WT/DS241/R
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ANNEX B
Argentina
Contents Page
Annex B-1 First Written Submission of Argentina B-2
Annex B-2 First Oral Statement of Argentina B-64
Annex B-3 Second Written Submission of Argentina B-76
Annex B-4 Replies of Argentina to Questions of the Panel – First Meeting B-90
Annex B-5 Second Oral Statement of Argentina B-116
Annex B-6 Replies of Argentina to Questions of the Panel – Second Meeting B-132
Annex B-7 Replies of Argentina to Questions of Brazil – Second Meeting B-145
Annex B-8 Comments of Argentina on the Responses of Brazil to the Panel's
Questions – Second MeetingB-147
Annex B-9 Comments of Argentina on the Second Oral Statement of Brazil B-151WT/DS241/R
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ANNEX B-1
FIRST WRITTEN SUBMISSION OF ARGENTINA
(29 August 2002)
TABLE OF CONTENTS
Page
INTRODUCT ION................................................................................................................... ..........B-4
I. BACKGROUND ..................................................................................................................B -4
II. PRELIMINARY ARGUMENTS:  RELEVANT RULES AND PRINCIPLES OF
PUBLIC INTERNATIONAL LAW APPLICAB LE TO THIS PROCEEDING...........B-5
II.1 STANDARD OF REVIEW ...................................................................................................B-5
II.2 OTHER PRINCIPLES AND RULES OF PUBLIC INTERNATIONAL LAW
APPLICABLE TO THE CASE .............................................................................................B-6
II.3 PLEADINGS PERTAINING TO  THIS SECTION...............................................................B-8
III. SUBSTANTIVE CLAIMS...................................................................................................B-9
III.1 INITIATION OF TH E INVESTIGAT ION ...........................................................................B-9
III.1.1 CLAIMS 1 AND 5:  CONSISTENCY WITH ARTICLE 5.2 ....................................... B-9
III.1.2 CLAIMS 2, 4, 6 AND 8:  CONSISTENCY WITH ARTICLE 5.3 ............................. B-13
III.1.3 CLAIM 9:  CONSISTENCY WITH ARTICLE 5.7 ................................................... B-18
III.1.4 CLAIMS 3, 7 AND 31:  CONSISTENCY WITH ARTICLE 5.8 ............................... B-19
III.2 CONDUCT OF AN ANTI-DUMPING INVESTIGATION – EVIDENTIARY AND
PUBLIC NOTICE RE QUIREMENTS ................................................................................B-20
III.2.1 CLAIM 10:  CONSISTENCY WITH ARTICLE 12.1 ............................................... B-20
III.2.2 CLAIMS 11 TO 14:  CONSISTENCY WITH ARTICLE 6 ....................................... B-22
III.2.2.1 CLAIM 11:  CONSISTENCY WITH ARTICLE 6.1.1 ...................................... B-23III.2.2.2 CLAIM 12:  CONSISTENCY WITH ARTICLE 6.1.2 ...................................... B-27
III.2.2.3 CLAIM 13:  CONSISTENCY WITH ARTICLE 6.2 ......................................... B-29
III.2.2.4 CLAIM 14:  CONSISTENCY WITH ARTICLE 6.1.3 ...................................... B-31
III.2.3 CLAIMS 15, 16, 17 AND 21:  CONSISTENCY WITH ARTICLES 6.8
(ANNEX II), 6.9 AND 12.2.2................................................................................... B-32
III.2.4 CLAIMS 18, 19, 20 AND 22:  CONSISTENCY WITH ARTICLES 12.2.2, 6.8
(ANNEX II) AND 6.10............................................................................................. B-35
III.3 CONDUCT OF THE INVESTIGATION AND FINAL DETERM INATION ...................B-40
III.3.1 CLAIM 23:  CONSISTENCY WITH ARTICLE 2.4 ................................................. B-40
III.3.2 CLAIM 24:  CONSISTENCY WITH ARTICLE 2.4 ................................................. B-42III.3.3 CLAIM 25:  CONSISTENCY WITH ARTICLE 2.4 ................................................. B-44
III.3.4 CLAIM 26:  CONSISTENCY WITH ARTICLE 2.4 ................................................. B-45
III.3.5 CLAIM 27:  CONSISTENCY WITH ARTICLE 2.4.2 .............................................. B-46
III.3.6 CLAIMS 32 AND 33:  CONSISTENCY WITH ARTICLES 3.1, 3.4, 3.5 AND
12.2.2....................................................................................................................... B- 47WT/DS241/R
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III.3.7 CLAIMS 34, 35, 36 AND 37.  CONSISTENCY WITH ARTICLE 3.1, 3.2, 3.4
AND 3.5................................................................................................................... B-49
III.3.8 CLAIMS 38, 39 AND 40:  CONSISTENCY WITH ARTICLES 3.4 AND 3.1, AND
ARTICLE 12.2.2...................................................................................................... B-53
III.3.9 CLAIM 41:  CONSISTENCY WITH ARTICLE 4.1 ................................................. B-58
III.4 IMPOSITION AND COLLECTION OF ANTI-DUMPING DUTIES AS A RESULT
OF THE ANTI-DUMPING INVESTIGATION .................................................................. B-58
III.4.1 CLAIMS 28, 29 AND 30:  CONSISTENCY WITH ARTICLES 9.2, 9.3 AND
12.2.2....................................................................................................................... B- 58
IV. PLEADI NGS ................................................................................................................... ...B-62WT/DS241/R
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INTRODUCTION
In this submission, Argentina rejects the doubts raised by Brazil concerning
Resolution 574/2000 of the Ministry of the Economy of the Argentine Republic on the basis of
various considerations of fact and law which are presented below in two main sections as follows:
Section II, dealing with the standard of review and the rules and principles of public international lawapplicable to the case, and Section III, which refutes the substantive arguments contained in
Brazil's 41 claims.
I. BACKGROUND
1. On 21 July 2000, the Ministry of the Economy of the Argentine Republic issued Resolution
No. 574, imposing definitive anti-dumping measures on imports of poultry from Brazil, classified
under MERCOSUR tariff headings 0207.11.00 and 0207.12.00 for a period of three years.  TheResolution was published in the Official Bulletin of the Argentine Republic of 24 July 2000.
2. On 30 August 2000, in conformity with Article 2 of the Protocol of Brasilia, Brazil requested
the initiation of direct negotiations with Argentina on the application of anti-dumping duties on
Brazilian poultry exports (Resolution ME 574/00).
3. On 24 January 2001, Brazil gave notice of its intention to initiate the arbitral proceedings laid
down in Article 7 of the Protocol of Brasilia.
4. On 21 May 2001, the dispute was settled by the award of the MERCOSUR Ad Hoc Arbitral
Tribunal set up to rule on the dispute between the Federative Republic of Brazil and the Argentine
Republic on "Imposition of Anti-dumping Duti es on Exports of Whole Poultry from Brazil
(Res. 574/2000 of the Ministry of the Economy of the Argentine Republic)."   In accordance with
Article 22 of the Protocol of Brasilia, following the award, the Arbitral Tribunal issued a clarification
thereof on 18 June 2001.
5. On 7 November 2001, Brazil requested consultations with Argentina under Article 4 of the
Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article XXII
of the General Agreement on Tariffs and Trade 1994 (GATT 1994), Article 17 of the Agreement onImplementation of Article VI of the GATT 1994 (A nti-Dumping Agreement), including Article 17.4
thereof, and Article 19 of the Agreement on Implementation of Article VII of the GATT 1994
(Agreement on Customs Valuation), in respect of Resolution ME 574/00.
6. On 10 December 2001, consultations were held in Geneva between the delegations of the two
countries.
7. On 25 February 2002, the Government of Brazil, pursuant to Article XXII of the GATT 1994,
Article 6 of the DSU and Article 17 of the Anti-Dumping Agreement, requested the establishment of apanel.
8. On 17 April 2002, the Dispute Settlement Body established the Panel that was to examine the
claims of the Government of Brazil.  The Panel was constituted on 27 June 2002.WT/DS241/R
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II. PRELIMINARY ARGUMENTS:  RELEVANT RULES AND PRINCIPLES OF
PUBLIC INTERNATIONAL LAW APPLICABLE TO THIS PROCEEDING
II.1 STANDARD OF REVIEW
9. Argentina agrees that there is a separate standard of review1 in the case of Article 17.6 of the
Anti-Dumping Agreement.  However, the recognition of a different standard cannot be understood asan acknowledgement of the existence of the presump tion of bad faith in international relations, let
alone entitle Brazil to make an accusation against Argentina on the basis of such a presumption.  On
the contrary, the principle of good faith "informs the provisions of the Anti-Dumping Agreement, as
well as the other covered agreements."
2
10. Contrary to what Brazil has said3, Argentina did not act in bad faith, but conducts its
international relations according to the "pervasive"4 principle of good faith that underlies all treaties.
11. Brazil puts forward a generic argument without identifying the instances in Argentina's
investigation in which it considers that Argentina did not act in good faith, and without substantiating
its assertions in this respect.  Accusations of a generic nature are out of place in a WTO proceeding in
which, ultimately, the law must be applied to the identified facts of the case.
12. Argentina considers that Brazil's arguments should be rejected:  indeed, in none of the
paragraphs under the heading "Anti-Dumping Agreement Standard of Review" does Brazilsubstantiate those arguments – it merely sets forth allegations which it fails to develop.
13. Argentina also rejects Brazil's argument
5 that the Argentine Government improperly
established the facts and conducted a non-objective and biased evaluation of the facts so as to favour
the interests of the domestic industry in a manner inconsistent with the provisions of the Anti-
Dumping Agreement.  Here once again, Brazil fails to provide evidence substantiating its assertion
that the evaluation was "non-objective" or that the investigation was biased.
                                                     
1 The peculiarity of the Anti-Dumping Agreement as the only one of the Agreements that contains a
specific standard for the review of provisional or definitive anti-dumping measures or price agreements whenthey are challenged under the DSU was recognized in Panel Report WT/DS24/R of 8 November 1996:  "Wenote that the ATC does not establish a standard of review for panels, contrary, for example, to the WTOAgreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, where
Article 17.6 defines the standard of review that panels have to apply when reviewing cases arising under that
Agreement.  We further note that the DSU does not contain a provision mandating a specific standard of review",(paragraph 7.8, page 74).
Similarly, the Report of the Appellate Body in Argentina – Safeguard Measures on Imports of
Footwear  (WT/DS121/AB/R) of 14 December 1999 asserts that:  "We have stated, on more than one occasion,
that, for all but one of the covered agreements, Article 11 of the DSU sets forth the appropriate standard ofreview for panels.
  The only exception is the Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade 1994, in which a specific provision, Article 17.6, sets out a special standard ofreview for disputes arising under that Agreement".
2 Report of the Appellate Body in United States – Anti-Dumping Measures on Certain Hot-Rolled Steel
Products from Japan (United States – Hot-Rolled Steel) , WT/DS184/AB/R adopted on 23 August 2001,
paragraph 101.
3 First written submission of Brazil, paragraph 31.
4 Report of the Appellate Body in United States – Tax Treatment for "Foreign Sales Corporations"
(WT/DS108/AB/R) adopted on 20 March 2000, paragraph 166:  " … This is another specific manifestation ofthe principle of good faith which, we have pointed out, is at once a general principle of law and a principle of
general international law. This pervasive principle requires both complaining and responding Members to
comply with the requirements of the DSU (and related requirements in other covered agreements) in goodfaith ... ".
5 First written submission of Brazil, paragraph 28.WT/DS241/R
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14. Similarly, Argentina notes that according to Article 17.6 (ii), the Panel "shall interpret the
relevant provisions of the Agreement in accordance with customary rules of interpretation of public
international law".  That is to say, according to the Vienna Convention on the Law of Treaties, the
correct way to proceed is to examine the ordinary meaning of the provision in its context and in the
light of its object and purpose.  Contrary to Brazil's unsubstantiated statement6, the principle of good
faith is at the basis of the rule pacta sunt servanda , i.e. treaties must be performed by the parties to
them in good faith.
15. Similarly, Argentina also considers that the failure by Brazil to identify the case of bad faith
which it attributes to Argentina seriously impairs its ability to defend itself under Article 3.10 of the
DSU, according to which, if a dispute arises, the parties must engage in dispute settlement procedures
"in good faith in an effort to resolve the dispute".  Thus, in United States – Tax Treatment for
"Foreign Sales Corporations"7, the Appellate Body maintained that:  "By good faith compliance,
complaining Members accord to the responding Members the full measure of protection and
opportunity to defend, contemplated by the letter and spirit of the procedural rules.  The same
principle of good faith requires that responding Members seasonably and promptly bring claimed
procedural deficiencies to the attention of the complaining Member, and to the DSB or the Panel, so
that corrections, if needed, can be made to resolve disputes."
II.2 OTHER PRINCIPLES AND RULES OF PUBLIC INTERNATIONAL LAW APPLICABLE
TO THE CASE
16. Brazil's claim also contradicts general principles of international law and disregards relevant
rules of interpretation of WTO obligations.  In th is connection, Argentina would like to point out that
Brazil's conduct in omitting any reference to the arbitr al award relating to the same complaint in the
framework of MERCOSUR, in which its claims were not upheld, is contrary to the principle of good
faith in the fulfilment of agreements and in the actions of States.  Brazil is now trying to reverse this
negative result, rearguing its case under the WTO Dispute Settlement Understanding.
17. Argentina also wonders whether by omitting any reference to the fact that the case had
already previously been discussed and settled  in the framework of MERCOSUR, Brazil may have
abused its rights under the WTO Agreements.
18. Argentina and Brazil are not only WTO Members, but also States party to MERCOSUR, and
as such, cannot ignore the legal framework and the particular relationship resulting from the
integration process.  The existence of this legal framework and the adjudications of its disputesettlement system must be taken into account by the Panel when acting in accordance with the  DSU.
This fits in with the obligation contained in Article 3.2 of the  DSU to clarify the existing provisions
of the agreements in accordance with the customary rules of interpretation of public international law.
19. Both Argentina and Brazil, as States party to MERCOSUR, have assumed a set of
commitments based on the Treaty of Asunción for the creation of the Southern Cone Common Market
and the Protocol of Brasilia for the Settlement of Disputes (Protocol of Brasilia)
8 intended to resolve
conflicts between States parties.  These instruments are particularly relevant because Brazil's
                                                     
6 First written submission of Brazil, paragraph 31.
7 Report of the Appellate Body, United States – Tax Treatment for "Foreign Sales Corporations"
(WT/DS108/AB/R) adopted on 20 March 2000, paragraph 166 .
8 Treaty for the Creation of a Common Market between the Argentine Republic, the Federative
Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay, signed on 26 March 1991,
which entered into force on 29 November 1991 and was notified under the GATT/WTO on 5 March 1992.Protocol of Brasilia for the Settlement of Disp utes, signed on 17 December 1991.  Available on:
http:/www.mercosur.org.uyWT/DS241/R
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complaint against Argentina in this case has already been addressed9 and settled through the
procedure regulated by those regional agreements.
20. Brazil's decision to resort to the Protocol of Brasilia mechanism as the appropriate framework
for the settlement of the dispute, added to the f act that this was not the first instance of dispute
settlement at the regional level – three awards had already been made previously between Argentinaand Brazil
10 – implies full acceptance of the MERCOSUR legal framework and acceptance of the
dispute settlement procedure in totum , including the unappealable and definitive nature of its
awards.11  Brazil has been consistent in repeatedly accepting the MERCOSUR dispute settlement
system and its consequences, the arbitral awards.  This is not an isolated practice, but a procedure
regulated by a Protocol currently in force that has been applied in a total of eight cases since 199912,
                                                     
9 Award of the MERCOSUR Ad Hoc Arbitral Tribunal constituted  to rule on the dispute between the
Federative Republic of Brazil and the Argentine Republic regarding the imposition of anti-dumping measures
on exports of whole poultry from Brazil (Res. 574/2000) of the Ministry of the Economy of the ArgentineRepublic.  Date:  21 May 2001.
10 I.  Award of the MERCOSUR Ad Hoc Arbitral  Tribunal constituted to hear the dispute on
communications Nos. 37 of 17 December 1997 and 7 of 20 February 1998 from the Department of Foreign
Trade Operations (Decex) of the Secretariat for Foreign Trade (Secex):  Application of restrictive measures to
reciprocal trade.  Date:  28 April 1999.
     II.  Award of the MERCOSUR Ad Hoc Arbitral Tribunal constituted to hear the complaint of the
Argentine Republic against the Federative Republic of Brazil on subsidies for the production and exportation ofpork.  Date:  27 September 1999.
     III.  Award of the MERCOSUR Ad Hoc Arbitral Tribunal constituted to rule on the application of
safeguard measures to textile products (Res. 861/99) by the Ministry of the Economy and Public Works andServices.  Date:  10 March 2000.               Available on:  http:/www.mercosur.org.uy
11 Articles 8 and 21 of the Protocol of Brasilia:
"Article 8:  The State Parties declare that they recognize as obligatory, ipso facto  and without need of a
special agreement, the jurisdiction of the Arbitral Tr ibunal which in each case is established to hear and
resolve all controversies which are referred to in the present Protocol.""Article 21:
1. The decisions of the Arbitral Tribunal can not be appealed, and are binding on the
State Parties to the controversies from the moment the respective notification is
received and will be deemed by them to have the effect of res judicata.
2. The decisions should be complied with within a time-limit of fifteen (15) days, unless
the Arbitral Tribunal fixes a different time-limit."
(See Annex ARG-XXXII)
12 I.  Award of the MERCOSUR Ad Hoc Arbitral  Tribunal constituted to hear the dispute on
communications Nos. 37 of 17 December 1997 and  7 of 20 February 1998 of the Department of Foreign Trade
Operations (Decex) of the Secretaria t for Foreign Trade (Secex):  Application of restrictive measures to
reciprocal trade.  Date:  28 April 1999.
II.  Award of the MERCOSUR Ad Hoc Arbitral Tr ibunal constituted to hear the complaint of the
Argentine Republic against the Federative Republic of Brazil on subsidies for the production and exportation of
pork.  Date:  27 September 1999.
III.  Award of the MERCOSUR Ad Hoc Arbitral Tr ibunal constituted to rule on the application of
safeguard measures to textile products (Res. 861/99) of the Ministry of the Economy and Public Works andServices.  Date:  10 March 2000.
IV.  Award of the MERCOSUR Ad Hoc Arbitral Tribunal constituted to rule on the dispute
between the Federative Republic of Brazil and the Argentine Republic regarding the imposition of anti-dumpingduties on exports of whole poultry from Brazil (Res. 574/2000) of the Ministry of the Economy of the ArgentineRepublic.  Date:  21 May 2001.WT/DS241/R
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seven of which have involved Brazil and five of which have involved disputes between Argentina and
Brazil.  The Panel cannot ignore this fact and the legal consequences associated with an arbitral award
by an international tribunal.
21. Brazil's complaint within the framework of the WTO contradicts:  (a) its consistent practice,
as a MERCOSUR State party since 1991, of fulfil ling the commitments it has assumed and having
recourse to the dispute settlement procedure provided for under the Protocol of Brasilia and
reaffirmed through the signature of the Protocol of Olivos13;  (b) its consistent and unequivocal
practice of accepting the scope of the arbitral awards, of which there have been eight thus far, seven
of them involving Brazil either as complainant or respondent.
22. Argentina concludes that:
• For the purposes of clarifying the scope of the obligations in casu , account must be
taken of the regulatory framework and the consequences of the fact that the Protocol
of Brasilia was applied in the dispute at issue;
• in the alternative, the principle of estoppel and the consequences thereof are
applicable to this dispute, since Brazil has consistently and unequivocally behaved in
such a way as to lead Argentina to a conviction in respect of trade dispute settlement
between the two parties in the framework of MERCOSUR and respect for the scope
of the rulings.
II.3 PLEADINGS PERTAINING TO THIS SECTION
23. As Argentina has pointed out, the omission by Brazil of any reference to the dispute
previously discussed and settled by another international tribunal clearly reveals that the current
submission of the case to the WTO reflects an abusive exercise by Brazil of its rights.
24. Moreover, in the light of the international commitments in force, Brazil's prior and subsequent
practice of accepting the framework of MERCOSUR for the discussion and settlement of trade
disputes with Argentina as a fellow MERCOSUR St ate party, and given the terms under which the
dispute was brought, Brazil's complaint in the framework of the WTO has given rise to an estoppel
situation for which Brazil is liable under the DSU.
                                                                                                                                                                    
