Page 134  
 
SPB is inconsistent, as such, with Article 11.3 of the Anti-Dumping 
Agreement ;   
(c) as regards the waiver provisions of United States laws and regulations: 
(i) upholds
 the Panel's findings, in paragraphs 7.103, 8.1(a)(i), and 8.1(a)(ii) of 
the Panel Report, that Section 751(c)(4)(B) of the Tariff Act of 1930 and Section 351.218(d)(2)(iii) of the USDO C Regulations are inconsistent, as 
such, with Article 11.3 of the  Anti-Dumping Agreement ;   
(ii) upholds
 the Panel's findings, in paragraphs  7.128 and 8.1(a)(iii) of the Panel 
Report, that Section 351.218(d)(2)(iii) of the USDOC Regulations is inconsistent, as such, with Articles 6.1 and 6.2 of the Anti-Dumping 
Agreement , with respect to respondents that file  incomplete  submissions in 
response to the USDOC's notice of initiation of a sunset review;  but does not 
agree with the Panel that, with r espect to respondents that file  no submission, 
the failure to accord them the rights detailed in Articles 6.1 and  6.2 renders Section 351.218(d)(2)(iii) of the USDOC Regulations inconsistent, as such, 
with those provisions;  and 
(iii) finds
 that the Panel did not fail to "make an objective assessment of the 
matter before it, including an objective assessment of the facts of the case", as required by Article 11 of the DSU, in  ascertaining the relationship between 
company-specific and order-wide determinations and in examining the basis 
on which the USDOC concludes that a respondent's submission constitutes a "complete substantive response"; 
(d) as regards the factors that an investigati ng authority is required to examine in a 
likelihood-of-injury determination: 
(i) upholds
 the Panel's finding, in paragraph 7.273 of the Panel Report, that the 
obligations set out in Article 3 do not apply to likelihood-of-injury determinations in sunset reviews.  Consequently, the Appellate Body does 
not need  to "complete the analysis" and make findings with respect to 
Argentina's claims that the USITC acted inconsistently with Articles 3.1, 3.2, 
3.4, and 3.5 of the  Anti-Dumping Agreement ;  and  WT/DS268/AB/R 
 Page 135 
 
 
(ii) finds  that the Panel did not err in its interpretation of the term "injury" in 
Article 11.3 of the  Anti-Dumping Agreement , or in its analysis with respect 
to the factors that an investigating authority is required to examine in a 
likelihood-of-injury determination; 
(e) as regards cumulation of the effects of dumped imports: 
(i) upholds  the Panel's findings, in paragra phs 7.334 and 7.335 of the Panel 
Report, that Article 11.3 of the  Anti-Dumping Agreement   does not preclude 
investigating authorities from cumula ting the effects of likely dumped 
imports in the course of their lik elihood-of-injury determinations; 
(ii)  upholds  the Panel's finding, in paragraph 7.336 of the Panel Report, that the 
conditions of Article 3.3 of the  Anti-Dumping Agreement   do not apply in the 
context of sunset reviews; 
(f) as regards the interpretation of the term "likely" in Article 11.3 of the  Anti-Dumping 
Agreement , finds  that the Panel did not err in its interpretation; 
(g) as regards the USITC's determina tion on likelihood of injury: 
(i) finds  that the Panel did not err in not finding that the USITC's decision to 
cumulate the dumped imports was based on an insufficient factual basis, and in not finding that the USITC's decision on cumulation was inconsistent with Article 11.3 of the  Anti-Dumping Agreement ; 
(ii) upholds
 the Panel's finding, in paragraph 7.298 of the Panel Report, that 
"Argentina has failed to prove that the USITC's determinations concerning the likely volume of dumped imports were WTO-inconsistent"; 
(iii) upholds
 the Panel's finding, in paragraph 7. 306 of the Panel Report, that "the 
USITC's determination regarding the li kely price effect of dumped imports 
was based on an objective examination of  the evidence in the record";  and 
(iv) upholds  the Panel's finding, in paragraph 7.312 of the Panel Report, that 
"under the circumstances of this sunset review, the USITC's determinations regarding the likely consequent impact  of the likely dumped imports on the 
US industry [were] not inconsistent with Article 11.3 of the Agreement"; WT/DS268/AB/R 
Page 136  
 