V.  Award of the MERCOSUR Ad Hoc Arbitral Tribunal constituted to hear the dispute brought by
the Eastern Republic of Uruguay against the Argentine Republic concerning restrictions on access to theArgentine market of bicycles of Uruguayan origin.  Date:  29 September 2001.
VI.  Award of the MERCOSUR Ad Hoc Arbitral Tr ibunal constituted to hear the dispute brought
by the Eastern Republic of Uruguay against the Federative Republic of Brazil concerning the prohibition on
imports of remoulded tyres from Uruguay.  Date:  9 January 2002.
VII.  Award of the MERCOSUR Ad Hoc Arbitral Tribunal constituted to hear the dispute brought
by the Argentine Republic against the Federative Republic of Brazil concerning barriers to the importation ofArgentine phytosanitary products into the Brazilian market.  Failure to incorporate Resolutions GMC
Nos. 48/96, 87/96, 149/96, 156/96 and 71/98, preventing their entry into force in MERCOSUR.  Date:
19 April 2002.
VIII.  Award of the MERCOSUR Ad Hoc Arbitral  Tribunal constituted to rule on the dispute
between the Republic of Paraguay and the Eastern Republic of Uruguay concerning the application of theIMESI ( Impuesto específico interno – Specific Internal Tax ) on the sale of cigarettes.  Date:  21 May 2002.
Complete texts of the above-mentioned awards available on:  http:/www.mercosur.org.uy
13 Protocol of Olivos for dispute settlement in MERCOSUR, signed on 18 February 2002 by the four
MERCOSUR States parties (not yet in force).  Complete text of the Protocol of Olivos available on:http:/www.mercosur.org.uyWT/DS241/R
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25. For the above reasons, and considering in particular that Brazil's complaint involves
challenging a measure which is identical in the current dispute to the measure at issue in the dispute
within the framework of MERCOSUR, Argentina requests the Panel to refrain from ruling on the
41 claims of alleged inconsistency of the Argentine regulations with the Anti-Dumping Agreement
contained in paragraph 549 of Brazil's first written submission, and consequently to reject the requestscontained in paragraph 550 of that submission.
26. In case the Panel should reject these pleadings and consider that it must rule on all of Brazil's
claims, Argentina has provided substantive justification in respect of each one of those claims in
Section III below.
III. SUBSTANTIVE CLAIMS
III.1 INITIATION OF THE INVESTIGATION
III.1.1 CLAIMS 1 AND 5:  CONSISTENCY WITH ARTICLE 5.2
27. Brazil claims that the information provided by CE PA in its application for the initiation of an
investigation – in respect of the required adjustment of normal value in view of differences in physical
characteristics – was not backed by the documentation (Claim 1) and that the normal value and the
export price were calculated on the basis of different periods (Claim 5).
Text of Article 5.2
The relevant part of Article 5.2 stipulates as follows:
"An application under paragraph 1 shall include evidence of (a) dumping;  (b) injury within
the meaning of Article VI of GATT 1994 as interpreted by this Agreement and (c) a causal
link between the dumped imports a nd the alleged injury.  Simple assertion, unsubstantiated by
relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph.
The application shall contain such information as is reasonably available to the applicant on
the following:  (Emphasis added)
(…)(iii) information on prices at which the product in question is sold when destined for
consumption in the domestic markets of the country or countries of origin or export
(or, where appropriate, information on the prices at which the product is sold from
the country or countries of origin or export to a third country or countries, or on theconstructed value of the product) and information on export prices or, where
appropriate, on the prices at which the product is first resold to an independent buyer
in the territory of the importing Member;
(iv) information on the evolution of the volume  of the allegedly dumped imports, the effect
of these imports on prices of the like product in the domestic market and the
consequent impact of the imports on th e domestic industry, as demonstrated by
relevant factors and indices having a bearing on the state of the domestic industry,
such as those listed in paragraphs 2 and 4 of Article 3."WT/DS241/R
Page B-10
Argentine claim
28. Contrary to what Brazil contends in its Claims 1 and 5, the applicant provided all of the
necessary evidence with respect to the normal valu e and the export value as well as the relevant
evidence for the adjustments needed in order to ma ke a fair comparison between the normal value and
the export value.
29. We agree with Brazil, given that Article 5.2 so requires, that the applicant must provide
evidence – and not simple allegations or assertions – of dumping injury to the domestic industry and a
causal link, as set forth in the various subparagraphs of Article 5.2.
30. However, Article 5.2 also stipulates that the applicant shall provide, with its applications,
such information as is reasonably available to it on:  the applicant and the domestic industry where
applicable (Article 5.2(i)), the like product (5.2(ii)), prices – normal value and export value(Article 5.2(iii)) and the evolution of the volume of dumped imports, their effects, consequences and
influence, both on the injury and on the causal link (Article 5.2(iv)).
31. In Argentina's view, when Article 5.2 states that:  "[t]he application shall contain such
information as is reasonably available to the applicant … ", it is anticipating the difficulties that
domestic producers might encounter in their efforts to obtain documentary evidence of the situation atissue in their complaint.
32. It should be noted that the applicant supplied, with its application, the documentation that was
available to it.  The implementing authority cannot impose upon domestic producers requirements so
stringent that they would effectively block their access to such proceedings.  The above-mentioned
provision in Article 5.2 provides applicants with access to proceedings of this kind in keeping with theright of parties to defend themselves;  to require evidence that was beyond their reach would be to
deny them that right.
33. In Argentina's view, the standards of evidence applied during the stage running from the
submission of the application to the declaration of initiation of the investigation are revised upwards
at later stages of the proceeding with the possible involvement of the producers-exporters concernedand other interested parties.
34. In other words, the applicant for the initiation of an investigation is not required to prove
beyond all doubt the existence of dumping, injury and causal link, since the final determination of
these elements is the responsibility of the investigating authority, which conducts a thorough
investigation once the initiation has been decided.  As stated in the Agreement, simple assertion of
dumping, injury and causal link, unsubstantiated by relevant evidence within the limits of the
information reasonably available to the applicant, is not sufficient.  The authority examines the
accuracy and adequacy of the evidence for the sole purpose of determining whether the initiation of
an investigation is justified.  Once the investigation has been initiated, the respondent companies as
well as the importers have the right to defend themselves at every stage of the proceeding.
35. One of the reasons why the Anti-Dumping Agreement allows Members as much as 12 to
18 months to conduct an investigation is the complexity and detail involved in analysing, verifyingand evaluating objectively the evidence that all of the participants are called upon to submit during the
proceedings, in order to determine whether or not the situation justifies the imposition of
anti-dumping duties in conformity with the Agreement.
36. In other words, in the course of the proceedings, the evidence initially supplied by the
applicant and the evidence supplied subsequently are compared against the evidence provided by therespondent companies and the other interested parties, verified on site, where necessary, by theWT/DS241/R
Page B-11
implementing authority, in order to carry out an objective evaluation and arrive at reasoned
conclusions.
37. There are clearly two different standards under the Agreement as regards, inter alia , the
quality and quantity of evidence to be submitted.  On the one hand, there is the evidence to be
supplied with the application for initiation whic h, according to the Agreement, is the evidence
reasonably available to the applicant;  and, on the other hand, there is the evidence to be supplied once
the investigation stage has begun.  Likewise, as stipulated in the Agreement itself, the standard of
examination of the evidence required of the authority in deciding on the initiation of an investigation
must clearly be different from the standard of evaluation and analysis required of the same authority
in respect of the evidence supplied by all of the interested parties throughout the investigation vis-à-
vis the substantive requirements for reaching a conclusion of dumping, injury, and causal link during
the investigation stage.
38. We recall, in this respect, the Panel's statement14 in Guatemala - Cement I, in which it cites
the case United States – Measures Affecting Imports of Softwood Lumber from Canada:15
"In analysing further what was meant by the term 'sufficient evidence', the Panel noted that
the quantum and quality of evidence to be re quired of an investigating authority prior to
initiation of an investigation would necessarily have to be less than that required of that
authority at the time of making a final determination … ."16 (Emphasis added)
39. The Agreement does not require the applicant to provide evidence in the application that is
not reasonably available to it;  indeed, evidence concerning normal value and export value par
excellence  are ultimately in the hands of the respondent companies and their importers.  Nor,
consequently, does the Agreement require the authority to evaluate evidence that is not yet in its
hands, since that evidence will be supplied during the course of the proceedings.
40. It should be borne in mind that although Article 5.2 stipulates that the applicant must provide
evidence of dumping, injury and causal link, it does not imply that the evidence supplied in itselfshould determine the existence of dumping, injury and causal link, but rather that the evidence, even if
the Article itself does not say so, should be of alleged  dumping, injury and causal link, forming
minimum grounds justifying the initiation of an investigation .  This interpretation is supported by
an analysis of the context of the Article and the object and purpose of the Agreement.  Any other
interpretation would imply that an investigation was not necessary, since the evidence supplied with
the application would be definitive.  This would be illogical and would contradict the Agreement
itself.
41. Article 1 of the Anti-Dumping Agreement establishes, as a principle that informs the
Agreement,  that:  "[a]n anti-dumping measure shall be applied only under circumstances provided for
in Article VI of the GATT 1994 and pursuant to investigations initiated and conducted in accordance
with the provisions of this Agreement … ".
42. The requirements for "initiated" must obviously be different from the requirements for the
application of a definitive measure.  This is why an investigation can be initiated, provisional duties
applied, and a decision possibly taken not to impose a definitive measure.
43. It should also be pointed out that the Argentine implementing authority places at the disposal
of applicants for the initiation of an investigation of alleged dumping a "model form" listing all of
                                                     
14 Guatemala – Anti-dumping Investigation Regarding Portland Cement from Mexico  (WT/DS60/R),
Report of the Panel, paragraphs 7.55 and 7.56.
15 SCM/162.
16Idem , paragraph 332.WT/DS241/R
Page B-12
the evidence that these must provide under Article 5.2 of the Anti-Dumping Agreement.  The
Anti-Dumping Agreement has been inco rporated in the Argentine legal system in its totality.  Thus,
the model forms meet the requirements established by Article 5.2 and its subparagraphs.  The
applicant filled in the form and provided annexes containing the required evidence.
44. Argentina would like to recall in this respect a statement by the Panel in Mexico –
Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States :
" … Article 5.2 does not require an application to contain analysis, but rather to contain
information, in the sense of evidence, in support of allegations .  While we recognize that
some analysis linking the information and the allegations would be helpful in assessing the
merits of an application, we cannot read the text of Article 5.2 as requiring such an analysis
in the application itself ."17 (Emphasis added)
45. Consequently, Argentina repeats that contrary to what Brazil contends in its Claims 1 and 5,
the applicant provided all of the necessary evidence  with respect to normal value and export value as
well as the relevant evidence to make the necessary adjustments for a fair comparison between the
two values.
46. With respect to normal value, the eviden ce was supplied by the CENTRO DE EMPRESAS
PROCESADORAS AVICOLAS (CEPA) based on a publication (JOX) containing values for the
product on the Brazilian domestic market. These values  were adjusted by CEPA to bring the product
sold on the Brazilian domestic market into line with the product sold in Argentina, from which the
head and feet are removed.
47. To adjust for differences affecting price comparability, due account was taken of the
information provided by the applicant, as explained in the relevant technical report.
48. In Section I, folios 27 to 34, 37, 38, 43 and 4418, the applicant provides information on the
price of poultry (with feet, head and giblets) in São Paulo and the respective weight/meat ratio
(recorded in the Directorate's report of the initiation of the investigation).
49. In accordance with Article 5.2, the authority made all of the necessary adjustments on the
basis of the information and documentation "reasonably available to the applicant" supplied with the
application.
50. In other words, the applicant provided the information reasonably available to it with respect
to normal value, adding a publication by JOX Asesoría Agropecuaria (Agricultural Consultants ).  The
evidence provided is a representative value taken from a specialized publication for a given period.  It
is perfectly acceptable to provide a specialized publication as evidence, given that CEPA could hardlybe expected to provide the sales invoices of Brazilian exporters for the Brazilian domestic market
under the exact conditions of comparison that the Agreement itself requires.  The majority of
Argentine importers are distributors, wholesalers or major wholesale operators.  This is why CEPA
supplied, as evidence of normal value, the data contained in what is recognized as a serious
specialized publication which reflected – within an acceptable margin of approximation in this
instance – the same levels of commercial sales.
19
51. Having provided evidence in the application w ithin an appropriate margin of approximation
in the form of a comparable price for a like produc t destined for consumption in the country of origin,
it was unnecessary to make any market-related adjustments in order to carry out a fair comparison,
                                                     
17 WT/DS132/R, Report of the Panel, paragraph 7.76.
18 Annex ARG-I.
19 See folio 170 of the File.WT/DS241/R
Page B-13
since the price data making up the evidence offered as normal value and the export prices supplied by
the applicant corresponded to the same level of trade.  Both prices refer to the starting-point in the
marketing chain, so that with respect to that point, the comparability of the two was not affected.
Thus, the requirements of the Agreement for the determination of dumping during the stage prior to
the initiation of the investigation were met.
52. The applicant provided a report from JOX Asesoría Agropecuaria  which states that " … the
prices for poultry as recorded in our information bu lletin refer to chilled poultry with feet, head and
giblets."20
53. Accordingly, given that poultry is exported to Argentina without feet and head, CEPA
provided an annex to Note 220/97 containing the calculation required to make a fair adjustment
between poultry with feet and head sold on the Br azilian domestic market and the poultry exported to
Argentina.
54. We stress that none of the subparagraphs of Article 5.2 state that the applicant must provide
all of the evidence required under Articles 2 and 3 with its application for the initiation of an
investigation.
55. In this connection, we cite the Panel Report in Guatemala – Cement II :
" … We do not of course mean to suggest that an investigating authority must have before it
at the time it initiates an investigation evidence of dumping within the meaning of Article 2
of the quantity and quality that would be necessary to support a preliminary or final
determination.   An anti-dumping investigation is a process where certainty on the existence
of all the elements necessary in order to adopt a measure is reached gradually as the
investigation moves forward …
Consistent with our discussion above, we consider that, although these provisions of
Article 2 do not 'apply' as such to initiation determinations , they are certainly relevant to an
investigating authorities' consideration as to whether sufficient evidence of dumping exists to
justify the initiation of an investigation."21 (Emphasis added)
56. Article 5.2 does not require the applicant to provide evidence of normal value in respect of the
entire period for which evidence of export value was provided, since it is obvious that the information
on imports published by the official bodies in the country of the applicant (export price) would be
reasonably available to any applicant.  In other words, it is clear and reasonable that  the quantity
and quality of information available to the applicant on normal sales value in the domestic
market of the country of origin of the anti-dumping investigation should not be the same as for
the export price.
57. For the above reasons, Argentina submits that, in accordance with GATT/WTO precedent, for
the purposes of the initiation the applicant provided the necessary evidence of dumping, injury and
causal link in compliance with Article 5.2 of the Anti-Dumping Agreement, and that consequently,
Claims 1 and 5 of Braz il are without foundation.
III.1.2 CLAIMS 2, 4, 6 AND 8:  CONSISTENCY WITH ARTICLE 5.3
58. Brazil claims that by accepting the applicant's calculation to adjust normal value (Claim 2), by
establishing export prices based only on export transactions with prices below normal value
                                                     
20 See folio 180 of the File.
21 Guatemala – Definitive Anti-dumping Measures on Grey Portland Cement from Mexico
(WT/DS156/R), Report of the Panel, paragraphs 8.35 and 8.36.WT/DS241/R
Page B-14
(Claim 4), by calculating dumping margins betwee n the normal value and the export price based on
sales that were not made at as nearly as possible the same time (Claim 6) and given that the data on
dumping and injury cover different periods (Claim 8), Argentina acted inconsistently with Article 5.3
of the Anti-Dumping Agreement.
Text of Article 5.3
"The authorities shall examine the accuracy and adequacy of the evidence provided in the
application to determine whether there is suffic ient evidence to justify the initiation of an
investigation."
Argentine argument
59. Contrary to Brazil's contentions with respect to Claims 2, 4, 6 and 8, Argentina submits that
the implementing authority examined the accuracy and adequacy of the evidence provided by the
applicant and concluded that it was sufficient to justify the initiation of the investigation.
60. Article 5.3 simply requires the investigating authority to examine the accuracy and adequacy
of the evidence submitted by the applicant.  In other words, the investigating authority must verifywhether the evidence comes from a source that is backed by supporting documentation and whether it
serves to prove that the requirements laid down in Article 5.2 of the Anti-Dumping Agreement have
been met in such a way as to enable the impl ementing authority to determine the existence of
sufficient evidence to justify the initiation of an investigation.
61. Thus, Article 5.3 of the Anti-Dumping Agreement does not impose any obligation on the
authority to conduct, at that stage, a thorough investigation to establish the existence of dumping,
injury and causal link, but rather, the obligation to examine the evidence provided in terms of its
accuracy and adequacy.
62. Once the investigation has been initiated in accordance with the Agreement, the authorities
have 12 months or a maximum of 18 months to compare the evidence submitted by the applicantagainst the evidence submitted by all of the interested parties, and to satisfy themselves as to its truth.
63. It must be borne in mind that the procedure leading from the application for initiation of the
investigation to the decision as to whether the investigation is warranted is an inaudita parte
procedure in which the respondents have not yet taken part or been able to provide evidence to
counter the evidence provided by the applicant.
64. Similarly, the standard of "sufficient" evidence to justify the initiation of an investigation is
considerably lower than the standard required for the decision to apply a preliminary or definitivemeasure.
65. As stated by the Chairman of the Panel in United States – Measures Affecting Imports of
Softwood Lumber from Canada , cited by the Panel in Guatemala – Cement I :
" … A number of questions arose regarding particular aspects of the evidence
addressed by the US Department of Commerce … However, the Panel had to take
into account that it was not reviewing a determination of the existence of subsidy,
injury and causality, but a finding that sufficient evidence of these elements existed
to warrant an investigation … [T]he thre shold required by Article 2.1 of the
Agreement for initiation of a countervailing duty investigation was such that the
Panel could not properly find that the United States initiation in this case wasWT/DS241/R
Page B-15
inconsistent with that Article, having regard to the standard of review ."22
(Emphasis added)
66. Again, in Guatemala – Cement I , the Panel cited the United States – Softwood Lumber  as
follows:
"In analysing further what was meant by the term 'sufficient evidence', the Panel
noted that the quantum and quality of evidence to  be required of an investigating
authority prior to initiation of an investigation would necessarily have to be less
than that required of that author ity at the time of making a final
determination … "23
• Concerning Brazil's claim that the implementing authority acted inconsistently
with Article 5.3 by accepting the applicant's calculation to adjust normal value
(Claim 2), we wish to make the following remarks:
67. Resolution ex-SCI No. 349/91 concerning the form for the submission of an application for
the initiation of an anti-dumping investigation grants the information provided by the applicant therein
the status of affidavit.  It should be pointed out in this connection that the implementing authorityanalysed the information on file when deciding to in itiate the investigation.  This is demonstrated by
its effort to gather additional evidence on the basis of the official registers of import transactions, and
to take account of that data and reflect its analysis thereof in its technical report.
68. It should be recalled, moreover, that Article 5.2 of the Agreement stipulates that "the
application shall contain such information as is reasonably available to the applicant … ".  Bearingthis in mind, Argentina proceeded in conformity with Articles 2 and 5.3 of the Anti-Dumping
Agreement.  Due account was taken, in establishing price comparability, of the adjustments for which
there was enough evidence to warrant their consideration, and adjustments were made at this stage of
the proceedings on the basis of the evidence on file.
69. Once the application had been declared acceptable, during the stage prior to the initiation of
the investigation, the technical bodies conducted an analysis of all of the documentation submitted.
70. Now, as regards the evidence of normal value taken for the initiation of the investigation,
what was used was a publication by the consulting firm JOX of 30 June 1997 (Section I, folio 27)
24
referring to poultry with feet, heads and giblets;  i.e. the reference is to sales prices on the domesticmarket of the product under investigation, since the said publication falls within the period underanalysis at that stage.
71. As regards the statement in paragraph 77 of Brazil's submission that the information provided
by JOX referred exclusively to prices of chilled poultry sold in Sao Paolo, with head, feet and giblets,
for one day in 1997, we note that the implemen ting authority, upon examining the accuracy and
adequacy of that evidence, began by taking account of the fact that JOX is a specialized publication
providing an average representative value reflecting the state of the São Paulo market.  That market is
one of Brazil's most representative markets which, like Buenos Aires, is a large urban centre whichreflects domestic consumption patterns.
72. The Agreement stipulates that identical or like products should be used for the purposes of
comparison.  If like products are used, adjustments may have to be made where appropriate.
                                                     
22 Letter from the Chairman of the Panel to the Chairman of the GATT Committee on Subsidies and
Countervailing Measures (SCM/163) of 19 February 1993.
23 WT/DS60/R, Report of the Panel, paragraph 7.55.
24 See the folios cited in Annex ARG-I.WT/DS241/R
Page B-16
However, the ultimate appropriateness of such adjustments is part of the investigation process.
Indeed, the final part of Article 2.4 states that the implementing authority shall indicate to the parties
in question what information is necessary to ensure a fair comparison.
73. It is in this light that we must consider the mentioned physical differences between the poultry
sold on the São Paulo market, for which there was sufficient evidence of value to warrant theinitiation of the investigation, and the comparable value for the determination of probable dumping
justifying, together with the existence of injury and a causal link, the initiation of an investigation.
74. Likewise, data from a specialized publication on a like product in a representative market of
origin (poultry with head and feet on the São Paulo market) is sufficient and adequate as evidence for
the purposes of considering the initiation of the re quested investigation.  This evidence is not meant
(and should not be meant) to prove that the totality of the product in the market of origin is identical
to the product at issue, but rather, in accordance with the Agreement, to provide adequate andcomparable information for the purposes of provin g the existence of elements justifying, from the
point of view of the dumping, the initiation of the investigation.
75. The physical differences between the product in the market of origin and the product exported
to Argentina warranted, in the opinion of the im plementing authority, an adjustment to eliminate
possible differences affecting price comparability as stipulated in Article 2.4 of the Agreement.  Thisis why the implementing authority decided that it was necessary to make a fair adjustment to allow for
the difference between poultry sold in São Paulo with feet and head, and poultry exported by Brazil to
Argentina, without feet or head.
76. It is also the responsibility of the implementing authority, as established in Article 5.3 of the
Agreement, to determine whether the evidence provid ed is sufficient to justify the initiation of an
investigation.  Here, the implementing authority, bearing in mind the provisions of the Agreement
relating to price comparability and adjustments, considered that since Article 5.3 of the Anti-Dumping
Agreement did not define "sufficient evidence", the determination that the evidence supplied for that
stage of the proceeding constituted "sufficient evidence" depended on its satisfying the implementing
authority, on the understanding that the said eviden ce was subject to the condition precedent of a
positive outcome of the overall review conducted.
• Concerning Brazil's claim that the implemen ting authority acted inconsistently with
Article 5.3 by establishing export prices based only on export transactions with prices
below normal value (Claim 4), we would like to make the following remarks:
77. Article 5.3 of the Agreement lays down the obligation to examine the accuracy and adequacy
of the evidence provided in the application to determ ine whether it is sufficient to justify the initiation
of the investigation.  As explained previously, the implementing authority acted consistently with
Article 5.3.
78. Brazil's statement that the selection of data by Argentina was inappropriate and biased for the
purposes of establishing export prices and subseq uently comparing them w ith the normal value in
order to establish alleged dumping which, together with injury and a causal link, would justify the
initiation of the investigation, is untrue.  The im plementing authority analysed the import transactions
in an attempt to determine which of them corresponded closest to the product under investigation, and
it did so for the sole purpose of calculating the most appropriate and comparable export price possible
at this pre-initiation stage.  Moreover, it worked out an average of the appropriate transactions,
without in fact making any selection which might distort the difference between the export value and
the normal value.WT/DS241/R
Page B-17
79. The technical department concerned examined the import transactions identified in the source
in question with a view to determining which ones corresponded closest to the product under
investigation so that the calculation of the export price could be as precise as possible.
80. The Report on the Initiation of the Investigation (Section IV, folios 471-518)25 contains the
margins of dumping established on the basis of the average for export transactions to Argentinainvolving the product under investigation.  Consider ation was given in this connection to average
exports for the period January-August 1997.  The alleged margins of dumping calculated in points 3,
4 and 7 of the Report were established for the purpose of conducting an additional analysis of the case
at issue.
81. That analysis did not alter the conclusions on alleged dumping reached by the technical
department.  The methodology set forth in the Anti-Dumping Agreement having been applied, it was
in fact unaffected by the additional analysis that Brazil calls into question.
• Concerning Brazil's claim that the implemen ting authority acted inconsistently with
Article 5.3 by calculating a dumping margin by making a comparison between exportprice and normal value, in respect of sales that were not made at as nearly as possible
the same time (Claim 6) and that the data on dumping and injury covers different
periods (Claim 8), we would like to make the following remarks:
82. Article 5.3 requires the implementing authority to examine the accuracy and adequacy of the
evidence provided in the application to determine whet her it is sufficient to justify the initiation of an
investigation.  There is no indication of any time requirements in respect of the export prices and the
normal value.
83. The Argentine implementing authority acted consistently with the fair comparison
requirement in Article 2.4 of the Agreement with re spect to the determinati on, in keeping with the
standard applicable to the initiation of an investigation, of the possible existence of dumping that
would warrant, pending fulfilment of the requirement of sufficient evidence of injury and causal link,
the initiation of the investigation.
84. The basis for comparison was established in the light of the evidence reasonably available to
the applicant, bearing in mind that this evidence was appropriate for proceeding with the initiation.
Once the investigation was open, and with the help of the evidence from the other interested parties,
the implementing authority was able to have access to elements in keeping with the requirements of
the Agreement for the purposes of making its provisional and definitive determinations.
85. As regards the time lapse between the data on dumping and the data on injury, Brazil's
interpretation is biased and tendentious to say the least.
86. The Authority, acting in accordance with Article 5.2, examined the evidence submitted by the
applicant, i.e. the evidence available to the applican t.  Argentina interprets Article 5.3 as requiring an
examination of the documentation submitted and a determination of whether it is sufficient, in
accordance with the standards required at that stage.  The authority should not be expected to meet a
standard in respect of that examination similar to the standard required once the investigation has been
initiated.
87. At that stage, the implementing authority is enti tled to resort to on-site verifications of the
information submitted by the exporters.  This pro cedure is not provided for during the stage prior to
initiation of the investigation.  Moreover, the authority is limited by Article 5.5 of the Anti-Dumping
Agreement which, unless the government of the respondent country has been notified of the existence
                                                     
25 See Exhibit BRA-2.WT/DS241/R
Page B-18
of an application, does not permit any publicizing thereof before the investigation has been declared
open.  Thus, the authority's power to investigate is restricted by the risk of violating Article 5.5 of the
Anti-Dumping Agreement.
88. Finally, reverting to the evidence required by the Anti-Dumping Agreement in order to act on
a request for the initiation of an investigation, the existence of dumping was established by theevidence recorded in Section IV, folio 471 of the DCD's Report on the Feasibility of Initiating an
Investigation
26 of 7 January 1998;  thus, evidence of the three elements having been produced, i.e.
injury, dumping and causal link, the corresponding Administrative Act was issued in the form of
Resolution SICyM No. 11 of 20 January 199927, published in the Official Bulletin on
25 January 1999, declaring the initiation of the investigation.
III.1.3 CLAIM 9:  CONSISTENCY WITH ARTICLE 5.7
89. Brazil claims that Argentina acted inconsistently with Article 5.7 by not considering, in the
decision whether or not to initiate the investigation, the data collected for dumping simultaneously
with the data collected for injury.
Text of Article 5.7
The relevant part of Article 5.7 stipulates that:
"The evidence of both dumping and injury shall be considered simultaneously:  (a) in the
decision whether or not to initiate an investigation … ".
Argentine argument
90. The determination of injury caused by dumped imports must be based on objective evidence
and must involve an objective examination of "the consequent impact of these imports on domestic
producers of such products".  Brazil over-emphasizes the element of simultaneousness that may
emerge from the provisions of the Agreement.  The time lapse between the entry of the dumpedimports and the impact that can be assessed as injury or threat thereof (in the indicated sequence)
depends on the elements that cause the enterprises producing the like product to the imported product
to react in the face of dumped imports, elements which may involve a time-lag which, far from
precluding the possibility of action for unfair competition, supports that possibility.
91. In this case, Argentina was dealing with an initiation for threat of injury in which the
existence of a dumped import price resulted in parameters that pointed to the existence of theconditions required for an affirmative determination of threat of injury during the phase prior to the
initiation of the investigation.
92. As explained in the technical report prior to initiation, the business cycle of the industry at
issue – the poultry industry – is approximately six m onths (including the incubation of chicks), so that
price and quantity signals from the first half of 1997 would have an impact on indicators in the
industry during the months following that period.
93. Thus, while prices in the domestic industry up to the first half of 1997 (i.e. during the period
for which dumping was demonstrated) did not show signs of being significantly affected, prices for
the sample domestic enterprises showed a steady decline after June 1997 in the absence of any factorsother than the price gap between the price of imports on the domestic market and the price of the like
domestic product, and the steady fall in average f.o.b. import prices from Brazil starting in 1997.
                                                     
26 Idem .
27 See Exhibit BRA-7.WT/DS241/R
Page B-19
94. Moreover, Record ( Acta) No. 464 of the CNCE Board28 prior to the initiation of the
investigation points out that "[t]he prices of the sample of domestic enterprises showed a decline in
1997 that will have to be analysed, should an investigation be initiated, in an ongoing context of
declining prices of inputs and fluctuations in substitute products, such as bovine meat".
95. The Record adds:  " … which could explain why up to 1997, domestic sales increased in spite
of the dumping in that year, but by the first half of 1998 the rate of growth in domestic sales had
already declined"29 in the context of a growth trend in the market share of Brazilian imports .
III.1.4 CLAIMS 3, 7 AND 31:  CONSISTENCY WITH ARTICLE 5.8
96. Brazil claims that Argentina violated Article 5.8 by failing to reject the application which,
according to Brazil, was not based on evidence of dumping, pursuant to claims 1 and 2 (Claim 3) and
pursuant to claims 5 and 6 (Claim 7), and by failing to reject the initiation of the investigation as soon
as the CNCE determined that there was no  injury in Record No. 405 (Claim 31).
Text of Article 5.8
The relevant passage of Article 5.8 stipulates that:
"5.8 An application under paragraph 1 shall be rejected and an investigation shall be
terminated promptly as soon as the authorities concerned are satisfied that there is not
sufficient evidence of either dumping or of injury to justify proceeding with the case … "
Argentine argument
97. Bearing in mind what was stated above with respect to Claims 1, 2, 5 and 6, Brazil's
arguments with respect to Claims 3 and 7 are with out foundation;  indeed, since the applicant had
provided all of the documentation available to it, which was examined for accuracy and adequacy,
there was no reason for the implementing authority to reject it.
98. What was provided was relevant evidence, and not merely allegation or conjecture as Brazil
tries to demonstrate.  The competent authority took account of the documentation submitted, which
was duly analysed by the competent technical bodies.  Moreover, it should be recalled that Article 5.2
of the Agreement stipulates that "[t]he applicati on shall contain such information as is reasonably
available to the applicant … ".
99. Thus, it can rightly be said that, as already mentioned, the implementing authority considered
the information and documentation available in the file when deciding on the initiation of these
proceedings.
100. As regards Brazil's claim that Argentina should have rejected the application for initiation of
the investigation, we note that Article 38 of Decree 2121/94 entitles the investigating authority to
grant the applicant a period of time to amend or complete the application should it contain any errors
or omissions.  This is linked, then, to the fact that an application may lack a particular item of
information that is required or contain a clerical er ror.  If so, the implementing authority informs the
applicant accordingly so that within a set period of time, the errors or omissions can be corrected or
remedied.
101. In this particular case, Brazil states that Argentina, faced with the determination made by the
CNCE in Record No. 405 should, pursuant to the abov e-mentioned Article, have filed the case.  In the
                                                     
28 See Exhibit BRA-6, point V, page 4.
29 Idem.WT/DS241/R
Page B-20
light of the clarification of the actual meaning of Article 38 invoked by Brazil and the considerations
of fact and law set forth below, there is no way th at Argentina, acting in conformity with the law,
could have filed the case.
102. The applicant, as emerges from the file, submitted updated information in keeping with the
requirements of the application of 17 February 1998.  As a result, the Legal Department of theMinistry of the Economy and Public Works and Services  determined that " … in view of the fact that
the information submitted by the Centro de Empresas Procesadoras Avícolas  (CEPA) in file
No. 061-001196/98 was not evaluated by the National Foreign Trade Commission when ruling on
injury to the domestic industry in Record No. 405/98, this Directorate-General considers that before
proceeding any further, the said National Commission should be asked to intervene once again in
order to rule on the items submitted … "  (folio 2302 of File CNCE No. 43/97).
30
103. The examination of the new information submitte d, far from conflicting with Argentine law,
is expressly provided for in Article 60 of the Regulations to the National Law on Administrative
Procedures (RLNPA), which stipulates that the competent body (in this case, which involves injury,
the CNCE) shall intervene once again in the proceedings if any new developments occur or come to
its knowledge.  In the case at issue, the additi onal submission by the applicant introduced new items
of evidence which called for a further intervention by the CNCE at the request of the competentbodies and in strict conformity with the law.
104. It should also be stressed that during the stage prior to the initiation of the investigation, third
party rights are not affected, the only relationship being between the applicant and the implementing
authority.  Thus, Brazil, which as interested party in the investigation had access to all of the folios
making up the file, will have noted that during the period of time between the applicant's submissionand the decision to initiate, a number of proceedings t ook place.  In light of the above considerations,
the suggested filing of the case would have been contrary to administrative law and would have
adversely affected individual rights of the applicant with all of the administrative consequences that
such an act would entail.
105. In this connection, Article 5.5 of the Anti-Dumping Agreement is also applicable:  "The
authorities shall avoid, unless a decision has been made to initiate an investigation, any publicizing of
the application for the initiation of an investigation … ".
106. Thus, paragraph 38 cited above is applicable where the implementing authority, having
detected errors or omissions, has asked the applicant to correct or remedy them.  Indeed, if the
applicant does not do so within the time-period in dicated by the authority, the case must be filed.
107. In the case at issue, however, within a specific period of time, the applicant provided updated
information that warranted analysis and led to the determination set forth in Record No. 469.
108. Consequently, and in the light of the above-mentioned provisions, until the competent
authority has expressly ruled on the initiation of the investigation on the basis of an overall analysis of
each and every one of the elements on file, the case should not be filed.
III.2 CONDUCT OF AN ANTI-DUMPING INVESTIGATION – EVIDENTIARY AND PUBLIC
NOTICE REQUIREMENTS
III.2.1 CLAIM 10:  CONSISTENCY WITH ARTICLE 12.1
109. In paragraph 188 of its submission, Brazil claims that Argentina failed to notify seven
Brazilian exporters when it was satisfied that there was sufficient evidence to justify the initiation of
                                                     
30 See Annex ARG-II.WT/DS241/R
Page B-21
an anti-dumping investigation.  Brazil claims that, by not notifying these exporters when the
investigation was initiated, Argentina acted inconsistently with Article 12.1 of the Anti-Dumping
Agreement.
Text of Article 12.1
When the authorities are satisfied that there is sufficient evidence to justify the initiation of an
anti-dumping investigation pursuant to Article 5, the Member or Members the products of
which are subject to such investigation and other interested parties known to the investigating
authorities to have an interest therein shall be notified and a public notice shall be given.
(Emphasis added)
According to Article 6.11, "interested parties" include:(i)  an exporter or foreign producer or the importer of a product subject to investigation, or a
trade or business association a majority of the members of which are producers, exporters or
importers of such product;
(ii)  the government of the exporting Member;   and
(iii)  a producer of the like product in the importing Member or a trade and business
association a majority of the members of which produce the like product in the territory of the
importing Member.
Argentina's argument
110. Argentina submits that the investigating authorities have satisfied the Article 12.1
requirement of public notice and notification to interested parties (exporter or foreign producer)"known […] to have an interest", such as the government of the exporting Member, namely Brazil.
Indeed, it would have been impossible to notify parties whose interest in the investigation was not
known.
111. By Resolution SICyM No. 11/99 of 20 January 1999, published in the Official Journal of
25 January 1999, the Secretary for Industry, Trade and Mining announced the initiation of the
investigation  (Section VI, folios 712 to 715).
31
112. By Note SSCE No. 121 of 1 February 199932, notification of the initiation of the investigation
was made to the Chargé d'Affaires of the Federative Republic of Brazil in the Argentine Republic,
requesting his cooperation "in identifying the interested producers/exporters in this investigation and
providing them with the attached requests for information, in order that they should supply the
Argentine Government with the details requested on the product under investigation"  (Section VI,
folios 729 to 731).
113. The Note also specifies that " a hearing will be held on 25 February 1999 for consultations
regarding the scope of the ongoing investigation and to deliver questionnaires to the participants … .The Government of the Argentine Republic urges this diplomatic representation to take full
cognizance of the aforementioned proceedings ".  Lastly, the Note expresses readiness to remain at the
Brazilian Government's disposal for any additional information that might be required.
                                                     
31 See Exhibit BRA-7.
32 See Annex ARG-III.WT/DS241/R
Page B-22
114. By Notes SSCE Nos. 122/99 and 123/9933 of 1 February 1999, notification of the initiation of
the investigation was also sent by the Under-Secret ariat for Foreign Trade to the Under-Secretary for
American Economic Integration and the Under-Secretary for International Economic Negotiations,
with a view to informing Argentina's diplomatic representation in the Federative Republic of Brazil
and the Permanent Mission of the Argentine Republic to the International Organizations in Geneva,
Switzerland, and to ensuring that the aforementi oned Resolution was communicated to the relevant
Committee  (Section VI, folios 736 to 747).
115. In addition, on 16 February 1999, by Notes DCD Nos. 273-000139/99, 273-000138/99,
273-000144/799, 273-000137/99, 273-000140/99 and 273-000141/9934, the producers/exporters
Avipal S.A. Avicultura e Agropecuaria , Frigorífico Nicolini Ltda.,  Seara Alimentos S.A. and
Frangosul S.A., Agro Avícola Industrial were invited to present all the evidence they considered
relevant for the proper conduct of the investigation (Section VI, folios 759 and 760;  Section VI,
folios 757, 758, 769 and 770;  Section VI, folios 755 and 756;  and Section VI, folios 761 to 764,
respectively).
116. Finally, on 25 February 1999, a hearing was held for the parties potentially interested in
participating in the proceedings, at which DCD officials responded to questions from those who
attended.
117. It should be emphasized that, the above notwithstanding, no representative of the Government
of the Federative Republic of Brazil attended the hearing, as stated in the record of 25 February 1999
(Section VI, folio 828).35
118. It must be underlined, moreover, that Argentina recently learned of the interest of the other
seven exporters cited in paragraph 190 of Brazil's submission (Cooperativa Central de Laticinios do
Parana (CCLP), Catarinense, Chapecó, Minuano, Perdigão, Comaves and Penabranca), via a
questionnaire answered by INTERAMERICANA COMERCIAL S.R.L., in which the company asks
that information be sought from those enterprises as well.36
119. This is why, deeming the matter to be relevant to the investigation, Argentina acceded to the
request made by the importer INTERAMERICANA COMERCIAL S.R.L.  By Notes DCD
Nos. 273-001062/99, 273-001063/99, 273-001064/99, 273-001065/99, 273-001066/99 and
273-001067/99 of 15 September 199937, the DCD asked the Brazilian producers Chapecó, Minuano,
Perdigão, Catarinense, CCLP and Comaves to specify the price per kg. of poultry actually paid in the
Brazilian market by wholesalers over the peri od January 1998–January 1999.  For the purposes of
orderly data presentation, a questionnaire for exporters/producers was sent to those producers,
together with instructions on how to fill in the document, contrary to Brazil's statement in Claim 11,
paragraph 202, which is addressed separately (Section LIII, folios 2369 and 2370;  Section LII, folios
2367 and 2368; Section LII, folios 2361 and 2362;  and Section LII, folios 2363 and 2364).
120. Hence, Brazil's claim that Argentina failed to meet its obligation to notify the exporters is
without foundation and utterly tendentious.
III.2.2 CLAIMS 11 TO 14:  CONSISTENCY WITH ARTICLE 6
121. By way of introduction and regarding the questi on of violation of Article 6 of the Agreement,
it should be pointed out that, in order to help to guide interested firms and parties, the implementing
                                                     
33 See Annex ARG-IV.
34 See Annex ARG-V.
35 SeeAnnex ARG-VI.
36 See Annex ARG-VII.
37 Annex ARG-VIII attached.WT/DS241/R
Page B-23
authority rapidly provides them with questionnaire s and forms.  These specify any information and
documentation relevant to the purposes of an investigation.
122. Therefore, even though the Brazilian Government had not singled out specific exporters, the
implementing authority, to ensure the full participation of the producers/exporters and having
determined the adequacy of the request made  by the importer INTERAMERICANA COMERCIAL
S.R.L., asked inter alia  that specific Brazilian companies and institutions, including Comaves,
Catarinense, Minuano, Chapecó and Perdigão, be requested to submit reports on actual sales, prices
per kg. of poultry actually paid, and so forth (File No. 061-003264 of 21 April 1999, Section X, folio
1007).38  By Note DCD No. 273-000832/99, the DCD accordingly asked INTERAMERICANA
COMERCIAL S.R.L. to provide a list of addresses for the aforementioned firms (Section XXIV,
folio 2000).39
123. The above-mentioned enterprise duly presented a list giving the particulars and domicile of
the firms in question (File No. 061-007231/99 of 12 August 1999, Section XXVII, folio 2296).40
124. Reports were thus requested from the following exporters (Section LII, folios 2361, 2363,
2365, 2367, 2369 and 2371):41
• COOPERATIVA CENTRAL DE LATICINIOS DO PARANA, by Note DCD
No. 273-001066/99
• COOPERATIVA CENTRAL OESTE CATARINENSE LTDA., by Note DCD
No. 273-001065/99
• CHAPECO CIA INDUSTRIAL, by Note DCD No. 273-001062/99
• CIA MINUANO DE ALIMENTOS, by Note DCD No. 273-001063/99
• PERDIGÃO INDUSTRIAL, by Note DCD No. 273-001064/99
• COMAVES INDUSTRIA E COMERCIO DE ALIMENTOS LTDA, by Note DCD
No. 273-001067/99
As can be seen from the above, the implementing authority sought to offer the widest possible
opportunity for participation;  moreover, it granted a series of additional deadlines upon good cause
shown by those requesting extensions and took account of various participants' difficulties in
gathering and actually producing evidence.
III.2.2.1 CLAIM 11:  CONSISTENCY WITH ARTICLE 6.1.1
125. Brazil claims that Argentina acted inconsistently with Article 6.1.1. by failing to give seven
Brazilian exporters at least 30 days to reply to the dumping questionnaires supplied by the DCD.Brazil also claims that the CNCE never notified these seven exporters and never provided them with
the injury questionnaires.
                                                     
38 See Annex ARG-VII.
39 See Annex ARG-IX.
40 See Annex ARG-X.
41 See Annex ARG-VIII.WT/DS241/R
Page B-24
Text of Article 6.1.1
Exporters or foreign producers receiving questionnaires used in an anti-dumping
investigation shall be given at least 30 days for reply.  Due consideration should be given to
any request for an extension of the 30-day period and, upon cause shown, such an extensionshould be granted whenever practicable.
Argentina's argument
126. Argentina submits that it has not violated Article 6.1.1, because it not only granted the
Brazilian exporters a period of more than 30 days  to reply to the DCD's questionnaires but also duly
acceded to their requests for extension by granting them whenever practicable.
127. As regards the seven exporters referred to in Brazil's submission, it should be reiterated that,
contrary to Brazil's claim, the investigating authorities provided them with the questionnaire for
exporters/producers, together with instructions on how to fill in the document.
128. On 25 February 1999, a hearing was held for the parties potentially interested in participating
in the proceedings, at which DCD officials responded to questions from those who attended.
129. The date of 29 March 1999 was set for the presentation of the relevant forms and
questionnaires and the submission of evidence by the firms involved to the DCD.
130. The successive applications for extension of the deadline for the submission of evidence are
listed by way of example:42
• Application by SADIA S.A. for an extension of the deadline for submission of its
questionnaire; granted by the DCD (File No. 061-002094/99 of 15 March 1999,
folio 930).
• Application by FRANGUSOL S.A. for an exte nsion of the deadline for submission of
its questionnaire; granted by the DCD (File No. 061-002101/99 of 15 March 1999,
folio 931).
• Application by FRIGORIFICO NICOLINI LTDA. for an extension of the deadline
for submission of its questionnaire; granted by the DCD (File No. 061-002102/99 of
15 March 1999, folio 934).
• Application by AVIPAL S.A. for an extension of the deadline for submission of its
questionnaire; granted by the DCD (File No. 061-002140/99 of 16 March 1999,folio 935).
131. The above examples bear witness to the authorities' determination, throughout the
proceedings, to offer interested parties the broadest possible opportunity not only to participate but
also to gather the information needed to  ensure an accurate final determination.
132. Upon expiry of the new deadline for the presentation of the DCD's questionnaires and the
provision of evidence regarded as relevant, the firms involved in the investigation submitted thedocumentation, which was incorporated in the report on evidence adduced prior to the production of
evidence stage (Section XXII, folios 1771 to 1806).
                                                     
42 See Annex ARG-XI.WT/DS241/R
Page B-25
133. The following replies were also received from the seven Brazilian producers (CCLP,
Catarinense, Chapecó, Minuano, Perdigão, Comaves and Penabranca) to whom the questionnaires had
been delivered by Notes DCD Nos. 273-001062/99, 273-001063/99, 273-001064/99, 273-001065/99,
273-001066/99 and 273-001067/99 of 15 September 1999, in response to a request from
INTERAMERICANA COMERCIAL S.R.L.:43
Responding to the DCD's request, Cooperativa Central De Laticinios Do Parana LTDA.
stated on 18 October 1999 that it had made no exports to Argentina of the product at issue
during the period January 1998–January 1999 (File No. 061-009759/99, Section LIII, folio
2387).44
COOPERATIVA OESTE CATARINENSE LTDA. requested an extension of the deadline for
the submission of additional information and provided the following documentation (File
No. 061-010463/99, Sections LIII to LIX, folio 2405):45
Annex I – Identification of the producer/exporter.  Confirmation of conformity for the
purposes of verification.
Annex II – Identification of the product at issue.  Technical specifications and copies of labels
attached.
Annex III – List of importers in Argentin a and third countries of the goods under
investigation.
Annex IV – Information on the producer/exporter market.  Unit of measure:  tonne.
Annex V – Summary of productor/exporter sales.   Whole, frozen, eviscerated poultry.  Unit
of measure:  tonne.
Annex VI – Summary of producer/exporter sales.  Whole, frozen, eviscerated poultry. Unit of
measure: US$ mil.
Additional information:  History of the Cooperativa , profile, business name, lists of addresses
of parent company and branches, main input suppliers, organizational and managerial aspects,
functional chart of the management, distribution channels in the domestic, foreign and
Argentine markets, list of the company's products, technical specifications of the products atissue, and statements of assets for the financial periods 1997 and 1998.
Annex VII – Actual exports to Argentina by transaction (including documentary evidence).Annex VIII – Sales in the domestic market for 1998 and January 1999, disaggregated by
transaction.
Annex IX – Exports to third countries.
Annex X – Cost structure of imported goods.Annex XI – Cost structure of exported goods.
                                                     
43 See Annex ARG-VIII.
44 See Annex ARG-XXVI.
45 See Annex ARG-XII.WT/DS241/R
Page B-26
The Cooperativa supplied both confidential and non-confidential data, along with a non-
confidential summary.
It also provided a description of the manufacturing process of the product at issue, and a
fluxogram.
The Cooperativa's  request for extension was granted (Section LIX, folios 2416 and 2417).46
On 28 October 1999, CHAPECO COMPANHIA INDUSTRIAL DE ALIMENTOS (Cascavel
plant) informed the DCD that it had made no sales to Argentina during the period under
investigation (File No. 061-010656/99, Section LIX, folio 2418).47
On 9 November 1999, MINUANO DE ALIMENTOS requested an extension of the deadlinefor the submission of information (File No. 061-010773/99, Section LIX, folio 2419).
48  On
18 November 1999, the DCD extended the requested deadline until 22 November 1999 (Note
DCD No. 273-001409/99, Section LIX, folios 2429 and 2430).49  The Brazilian firm had
submitted no information by the time the deadline expired.
On 18 November 1999, COMAVES INDUSTRIA E COMERCIO DE ALIMENTOS LTDA
requested an extension of the deadline for the submission of information (File
No. 061-011200/99, Section LIX, folio 2446).50  On 7 December 1999, the DCD extended the
deadline until 13 December 1999 (Note DCD No. 273-001487/99, Section LIX, folios 2487
and 2488).51  The Brazilian firm had submitted no information by the time the deadline
expired.
On 11 November 1999, the Brazilian exporter PENABRANCA requested an extension of the
deadline for the submission of information on the price per kg. of poultry actually paid in the
Brazilian market (File No. 061-010864/99, Section LIX, folio 2421).52  On
18 November 1999, the DCD extended the deadline until 29 November 1999 (Note DCD
No. 273-001406/99, Section LIX, folios 2423 and 2424).53  The Brazilian firm had
submitted no information by the time the deadline expired.
The Brazilian firm PERDIGÃO AGROINDUSTRIAL  never responded, not even to request
an extension of the deadline.
By Notes DCD Nos. 273-001309/99, 273-001317/99 and 273-001318/99 dated
4 November 1999, and Nos. 273-001319/99 and 273-001321/99 dated 8 November 199954,
the Brazilian firms COOPERATIVA CENTRAL OESTE CATARINENSE LTDA.
CHAPECO CIA INDUSTRIAL, CIA MINUANO DE ALIMENTOS, PERDIGÃO
AGROINDUSTRIAL and COMAVES INDUSTRIA E COMERCIO DE ALIMENTOS were
informed of the provisions of Law No. 19.549 on Administrative Procedures and RegulatoryDecrees Nos. 1759/72 and 1883/91, regardin g submissions to the National Public
Administration.
                                                     