(h) as regards the timeframe used by the USITC in its likelihood-of-injury determination: 
(i) upholds
 the Panel's findings, in paragra phs 7.193 and 8.1(c) of the Panel 
Report, that the standard of continuation or recurrence of injury "within a 
reasonably foreseeable time", as provide d in Sections 752(a)(1) and 752(a)(5) 
of the Tariff Act of 1930, is not inconsistent with Article 11.3 of the  Anti-
Dumping Agreement ;  and 
(ii) upholds  the Panel's findings, in paragraphs  7.260 and 8.1(e)(i) of the Panel 
Report, that the USITC did not act inconsistently with Article 11.3 of the  Anti-Dumping Agreement  in its application of Sections 752(a)(1) and 
752(a)(5) of the Tariff Act of 1930; 
(i) as regards the conditional appeals of Argentina: 
(i) even assuming  arguendo   that a "practice" may be challenged as a "measure" 
in WTO dispute settlement, finds
 that the record does not allow it to complete 
the analysis with respect to Argentina's challenge, under Article 11.3 of the  Anti-Dumping Agreement , to the "practice" of the USDOC regarding the 
likelihood determination in sunset reviews;  and 
(ii) finds
 that the record does not allow it to co mplete the analysis with respect to 
Argentina's conditional appeal with respect to Article X:3(a) of the GATT 1994. 
366. The Appellate Body recommends
 that the Dispute Settlement Bo dy request the United States 
to bring its measures found in the Panel Report, as modifi ed by this Report, to be inconsistent with the  
Anti-Dumping Agreement , into conformity with its obli gations under that Agreement.  WT/DS268/AB/R 
 Page 137 
 
 
 
Signed in the original at Geneva this 12th day of November 2004 by:  
 
 
       
 
    Yasuhei Taniguchi 
    Presiding Member 
    
 
   
     
  Georges Abi-Saab    A.V. Ganesan 
  Member    Member 
 
 WT/DS268/AB/R 
Page 138  
 
ANNEX I
 
  
 WORLD TRADE  
ORGANIZATION  WT/DS268/5 
31 August 2004  
 (04-3624) 
 Original:   English 
 
 
 
UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES 
ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA 
 
Notification of an Appeal by the United States  
under paragraph 4 of Article 16 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes ("DSU")  
 
 
  The following notification, dated 31 August 2004, from the Delegation of the United States, is being 
circulated to Members.   
 
_______________ 
 
 
 Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes  ("DSU") and Rule 20 of the Working Procedures for Appellate Review, the United States hereby 
notifies its decision to appeal to the Appellate Body certain  issues of law covered in the Report of the Panel on 
United States – Sunset Reviews of Anti-Dumping Meas ures on Oil Country Tubular Goods from Argentina  
(WT/DS268R) and certain legal interpretations  developed by the Panel in this dispute. 
 
1. The United States seeks review by the Appellate Body of the Panel's legal conclusion that the 
provisions of section 751(c)(4)(B) of the Tariff Act re lating to "affirmative" waivers are inconsistent with 
Article 11.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 
1994  ("Anti-Dumping Agreement") .  This finding is in error and is based on erroneous findings on issues of law 
and related legal interpretations, including, for example, that U.S. law, including section 751(c)(4)(B) of the Tariff Act and section 351.218(d)(2)(iii) of the Department of Commerce's regulations, precludes the 
Department of Commerce from making an order-wide determination of likelihood of continuation or recurrence 
of dumping, supported by reasoned and adequate conclusions based on the facts before the agency, where an interested party elects not to participate in th e sunset review at the Department of Commerce;
1 
 
2. The United States seeks review by the Appellate Body of the Panel's legal conclusion that the provisions of section 351.218(d)(2)(iii)  of the Department of Commerce's regulations relating to "deemed" 
waivers are inconsistent with Article 11.3 of the Anti-Dumping Agreement.  This finding is in error and is based 
on erroneous findings on issues of law and related legal in terpretations, including, for example, that U.S. law, 
including section 751(c)(4)(B) of the Tariff Act and section 351.218(d)(2)( iii) of the Department of Commerce's 
regulations, precludes the Department of Commerce from making an order-wide determination of likelihood of continuation or recurrence of dumping, supported by reasoned and adequate conclusions based on the facts 
before the agency, where an interested party elects not to participate in the sunset review at the Department of 
Commerce;
2 
                                                      
1See Panel Report, paras. 7.80-7.103, 8.1(a)(i)-(ii). 
2See id.   WT/DS268/AB/R 
 Page 139 
 