46 See Annex ARG-XIII.
47 See Annex ARG-XIV.
48 See Annex ARG-XV.
49 See Annex ARG-XVI.
50 See Annex ARG-XVII.
51 See Annex ARG-XVIII.
52 See Annex ARG-XIX.
53 See Annex ARG-XX.
54 See Annex ARG-XXI.WT/DS241/R
Page B-27
134. In view of the foregoing, and contrary to Brazil's claim in paragraph 211 of its submission,
Argentina submits that the investigating authorities granted the Brazilian exporters a deadline longer
than that specified in the Agreement to reply to the DCD's questionnaires, having due regard for the
exporters' requests for extensions, which were granted whenever practicable, pursuant to Article 6.1.1.
135. With respect to paragraph 212 of Brazil's submission, claiming that seven exporters never
received the CNCE's injury questionnaire, it should be pointed out that the CNCE delivered the
questionnaire to only eight exporters in full conformity with the provisions of Article 6.1, the scope of
which appears to be exaggerated by Brazil.  Indeed, in the words of the relevant section of Record
No. 576:55  "Moreover, the exports to Argentina notified by the Brazilian enterprises that replied to
the CNCE's 'Questionnaire for Exporters' accounted for more than half of all imports of whole,
eviscerated poultry from Brazil ... ."
136. Argentina therefore considers that the implementing authority satisfied the Article 6.1.1
requirement.  Moreover, Brazil never challenged the circumstance now being complained of in its
various statements in the course of the investigation.
III.2.2.2 CLAIM 12:  CONSISTENCY WITH ARTICLE 6.1.2
137. Brazil claims that Argentina acted inconsistently with Article 6.1.2 by failing promptly to
make available to the other interested parties participating in the investigation evidence presented in
writing by the interested parties.
Text of Article 6.1.2
Subject to the requirement to protect confidenti al information, evidence presented in writing
by one interested party shall be made avai lable promptly to other interested parties
participating in the investigation.
Argentina's argument
138. Contrary to Brazil's claim, the Argentine authorities fulfilled the obligation in Article 6.1.2 in
that they promptly made available to the interested  parties participating in the investigation evidence
presented in writing by the other interested parties.  This is demonstrated by the fact that, once the
investigation had started, the Argentine authorities made available to the interested parties – inter alia
the exporters, importers and the authorities of the country concerned – the documentation relating to
the proceedings at issue.  Thus, authorized interest ed parties could at all times consult the file and
obtain a copy thereof, that is, not only of the applic ation itself but also of all the other records on file.
139. Brazil therefore incorrectly asserts, in paragraph 216 of its submission, that seven Brazilian
exporters participated in the investigation for eight months, unbeknown to themselves, before they
were notified thereof.  As Argentina points out in connection with the question of consistency with
Article 12.1 (Claim 10), the investigating authorities re cently learned of the interest of the other seven
exporters cited by Brazil in paragraph 216 of its submission (Cooperativa Central de Laticinios do
Parana (CCLP), Catarinense, Chapecó, Minuano, Perdigão, Comaves and Penabranca), via the
questionnaire answered by INTERAMERICANA COMERCIAL S.R.L, in which the company asksthat information be sought from those enterprises as well.
140. The Argentine authorities could hardly have made available to the seven Brazilian exporters
evidence presented in writing by the other interested parties participating in the investigation if those
exporters were not part of the investigation.  Argentina's only obligation was promptly to make
                                                     
55 See Exhibit BRA-14.WT/DS241/R
Page B-28
available to the other interested parties participatin g in the investigation evidence presented in writing
by one interested party – and so Argentina did.
141. Argentina deplores the fact that the Brazilian Government, which was indeed informed prior
to the initiation of the investigation and was a party with an interest therein from the outset, did not
advise the Argentine authorities of the interest of those firms or suggest that it would be advisable forthe latter to participate in the proceedings.
142. Even so, immediately after being apprised of the above, Argentina, in the interest of due
process and seeking to obtain relevant information in order to ensure full consistency of its decisions
with the legal provisions in force, asked the Brazilian producers CCLP, Catarinense, Chapecó,
Minuano, Perdigão and Comaves to specify the price per kg. of poultry actually paid in the Brazilian
market by wholesalers over the period Januar y 1998–January 1999 and sent them the questionnaire
for exporters/producers together with instructions on how to fill in the document, for the purposes of
orderly data presentation (Section LIII, folios 2369 to 2372; Section LII, folios 2365 to 2368;
folios 2361 and 2362; folios 2363 and 2364).56
143. In addition, and contrary to Brazil's claim57, it should be emphasized that the replies received
from those exporters clearly show that two of th e seven enterprises (CCLP and CHAPECO) made no
exports to Argentina during the period under investigation, while the other four (Minuano, Comaves,
Penabranca and Perdigão) stated that they had no interest in the investigation.
144. Indeed, in response to the DCD's request, Cooperativa Central de Laticinios do Parana LTDA.
(CCLP) and CHAPECO COMPANHIA INDUSTRIAL DE ALIMENTOS (Cascavel plant) informed
the DCD on 18 October 1999 and 28 October 1999, respectively, by means of Files
Nos. 061-009759/99 and 061-010656/99, that they had made no exports to Argentina of the product at
issue over the period January 1998–January 1999 (Section LIII, folio 238758 and Section LIX,
folio 2418).59
145. By Files Nos. 061-010773/99, 061-011200/99 and 061-010864/99 of 9 November 1999,
18 November 1999 and 11 November 199960, respectively, MINUANO DE ALIMENTOS,
COMAVES INDUSTRIA E COMERCIO DE ALIMENTOS LTDA. and PENABRANCA requested
an extension of their deadlines for submitting information .  By Notes DCD Nos. 273-001409/99 of
18 November 1999, 273-001487/99 of 7 December 1999 and 273-001406/99 of 18 November 1999,
the DCD granted the extensions requested to 22 November 1999 in the first case, 13 December 1999
in the second, and 29 November 1999 in the third.61  By the time the deadlines expired, however,
none of those enterprises had submitted any information.  The Brazilian firm PERDIGÃO
AGROINDUSTRIAL  never responded, not even to request an extension.
146. Argentina deems that it has thus given all the interested parties the opportunity to present in
writing all the evidence they regard as relevant.  Ho wever, if the parties with a supposed interest in
the investigation did not participate, it was they – and not the implementing authority – that failed to
defend their own interests.
147. This is why Argentina maintains that it woul d have been difficult for the investigating
authorities to make the evidence presented by th e interested parties promptly available to the
                                                     
56 See Annex ARG-VIII.
57 Submission of Brazil, paragraph 219: " … they exported the subject merchandise to Argentina in the
period of investigation … ".
58 See Annex ARG-XXVI.
59 See Annex ARG-XIV.
60 See Annexes ARG-XVII and XIX.
61 See Annexes ARG-XVIII and XX.WT/DS241/R
Page B-29
enterprises in question, given that the latter did not ev en join as interested parties.  Argentina therefore
submits that it acted consistently with Article 6.1.2.
III.2.2.3 CLAIM 13:  CONSISTENCY WITH ARTICLE 6.2
148. Brazil claims that Argentina acted inconsistently with Article 6.2 by failing to give the
interested parties full opportunity to defend their interests.
Text of Article 6.2
The relevant section of Article 6.2 provides that:
Throughout the anti-dumping investigation all interested parties shall have a full opportunity
for the defence of their interests.
Argentina's argument
149. Contrary to Brazil's claim, all the interested parties had full opportunity to defend their
interests throughout the investigation and, by giving them that opportunity, the investigatingauthorities satisfied the obligation laid down in Article 6.2.
150. Argentina agrees with paragraph 222 of Brazil' s submission that Article 6.2 does not provide
specific guidance as to what steps investigating author ities should take in practice.  In the light of the
facts set forth below, Argentina deems that it has met the Article 6.2 requirement.
151. As already mentioned in relation to the questi on of consistency with Article 6.1.3 (Claim 14),
once the investigation had started Argentina made available to the interested parties – inter alia  the
exporters, importers and the authorities of the country concerned – the documentation relating to the
proceedings at issue.  Authorized interested parties could thus consult the file and obtain a copy
thereof at all times, that is, not only of the application itself but also of all the other records on file,
and any other party that considered itself as having an interest therein could present itself at theinvestigation with such a request.  In the specific case of the exporters, the practice is for their
governments and the latter's importer-clients to advise ex officio that anti-dumping proceedings have
been initiated in the country of origin of the product under investigation.
152. Hence the way in which the Argentine authorities provided access to the proceedings for
interested parties clearly did not in any way impair the right of access to the records and even less the
right of defence.  Argentina consequently deems irrelevant the arguments put forward by Brazil in
support of its Article 6.2 claim concerning "impairment of the right of defence".
153. In addition to the above, the authorities' determination, throughout the proceedings, to offer
interested parties the broadest possible opportunity not only to participate but also to gather the
information needed to ensure an accurate final determination is evidenced by the record of
submissions made by the participating firms and the conclusions reached on the basis of those
submissions.  Thus, the information supplied by the exporters SADIA S.A., AVIPAL S.A.,FRIGORIFICO NICOLINI LTDA. and SEARA ALIMENTOS S.A. led to a determination of their
respective individual margins of dumping.
154. The work done by the Technical Department in requesting and putting together all this
documentation can be seen from the following notifications:
62
• Note DCD No. 273-001460/99 of 3 December 1999 – SEARA ALIMENTOS S.A.
                                                     
62 See Annex ARG-XXII.WT/DS241/R
Page B-30
• Note DCD No. 273-001461/99 of 3 December 1999 – FRIGORIFICO NICOLINI
LTDA.
• Note DCD No. 273-001462/99 of 3 December 1999 – SADIA S.A.
155. In the other cases, the implementing authority had to gather the information from other
sources.
156. As regards the other firms examined by the implementing authority (DA GRANJA AGROI,
SADIA CONCORDIA, ACAUA INDUSTRIA, FELIPE AVICOLA, VENETO and LITORAL
ALIMENT), Argentina reiterates that there was no additional information or sufficient supporting
documentation, despite the numerous requests made by the implementing authority.  The following
are cited as examples:63
• Note DCD No. 273-001319/99 – PERDIGÃO AGROINDUSTRIAL
• Note DCD No. 273-001406/99 – PENABRANCA AVICULTURA S.A.
• Note DCD No. 273-001409/99 – COMPANHIA MINUANO DE ALIMENTOS
• Note DCD No. 273-001487/99 – COMAVES IND. E COM. DE ALIMENTOS
LTDA.
• File No. 061-008834/99 from the COOPERATIVA CENTRAL OESTE
CATARINENSE requesting an extension of the deadline.
157. In broad terms, it should be emphasized that while detailed analysis of the questionnaires
provides an approximate picture of companies' trade operations, the supporting documentation is the
key source for determining prices, tax adjustments and levels of trade.  It is also the basis on which
the implementing authority is empowered to verify information on the spot.
158. In a further unsubstantiated statement in paragraph 222 of its submission, Brazil claims that
Argentina acted inconsistently with Article 6.2 by notifying the investigation and requesting a
response to the injury questionnaires eight months after the initiation of the investigation.  That
statement is incorrect.  Brazil's assertion in paragraph 222 obviously refers once again to the seven
exporters which Brazil contends had an interest in the investigation.
159. It should be pointed out in this connection that the obligation to give public notice and to
notify the interested parties (exporter or foreign producer) applies only to parties known to have an
interest in the investigation (Arg entina reiterates its statement in respect of Article 12.1;  Claim 10).
Indeed, it would have been impossible to notify parties whose interest therein was not known.
Argentina also reiterates that it was Brazil itself that had the most obvious opportunity of informingall Brazilian producers of the existence of this investigation and/or of advising the Argentine
Government of the existence of such producers.  An investigation is opened on the basis of knowledge
of each known exporter or foreign producer as notified by the applicant and, once the opening of the
investigation has become public, the responsibility of ensuring that all potential actors participate in
that investigation does not lie solely with the implementing authority.
160. In a dumping case in which the matter at issue is the competitive behaviour of foreign
producers and/or exporters, the direct consequence of delivering the notification to initiate to the
                                                     
63 See Annexes ARG-XXI, XX, XVI, XVIII and XIII.WT/DS241/R
Page B-31
Government of the interested exporting Member is that knowledge pertaining to the sphere in which
foreign producers operate may be protected.  That notion is embodied, inter alia , in Article 6.1.3.
161. Such was not the case of the interests of the seven exporters, as amply noted and documented
by Argentina in its discussion of the question of consistency with Article 6.1.2 (Claim 12).  In the
light of the foregoing, Argentina deems that the in vestigating authorities have fulfilled the Article 6.2
requirement.
III.2.2.4 CLAIM 14:  CONSISTENCY WITH ARTICLE 6.1.3
162. Brazil claims that Argentina acted inconsistently with Article 6.1.3 by not providing the text
of the written application to the Brazilian exporters and the Government of Brazil as soon as the
investigation was initiated.
Text of Article 6.1.3
As soon as an investigation has been initiated, the authorities shall provide the full text of the
written application received under paragraph 1 of Article 5 to the known exporters* and to
the authorities of the exporting Member and shall make it available, upon request, to other
interested parties involved.  Due regard shall be paid to the requirement for the protection of
confidential information, as provided for in paragraph 5.  (Emphasis added)
*The footnote reads as follows:
It being understood that, where the number of exporters involved is particularly high, the full
text of the written application should instead be provided only to the authorities of theexporting Member or to the relevant trade association.
Argentina's argument
163. Contrary to Brazil's claim, the Argentine authorities satisfied the requirements of Article 6.1.3
by providing the Brazilian exporters and the Brazilian Government with the full text of the written
application as soon as the investigation was initiated.
164. Brazil claims that the Argentine authorities acted inconsistently with Article 6.1.3 in that they
failed to transmit the application to the known e xporters and to the authorities of the exporting
country.  In this connection, it should be emphasized that, in its Spanish version, the Article lays down
the obligation to " facilitar " ("provide").  The Argentine authorities satisfied that obligation by making
the records of the proceedings available to authorized  interested parties.  Argentina fails to understand
why Brazil concludes that the term "facilitar" means "to send", and considers Brazil's interpretation to
be erroneous.
165. Once the investigation had started, Argentina made available to the interested parties – inter
alia the exporters, importers and the authorities of the country concerned – the documentation relating
to the proceedings at issue.  Authorized interested parties could thus consult the file and obtain a copythereof at all times, that is, not only of the application itself but also of all the other records on file.
166. Argentina consequently considers the claim concerning "curtailment of the right of defence"
in paragraph 230 of Brazil's submission to be inadmi ssible, since Brazil's diplomatic representation in
Argentina had available to it, at all times, the full records covering the initiation and entire duration of
the investigation, pursuant to Article 6.1.3.
167. Moreover, the initiation of an investigation is a general administrative procedure and
published as such in the Official Journal, which constitutes sufficient notification of general scope.WT/DS241/R
Page B-32
From the moment notification appeared in the Official Bulletin, interested parties  with accredited
status were able to gain immediate access to the records of the proceedings.
168. Therefore, the way in which the written application and access for interested parties was
provided by the Argentine authorities clearly does not impair the parties' right of access to the records
and even less their right of defence.
169. Moreover, once the Argentine authorities had initiated the investigation, notification was
given, by Note SSCE No. 121 of 1 February 199964, to the Brazilian Chargé d'Affaires in Argentina,
pursuant to Article 6 of the Anti-Dumping Agreement.  The Note clearly shows that Argentina
expects the Brazilian Government to cooperate " in identifying the interested producers/exporters in
this investigation and providing them with the atta ched requests for information, in order that they
could supply the Argentine Government with the details requested on the product under
investigation ".
170. The Note further states that " a hearing will be held on 25 February 1999 for consultations
regarding the scope of the ongoing investigation and to deliver questionnaires to the participants … .
The Government of the Argentine Republic urges this diplomatic representation to take full
cognizance of the aforementioned proceedings ".  Lastly, the Note expresses readiness to remain at the
Brazilian Government's disposal for any additional information that might be required.
171. The above notwithstanding, no representative of the Brazilian Government attended the
hearing, as stated in the record of 25 February 1999 (Section VI, folio 828)65, nor is there any record
of the presence of any interested party at the hearing.  Brazil can hardly claim today that its right of
defence was impaired.
172. Furthermore, Argentina fails to understand how the Brazilian Government calculates the
deadline for notifying initiation of the investigation, since Resolution SICyM No. 11/99 of
20 January 1999 was published in the Official Bulletin of 25 January 1999, namely the date on whichthe countdown was to begin.
173. Considering that the Brazilian authorities were notified on 1 February 1999, it can be
established that five working days had elapsed and not 12, as Brazil erroneously maintains in
paragraph 237 of its submission.
174. Once again, Argentina is surprised to see how Brazil repeatedly seeks to mislead the Panel by
misinterpreting not only the Agreement but also th e practical steps taken by Argentina's implementing
authority.
III.2.3 CLAIMS 15, 16, 17 AND 21:  CONSISTENCY WITH ARTICLES 6.8 (ANNEX II), 6.9
AND 12.2.2
175. Brazil claims that Argentina acted inconsistently with Article 6.8 and Annex II by
disregarding the responses submitted by Brazilian exporters with respect to the description of the
product sold to Argentina and in Brazil, and resorting to the normal value adjustment calculation
provided by the applicant (Claim 15).  Brazil likewise claims that Argentina acted inconsistently with
Article 12.2.2 by failing to adequately explain in the final determination its decision to disregard the
information provided by the exporters regarding the product description and to use instead the normal
value adjustment proposed by the applicant (Claim 16).  Brazil further claims that Argentina acted
inconsistently with Article 6.8 and Annex II by di sregarding the export price data provided by the
Brazilian exporters, and resorting to the export price information provided by the Secretariat for
                                                     
64 See Annex ARG-III.
65 See Annex ARG-VI.WT/DS241/R
Page B-33
Agriculture, Fisheries and Food (Claim 17).  Lastly, Brazil claims that Argentina acted inconsistently
with Article 6.9 by failing to inform the Brazil ian exporters of the essential facts (Claim 21).
Text of Article 6.8
In cases in which any interested party refuses access to, or otherwise does not provide,
necessary information within a reasonable period or significantly impedes the investigation,
preliminary and final determinations, affirma tive or negative, may be made on the basis of
the facts available.  The provisions of Annex II shall be observed in the application of this
paragraph.
Text of Annex II, paragraphs 3, 6 and 7
The relevant section of paragraph 3 provides that:
3. All information which is verifiable, which is  appropriately submitted so that it can be
used in the investigation without undue difficulties, which is supplied in a timely fashion, and,
where applicable, which is supplied in a medium or computer language requested by theauthorities, should be taken into account when determinations are made….
6. If evidence or information is not accepted, the supplying party should be informed
forthwith of the reasons therefor, and should have an opportunity to provide further
explanations within a reasonable period, due account being taken of the time-limits of theinvestigation.  If the explanations are considered by the authorities as not being satisfactory,
the reasons for the rejection of such evidence or information should be given in any published
determinations.
7. If authorities have to base their findings, including those with respect to normal
value, on information from a secondary source, including the information supplied in the
application for the initiation of the investigation, they should do so with special
circumspection.  In such cases, the authorities should, where practicable, check the
information from other independent sources at their disposal, such as published price lists,
official import statistics and customs returns,  and from the information obtained from other
interested parties during the investigation.  It is clear, however, that if an interested party
does not cooperate and thus relevant information is being withheld from the authorities, thissituation could lead to a result which is less favourable to the party than if the party did
cooperate.
Text of Article 6.9
The authorities shall, before a final determination is made, inform all interested parties of the
essential facts under consideration which form the basis for the decision whether to apply
definitive measures.  Such disclosure should take place in sufficient time for the parties to
defend their interests.
Text of Article 12.2.2
A public notice of conclusion or suspension of an investigation in the case of an affirmative
determination providing for the imposition of a definitive duty or the acceptance of a price
undertaking shall contain, or otherwise make available through a separate report, allrelevant information on the matters of fact and law and reasons which have led to the
imposition of final measures or the acceptance of a price undertaking, due regard being paid
to the requirement for the protection of confidential information.  In particular, the notice or
report shall contain the information described in subparagraph 2.1, as well as the reasons forWT/DS241/R
Page B-34
the acceptance or rejection of relevant arguments or claims made by the exporters and
importers, and the basis for any decision made under subparagraph 10.2 of Article 6.
Argentina's argument
176. Contrary to Brazil's claim, the DCD based its conclusions on " … [a]ll information which is
verifiable, which is appropriately submitted … ", pursuant to Annex II, paragraph 3, of the Anti-
Dumping Agreement.
177. In order to examine the information, the Argentine authorities send questionnaires containing
all the elements needed to conduct an accurate anal ysis with a view to determining the existence or
absence of dumping, and specify the need for supporting documentation to substantiate the
questionnaire information and to allow those replying to add all further elements they deem to be ofinterest.  The parties enjoy similar rights throughout the investigation procedure.
178. The implementing authority obviously cannot examine claims put forward by the parties
without supporting documentation that can be verified.  Since "verifiable" means "that can be
checked", this can only be done on the basis of supporting documentation for which it is possible to
do so.
179. Brazil specifically challenges the adjustment made to the normal value of 9.09 per cent used
by the authority in its final determination.  The adjustment is indeed based on the method of
calculation provided by the applicant, but the validity thereof was confirmed by the absence of any
objection supported by verifiable evidence – not by mere allegations.  The additional documents
provided by various Brazilian firms on 20 April 1999 (File No. 061-003243/99, Section IX,
folio 999)66 and by the diplomatic representation of the Federative Republic of Brazil are mere
arguments unsubstantiated by technical data.  The appropriateness of the adjustment is further
demonstrated by the fact that these documents do not question the need for such adjustment.
180. Likewise, there was no supporting documentation whatsoever regarding the incidence of
freezing and/or chilling at the time of determining th e normal value of the product at issue, despite the
points made in the submission by the ABEF (Brazilian Chicken Producers and Exporters Association)
(File No. 061-012582/99, Section LXVI, folio 2507)67, which, once again, are simple statements
regarding the issues under consideration.
181. In view of the foregoing, Argentina considers that the Panel should reject the claims put
forward by Brazil, which appears to have a biased view of the investigation.  Proof that the action
taken by the Argentine authority was both appropriate and consistent with the Agreements resides in
the determination that led to the exclusion of the exporting firms Frigorifico Nicolini and Seara fromthe anti-dumping measure, precisely because those firms not only claimed that they did not engage in
dumping but also – and this is the important point – because they supplied all the information
required, along with the corresponding supporting documentation.
182. Likewise, as regards the producers/exporters Sadia and Avipal, it was possible to determine
an individual margin of dumping consistent with the data that they themselves had provided and
substantiated.
183. Hence the implementing authority did not discrimi nate in any way between the firms.  On the
contrary, its primary objective was to act in conformity with the letter of the Anti-Dumping
Agreement.
                                                     
66 See Annex ARG-XXIII.
67 See Annex ARG-XXIV.WT/DS241/R
Page B-35
184. Argentina therefore fails to understand Brazil 's claim of inconsistency with Article 12.2.2,
which stipulates that " … shall contain, or otherwise make available through a separate report, all
relevant information on the matters of fact and law and reasons which have led to the imposition of
final measures  … ", since both the Report on Action Taken and the Report on the Final Determination
of the Margin of Dumping, throughout the text and under different headings, dealt in detail with eachof the submissions by the producing-exporting enterprises in order to reach a reasoned conclusion as
to the implementing authority's motives for excludin g submissions that lacked sufficient supporting
documentation or were made after the deadline had expired.
185. Regarding Article 12.2.2, it should be pointed out that, in the Report on Action Taken prior to
the closure of the period for obtaining evidence, dated 4 January 2002 (Section LXIII, folio 2757), the
DCD made available to the parties all the essential facts on which it intended to base its final decision.
This is evidenced by the DCD's notes of 5 January 2000 (Section LXII, folios 2860 to 2880)68
informing all the parties of the end of the stage for producing evidence and inviting them to consult
the records of the proceedings and to submit pleadings if they so wished, all of which demonstrates
compliance with the requirements of the Agreement.
III.2.4 CLAIMS 18, 19, 20 AND 22:  CONSISTENCY WITH ARTICLES 12.2.2, 6.8
(ANNEX II) AND 6.10
186. Brazil claims that Argentina acted inconsistently with Article 12.2.2 by failing to adequately
explain in the final determination its decision to disregard the export price data provided by the
exporters, and to resort to the export price data provided by the Secretariat for Agriculture, Fisheries
and Food (Claim 18).  Brazil also claims that Ar gentina acted inconsistently with Article 6.8 and
Annex II, paragraphs 3, 5 and 7, by disregarding all normal value information submitted by Frangosul
and Catarinense and resorting to the information provided by the applicant (Claim 19).  Brazil furtherclaims that Argentina acted inconsistently with Article 12.2.2 by failing to adequately explain in the
final determination its decision to disregard all no rmal value information submitted by Frangosul and
Catarinense, and to resort to the information provided by the applicant (Claim 20).  Lastly, Brazil
claims that Argentina acted inconsistently with Article 6.10 by failing to establish individual margins
of dumping for Frangosul and Catarinense (Claim 22).
Text of Article 6.8
In cases in which any interested party refuses access to, or otherwise does not provide,
necessary information within a reasonable period or significantly impedes the investigation,
preliminary and final determinations, affirma tive or negative, may be made on the basis of
the facts available.  The provisions of Annex II shall be observed in the application of this
paragraph.
Text of Annex II, paragraphs 3, 5 and 7
The relevant section of paragraph 3 provides that:
3. All information which is verifiable, which is  appropriately submitted so that it can be
used in the investigation without undue difficulties, which is supplied in a timely fashion, and,
where applicable, which is supplied in a medium or computer language requested by the
authorities, should be taken into account when determinations are made …
5. Even though the information provided may not be ideal in all respects, this should not
justify the authorities from disregarding it, provided the interested party has acted to the best
of its ability.
                                                     
68 See Annex ARG-XXV.WT/DS241/R
Page B-36
7. If authorities have to base their findings, including those with respect to normal
value, on information from a secondary source, including the information supplied in the
application for the initiation of the investigation, they should do so with special
circumspection.  In such cases, the authorities should, where practicable, check theinformation from other independent sources at their disposal, such as published price lists,
official import statistics and customs returns,  and from the information obtained from other
interested parties during the investigation.  It is clear, however, that if an interested party
does not cooperate and thus relevant information is being withheld from the authorities, this
situation could lead to a result which is less favourable to the party than if the party did
cooperate.
Text of Article 12.2.2
A public notice of conclusion or suspension of an investigation in the case of an affirmative
determination providing for the imposition of a definitive duty or the acceptance of a price
undertaking shall contain, or otherwise make available through a separate report, allrelevant information on the matters of fact and law and reasons which have led to the
imposition of final measures or the acceptance of a price undertaking, due regard being paid
to the requirement for the protection of confidential information.  In particular, the notice or
report shall contain the information described in subparagraph 2.1, as well as the reasons for
the acceptance or rejection of relevant arguments or claims made by the exporters andimporters, and the basis for any decision made under subparagraph 10.2 of Article 6.
Text of Article 6.10
The authorities shall, as a rule, determine an individual margin of dumping for each known
exporter or producer concerned of the product under investigation.  In cases where the
number of exporters, producers, importers or types of products involved is so large as to
make such a determination impracticable, the authorities may limit their examination either
to a reasonable number of interested parties or products by using samples which are
statistically valid on the basis of information available to the authorities at the time of the
selection, or to the largest percentage of the volume of the exports from the country in
question which can reasonably be investigated.
Argentina's argument
187. For the purposes of the final determination of the margin of dumping, the implementing
authority analysed and examined all the information before it that was consistent with the principles
enshrined in the Agreement, i.e. information that  was properly provided within the required time-
frame and was accompanied by proper evidence.
188. This is in line with the above statement regarding the record of submissions made by the
participating firms and the conclusions reached on the basis of those submissions.  Thus, the
information supplied by the exporters was the source used for determining the respective margins ofdumping for SADIA S.A., AVIPAL S.A., FRIGORIFICO NICOLINI LTDA. and SEARA
ALIMENTOS S.A.
189. As was duly pointed out in the Final Report, the data received from the producer/exporter
COOPERATIVA CENTRAL OESTE CATARINENSE LTDA. was presented on an aggregate basis,
without any supporting documentation.
190. In the case of the exporter Frangosul – the relevant details in the following paragraphs
notwithstanding – several notifications (Notes DCD Nos. 273-001181/99 of 12 October 1999 andWT/DS241/R
Page B-37
273-001182/99 of 12 October 1999)69 were sent to the company with a request to provide the lists of
Notas fiscales (tax receipts), in order to establish a statistical sample of the formalities required under
the Law on Administrative Procedures.  A reminder was sent on 18 November 1999 (Notes DCD
Nos. 273-001412/99 and 273-001413/99).70  Two diskettes, without supporting documentation,
arrived after the deadline had expired.
191. As regards the other firms examined by th e implementing authority (Comaves, Da Granja
Agroi, Sadia Concordia, Minuano de Alimento s, Acaua Industria, Felipe AVICOLA, PERDIGÃO
AGROIN, VENETO, CHAPECO CL and LITORAL ALIMENT), Argentina reiterates that there was
no additional information or sufficient supporting documentation, despite numerous requests by the
implementing authority.
192. In broad terms, it should be mentioned that while detailed analysis of the questionnaires
provides an approximate picture of companies' trade operations, the supporting documentation is the
key source for determining prices, tax adjustments and levels of trade.
193. Special mention should be made of the incorporation of the Report on Action Taken prior to
the closure of the period for obtaining evidence, whic h contains details on the status of information on
file in the proceedings.
194. Lastly, as regards the question concerning the period considered for determining the margin
of dumping, it should be emphasized that the implementing authority is entitled to request all
information deemed relevant for clarifying the facts under investigation, it being understood that theauthority analyses all data on file in the proceedings.
195. Argentina acted consistently with the requirements of Annex II of Agreement, and
particularly paragraph 7 thereof, to the extent that it proceeded with " … with special circumspection
… ", basing its conclusions on a " … check [of] the information from other independent sources at
their disposal, such as … official import statistics ... ".
196. Finally, as a reminder and renewed proof of the authority's determination to gather additional
information from the exporting firms, the submissions by Frangosul and Catarinense and the DCD
notes requesting information and/or clarification from them are listed below:71
• On 27 April 1999, Frangosul presented, by means of File No. 061-003502/99 (power
of attorney) drafted in Portuguese, the questionnaire minus Annex VIII (sales in the
Brazilian domestic market) , the profile of the company, the production process and
balance sheets.  It also presented a monthly list of domestic sales by company branch,indicating initial and final invoices but without specifying dates, amounts per unit,
total amounts, kgs, types of goods, etc. (Section 11, folio 1022).
• The company chose to present only invoices for exports to the Argentine market ,
omitting to include those requested by the DCD (Sections 11, 12, 13, 14 and 15).
• On 10 May 1999, FRANGOSUL provided a tran slation of the aforementioned power
of attorney (File No. 061-003924/99, Section 21, folio 1618).
• On 11 May 1999, it presented the company's balance sheet (File No. 061-003952/99,
Section 21, folio 1620).
                                                     
69 See Annex ARG-XXVII.
70 See Annex ARG-XXVIII.
71 See Annex ARG-XXIX.  See also Annex ARG-XXVII.WT/DS241/R
Page B-38
• Note DCD No. 273-000837/99 of 12 July 1999 requests FRANGOSUL to supply the
following information (Section 25, folios 2076 and 2077):
1. Translation of the exhibit concerning exports to Argentina (Annex VII).2. Supporting documentation for domestic sales (Annex VIII).3. Exports to third countries.4. Translation of FRANGOSUL'S leaflets.
• On 28 July 1999, FRANGOSUL requested an extension of the deadline (File No.
061-006626/99, Section 26, folio 2107), which was granted for a maximum period of
15 days (Note DCD No. 273-000912/99, Section 27, folio 2274).
• On 19 August 1999, FRANGOSUL presented the following information (File
No. 061-007466/99, Section 28, folio 2304):
1. Translation of the commercial invoices (exhibit) for actual exports to
Argentina (Annex VII).
2. Exports to third countries (Annex IX) representing the five most important
markets for the goods in question.
3. Translation of the new leaflets for Frangosul products.4. Regarding invoices for sales in the Brazilian domestic market, Frangosul
explains: "Supporting documentation for sales in the domestic market
(Annex VIII).  In view of the daily number of invoices drawn up by our sales
branches (estimated at over 140 invoices a day and more than 320,000 ayear), it is not feasible to send copies of all invoices for domestic sales.  This
is why on 27 April 1999 we presented File No. 061-003502 containing a list
of invoices for our domestic sales.  The invoices are at the disposal of the
Argentine authorities should they wish to verify them or request specific
documents for spot checks."
• On 1 September 1999, Frangosul presented the invoices of sales to the Argentine
market (File No. 061-007964/99, Section 52, folio 2326).
• By Notes DCD Nos. 273-001181/99 and 273-001182/99 of 12 October 1999, the
DCD requested a list of invoices, as the one presented by Frangosul was incomplete
(no dates, quantities, prices, etc.) (Section 53, folios 2382 to 2385).  The DCDexplains:
"The aforementioned lists give only the numbers of Notas fiscales  for the period
under investigation.  They specify the month and the branch but not details such as
dates, quantities, prices, discounts, tax, freight, etc., which are highly useful for the
conduct of the current proceedings ".
"Owing to the difficulty in documenting and substantiating all the transactions made
during the period under investigation because of the large number of transactions per
day, we would ask you to provide the lists of Notas fiscales  showing all the
transactions made over the period January 1998–end January 1999.  This will beWT/DS241/R
Page B-39
used for statistical sampling and we will subsequently ask you to supply the
corresponding supporting documentation ".
197. Although the aforementioned Note DCD No. 273-001181/99 did not specify a deadline for
presenting the requested documentation, in such cases Law No. 19.549 on Administrative Proceduresapplies on a residual basis, pursuant to the following provision of Article 76 of Decree No. 2121/94:
"The procedure for the imposition of anti-dumpi ng and countervailing duties by the implementing
authorities specified in this regulation shall be governed, on a residual basis, by the Law on
Administrative Procedures and its regulations ".  In this respect, Article 1(e)(4) of Law No. 19.549
stipulates the following:  "Where no special time period has been set for the conduct of proceedings,
notifications and summons, the serving of orders and subpoenas and replies to communications,
hearings and reports, the said period shall be ten days ".
• By Notes DCD Nos. 273-001412/99 and 273-001413/99, the DCD reiterated the
request it had made in Note DCD No. 273-001181/99 (Section 59, folios 2435 to2438).
• Finally, on 30 December 1999 Frangosul presented a diskette containing – according
to the company – the list of Notas fiscales  (File No. 061-012882/99, Section 63,
folio 2756).
72
198. All the above shows that FRANGOSUL did not submit any documentation regarding sales
prices in the Brazilian domestic market.  Its questionnaire was accompanied by a list of invoice
numbers pertaining to certain branches of the company, but the list was incomplete because it did not
include the information needed to analyse sales in the Brazilian domestic market.  Frangosul therefore
did not provide any of the items required in An nex VIII of the exporters' questionnaire.  The DCD
accordingly requested it to supply that inform ation.  FRANGOSUL responded as follows:  "In view of
the daily number of invoices drawn up by our sale s branches (estimated at over 140 invoices a day
and more than 320,000 a year), it is not feasible to send copies of all invoices for domestic sales.  This
is why on 27 April 1999 we presented File No. 061-003502 containing a list of our invoices for our
domestic sales.  The invoices are at the disposal of the Argentine authorities should they wish to verifythem or request specific documents for spot checks."
199. As an example, part of the information sent by FRANGOSUL along with its questionnaire, in
response to the Annex VIII requirement (sales in the Brazilian domestic market), is detailed below.
DECEMBER 1998
Invoices Branch
01Branch
02Branch
04Branch
13Branch
42Branch
43Branch
59Branch
67Branch
69Branch
71Branch
72Branch
73
Initial 32239/S 38204/S 5425/S 35090/S 19552/S 22439/S 19657/S 37618/S 1762/s 908/M1 801/M1
Final 35373/S 42179/S 5501/S 38332/S 21838/S 24337/S 21940/S 43064/S 1963/s 1192/
M11017/
M1
200. FRANGOSUL contradicts itself in stating that it was impossible to submit invoices for sales
in the Brazilian domestic market because of the number of invoices issued daily by all of its branches.
In this connection, it should be noted that ALTHOUGH THE COMPANY DID NOT PRESENT A
SINGLE INVOICE FOR SALES IN THE BRAZILIAN DOMESTIC MARKET, IT WAS INDEED
ABLE TO PROVIDE SOME 600 INVOICES FOR EXPORTS TO ARGENTINA.
                                                     
72 See Annex ARG-XXX.WT/DS241/R
Page B-40
201. The foregoing shows that FRANGOSOL never presented any supporting documentation for
domestic sales and that its final submission arrived beyond the deadline for analysing the
information – the Report on Action Taken being dated 4 January 2002.
202. Concerning the submission made by CATARINENSE on 3 November 1999 (File
No. 061-010463/99, Sections  LIII to LIX, folio 2405, sheets 1 to 1198)73, it should be pointed out that
the company did not have authorized legal status in conformity with Law No. 19.549 on
Administrative Procedures.   In that submissi on, Catarinense requested a 20-day extension of the
deadline for presenting information (Section LIII, folio 2405, sheet 3).  The extension was granted by
Note DCD No. 273-001321/99 (Section LII, folios 2416 and 2417)74 and the company made no
subsequent requests for further extension.
203. Lastly, as regards CATARINENSE'S submission, the company failed to provide the
Annex VIII information (sales in the Brazilian dom estic market).  The only supporting documentation
was a list of invoices and invoices for exports to Argentina. This was the only submission made, no
subsequent submissions having been received.  As regards the delay in delivering the questionnaire toCatarinense, reference is made to Argentina's arguments regarding Claims 10 to 14.
204. The above details show that not once in the course of the proceedings did the Brazilian
producer/exporter firms present any formal claims – not to mention any supporting documentation
pointing to disagreement with the DCD – thus seemingly endorsing the DCD's description.
205. As a final comment on Brazil's claims, Argentina points out that on-the-spot verification is a
procedure that is left to the discretion of the investigating authority.  Indeed, the Anti-Dumping
Agreement does not impose such a procedure but imposes the obligation to seek means of verifying
the accuracy of the information and documentation submitted, thus triggering the investigation
procedure.  Moreover, since on-the-spot verification is not the only means of checking information
adduced in an investigation, the authority has discretionary power to conduct such verifications as itdeems necessary and relevant in the case at issue.
206. Lastly, and in this connection, it proved eq ually impossible in the case of FRANGOSUL to
carry out a verification on the spot, either because the documentation presented did not warrant such a
procedure, or – as in the case of the data on sales in the Brazilian domestic market – because no
documentation was presented, making it impracticable to perform on-the-spot verifications .
III.3 CONDUCT OF THE INVESTIGATION AND FINAL DETERMINATION
III.3.1 CLAIM 23:  CONSISTENCY WITH ARTICLE 2.4
207. Brazil claims that Argentina acted inconsistently with Article 2.4 by not making due
allowance for freight when determining the normal value in the case of SADIA and AVIPAL.
Text of Article 2.4
The relevant section of Article 2.4 provides the following:
" … Due allowance shall be made in each case, on its merits, for differences which affect
price comparability, including differences in conditions and terms of sale, taxation, levels of trade,
quantities, physical characteristics, and any other differences which are also demonstrated to affect
price comparability."
                                                     
73 See Annex ARG-XII.
74 See Annex ARG-XIII.WT/DS241/R
Page B-41
Argentina's argument
208. With regard to the comparison made for the enterprise SADIA S.A., the following comments
should be made:
209. In paragraphs 372 to 374 of its submission, Brazil contends that Argentina did not take into
account the information provided on 20 April 1999 in Annex VIII to the reply to the questionnaire
when the questionnaire sent to the exporter was returned.  In paragraph 374, in particular, Brazil
claims that "In its normal value calculation, the DCD failed to make the freight reductions as reported
in Sadia's 20 April 1999 response to the questionnaire".
210. It is true that the DCD did not make the freight reductions mentioned by the party.  But in this
case, the implementing authority did not make any error or omission.  The adjustment for freight
could not be made because it had not been properly documented.  In Annex VIII to the reply to thequestionnaire sent to the exporter, SADIA provided a purely illustrative general estimate of freight
deductions.  The information used to calculate the normal value, however, was based on an analysis of
all the invoices provided by the enterprise in accordance with the sample used by the implementing
authority, which were not accompanied by any details concerning freight charges to be deducted,
neither as an attachment to the invoices nor as part thereof.
211. Thus, it would have been improper for the DCD to make any specific deduction – with a
decisive and significant impact on price comparability – that:
(a) Was not contained in the documentary evidence provided;
(b) had been submitted in a general way – even though in the form of an amount
deductible from the unit value of the goods - and in fact represented an average for anextended period of time, the minimum being one year, as can be seen in Annex VIII
accompanying the reply to the Questionnaire by the exporter SADIA, rather than a
definite value to be charged to or deducted from the goods and for which there was
supporting documentation in due form.
212. As regards the comparison in the case of the enterprise AVIPAL S.A., the following
comments should be made:
213. In the case of this enterprise, the DCD used the best available information in order to compare
the two prices, inasmuch as it used the information provided by the enterprise itself in its submission
dated 12 August 1999 (Section 27, folio 2297)
75 to determine the normal value.  After receiving this
submission, on 12 October 1999, the Implem enting Authority, in Note No. 273-001180/9976
(Section 53, folio 2380) requested the firm AVIPAL S.A. to provide data on its transactions and
supporting documentation.
214. The information requested by the implementing authority was not only submitted belatedly on
21 December 1999 – i.e. two months later – but was not complete (Section 60, folio 2505)77.  In its
aforementioned submission, the company provided the list of transactions requested on a magnetic
medium ( notas fiscales (tax receipts), January 1998-January 1999), together with a spreadsheet
showing the amounts that should be deducted from prices.  The information was not only transmittedwithout the proper translation required by the provisions of the Law on Administrative procedure
(Law No. 19.549, Article 28), but also without the supporting documentation that would have enabled
the DSD to verify the accuracy of what had been stated.
                                                     
75 See Annex ARG-XXXIII.
76 See Annex ARG-XXXI.
77 See Annex ARG-XXXIV.WT/DS241/R
Page B-42
215. Furthermore, the party's delay in sending the list made it impossible for the DCD to ask for
the invoices that may have been necessary based on a sample, as was done in the case of SADIA.
216. As a result, the authority used the information for which there was documentary evidence,
namely, the invoices provided by the firm in the submission in File No. 061-007241/99 of
12 August 1999 – Section 27, folio 2297.78
217. It is important to note that the information used  was therefore that provided by the enterprise,
which could have decided not only to transmit the information required in due time but could also
have attached the relevant supporting documentation, as it had previously done.
218. Based on the foregoing, Argentina considers that there is no justification for Brazil's claim
that the implementing authority did not make due allowance for the adjustments it should have made,
and neither is there any justification for the statement that the companies SADIA and AVIPAL
convincingly demonstrated the need to do this.
219. The DCD not only acted in accordance with the requirement clearly spelt out in Article 2.4,
but throughout the investigation the criteria used were made perfectly clear.
220. According to Article 2.4:  "Due allowance shall be made in each case, on its merits , for
differences which affect price comparability … "  This clearly shows that the obligation of a party
conducting an investigation to make due allowance for differences that might affect pricecomparability is not an absolute obligation.  It depends on whether the various factors and
circumstances claimed by the parties with a view to affecting the price comparison made by the
investigating authority have sufficient merit  to be taken into account, leaving the authority to
determine whether or not the factors put before it are relevant.
III.3.2 CLAIM 24:  CONSISTENCY WITH ARTICLE 2.4
221. Brazil claims that Argentina acted inconsistently with Article 2.4 by not making due
allowance for differences in taxes, freight charges and financial costs in the normal value established
for all the other exporters.
Text of Article 2.4
The relevant section of Article 2.4 states the following:
"Due allowance shall be made in each case, on its merits, for differences which affect price
comparability, including differences in conditi ons and terms of sale, taxation, levels of trade,
quantities, physical characteristics, and any other differences which are also demonstrated to
affect price comparability ."
Argentina's argument
222. Brazil claims that the DCD sent two notes to the firm JOX Assesoría Agropecuaria
requesting clarification of the taxes in the publication used for the preliminary determination and that,despite the persistence shown in requesting this info rmation, it later decided not to use it to make the
price deductions which, according to Brazil, should have been made from the normal value.
223. Before replying to Brazil's claim, Argentina wishes to clarify that, although the DCD did
indeed send the two notes mentioned by Brazil to JOX requesting clarification of the taxes and other
                                                     
78 See Annex ARG-XXXIII.WT/DS241/R
Page B-43
commercial clauses contained in the publication incl uded in the file, the two notes were not in the
same terms, as Brazil contends.
224. The first note referred to by Brazil, of 25 June 1999 - Section 22, folio 1808, Note
No. 273-000788/99 – is the original note requesting clarification, whereas the second, sent one month
later, on 27 July 1999, DCD Note No. 273 – 000883/99 – Section 25, folio 209179, is a note in
response to another note from JOX dated 2 July 1999 in which the latter requests the DCD to transmit
a copy of the note requiring clarification.
225. Argentina considers it necessary to reaffirm th e criterion used to interpret the obligation to
make due allowance for differences that might affect price comparability in a procedure, as laid down
in Article 2.4.
226. As stated when responding to Claim 23, Argentina considers that Article 2.4 determines the
criteria to be used in order to ensure that comparisons between the export price and the normal valueare made in a fair and equitable manner.
227. The first obligation on the parties is to be found in the first sentence of the Article and
although Argentina considers that there is no order of precedence among the various sentences, there
are different levels of detail which, following a line that runs from the general to the more specific,
qualify the criteria to be taken into account in the comparison.
228. For example, the first sentence of Article 2.4 states that the comparison must be fair.  The
second sentence is more specific and lays down a minimum criterion for the comparison in order to
meet this requirement:  the values to be compared must represent the same level of trade, normally the
ex-factory level.  Subsequently, the Article prescribes that, based on an evaluation of each particular
case, due allowance must be made for differences which affect price comparability and it describessome of the factors to be taken into account, without seeking to provide an exhaustive list, and which
meet the requirement that it must be demonstrated that these differences have to be taken into account
because they affect price comparability.
229. It is precisely because the comparison must be fair, which requires that it should be at the
same level of trade, that the deductions communicated by JOX were not taken into account.  If thishad been done, the comparison would have been – improperly – between an ex-factory price for the
normal value and an f.o.b. export price, because there was no identical information on the deductions
to be made from the export value of the goods.
230. Regarding Brazil's claim in paragraph 392 of its submission, it should be noted that in this
case the information submitted by five exporters on 26 August 1999 was disregarded by the DCD
because it was inaccurate.  The table presented by the exporters is in fact incorrect.  This can clearly
be seen simply by trying to reconstruct the final price on the basis of the price obtained after makingthe suggested deductions.
231. For the foregoing reasons, we consider that the Panel should reject Brazil's claim that
Argentina acted inconsistently with Article 2.4 by not making due allowance for differences in
taxation, freight charges and financial costs in the normal value established for all other exporters, as
Argentina not only acted within the limits imposed by the legislation in force but also took into
account and weighed up all the information provided by the parties in each case and, as prescribed in
Article 2.4, it evaluated the adequacy of each item of information according to its merits, with special
emphasis on the existence of evidence that would allow it to verify each item.
                                                     