 
WT/DS268/5 
Page 2 
 
 
 3. The United States seeks review by the Appellate Body  of the Panel's legal conclusion that provisions of 
section 351.218(d)(2)(iii) of the Department of Comme rce's regulations relating to "deemed" waivers are 
inconsistent with Articles 6.1 and 6.2 of the Anti-Dump ing Agreement.  These findings are in error and are 
based on erroneous findings on issues of law and related legal interpretations, including, for example, that under 
U.S. law, including section 751(c)(4)(B) of the Tariff Act and section 351.218(d)(2)(iii) of the Department of 
Commerce's regulations, an exporter that fails to file a complete response to the notice of initiation has been 
deprived of ample opportunity to submit  information in accordance with Article  6.1 or to confront parties with 
adverse interests under Article 6.2, and which also rend ers the order-wide likelihood determination inconsistent 
with Articles 6.1 and 6.2;
3 
 
4. The United States seeks review by the Appellate Body  of the Panel's legal conclusion that provisions of 
section II.A.3 of the Sunset Policy Bulletin  are inconsistent with Article 11 .3 of the Anti-Dumping Agreement, 
and, to the extent that the Panel's conclusion is prem ised on an erroneous assessm ent of the facts, the United 
States seeks review of that assessment pursuant to Article 11 of the DSU.  This finding is in error and is based 
on erroneous findings on issues of law and related legal interpretations, including, for example:  the Panel's 
conclusion that the Sunset Policy Bulletin  is a measure, based solely on its conclusion that the Appellate Body 
found this in another dispute;  the Panel's failure to rely on the meaning of the Sunset Policy Bulletin under U.S. 
municipal law in assessing whether the Sunset Policy Bulletin mandates a breach;  and the Panel's reliance on 
the "consistent application" of the Sunset Policy Bulletin  to conclude that the Sunset Policy Bulletin mandates a 
breach;4 
 
5. The United States seeks review by the Appellate Body of the Panel's factual findings regarding U.S. 
law.  These findings are in error and do not represen t an objective assessment of the facts as required by 
Article 11 of the DSU;5 
 6. The United States seeks review by the Appellate B ody of the Panel's legal conclusion that Argentina's 
Panel Request was not inconsistent with  Article 6.2 of the DSU.  This fi nding is in error and is based on 
erroneous findings on issues of law and related legal interpretations, including, for example: the Panel's conclusion that Argentina's panel request was suff iciently clear and presen ted the problem clearly,
6 the Panel's 
conclusion that certain claims were within the terms of reference,7 and the Panel's conclusion that the United 
States did not establish prejudice.8 
 
_______________ 
                                                      
3See id., paras. 7.107-7.128, 8.1(a)(iii). 
4See id. , paras. 7.134-7.144, 7.152-7.173, 8.1(b). 
5See id., paras. 7.80-7.128. 
6See id.,  paras. 7.10-7.48. 
7See id. , paras. 7.49-7.70. 
8See id., para. 7.71. WT/DS268/AB/R 
Page 140  
 
ANNEX II
 
  
 WORLD TRADE  
ORGANIZATION  WT/DS268/2 
4 April 2003 
 (03-1912) 
 Original:   English 
 
 
 
UNITED STATES – SUNSET REVIEWS OF ANTI-DUMPING MEASURES 
ON OIL COUNTRY TUBULAR GOODS FROM ARGENTINA 
 
Request for the Establishment of a Panel by Argentina  
 
  The following communication, dated 3 April 2003, from the Permanent Mission of Argentina to the 
Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU. 
 
_______________ 
 
  On 7 October 2002, the Government of the Republic of Argentina requested consultations with the 
Government of the United States of America pursuant to Article 4 of the World Trade Organization (WTO) 
Understanding on Rules and Procedures Governing the Se ttlement of Disputes (DSU),  Article XXII:1 of the 
General Agreement on Tariffs and Trade 1994 (GATT 1994), and Article 17.3 of the Agreement on 
Implementation of Article VI of GATT 1994 (the Anti-Dumping Agreement) regarding the determinations of the US Department of Commerce (Department) and th e US International Trade Commission (Commission) in 
the sunset reviews of the anti-dumping duty measure on oil country tubular goods (OCTG) from Argentina. 
  The first consultation was held in Geneva, Switzerland, on 14 November 2002.  A second consultation 
was held in Washington, D.C., on 17 December 2002.  While the consultations enabled the parties to gain a 
better understanding of their respective positions, unfortunately the consultations failed to produce a mutually agreeable solution. 
 
 In the original anti-dumping duty investigation of OCTG from Argentina covering the period 1 January 1994 through 30 June 1994, the Department determined that Siderca S.A.I.C. (Siderca), an Argentine producer 
and exporter of OCTG, was dumping at a margin of 1.36 percent.
1  The Department did not conduct a 
substantive administrative review of the anti-dumping duty  measure on OCTG from Argentina in the five years 
following its imposition. 
 
 On 3 July 2000, the Commission and the Department initiated sunset reviews of the anti-dumping measures on OCTG from Argentina, Italy, Japan, Korea, and Mexico.
2  Based on the Department's 
determination that the responses submitted by Argentine respondent parties to the initiation notice were 
"inadequate", the Department conducted an "expedited" sunset review of the anti-dumping duty measure  
                                                      
1 Final Determination of Investigation of Sales at Less Than Fair Value of Oil Country Tubular Goods 
From Argentina , 60 Federal Register 33539 (28 June 1995).  The 1.36 percent margin was calculated on the 
basis of the Department's practice of "zeroing " negative dumping margins. 
2 Notice of Initiation of Five-Year ("Sunset") Reviews , 65 Federal Register 41053 (3 July 2000) 
(Department's notice); Oil Country Tubular Goods From Argentina, Italy, Japan, Korea, and Mexico , 65 Federal 
Register 41088 (3 July 2000) (Commission's notice).  WT/DS268/AB/R 
 Page 141 
 
 
WT/DS268/2 
Page 2 
 
 
 applicable to OCTG from Argentina (Department's Determination to Expedite).
3  On the basis of the 
"expedited" review, the Department  determined that termination4 of the anti-dumping duty measure on OCTG 
from Argentina would be likely to lead to continuation or recurrence of dumping at 1.36 percent (Department's 
Sunset Determination).5 
  The Commission determined that termination of the anti-dumping duty measure on OCTG (other than 
drill pipe –  i.e., casing and tubing) from Argentina, Italy, Japan, Korea, and Mexico would be likely to lead to 
continuation or recurrence of material injury to an industry in the United St ates within a reasonably foreseeable 
time (Commission's Sunset Determination).
6  The Commission also determined that termination of the 
anti-dumping duty measure on drill pipe from Japan would be likely to lead to continuation or recurrence of 
material injury to an industry in th e United States within a r easonably foreseeable time.  On 25 July 2001, the 
Department issued a determination to continue the anti-dumping duty measure on OCTG from Argentina 
(Department's Determination to Continue the Order).7 
  The Republic of Argentina considers that th e Department's Determination to Expedite, the 
Department's Sunset Determination, the Commission's Sunset Determination, and the Department's 
Determination to Continue the Order are inconsistent w ith US WTO obligations, and that certain aspects of US 
laws, regulations, policies and procedures related to the administration of sunset reviews are inconsistent with 
US WTO obligations.  The Republic of Argentina reque sts that a panel be established in accordance with 
Articles 4.7 and 6 of the DSU to address the specific clai ms related to the US sunset reviews of anti-dumping 
duty measure on OCTG from Argentina as set forth below. 
 
A. The Department's Determination to Expedite  and the Department's Sunset Determination are 
inconsistent with the Anti-Dumping Agreement and the GATT 1994 : 
 1. US laws, regulations, and procedures regarding "expedited" sunset reviews are inconsistent with 
Articles 11, 2, 6 and 12 of the Anti-Dumping Agreement.  In particular, 19 U.S.C. § 1675(c)(4) and 19 C.F.R. § 
351.218(e) operate in certain instances to preclude the Department from conducting a sunset review and making a determination as to whether termination of an anti-dumping duty measure would be likely to lead to 
continuation or recurrence of dumping, in violation of Articles 11.1, 11.3, 11.4, 2.1, 2.2, 2.4, 6.1, 6.2, 6.6, 6.8, 
6.9, 6.10, 12.2, 12.3, and Annex II of the Anti-Dumping Agreement.  When a respondent interested party is deemed by the Department to have "waived" participation in the Department's sunset review, US law mandates 
that the Department find that termination of the order would be likely to lead to continuation or recurrence of 
dumping, without requiring the Department to conduct a substantive review and to make a determination based 
on the substantive review. 
 