79 See Annex ARG – XXXV.WT/DS241/R
Page B-44
III.3.3 CLAIM 25:  CONSISTENCY WITH ARTICLE 2.4
232. Brazil claims that Argentina acted inconsistently with Article 2.4 by improperly taking into
account the alleged physical differences between the product sold in Brazil and that exported to
Argentina in order to establish the normal value.
Text of Article 2.4
The relevant section of Article 2.4 states the following:
"Due allowance shall be made in each case, on its merits, for differences which affect price
comparability, including differences in conditions  in terms of sale, taxation, levels of trade,
quantities, physical characteristics, and any other differences which are also demonstrated to
affect price comparability ."
Argentina's argument
233. Brazil bases this claim on the fact that the DCD took into account the statement by CEPA (the
applicant), in its request for the opening of an investigation that the poultry sold in both countries wasnot the same as that exported to Argentina, which did not have feet or heads, whereas the poultry for
the domestic market had both heads and feet, without verifying the accuracy of the information
submitted to it.
234. Brazil therefore contends that, by making an adjustment when it was not necessary, the DCD
went beyond its obligation to take due account of the information submitted by the parties and failedto examine its accuracy or adequacy.
235. Argentina once again argues that Brazil's claim regarding application of Article 2.4 is based
on arguments that were only partly substantiated during the conduct of the investigation, which was
accessible without restrictions to the Government of Brazil itself, the exporters and other interested
parties, throughout its duration.  Consequently, Brazilian exporting enterprises could not have beenunaware of the fact that part of the applican t's submission was the Annex to Note 220/97, which
explained the differences between the products sold in both countries, as well as a proposal on the
type of adjustment that should be made in order to be able to compare the prices on an equal footing.
236. If Brazilian producers/exporters considered that the alleged differences were not correct,
therefore, they had ample opportunity throughout the administrative procedure that was the basis for
the investigation to draw attention to the error unequivocally, but they did not do so.
237. Moreover, JOX Ascesoría Agropecuaria clarified that the chilled poultry is usually sold in the
São Paulo region with feet and heads, as stated in the Note dated 1 August 1997, contained in the file
on Folio 177 and forming part of Exhibit BRA-1.  In the second point of the second paragraph of a
Note of 23 June 1999
80, the company Jox also informed the implementing authority that:
"The chilled poultry sold in the State of São Paulo includes heads and feet, unless indicated
otherwise, in which case the prices should be around 10 per cent higher"
238. Argentina therefore considers that inasmuch as:
(a) The authority that conducted the investigation was given proof of a physical
difference that clearly affected the price comparability to be carried out as part of the
procedure;
                                                     
80 Exhibit BRA-32.WT/DS241/R
Page B-45
(b) this proof was also accompanied by an appropriate method for making the necessary
adjustment in order to compare prices, and, still more importantly;
(c) during the investigation the Brazilian exporters did not expressly deny that there was
a physical difference between the products or reject the proposed method for making
the adjustment, which was criticized by exporters although they did not at any timegive reasons for the criticism or make any alternative proposals for the comparison;
the implementing authority complied with Article 2.4 of the Anti-Dumping Agreement, which
provides that due allowance must be made for all the differences that might affect a fair comparison,
when it made the adjustment based on the method proposed.
239. On the basis of the foregoing, Argentina considers that it had to make an adjustment in order
to be able to compare the prices.  As already stated, this view is backed up by the letters andclarifications from JOX, which have always been part of the evidence contained in the file and, if they
had considered it appropriate, the Brazilian exporters could have proposed rectifications;  however,
they did not do so.
240. Consequently, the Panel is requested to find that Brazil's claim that Argentina acted
inconsistently with Article 2.4 because there was no difference that might affect comparability isinadmissible and that, as shown, it was necessary to make an adjustment so that a fair comparison of
prices could be made;  that despite having manifold opportunities to do so, the interested parties never
questioned the need to make the adjustment for physical differences in the product - indeed they only
questioned the methodology, without proposing any alternative methodology, and not the actual need
to make the adjustment.
III.3.4 CLAIM 26:  CONSISTENCY WITH ARTICLE 2.4
241. Brazil claims that Argentina acted inconsistently with Article 2.4, imposing an unreasonable
burden of proof on SADIA, AVIPAL and FRANGOSUL by not defining the period of the
investigation and allowing exporters to submit information on dumping for the years 1996 to 1999,
when the investigation period was subsequently established as January 1998 to January 1999.
Text of Article 2.4
The relevant section of Article 2.4 states the following:
"The authorities shall indicate to the parties in question what information is necessary to
ensure a fair comparison and shall not impose an unreasonable burden of proof on those parties … ".
Argentina's argument
242. Argentina does not share the views expressed by Brazil in this claim and totally rejects the
idea of an alleged imposition by Argentina of an unreasonable burden of proof on Brazilian exporters,
a claim which Brazil tries to substantiate by stating that:
(a) The investigation period was not automatically defined at the time the investigation
was initiated;
(b) the normal value was only based on invoices presented by the parties and,
considering the large volume of sales on the domestic market, this had the effect of
imposing an excessive burden of proof on Brazilian exporters.WT/DS241/R
Page B-46
243. The Anti-Dumping Agreement does not define the period for collecting information or for the
investigation itself.  The implementing authority th erefore has discretion to request the documentation
it deems necessary in order to determine dumping, and may require further information when this is
necessary to guarantee  due process to the interested parties.  It should be noted that this attention to
the interests of the parties is used as an argument on the grounds that it represents an "unreasonableburden", with implicit reference to an intention to prejudice exporters.
244. Brazil's argument contradicts what has been said throughout this submission, in that the
complaint in some cases has been that the implem enting authority did not request more information.
Whenever the implementing authority has sought further information for a particular purpose, Brazil
complains that the information requested represents an "unreasonable burden on exporters".
245. As an example of the special attention paid by the implementing authority to this aspect, it
should be emphasized that, precisely because of the comments made by the parties to the effect that,the large volume of operations by enterprises on the local market made it difficult for them to provide
written evidence of all the transactions, the authority only requested the submission of evidence for
those operations chosen on the basis of a statistical sample drawn up for the purpose of not imposing
an unreasonable burden on exporters.
246. In any event, throughout the procedure, Brazil 's producers/exporters did not complain of the
burden of information requested by the DCD in relation to the provisions of Article 6.1.3 of the Anti-
Dumping Agreement.
247. The difficult balance which Brazil tries to impose on Argentina in defining the volume and
type of information to be requested does not appear to be in line with an article such as Article 6,
paragraphs 1 and 2, and other related articles in which the Agreement seeks to give the parties theright of legitimate defence which Argentina was careful to give them during this procedure.
III.3.5 CLAIM 27:  CONSISTENCY WITH ARTICLE 2.4.2
248. Brazil claims that Argentina acted inconsistently with Article 2.4.2 by incorrectly establishing
the normal value for SADIA, AVIPAL and FRANGOSUL solely on the basis of transactions in the
domestic market for which invoices were submitted rather than all the transactions contained in thelist sent to the DCD.  Brazil also claims that the DCD established the margin of dumping for SADIA
and AVIPAL by comparing the weighted average of a statistical sample with the weighted average of
prices of all export transactions.
Text of Article 2.4.2
The relevant section of Article 2.4.2 states the following:
"Subject to the provisions governing fair comparison in paragraph 4, the existence of margins
of dumping during the investigation phase shall normally be established on the basis of a
comparison of a weighted average normal value with a weighted average of prices of all
comparable export transactions or by a com parison of normal value and export prices on a
transaction-to-transaction basis. "
Argentina's argument
249. Although the authority established a measure for AVIPAL and SADIA based on a sample, it
has been shown that this sample, inasmuch as it was calculated on the basis of a statistically correctmethodology/formula, was indicative of the overall sales in the domestic market.  The sample was
accompanied by the relevant supporting documentation.WT/DS241/R
Page B-47
250. Consequently, it is difficult to understand the injury claimed by Brazil in that the
documentation submitted by the enterprises was used for the sample.
III.3.6 CLAIMS 32 AND 33:  CONSISTENCY WITH ARTICLES 3.1, 3.4, 3.5 AND 12.2.2
251. Brazil claims that Argentina acted inconsistently with Article 3.1, 3.4 and 3.5 by using
different periods to evaluate the relevant economic factors and indices listed in Article 3.4 and,according to Brazil, this nullifies the final determination of injury based on positive evidence and an
objective evaluation (Claim 32).  Brazil also argues that Argentina acted inconsistently with
Article 12.2.2 by failing to explain in the final determination why the relevant economic factors and
indices listed in Article 3.4 were based on different periods (Claim 33).
Text of Article 3.1, 3.4 and 3.5 and Article 12.2.2
"3.1 A determination of injury for purposes of Article VI of GATT 1994 shall be based on
positive evidence and involve an objective examination of both (a) the volume of the
dumped imports and the effect of the dum ped imports on prices in the domestic
market for like products, and (b) the conse quent impact of these imports on domestic
producers of such products.
3.4 The examination of the impact of the dumped imports on the domestic industry
concerned shall include an evaluation of all relevant economic factors and indices
having a bearing on the state of the industry, including actual and potential decline in
sales, profits, output, market share, productivity, return on investments, or utilization
of capacity;  factors affecting domestic prices;  the magnitude of the margin of
dumping;  actual and potential negative effects on cash flow, inventories,
employment, wages, growth, ability to raise capital or investments.  This list is not
exhaustive, nor can one or several of these factors necessarily give decisive guidance.
3.5 It must be demonstrated that the dumped imports are, through the effects of dumping,
as set forth in paragraphs 2 and 4, causing injury within the meaning of this
Agreement.  The demonstration of a caus al relationship between the dumped imports
and the injury to the domestic industry shall be based on an examination of all
relevant evidence before the authorities.  The authorities shall also examine any
known factors other than the dumped imports which at the same time are injuring the
domestic industry, and the injuries caused by these other factors must not be
attributed to the dumped imports.  Factors which may be relevant in this respectinclude, inter alia , the volume and prices of imports not sold at dumping prices,
contraction in demand or changes in the patterns of consumption, trade-restrictive
practices of and competition between the foreign and domestic producers,
developments in technology and the export performance and productivity of the
domestic industry.
12.2.2 A public notice of conclusion or suspension of an investigation in the case of an
affirmative determination providing for the imposition of a definitive duty or the
acceptance of a price undertaking shall contain, or otherwise make available through
a separate report, all relevant information on the matters of fact and law and reasonswhich have led to the imposition of final measures or the acceptance of a price
undertaking, due regard being paid to the requirement for the protection of
confidential information.  In particular, the notice or report shall contain the
information described in subparagraph 2.1, as well as the reasons for the acceptance
or rejection of relevant arguments or claims made by the exporters and importers,and the basis for any decision made under subparagraph 10.2 of Article 6. "WT/DS241/R
Page B-48
Argentina's argument
252. The initiation of the investigation was prompted by the appraisal of threat of injury.  The
CNCE therefore considered, as is customary, the po ssibility of analysing the trend in imports for the
first half of 1999.  In this connection, it should be emphasized that both international rules andrelevant practices in this area provide that, in cases of threat of injury, it is possible to undertake an
analysis beyond the period of the investigation in order to find out whether or not there is a growing
trend in imports and, as a result, give the investigation a more substantial factual basis.  (For example,
Mexican legislation specifically allows the period of the investigation to be extended after it has been
initiated).
253. In respect of the period under investigation, th e National Foreign Trade Commission therefore
used information for the three full years and the remaining months prior to the initiation of theinvestigation for the determination of injury and, when analysing whether or not there was a threat of
injury, it requested information for the months following the decision to initiate the investigation so as
to note trends in this particular case import trends, and their effect on market shares and prices.
254. Moreover, the existence of a voluntary agreement between the parties between October 1998
and March 1999 meant that it was necessary to analyse imports without the effects produced by thatagreement, so the analysis was extended until June 1999, both for imports and for all apparent
consumption variables.
255. As legal evidence of the above and to anticipate Brazil's objection, we refer to Record
No. 576 itself, in which the Commission duly stated:  " … it should be noted that, if there had been no
agreement on volumes and prices between Brazilian exporters and Argentine producers, in 1998imports would have increased even more and, subsequent to the investigation period, in the first half
of 1999, the upward trend would have continued … ".
256. In paragraph 427 of its submission, Brazil asserts that Argentina failed to respect Article 3.1
of the Agreement and that the determination of injury was not based on an objective examination of
the factors listed in that Article.  It then puts forward a number of linguistic considerations through
which – on the basis of the English text of the Article – it seeks to refute the analysis made by the
CNCE, indicating that it was subjective.
257. This calls for the following comments:
(a) Also in regard to the meaning of the words used, "objective" is something "belonging
or relating to the object itself and not to our way of thinking or feeling"81 whereas
subjective is something "relating to our wa y of thinking or feeling and not to the
object itself"82.  It would therefore appear that Argentina agrees with this
terminological distinction.
(b) However, there is no way that the Commission's determination can be seen as
"imaginary", "partial", "distorted" or discre tional.  Nor, as the various instruments
resulting from the investigation procedure show, were different parameters used toanalyse the indicators.
                                                     
81 See " Diccionario de la Lengua Española de la Real Academia Española ", twenty-first edition,
Madrid, 1992, page 1459.
82 See " Diccionario de la Lengua Española de la Real Academia Española ", twenty-first edition,
Madrid, 1992, page 1911.WT/DS241/R
Page B-49
258. With regard to Brazil's statement in paragraphs 432 and 433, Argentina strictly complied with
the provision in Article 12.2.2 by means of the public notice provided through the publication in the
Official Journal of the MEYOSP Resolution.
259. In addition to the administrative act called a Re solution, by which the public is informed of
the decision adopted, any report by the competent technical authorities and determinations adopted asa result are available to all parties interested by the investigation that have come forward and are
accredited in the file.
260. As an illustration, in this particular case, Record No. 576 has 30 folios which, added to the
122 in the corresponding technical report (GEGE/ITDF  No. 03/99) bring the total to 152 folios.  This
is why Argentina, in conformity with the provisions  in Article 12.2.2, published in the Official Journal
the Resolutions which contain, in the recitals, the conclusions of the various authorities involved in
the investigation.
261. Argentina's methodology was made public on several occasions at the WTO (particularly in
the Ad Hoc Group on Implementation) and was supported by several Members because it is
impossible to publish in an official medium all the instruments and reports by technical bodies that are
used as a basis for the adoption of final decisions by the higher authorities.
262. One relevant precedent adopted by the Panel was in the Guatemala – Cement dispute, where
it is stated that:
"Mexico claims that Guatemala's notice of init iation did not meet the standard of 'adequate
information' because it did not contain adequ ate information on the basis on which dumping
was alleged in the application nor adequate information summarising the factors on which
the allegation of injury, in this case threat of material injury, was based, as required byArticle 12.1.1.
Guatemala responds that the public notice as su pplemented by the report of the Directorate
of Economic Integration of 17 November 1995 is adequate to fulfil the requirements of
Article 12.1.1.  Since the file was open to the public Guatemala considered that the report
from the Economic Integration Directorate was available to Mexico and contained the
relevant information to comply with Article 12.1.1 ."83
III.3.7 CLAIMS 34, 35, 36 AND 37.  CONSISTENCY WITH ARTICLE 3.1, 3.2, 3.4 AND 3.5
263. Brazil claims that, by failing to exclude the imports from two Brazilian exporters from the
injury analysis, Argentina did not properly consider the volume, the effect on prices and the impact of
the dumped imports on the domestic industry, so Argentina acted inconsistently with Article 3.2(Claim 34) and with Article 3.4 (Claim 36).  Likewi se, Brazil contends that the evaluation of the
dumped imports indicates that the final injury determination was not based on positive evidence and
an objective examination, as required by Article 3.1 (Claim 35).  Brazil then argues that, by not
excluding imports from these two Brazilian exporters from the dumped imports, Argentina had acted
inconsistently with Article 3.5 in not properly considering injury in accordance with Article 3.1 and,consequently, did not properly demonstrate the causal relationship between the dumped imports and
the injury to domestic industry, as required by Article 3.5 (Claim 37).
                                                     
83 Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico
(WT/DS156/R) report of the Panel, paragraphs 8.90 and 8.91.WT/DS241/R
Page B-50
Text of the Articles
3.1 "A determination of injury for purposes of Article VI of GATT 1994 shall be based on
positive evidence and involve an objective examination of both (a) the volume of the dumped
imports and the effect of the dumped imports on prices in the domestic market for likeproducts, and (b) the consequent impact of these imports on domestic producers of such
products.
3.2 With regard to the volume of the dumped imports, the investigating authorities shall
consider whether there has been a significant increase in dumped imports, either in absolute
terms or relative to production or consumption in the importing Member.  With regard to the
effect of the dumped imports on prices, the investigating authorities shall consider whetherthere has been a significant price undercutting by the dumped imports as compared with the
price of a like product of the importing Member , or whether the effect of such imports is
otherwise to depress prices to a significant degree or prevent price increases, which
otherwise would have occurred, to a significant degree.  No one or several of these factors
can necessarily give decisive guidance.
3.4 The examination of the impact of the dumped imports on the domestic industry
concerned shall include an evaluation of all relevant economic factors and indices having a
bearing on the state of the industry, including actual and potential decline in sales, profits,
output, market share, productivity, return on investments, or utilization of capacity;  factorsaffecting domestic prices;  the magnitude of the margin of dumping;  actual and potential
negative effects on cash flow, inventories, employ ment, wages, growth, ability to raise capital
or investments.  This list is not exhaustive, nor can one or several of these factors necessarily
give decisive guidance.
3.5 It must be demonstrated that the dumped imports are, through the effects of dumping,
as set forth in paragraphs 2 and 4, causing injury within the meaning of this Agreement.  The
demonstration of a causal relationship betw een the dumped imports and the injury to the
domestic industry shall be based on an examination of all relevant evidence before the
authorities.  The authorities shall also exami ne any known factors other than the dumped
imports which at the same time are injuring the domestic industry, and the injuries caused by
these other factors must not be attributed to the dumped imports.  Factors which may berelevant in this respect include, inter alia , the volume and prices of imports not sold at
dumping prices, contraction in demand or change s in the patterns of consumption, trade-
restrictive practices of and competition between the foreign and domestic producers,
developments in technology and the export pe rformance and productivity of the domestic
industry."
Argentina's argument
264. Regarding the share of total exports by Brazil attributable to Brazilian exporters for which
there is no significant margin of dumping, it should  be noted that the major link between the volume
of imports and injury is reflected both in the market share and in the import/production ratio.  The
relevance and sensitivity of these indicators when determining injury is explained below.
265. The CNCE analysed the total volume of imports investigated and concluded "that the
domestic industry producing whole eviscerated poultry  suffered material injury caused by allegedly
dumped imports from the Federative Republic of Brazil."
266. In this connection, Brazil makes a wrong assumption in presuming that the implementing
authority did not carry out the corresponding analyses.  When analysing the causal relationship,
contrary to Brazil's statement, the competent aut hority did take into account the determination thatWT/DS241/R
Page B-51
there was no dumping of exports to the Argentine Republic by the Brazilian enterprises NICOLINI
and SEARA.
267. As can be seen from folios 4564 and 3469 of file CNCE No. 43/97 and in ITDF No. 03/9984,
the firms NICOLINI and SEARA provided informati on in response to the CNCE's questionnaires for
exporters.  According to this information, the average f.o.b. prices of these enterprises weresubstantially higher than the prices for the other exports from the origin investigated, for which the
competent authority determined the existence of an unfair practice.  It can also be seen that the
volume of exports by the aforementioned enterprises came nowhere close to the levels reached for the
majority of exports from Brazil throughout the period analysed by the CNCE.
268. Record No. 576 of the CNCE concluded with regard to prices that " the imports investigated
were present on the market at prices that caused injury to the prices of like domestic products.  The
price of whole eviscerated poultry on the domestic market fell throughout the period and the importsinvestigated had an impact on this decrease.  The ev idence obtained during the investigation indicates
that price is the decisive factor on the market and its decrease throughout the period was associated
with the presence of the impor ts investigated and their price. "
269. Consequently, as the average f.o.b. prices for the other imports investigated were lower than
the prices of enterprises that did not practise dumping, it follows that their sale on the domesticmarket would inevitably yield international prices  even lower than the prices determined by the
CNCE in its final determination of injury.
270. In order to illustrate the above, a table and the corresponding chart have been added to this
section III.3.7 which show that in 1997 and 1998 the average f.o.b. prices of imports without dumping
(NICOLINI and SEARA) were 13 per cent higher than the other imports investigated.  As the chartshows, this situation recurred month after month, and it can also be seen that for every month, the
average monthly f.o.b. prices of imports from these firms remained, except in the case of  NICOLINI
in October 1997, above the average f.o.b. prices for transactions for which dumping had been
determined.
271. Lastly, the fact that exports by NICOLINI and SEARA did not have the major share in any
year during the period investigated by the CNCE im plied that no radical changes could be expected in
the volume and share of the other imports investigated.  In the apparent consumption tables, which are
also to be found at the end of this section III.3.7, it can be seen that dumped imports clearly
represented the majority, rising in 1998 to almost 40,000 tonnes compared with 56,000 tonnes for
total imports from Brazil, and that they grew at a si milar rate to that for total imports from Brazil and
even more rapidly in 1998 (45 per cent in the case of dumped imports and 40 per cent for all imports
from Brazil).
272. Consequently, the share of dumped imports in apparent consumption rose, displacing
domestic sales of the like domestic product.
273. In conclusion, Argentina points out that the above facts are apparent from the information in
the files, to which both the Government of Brazil and the producing/exporting enterprises in Brazil
had full access as interested parties.  Consequently, there is no justification for the claims made.
                                                     
84 See exhibit BRA-14.WT/DS241/R
Page B-52
AVERAGE F.O.B. PRICES FOR IMPORTS OF WHOLE EVISCERATED POULTRY;
FRESH, CHILLED OR FROZEN
In US dollars/kg.
BRAZIL
PERIOD Total Subtotal without
DUMPING
(NICOLINI +
SEARA)Subtotal with
DUMPINGOTHER ORIGIN TOTAL ORIGIN
Jan -95 1.12 1.29 1.09 1.13 1.12
Feb-95 1.09 1.26 1.04 1.17 1.09
Mar-95 1.05 1.19 1.01 1.21 1.05
Apr-95 0.98 1.11 0.94 0.98
May-95 0.92 1.03 0.88 0.92
Jun-95 0.89 1.03 0.83 0.89
Jul-95 0.88 1.01 0.86 0.88
Aug-95 0.89 0.97 0.86 0.89
Sep-95 0.95 0.99 0.94 1.14 0.96
Oct-95 1.03 1.05 1.03 1.14 1.04
Nov-95 1.04 1.09 1.03 1.14 1.05
Dec-95 1.04 1.11 1.02 1.14 1.05
Jan -96 1.06 1.11 1.04 0.99 1.05
Feb-96 1.02 1.07 1.00 1.10 1.03
Mar-96 1.01 1.06 1.00 1.15 1.02
Apr-96 1.01 1.11 0.98 1.12 1.01
May-96 1.02 1.06 1.00 1.02
Jun-96 1.02 1.01 1.03 1.07 1.02
Jul-96 1.01 1.02 1.01 1.07 1.02
Aug-96 1.05 1.06 1.05 1.07 1.06
Sep-96 1.09 1.14 1.07 1.07 1.09
Oct-96 1.12 1.18 1.09 2.00 1.12
Nov-96 1.13 1.21 1.10 1.13
Dec-96 1.12 1.20 1.09 1.03 1.12
Jan -97 1.07 1.18 1.02 1.07
Feb-97 1.04 1.18 0.97 1.04
Mar-97 1.05 1.16 1.00 1.05
Apr-97 0.98 1.04 0.95 0.98
May-97 0.93 1.01 0.89 0.93
Jun-97 0.88 0.99 0.85 0.88
Jul-97 0.91 0.98 0.88 0.91
Aug-97 0.91 0.98 0.89 0.91
Sep-97 0.90 1.03 0.87 0.90
Oct-97 0.98 0.99 0.97 0.98
Nov-97 0.95 1.04 0.91 1.00 0.95
Dec-97 0.98 1.08 0.93 0.93 0.98
Jan -98 0.87 1.10 0.80 1.00 0.88
Feb-98 0.90 0.99 0.82 1.00 0.90
Mar-98 0.91 0.98 0.86 1.00 0.91
Apr-98 0.90 0.98 0.84 0.90
May-98 0.91 0.98 0.85 0.91
Jun-98 0.86 0.99 0.82 0.86
Jul-98 0.89 0.99 0.86 0.89
Aug-98 0.89 0.97 0.86 0.94 0.89
Sep-98 0.91 0.97 0.89 1.01 0.91
Oct-98 0.93 0.97 0.92 0.91 0.93
Nov-98 0.95 0.97 0.92 0.91 0.95
Dec-98 0.97 1.01 0.95 0.91 0.97
1995 1.01 1.10 0.99 1.14 1.02
1996 1.06 1.12 1.04 1.07 1.06
1997 0.96 1.05 0.92 0.94 0.96
1998 0.91 0.99 0.88 0.96 0.91
Var. % 96/95 5 2 5 -6 4
V a r .  %  9 7 / 9 6 - 9 - 6- 1 1 - 1 2- 9
V a r .  %  9 8 / 9 7 - 5 - 5 - 52- 5
Reference period
Source:  CNCE, based on information from INDECWT/DS241/R
Page B-53
Average f.o.b. price of imports by exporter
0.800.850.900.951.001.051.101.151.201.251.30
Jan-95
Feb-95Mar-95
Apr-95
May-95
Jun-95
Jul-95
Aug-95
Sep-95
Oct-95
Nov-95
Dec-95
Jan-96
Feb-96
Mar-96
Apr-96
May-96
Jun-96
Jul-96
Aug-96
Sep-96
Oct-96
Nov-96
Dec-96
Jan-97
Feb-97
Mar-97
Apr-97
May-97
Jun-97
Jul-97
Aug-97
Sep-97
Oct-97
Nov-97
Dec-97
Jan-98
Feb-98
Mar-98
Apr-98
May-98
Jun-98
Jul-98
Aug-98
Sep-98
Oct-98
Nov-98
Dec-98 US$/kiloNICOLINI
SEARA
Subtotal   WITH DUMPING
Subtotal   WITHOUT DUMPING
APPARENT CONSUMPTION OF WHOLE EVISCERATED POULTRY
tonnes
 Total BRAZILBrazil without
dumpingBrazil with dumping
1995                         688.725             15.317                      3.660                      11.657                622           15.939           704.664
1996                         667.402             22.544                      6.517                      16.027             1.843           24.386           691.788
1997                         693.641             40.128                    12.845                      27.283                320           40.448           734.089
1998                         782.850             56.291                    16.803                      39.487                316           56.606           839.457
Var.% 96/95 -3 47 78 37 196 53 -2
Var.% 97/96 (2) 4 78 97 70 -83 66 6
Var.% 98/97 13 40 31 45 -1 40 14
                   Reference period
(1) Net variation in stocks according to information from importers.
(2) Only as of the last quarter of 1994, imports from NICOLINI exceeded 100 tonnes/month.
STRUCTURE OF APPARENT CONSUMPTION  OF WHOLE EVISCERATED POULTRY
Percentage
 Total BRAZIL    Brazil without dum ping      Brazil with dumping
1996 96.5 3.3 0.9 2.3 0.3 3.5 100
1997 94.5 5.5 1.7 3.7 0.0 5.5 1001998 93.3 6.7 2.0 4.7 0.0 6.7 100
Note: The sum of the components may not correspond to the total due to differences in rounding the figures.
Source: CNCE, based on information by INDEC and contained in the reference file.PeriodBrazil
Other
origin TotalApparent
consumption
Sales of domestic
production on thedomestic marketImport
PeriodBrazil
Other
origin TotalApparent
consumptionSales of domestic
production on the
domestic marketImport (1)
III.3.8 CLAIMS 38, 39 AND 40:  CONSISTENCY WITH ARTICLES 3.4 AND 3.1, AND
ARTICLE 12.2.2
274. Brazil contends that Argentina acted inconsistently with Article 3.4 by not evaluating all the
relevant economic factors and indices listed in the paragraph in this Article (Claim 38) and,
consequently, taking into account the foregoing alleged inconsistency, it also acted inconsistently with
Article 3.1, according to Brazil, by not basing the determination of injury on positive evidence and
objective evaluation (Claim 39).  Brazil also argues that Argentina acted inconsistently withArticle 12.2.2 by not taking into account in its final determination the evaluation of all the relevant
economic factors and indices listed in Article 3.4 (Claim 40).WT/DS241/R
Page B-54
Text of Article 3.4 and 3.1
"3.4 The examination of the impact of the dumped imports on the domestic industry
concerned shall include an evaluation of all relevant economic factors and indices having a
bearing on the state of the industry, including actual and potential decline in sales, profits,output, market share, productivity, return on in vestments, or utilization of capacity;  factors
affecting domestic prices;  the magnitude of the margin of dumping; actual and potential
negative effects on cash flow, inventories, employ ment, wages, growth, ability to raise capital
or investments.  This list is not exhaustive, nor can one or several of these factors necessarily
give decisive guidance.
3.1 A determination of injury for purposes of Article VI of GATT 1994 shall be based on
positive evidence and involve an objective examination of both (a) the volume of the dumped
imports and the effect of the dumped imports on prices in the domestic market for like
products, and (b) the consequent impact of these imports on domestic producers of such
products."
Text of Article 12.2.2
"12.2.2 A public notice of conclusion or suspension of an investigation in the case of an
affirmative determination providing for the imposition of a definitive duty or the acceptance
of a price undertaking shall contain, or otherwise make available through a separate report,all relevant information on the matters of fact and law and reasons which have led to the
imposition of final measures or the acceptance of a price undertaking, due regard being paid
to the requirement for the protection of confidential information.  In particular, the notice or
report shall contain the information described in subparagraph 2.1, as well as the reasons for
the acceptance or rejection of relevant arguments or claims made by the exporters andimporters, and the basis for any decision made under subparagraph 10.2 of Article 6."
Argentina's argument
275. Argentina acted consistently with the pr ovisions in the Anti-Dumping Agreement by
evaluating, in respect of injury, all the factors listed in Article 3.4 and their impact on prices of the
like domestic product as well as their impact on the domestic industry concerned.
276. There are no grounds for Brazil's claims regarding the absence of any analysis or evaluation
of factors such as productivity, variables affecting domestic prices, the magnitude of the margin of
dumping, actual and potential effects on the cash fl ow of the applicant firms, growth, and ability to
raise capital.
277. Firstly, during the conduct of the investigation, the applicants submitted information on the
productivity situation in the sector which, based on the relevant indicators for such industries, showed
that, at the initiation of the investigation by the Ar gentine authorities, the Argentine poultry  industry
was on an equal footing with the Brazilian industry  and also with the major producers at the global
level.
278. This is reflected in Record No. 576, folios 12, 13, 14, 20 and in the Technical Report in
folios 26, 28, 29, 30 and 95.  These sections basically explain that the growth in productivity that
resulted from the production restructuring process in the sector since the early 1990s was a response
to the changes taking place in market conditions following Argentina's unilateral opening up of its
economy during the period concerned, as well as the integration process taking place between
Argentina and Brazil.WT/DS241/R
Page B-55
279. This is corroborated by the fact that CEPA's contentions in respect of the aforementioned
paragraphs were not questioned during the conduct of the investigation, either by Brazilian exporting
firms or by importers in the Argentine market.  CEPA confirmed that the leading productivity
indicators such as the number of eggs per hen to be incubated per cycle, the number of chicks born,
the daily weight gain of the chickens being raised, the amount of balanced feed needed to produce1 kilo of meat, cited in a non-exhaustive list, are similar to those in the Brazilian  industry and in some
cases, for example, the daily weight gain of the chickens being raised, are higher.
280. Furthermore, some of the indicators contained in the Annex are directly related to
productivity, for example, the size of the labour force employed and some headings on average unit
costs versus sustained increase in production (see tables 1, 11, 12, 13 and 14 of Annex I to the
Technical Report).
85
281. The Argentine industry's costs are currently comparable to those of the most competitive
producers at the international level.  This was achieved through a large-scale programme to
restructure the industry and adapt production, in accordance with a timetable for investment
amounting to over US$270 million between 1994 and 1998.86  The major part of the investment was
used to renovate, extend and equip refrigeration plants and to equip and build farms (essentially for
reproduction), and to increase the capacity of the silos, incorporate new technology in plantsmanufacturing balanced feed, purchase incubators and automate equipment to make by-products and
treat effluent, train personnel, purchase vehicles, etc.
282. Much of the investment was affected by the uncertainty caused in the local market by the
importation of Brazilian products, which utilized the Argentine market as an alternative market in
order to resolve problems of local or foreign demand, thereby negatively affecting price recoveryinasmuch as demand remains steady in Argentina.
• Characteristics of the Argentine poultry market:
283. The Argentine poultry sector has traditionally been characterized by local supplies and a low
export figure.  Consumption of poultry meat has traditionally been seasonal in November and
December, due in particular to the end-of-year festivities.  The profile of demand for poultry meat, inaddition to the price of the product per se , is closely tied to the market for red meat or beef, the main
substitute given the characteristics of the Argentine market, and the trend in prices compared to the
latter product is one of the key variables when analysing the trend in consumption in the poultry
sector.
284. Other things being equal, as there are no sign ificant differences in terms of quality compared
with Brazilian poultry, competition is essentially based on market prices which, due to the factors set
out below, are highly sensitive to minor variations in supply and have to be taken into account when
evaluating both threat of injury and injury itself.
285. This is essentially due to the following:
(a) There is relatively stable demand in the market, which showed a strong upward trend
in consumption as of the 1990s;
                                                     
85 See Exhibit BRA-14.
86 See Annex ARG-XXXVI.WT/DS241/R
Page B-56
(b) the extent of Brazil's production capacity and the generation of exportable surpluses
mean that Brazil can easily redirect its efforts to third markets when there are
domestic or external imbalances, despite the large size of its own domestic market87;
(c) the marginality, in relative terms, of Argentina's poultry market compared with the
Brazilian market means that there is a high potential for price discrimination,providing cross subsidies according to the domestic market and third markets (in this
connection, see the table on page 21 of Record No. 576)
88;
(d) the proximity of the Brazilian market, which means an effective lead-time of 72 hours
in terms of the major consumer market, namely, the Federal Capital and the
surrounding area;
(e) the absence of significant access barriers  for this product because of the MERCOSUR
agreement, and the foreign exchange stability throughout the 1990s resulting from theapplication of an exchange rate that made one Argentine peso equal to one United
States dollar;
(f) the impact of Brazilian imports as price fixers on the Argentine market, even when
the volume is relatively low, because of the vast potential for increasing shipments
within a very short time;
(g) the technical and financial restrictions that make it difficult to keep stocks for any
length of time (pages 92/94 of the Technical Report).
286. In the light of the foregoing and bearing in mind that the marketing characteristics of the
product mean that fixing domestic prices is strongly affected by the price in import markets, the
imbalances due to surplus supplies in the market of origin and dumped imports necessarily led toprice adjustments in the domestic sector.
287. For Argentina's poultry industry, this process meant losses in actual and potential terms
because the immediate arrival of dumped imports of the Brazilian product in response to the
favourable situation in the domestic market had a marked effect on prices, causing them to fall and
thereby affecting the recovery of an industry that had invested substantially in improving productivity.
288. The domestic price depression at a time of sustained growth in apparent consumption because
of changes in consumer habits can only be explained by the existence of imports under conditions of
unfair competition.
289. Brazil clearly has a vast capacity to dump exportable surpluses on the Argentine market under
conditions of unfair competition because Argentina is geographically close and has the most easily
accessible market.
89  For example, during the period August-September 1997, during the crisis in
South East Asia, the volume exported to Argentina increased by 115 per cent, i.e. over a three-month
period it rose from 2,349 tonnes to 5,082 tonnes, a figure which is approximately equal to 10 per cent
of domestic production for one month or the total pr oduction over one month of firms such as San
Sebastián or Rasic SA.
290. As Argentina has always contended, this increase occurred because surpluses that could not
be channelled into Brazil's traditional markets were directed to alternative markets such as Argentina,
                                                     
87 See section VI.2 "MERCOSUR" in the Technical Report (exhibit BRA-14).
88 See Exhibit BRA-14.
89 See Annex ARG XXXVII.WT/DS241/R
Page B-57
which at that time was showing a marked price recovery;  however, this recovery could not be
sustained in the long term because of the downward pressure exerted by dumped imports from Brazil.
291. Meanwhile Brazil, whose poultry industry recorded losses of 20-25 per cent, increased its
sales to Argentina by an annual percentage variation of 70.52 per cent in 1997 and 13.35 per cent in
1998 .
• Other factors affecting the price of the domestic product:
292. The CNCE properly considered all the factors which, in addition to imports, might have had
an impact on the price of the domestic product.  For this purpose, it analysed the trend in the price
index for substitute products, mainly red meat, as well as the general level of activity and price
indexes in the most important relevant sectors (see Table No. 16 in the Technical Report).90  In
general terms, the arguments put forward by the producer-exporters and Brazil cannot be
substantiated because, despite the recession in Argentina, apparent consumption of poultry meatincreased steadily, so that this variable could hardly explain the downward pressure on prices.
Competition from ready-prepared poultry could not be used as justification either, because not only is
it a different product, but it also happens to be produced by the same firms that sell chilled or fresh
poultry.
293. Nor could the trend be due to considerations related to changes in the demand profile
requiring the introduction of aggressive price policies in order to retain market share, since the
aforementioned increase in apparent consumption is in fact the result of a trend that began in the
mid-1980s towards growing consumption of lean m eat because of its better dietary and health
properties in comparison with red meat.
• Remarks concerning the effects caused by the margin of dumping:
294. In a situation where, in addition to the factors already explained regarding the characteristics
of the Argentine market, there is a fixed exchange rate and a recession, the impact of unfair practices
such as dumping can be felt all the more strongly , even with relatively small margins.  This is
particularly true when commodities are the reference product and the price variable is the essential
factor in competition.
295. Consequently, bearing in mind the above explanations concerning Brazil's potential to
generate surpluses under conditions of unfair competition, margins of 8-14 per cent are significant and
were evaluated thus by the investigating authority because of their potential impact on Argentine
production.
• Remarks concerning the failure to analyse cash  flow and the ability to raise capital:
296. A few words, to begin with, on the terms of financing for companies in Argentina, where the
capital market has never been an important source, apart from occasional exceptions such as occurred
in the 1990s, a fact which is to a large extent reflected in the accounting legislation.
297. At the legislative level, pursuant to Article 299 of Law No. 19550, companies are obliged to
submit a "Statement of the Origin and Utilization of Funds" which, unlike the cash flow statement
within the strict meaning of financial accounting, is not a detailed breakdown of the cash flow
situation but simply a synthetic description of the elements that have led to increases or decreases infunds.  These headings, therefore, in no way allow any conclusions to be drawn regarding cash flow
trends.
                                                     