                                                      
3 Oil Country Tubular Goods From Argentina:  Adequacy of Respondent Interested Party Responses to 
the Notice of Initiation, Department of Commerce Memo randum For J. May from E. Cho, No. A-357-810 
(22 Aug. 2000). 
4 Referred to as "revocation" under US law. 
5 Final Results of Expedited Sunset Reviews:  Oil Country Tubular Goods From Argentina, Italy, 
Japan, and Korea , 65 Fed. Reg. 66701 (7 Nov. 2000) (together with the Department of Commerce Issues and 
Decision Memorandum for the Expedited Sunset Reviews of the Antidumping Duty Orders on Oil Country 
Tubular Goods From Argentina, Italy, Japan, and Korea, dated 31 October 2000, and incorporated by reference 
into the Department's Sunset Determination). 
6 Oil Country Tubular Goods From Argentina, Italy, Japan, Korea, and Mexico , Inv. Nos. 701-TA-364 
(Review), 731-TA-711, and 713-716 (Review), USITC Pub. 3434 (June 2001); 66 Federal Register 35997 
(10 July 2001). 
7 Continuation of Countervailing and Antidumping Duty Orders on Oil Country Tubular Goods from 
Argentina, Italy, Japan, Korea and Mexico, and Partial Revocation of Those Orders from Argentina and Mexico 
With Respect to Drill Pipe, 66 Fed. Reg. 38630 (25 July 2001). WT/DS268/AB/R 
Page 142  
 
WT/DS268/2 
Page 3 
 
 
 2. The Department's application of the expedited sunset review procedures in the sunset review of OCTG 
from Argentina was inconsistent with Articles 11, 2, 6 and 12 of the Anti-Dumpi ng Agreement because:  (1) 
Siderca was deemed to have waived its right to participat e in the sunset review, despite its full cooperation with 
the Department, in violation of Articles 11.1, 11.3, 11.4, 2.1, 2.2, 2.4, 6.1, 6.2, 6.6, 6.8, 6.9, 6.10, 12.2, 12.3 and 
Annex II; (2) the Department did not in fact conduct a "review" within the meaning of Article 11.3; and the (3) the Department failed to "determine" – as required by Article 11.3 – whether termination of the anti-dumping 
order would be likely to lead to continuation or recurrence of dumping. 
 3. The Department's Determination to Expedite the review of Argentina solely on the basis that Siderca's 
shipments to the United States constituted less than 50 percent of the total exports from Argentina was 
inconsistent with Articles 11.1, 11.3, 11.4, 2.1, 2.2, 2.4, 6.1, 6.2, 6.6, 6.8, 6.9, 6.10, 12.2, 12.3 and Annex II of the Anti-Dumping Agreement. 
 
4. The Department's Sunset Determination is inconsistent with Article 11.3 of the Anti-Dumping Agreement, and Article X:3(a) of the GATT 1994 because it was based on a virtually irrefutable presumption 
under US law as such that termination of the anti-dumping duty measure would be likely to lead to continuation 
or recurrence of dumping.  This unlawful presumption is evidenced by the consistent practice of the Department in sunset reviews (which practice is based on US law and the Department's Sunset Policy Bulletin). 
 
5. The Department's application of the standard for determining whether termination of anti-dumping measure would be "likely to lead to continuation or recurrence of dumping" is inconsistent with Articles 11.1, 
11.3, 2.1, 2.2, and 2.4 of the Anti-Dumping Agreement.  The Department's finding in this case that dumping was 
likely to recur in the event of termination, and that the likely margin of dumping would be 1.36 percent, is 
inconsistent with the standard established by Article 11.3 of the Anti-Dumping Agreement.  The Department's 
reliance on the 1.36 percent margin from the original investigation cannot support a determination that dumping would be likely to continue or recur under Article 11.3.  In addition, the 1.36 percent margin – calculated on the 
basis of the Department's practice of "zeroing" negative dumping margins – cannot support the Department's 
Sunset Determination or the Department's Determination to Continue the Order. 
 
B. The Commission's Sunset Determination was inconsistent with th e Anti-Dumping Agreement 
and the GATT 1994:  
1. The Commission's application of the standard for determining whether the termination of anti-dumping 
duty measure would be "likely to lead to continuation or recurrence of ... injury" was inconsistent with Articles 11, 3 and 6 of the Anti-Dumping Agreement.  The Commission failed to apply the plain and ordinary 
meaning of the term "likely" and instead applied a lower standard in assessing whether injury would continue or 
recur in the event of termination, in violation of Articles 11.1, 11.3, 11.4, 3.1, 3.2, 3.3, 3.4, 3.5, and 6 of the Anti-Dumping Agreement. 
 
2. The Commission failed to conduct an "objective examinati on" of the record and failed to base its 
determination on "positive evidence" regarding whether termination of the anti-dumping duty measure "would 
be likely to lead to continuation or recurrence" of in jury.  In particular, the Commission's conclusions with 
respect to the volume of imports, price effects on domestic like products, and impact of imports of the domestic 
industry demonstrate the Commission's failure to conduct an objective examination in violation of Articles 11, 
3, and 6.  The Commission's findings on these issues do not constitute "positive evidence" of likely injury in the event of termination, in violation of Articles 11.1, 11.3, 11.4, 3.1, 3.2, 3.3, 3.4, 3.5, and 6 of the Anti-Dumping 
Agreement. 
 3. The US statutory requirements that the Commission determine whether injury would be likely to 
continue or recur "within a reasonably foreseeable ti me" (19 U.S.C. § 1675a(a)(1 )) and that the Commission 
"shall consider that the effects of revocation or termin ation may not be imminent, but may manifest themselves 
only over a longer period of time" (19 U.S.C. § 1675a(a)(5)) are inconsistent with Articles 11.1, 11.3 and 3 of 
the Anti-Dumping Agreement. 
  WT/DS268/AB/R 
 Page 143 
 
 
WT/DS268/2 
Page 4 
 
 
 4. The Commission's application of a "cumulative" injury analysis in the sunset review of the 
anti-dumping duty measures on OCTG from Argentina was inconsistent with Articles 11.1, 11.3, 3.1, 3.2, 3.3, 
3.4 and 3.5 of the Anti-Dumping Agreement.  There is  no textual basis in the Anti-Dumping Agreement for 
conducting a cumulative injury analysis in an Article 11.3 review.  Assuming arguendo  that cumulation is 
permitted in Article 11.3 reviews, then the Commissi on was required to adhere to the requirements of 
Article 3.3 (including those related to de minimis  margins and negligible imports) in the Commission's Sunset 
Determination.  The Commission's cumulative injury analysis in the Commission's Sunset Determination failed 
to satisfy the Article 3.3 requirements. 
 
 Argentina also considers that certain aspects of the following US laws, regulations, policies, and 
procedures related to the determinations of the Department and the Commission are inconsistent with US WTO obligations, to the extent that any of these measures mandate action by the Department or Commission that is 
inconsistent with US WTO obligations or preclude the Department or Commission from complying with US 
WTO obligations:  
• Sections 751(c) and 752 of the Tariff Act of 1930, as amended, codified at Title 19 of the 
United States Code §§ 1675(c) and 1675a; and the US Statement of Administrative Action (regarding the Agreement on Implementati on of GATT Article VI) accompanying the 
Uruguay Round Agreements Act (the SAA), H.R. Doc. No. 103-316, vol. 1; 
 
• The Department's Policies Regarding the Conduct of Fi ve-year ("Sunset") Reviews of Anti-
Dumping and Countervailing Duty Orders ; Policy Bulletin, 63 Federal Register 18871 
(16 April 1998) (Sunset Policy Bulletin); 
 
• The Department's sunset review regulations, codified at Title 19 of the United States Code of 
Federal Regulations § 351.218; and the Commission's sunset review regulations, codified at 
Title 19 of the United States Code of Federal Regulations §§ 207.60-69 (Subpart F). 
  Argentina considers that the Department's Determination to Expedite, the Department's Sunset 
Determination, the Commission's Sunset Determination, the Department's Determination to Continue the Order 
and the above mentioned US laws, regulations, policies and procedures are inconsistent with the following provisions of the Anti-Dumping Agreement, the GATT 1994, and the WTO Agreement: 
 
• Articles 1, 2, 3, 6, 11, 12, 18 and Annex II of the Anti-Dumping Agreement; 
• Articles VI and X of the General Agreemen t on Tariffs and Trade (GATT) 1994; and 
• Article XVI:4 of the WTO Agreement. 
 
 Accordingly, Argentina respectfully requests that, pursuant to Article XXIII of the GATT 1994, 
Article 6 of the DSU, and Article 17 of the Anti-Dumping Agreement, a panel with standard terms of reference 
be established at the next meeting of the Dispute Sett lement Body to examine and find that the measures 
identified herein are inconsistent with US obligations  under the Anti-Dumping Agr eement, the GATT 1994, and 
the WTO Agreement. To that end, I would be grateful if  this request could be included in the agenda of the 
Dispute Settlement Body scheduled for 15 April 2003. 
 
 The above text describes the legal basis of the claims.  It does not restrict the arguments that Argentina may develop before the panel. 
 
__________