90 See Exhibit BRA-14.WT/DS241/R
Page B-58
298. Taking account of the above, the indicators which make it possible to undertake such an
analysis in terms of the reference variable would be liquidity and the breakeven point, which were
analysed in a consistent manner in the Technical Report attached to Record No. 576.
299. Lastly, in relation to paragraph 296 above and the financing mechanisms in this sector, none
of the applicants is quoted on the stock exchange or has utilized the capital market, so that irrespectiveof the rules in force, the cash-flow analysis requirement is not relevant and cannot be met.
300. In view of the considerations of fact and of law set out above in relation to Claims 38, 39 and
40, Argentina considers that it has complied with the requirements laid down in Articles 3.1, 3.4 and
12.2.2, in other words, in its final determination it made due allowance for the evaluation of all the
relevant economic factors and indices listed in Article 3.4.
III.3.9 CLAIM 41:  CONSISTENCY WITH ARTICLE 4.1
301. Brazil contends that Argentina acted inconsistently with Article 4.1 by considering that 46 per
cent constituted the major proportion of total domestic production of poultry in Argentina.
Text of Article 4.1
The relevant section of Article 4.1 states the following:
"For the purposes of this Agreement, the term 'domestic industry' shall be interpreted as
referring to the domestic producers as a whole of  the like products or to those of them whose
collective output of the products constitutes a major proportion of the total domestic
production of those products … ".
Argentina's argument
302. The definition of domestic industry was consis tent with the WTO rules because Argentina
considers that 46 per cent of total production is "a major proportion".  Brazil's contention that "a
major proportion" can only represent at least 50 per cent of the domestic industry is a subjectiveopinion and is not based on Article 4 of the Anti-Dumping Agreement.
303. According to Record No. 576, the firms concer ned represented 46.2 per cent of the domestic
industry in 1998, so the CNCE considered that it ha d complied with the requirement in Article 4.1 of
the Anti-Dumping Agreement.
304. For the Argentine Republic, as for other WTO Members (in accordance with previous,
consistent decisions in this respect), 46.2 per cent represents a major proportion because it is not
simply by chance that the Anti-Dumping Agreement did not establish a fixed percentage in order toshow what is meant by "major proportion".
III.4 IMPOSITION AND COLLECTION OF ANTI-DUMPING DUTIES AS A RESULT OF
THE ANTI-DUMPING INVESTIGATION
III.4.1 CLAIMS 28, 29 AND 30:  CONSISTENCY WITH ARTICLES 9.2, 9.3 AND 12.2.2
305. Brazil claims that Argentina acted inconsistently with Article 9.2 by imposing variable
anti-dumping duties that could lead to the collection of an inappropriate amount (Claim 28).  For the
same reason, Brazil contends that the anti-dumping duty imposed could exceed the margin of
dumping established in the final determination (Claim 29).  Lastly, Brazil claims that Argentina acted
inconsistently with Article 12.2.2 by not explai ning how the minimum export price was determined
(Claim 30).WT/DS241/R
Page B-59
Text of Article 9.2
9.2. " 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 dumpedand causing injury, except as to imports from those sources from which price
undertakings under the terms of this Agreement have been accepted.  The authorities
shall name the supplier or suppliers of the product concerned.  If, however, several
suppliers from the same country are invol ved, and it is impracticable to name all
these suppliers, the authorities may name the supplying country concerned.  If several
suppliers from more than one country are involved, the authorities may name either
all the suppliers involved, or, if this is impracticable, all the supplying countriesinvolved. ."
Text of Article 9.3
9.3 " The amount of the anti-dumping duty sh all not exceed the margin of dumping as
established under Article 2. "
Text of Article 12.2.2
12.2.2 " A public notice of conclusion or suspension of an investigation in the case of an
affirmative determination providing for the imposition of a definitive duty or the
acceptance of a price undertaking shall contain, or otherwise make available through
a separate report, all relevant information of the matters of fact and law and reasons
which have led to the imposition of final measures or the acceptance of a price
undertaking, due regard being paid to the requirement for the protection ofconfidential information.  In particular, the notice or report shall contain the
information described in subparagraph 2.1, as well as the reasons for the acceptance
or rejection of relevant arguments or claims made by the exporters and importers,
and the basis for any decision made under subparagraph 10.2 of Article 6 ."
Argentina's argument
306. Argentina acted consistently with Articles 9.2, 9.3 and 12.2.2 of the Anti-Dumping
Agreement and the regulations of  Law No. 24425, Decree No. 2121/94.
307. After analysing and taking into account all the information collected during the procedure,
contrary to the Brazilian Government's position that Argentina did not comply with Article 9.2 and
9.3 of the Agreement, the implementing authority de termined for whom it would in due time and form
provide the relevant evidence containing all the necessary elements.  Thus, it excluded the Brazilian
producing/exporting firms NICOLINI and SEARA from the anti-dumping measure and fixed an
individual dumping margin for the exporting firms AVIPAL and SADIA.
308. Although Article 9 of the Agreement does not address the methods to be used to collect the
anti-dumping duties, i.e. it does not fix any methodol ogy or give indications similar to those fixed by
the Agreement in other cases, in practice, Members of the WTO apply anti-dumping duties in three
ways:  (a) Fixed duties in relation to an ad valorem  tax;  (b) fixed in relation to a specific amount;
(c) variable.
309. Article 9.3 provides that " [t]he amount of the anti-dumping duty shall not exceed the margin
of dumping as established under Article 2 ".  This principle is set out in detail in Article 9.3.1 and
9.3.2.  Article 9.3.2, in particular, provides that "[w] hen the amount of the anti-dumping duty is
assessed on a prospective basis, provision shall be made for a prompt refund, upon request, of anyWT/DS241/R
Page B-60
duty paid in excess of the margin of dumping " (Emphasis added).  In this particular case, the
aforementioned Article was fully respected because Argentina used the prospective system and there
was no request from the exporting firms that warranted a revision with a review to refunding the
alleged duty paid in excess.
310. The refund of any duty paid in excess has been authorized since the Tokyo Round in
Article 8.3 of the Anti-Dumping Code, as well as in  Article 8(c) of the Anti-Dumping Code of the
Kennedy Round, which are the provisions preceding Article 9.3 of the current Agreement.  Article 9.3
of the current Anti-Dumping Agreement lays down the requirement that there must be a prior
request  and that "a request for a refund, duly supported by evidence, must be made by an importer of
the product subject to the anti-dumping duty" (emphasis added).
311. Argentina repeats once more that there was no such request, nor did Brazil – in the claims
being examined – provide proof of its contentions regarding the collection of excess anti-dumpingduties.
312. Without prejudice to the foregoing which, in itself, is conclusive, Argentina deems it relevant
to clarify certain issues.  The system of collecting anti-dumping duties in variable amounts used by
Argentina (the difference between the normal valu e and the declared f.o.b. value of the shipment in
question), in the view of the implementing authority, is precisely designed to ensure that the anti-
dumping duty effectively paid does not exceed the margin of dumping determined.  For example, if
the margin of dumping disappears in the course of applying the duties because the export price is
aligned on the normal value, under this system the duty to be paid would be zero.  As can be seen, this
is perfectly consistent with the principles set out in Article 9.3.
313. If, as a result of this application, a situation arises in which the duty paid is higher than the
margin of dumping determined in the investigation, the exporter is fully entitled to request a prompt
refund, subject to a duly substantiated request, and the implementing authority will carry out the
relevant review.  Thus, it can be seen that the Agreement itself, in Articles 9.3.1 and 9.3.2, provides
the "remedy" for any excess payment by allowing for a review that may lead to the payment of a
refund of the amount paid in excess;  so that the Agreement accepts that an amount in excess of theanti-dumping duty may be paid.
314. If Brazil's position is that a single system for payment of a fixed ad valorem  rate should be
adopted – a situation that is not provided for in the Agreement – such a system would have similar
disadvantages, for example, the following:  applying a fixed ad valorem  rate on a prospective basis
would mean that, even if the margin of dumping disappeared because the export price was aligned on
the normal value, the anti-dumping duty would stil l have to be paid in the expectation that the
payment in excess would be refunded once there ha d been a review.  Moreover, combining the price
aligned on the normal value with the payment of an ad valorem  duty at a higher rate (the export price
aligned on the normal value) could incite exporters to stay out of the market and, in such a situation,
there would be no new imports, nor would it be possible to undertake a review that would result in a
refund either.  On the contrary, in such a situation, the system of paying a variable amount of anti-
dumping duties would not lead to excess payment and so would be much fairer for the exporter.
315. As already explained, in practice WTO Members apply the following anti-dumping duties:
(a) fixed in relation to an ad valorem  rate;  (b) fixed in relation to a specific amount;  and (c) variable
amounts.  Canada also applies variable amounts of anti-dumping duties.  Consequently, the
methodology adopted by Argentina is consis tent with the Anti-Dumping Agreement.
316. In accordance with Article 9.3, a minimum f.o.b. export price was fixed as an anti-dumping
measure that was equivalent, and in some cases was lower than the normal value determined so "[t]he
amount of the anti-dumping duty shall not exceed the margin of dumping as established … ".  This is
shown in the table below:WT/DS241/R
Page B-61
Exporter Normal value
US$/kg.Average f.o.b. price
US$/kg.Margin of dumping
%Anti-dumping
measure
minimum f.o.b.
U$S/kg.
A B (A-B)/B
Sadia 0.9294 0.80883 14.91 0.92
Avipal 1.0896 0.94355 15.48 0.98
Other 1.0385 0.95992 8.19 0.98
317. Lastly, the simple exercise below (Tables 1, 2 and 3) shows that the calculation of the
anti-dumping duty to be collected may also be a bove (or below) the margin of dumping determined
when this is calculated as a fraction of the f.o.b. price invoiced, in other words, when a measure is
fixed in " ad valorem " form.
• TABLE 1
A B C D E
Exporter Normal value
[US$/kg.]Average
f.o.b. price
[US$/kg.]Margin of Dumping
(A-B)/B
[%]Margin of Dumping
(A-B)
[US$/kg.]Anti-dumping
duty
(A-B)
[US$/kg.]
Sadia 0.93 0.81 14.91% 0.12 0.12
Avipal 1.09 0.94 15.48% 0.15 0.15
Other 1.04 0.96 8.19% 0.08 0.08
• TABLE 2
A B C
Exporter Ad Valorem *
(Table 1.C)f.o.b. Price
Example
[US$/kg.]Anti-dumping duty
(A*B)
[US$/kg.]
Sadia 14.91% 1.20 0.18
Avipal 15.48% 1.20 0.19
Other 8.19% 1.20 0.10
* The “ ad valorem ” is deemed to be equal to the dumping margin expressed as a percentage.
• TABLE 3
A B C
Exporter Anti-
Dumping
Duty
(Table 2.C)
[US$ /kg.]Anti-
Dumping
Duty
(Table 1.E)
[US$ /kg.]Variation
(A-B)
[US$ /kg.]
Sadia 0.18 0.12 0.06
Avipal 0.19 0.15 0.04
Other 0.10 0.08 0.02
This exercise assumes that the Brazilian exporting firms decide to export their products at a
higher price (US$1.20/kg.).WT/DS241/R
Page B-62
As a result of this practice, it can clearly be seen that, when applying an anti-dumping
measure in " ad valorem " form, the anti-dumping duties to be collected rise from US$0.12/kg.
to US$0.18/kg., in the case of Sadia, from US$0.15/kg. to US$0.19/kg. in the case of Avipal,
and from US$0.08/kg. to US$0.10/kg. for the other exporters (table 3).
In this way as well, the dumping margin established in the final determination would
presumably be exceeded (table 1.D), although the difference in this case is that companies
that wish to discontinue unfair competition practices by aligning their export prices on those
in the domestic market, as indicated above, would still pay a duty.
318. It is thus clear that these systems, because of their particular features, are liable to generate
variations or excess duties.  The Agreement acknowledges this and regulates the situation byproviding appropriate "remedies".  Failure to use these remedies cannot be attributed to the
implementing authority, as a cause of injury or violation of the Agreements in effect.
319. With regard to Brazil's contentions regarding Article 12.2.2 of the Anti-Dumping Agreement,
Argentina complied with the requirements in this Agreement because both in the Report on Action
Taken and the Report on the Final Determination of the Margin of Dumping, throughout the text,under different topics, each of the submissions by the producing/exporting enterprises was looked at
in detail in order to reach a reasoned conclusion  on the motives for which the implementing authority
determined the measures to be applied including exclusion of the enterprises which met the
requirements for this decision.
320. In the Report on Action Taken, which preceded the closure of the period for obtaining
evidence, dated 4 January 2002 (Section LXIII, folio 2757), the DCD made available to the parties all
the essential facts on which it intended to base its final decision and, on the basis of these facts, the
implementing authority fixed a minimum value.
321. As Argentina has shown, Brazil has merely made allegations in this complaint and has not
proved any failure to comply with the Article in question on the part of Argentina, which made thedeterminations on the basis of the documentation at tached to the records of proceedings in conformity
with the provisions of the Agreement.
IV. PLEADINGS
322. On the basis of the arguments set out in the sections above, Argentina respectfully requests
the Panel to proceed as follows:
(i) Pursuant to the arguments set out in Section II and as explained in paragraphs 23, 24
and 25 of this Submission, Argentina requests the Panel to refrain from ruling on the41 claims of inconsistency with various provisions of the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994
(Anti-Dumping Agreement) submitted by Brazil.
If the Panel should decide not to accede to Argentina's request as set out in paragraph 26 of
this Submission, and in the light of the arguments developed in Section III, Argentina
respectfully requests that the Panel:
(ii) Reject Brazil's claims that Resolution 574/2000 of the Ministry of the Economy of the
Argentine Republic is inconsistent with:
• Article 5.2, 5.3, 5.7 and 5.8 of the Anti-Dumping Agreement;
• Article 12.1 of the Anti-Dumping Agreement;WT/DS241/R
Page B-63
• Article 6.1.1, 6.1.2, 6.1.3, 6.2 and 6.8, and paragraphs 5, 6 and 7 of Annex II,
and Article 6.9 and 6.10 of the Anti-Dumping Agreement;
• Article 2.4 and 2.4.2 of the Anti-Dumping Agreement;
• Article 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement;
• Article 4.1 of the Anti-Dumping Agreement;
• Article 9.2 and 9.3 of the Anti-Dumping Agreement;
• the various claims related to Article 12.2.2.
(iii) Reject the request for the immediate repeal of Resolution 574/2000 imposing
definitive anti-dumping duties.WT/DS241/R
Page B-64
ANNEX B-2
FIRST ORAL STATEMENT OF ARGENTINA
(25 September 2002)
I. INTRODUCTION
1. The Argentine Republic is grateful for the opportunity to present its arguments before the
Panel in the light of Brazil's Written Submission of 8 August 2002, and to refute the doubts raised by
Brazil concerning Resolution 574/2000 of the Ministry of the Economy of the Argentine Republic on
the basis of various considerations of fact and law which are presented below in two main sections asfollows:  Section II, dealing with the standard of review and the rules and principles of public
international law applicable to the case, and Section III, which refutes the substantive arguments
contained in Brazil's 41 claims.
II. PRELIMINARY ARGUMENTS:  RELEVANT RULES AND PRINCIPLES OF
PUBLIC INTERNATIONAL LAW APPLICABLE TO THIS PROCEEDING
II.1 STANDARD OF REVIEW
2. Argentina repeats its agreement that there is a separate standard of review
1 in the case of
Article 17.6 of the Anti-Dumping Agreement.  However, in view of the allegations made by Brazil in
paragraphs 26, 27 and 28 of its first written submission2, Argentina wishes to question whether in all
cases a presumed infringement of Article 17.6(i) may become the subject of an allegation by a partyto a dispute.
3. In the view of the Argentine Republic, a literal interpretation of Article 17.6(i) of the Anti-
Dumping Agreement (AD) establishes a standard of review that panels must apply in determining
whether the investigating authority adequately established the facts and whether its assessment wasimpartial and objective.  The text of the article is  not meant for the Parties to the Agreement but for
the Panel.  There is consequently some doubt as to the possibility of according parties the right to
allege infringements thereof, except where a situation of "due process" will arise.
4. In the Report on the case "Egypt-Steel" :
3, the Panel made this same point:
"Furthermore, while, given our dismissal of this claim on procedural grounds, we need not
rule on whether a violation of Article 17.6(i) can be the subject of a claim by a party in a
dispute, we have considerable doubts in this regard.  What is clear nevertheless, and in any
case, is that Article 17.6(i) lays down the standard which a panel has to apply  in examining
the matter referred to it in terms of Article 17.5 of the AD Agreement.  As such, we are of
course bound by it in our consideration of the claims in this dispute" (emphasis added ) 
                                                     
1 First written submission by the Argentine Republic, 29 August 2002, paragraph  9.
2 First written submission by Brazil, 8 August 2002.
3 Report of the Panel on "Egypt – Definitive Anti-Dumping Measures on Steel Rebar from Turkey", WT/DS211/R,
8 August 2002, paragraph 7.142.WT/DS241/R
Page B-65
II.2. OTHER PRINCIPLES AND RULES OF PUBLIC INTERNATIONAL LAW APPLICABLE
TO THE CASE
II.2.1. Content of Argentina's complaint
5. Argentina considers it timely to refute some  of the arguments made in the first written
submission of the EC concerning res iudicata4, and to offer some clarifications.
6. First, Argentina considers inaccurate the EC statement that "this Panel need not reach this
issue because it is plain that, in any event, the requirements for the existence of res judicata are not
met" .5
7. In addition to reaffirming that the Argentine Republic has not argued primarily for the
application of the doctrine of "Res judicata", Argentina considers that the EC's affirmation should
certainly be based on demonstrating that requirements of that doctrine are not satisfied in this case.  In
the " India/Autos" case 6, the Panel  maintained7, with respect to the application of the doctrine of
res judicata that it would first examine the applicability of the doctrine in the WTO and secondly, if it
were applicable to WTO dispute settlement, whether the facts of the dispute satisfied the requirementsof the doctrine.
8. As the EC indeed acknowledges, "The measure before this Panel is the same as the measure
in dispute before MERCOSUR Ad Hoc Arbitral Tribunal".
8 Without  prejudice to the applicability of
the doctrine, Argentina believes it necessary to poin t out that the requirements are indeed fulfilled in
this case:
- The identity of the parties  is beyond doubt on both occasions, with an element of
"added value", in that they are States party to a an integration process, namely
MERCOSUR.  As such, Argentina and Brazil have designed an organisational
structure and agreed that their disputes would be adjudicated by means of theprocedure contemplated in the Brasilia Protocol, by the same token accepting the
arbitral awards in their totality, as argued by Argentina
9 and endorsed by Paraguay,
another State party to MERCOSUR; in its First Written Submission.10
- the identity of the measure being challenged : Resolution 574/2000 of the Ministry
of the Economy of the Argentine Republic, as stated by Argentina in its first written
submission 11 and also acknowledged by the EC.12
- the identity of the legal basis of the claim : in MERCOSUR, Section II of the claim
filed by Brazil (entitled FUNDAMENTAÇAO JURIDICA), has two parts: in part A
(ASPECTOS PRELIMINARES), Brazil includes a paragraph 4 titled "Evolução das
normas do Mercosul sobre antidumping e normas aplicáveis à utilização de medidasantidumping no comercio intrazona" containing Decisión N°11/97 according to
which, as Brazil itself recognises: "o texto incorpora, portanto, todas as disciplinas da
                                                     
4 Third party submission of the EC, 9 September 2002, paragraph 5.
5 Third party submission of the EC, paragraph 6.
6 WT/DS 146/R, WT/DS175/R, India - Measures affecting the Automotive Sector, 21 December 2001.
7 WT/DS 146/R, WT/DS 175/R, paragraph 7.55.
8 Third party submission of the EC, paragraph 7.
9 First written submission of Argentina, paragraphs 18 and 19.
10 Third party submission of Paraguay, paragraph 7.
11 First written submission of Argentina, paragraph 16.
12 Third party submission of the EC, paragraph 7.WT/DS241/R
Page B-66
WTO sobre a matéria (não podería ser diferente)".13 Brazil then confirms that
"[d]esde 1997, a aplicação de medidas antidumping no comércio intrazona, repita-se,
deve dar-se em conformidade com o Marco Normativo, o qual reflete o entendimento
comum alcancado pelos Estados Parte a respeto das regras e procedimentos
estabelecidos pelo Acordo Antidumping da WTO".14  In other words, Brazil's
intention was to base its claim on the alleged inconsistency of the Argentine measure
with the WTO Anti-Dumping Agreement, which can be substantiated in subsection
II.B "DAS INCONSISTÊNCIAS LEGAIS" a nd in paragraph 6."O Processo de
Investigação e a Aplicação do Direito Antidumping". All throughout subsection II.B
of its submission within MERCOSUR, Brazil confirms that the legal basis of its
submission was the presumed WTO-inconsistency of the Argentine measure.
9. It is noteworthy that the submission of Paraguay, another State party to MERCOSUR, is
conclusive  as to the significance it attaches to Br azil's current complaint before the WTO when it
states that: "Paraguay considers that, in accordance with the general principles of public international
law, this case is "res judicata"15, because it has already been brought under the dispute settlement
procedure established within the framework of  MERCOSUR, and under the Brasilia Protocol in
particular".  Paraguay further confirms: "In view of the foregoing, Paraguay considers this case as
having been subject to a prior dispute settlemen t procedure, as recognised by both parties and
resolved by a ruling that is binding on and mandatory for those parties.  Hence this case should not be
addressed by this Panel, for if it were, this would constitute a violation of the principles and rules of
public international law and failure to abide by  decisions handed down by MERCOSUR institutions,
in this instance the award of an Ad Hoc Arbitral Tribunal constituted under the Brasilia Protocol."16
10. Argentina wishes to reiterate that Brazil's conduct in omitting any reference to the arbitral
award relating to the same complaint in the framework of MERCOSUR, in which its claims were not
upheld, is contrary to the principle of good faith in the observance and application of
international agreements in two spheres simultaneously:   the treaties and protocols signed, first
within MERCOSUR, and second, in the WTO.17
11. In the WTO framework, the significance of the principle of good faith was elucidated in the
case United States - Shrimps , in which the Appellate Body stated that: "... This principle, at once a
general principle of law and a general principle of international law, controls the exercise of rights by
states.  One application of this general principle, the application widely known as the doctrine of  abus
de droit , prohibits the abusive exercise of a state's rights and enjoins that whenever the assertion of a
right "impinges on the field covered by [a] treaty obligation, it must be exercised bona fide, that is to
say, reasonably."  An abusive exercise by a Member of its own treaty right thus results in a breach of
the treaty rights of the other Members and, as well, a violation of the treaty obligation of the Member
so acting …".18
12. Furthermore, Argentina believes that the present dispute initiated by Brazil within the WTOviolates not only Article 21 of the Brasilia Protocol, which was pointed out in the submission of
Paraguay
19, but also the principle of good faith in the WTO framework.  For, "a State cannot be
allowed to avail itself of the advantages of a treaty when convenient and to reject that treaty when
                                                     
13 Submission of Brazil dated 16 March 2001 to the MERCOSUR Ad Hoc Arbitral Tribunal, page 22.
14 Submission of Brazil dated 16 March 2001 within Mercosur, page 25.
15 Third party submission of Paraguay, paragraph 5.
16 Third party submission of Paraguay, paragraph10.
17 First written submission of Argentina, paragraphs 16 and 17.
18 Report of the Appellate Body, United States, Prohibition of imports of certain shrimp and shrimp products (“ United States -
Shrimp ”), WT/DS58/AB/R, adopted on 6 November 1998, paragraph 158.
19 Third party submission of Paraguay, paragraphs 6 and 10.WT/DS241/R
Page B-67
compliance becomes burdensome.  It is of very little consequence whether the said rule is based on
what is known in English law as the principle of estoppel or on the requirement of good faith.  The
first is but one aspect of the second".20
13. This estoppel-good faith binomial has also been underlined by Georg Scwarzenberger, whoargues that the violation of a treaty implies an infringement of the principle of good faith that prevails
in international relations.
14. The Argentine Republic reiterates
21 that Brazil's complaint within the framework of the WTO
contradicts:  (a) its consistent practice, as a MERCOSUR State party since 1991, of fulfilling the
commitments it has assumed and having recourse to the dispute settlement procedure provided for
under the Protocol of Brasilia and reaffirmed through the signature of the Protocol of Olivos;  (b) itsconsistent and unequivocal practice of accepting the scope of the arbitral awards, of which there have
been eight thus far, seven of them involving Brazil either as complainant or respondent.
15. Brazil's conduct in raising this dispute within the WTO thus displays some common features
of "estoppel"- which as stated above, is closely linked to the principle of good faith -
" ... on the one hand, commitment to the responsibility born of appearances created; on the other, andin consequence, the obligation on the party subject to  that responsibility to accept the risk of the
reactions that its attitude or actions could elicit from another party".
22
16. The disqualifying effect of estoppel  therefore annuls the validity or effectiveness of
accusations that contradict one's own acts or statements.
17. The Argentine Republic likewise considers it timely to point out that Brazil's conduct as
evidenced within the MERCOSUR framework until the establishment of this Panel underscores the
case for estoppel.  Indeed, the States party to MERCOSUR - including Brazil of course - completed
all the stages leading to the conclusion of a treaty signed on 18 February 2002, namely the Protocol ofOlivos the purpose of which is to settle disputes within MERCOSUR.  This Protocol includes a choice
of forum provision.  As the EC points out in its submission
23 and also confirmed by Paraguay,24 the
commitment assumed by Brazil with the signing of the Protocol of Olivos on 18 February 2002 is not
consistent with Brazil's request for the establishment of a WTO panel submitted on 25 February
2002.25
18. In short, Argentina concludes that Brazil displayed consistent conduct in MERCOSUR as
pertained to submitting its trade disputes with other States party to the dispute settlement procedure
contemplated in the Protocol of Brasilia.  Furthermore, Brazil had accepted the significance of awards
under the Protocol of Brasilia itself before and af ter the Arbitral Award concerning poultry.  Thirdly,
Brazil gave yet another sign of this conduct by negotiating and signing the Protocol of Olivos in
February 2002.  Obviously, Brazil's conduct gave rise to rights and expectations, and more than this, afirm conviction amongst the other States Members of MERCOSUR as to Brazil's acceptance of the
framework, the prosecution of the process and the scope of the awards under the terms of the legal
instruments of MERCOSUR.  Fourthly, Argen tina emphasises that no subregional instrument
provides for any possibility whatsoever of submit ting a dispute that has already been resolved to
successive forums - judicial or arbitral- within MERCOSUR or elsewhere.  Lastly, Argentina
                                                     
20 Lauterpacht Hersch, cited by Enrique Pecourt Garcia in El principio del estoppel en Derecho Internacional Público. Revista
Española de Derecho Internacional Público , Madrid, 1962, pp. 107-108.
21 First written submission of Argentina, paragraph 21.
22 Enrique Pecourt Garcia, op.cit., p. 100.
23 Third party submission of the EC, paragraph 17 and note 18.
24 Third party submission of Paraguay, paragraph 8.
25 Document WT/DS241/3, 26 February 2002.WT/DS241/R
Page B-68
reiterates26 that Brazil's conduct cannot be viewed as isolated or sporadic, as there are a good many
awards in which Brazil was involved whether as complainant or respondent, and accepted the award
in all cases.
19. In Argentina's view, by virtue of the application of the principle of good faith27, no
interpretation given by the Panel in respect of the dispute raised by Brazil, can overlook the
existence of the arbitral award28 that settled the dispute within MERCOSUR and the special
relationship between Argentina and Brazil as States party emanating from the regional
integration treaties and protocols  existing in the MERCOSUR framework. In keeping with the
reasoning concerning the "customary rules of interp retation of public international law" in the cases
"United States - Standards for Reformulated and Conventional Gasoline"29 and "Japan- Alcoholic
Beverages "30, Argentina maintains that for the purposes of a full examination and depending on the
context, the interpretation must take account of all the facts and factors relating to the case, within the
meaning of Article 31 of the Vienna Convention on the Law of Treaties.31
II.2.2. Pleadings pertaining to this section
20.  In the light of the above, the Argentina Republic respectfully repeats the request it made in
its First Written Submission, that based on the omission by Brazil of any reference to the dispute
previously discussed and settled by another international tribunal, the Panel find that the current
submission of the case to the WTO reflects an abusive exercise by Brazil of its rights.
                                                     
26 First written submission of Argentina, paragraph 20 and note 12.
27 “Il n´en reste pas moins que les diverses méthodes d´interprétation se rattachent toutes à une règle essentielle: celle de
l´interprétation de bonne foi, formulée par l´article 31, paragraphe 1, de la Convention de Vienne.  Ce principe fondamental es t à l´origine
des divers moyens et règles utilisés pour interpréter les traités et c´est en fonction de cette exigence fondamentale que le ch oix entre ces
différentes méthodes doit être effectué.”  Dinh Nguyen Quoc, Daillier Patrick and Pellet Alain, Droit International Public, 4th  Edition,
Libraire générale de droit et de jurisprudence (LGDJ), Paris, 1992, p.252.
28 Award of the MERCOSUR Ad Hoc Arbitral Tribunal set up to rule on the dispute between the Federative Republic of Brazil
and the Argentine Republic on "Imposition of Anti-dumping Duties on Exports of Whole Poultry from Brazil (Res. 574/2000 of the
Ministry of the Economy of the Argentine Republic)."  Dated 21 May 2001.
29 Report of the Appellate Body on the case “United States - Standards for Reformulated and Conventional Gasoline”,
WT/DS2/AB/R, adopted on 20 May 1996.
30 Report of the Panel on the case “Japan - Taxes on Alcoholic Beverages”, WT/DS8/R, WT/DS10/R, WT/DS11/R.,
11 July 1996.
31 Vienna Convention on the Law of Treaties
Article 31 - General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty i n their context
and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preambl e and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty ;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the
other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provision s;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its
interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.WT/DS241/R
Page B-69
21. Similarly, Argentina reiterates that the Panel's finding cannot overlook the fact that in the
light of the international commitments in force, Br azil's prior and subsequent practice of accepting the
framework of MERCOSUR for the discussion and sett lement of trade disputes with Argentina as a
fellow MERCOSUR State party, and given the te rms under which the dispute was brought, Brazil's
complaint in the framework of the WTO has given rise to an estoppel situation for which Brazil isliable under the DSU.
22. For the above reasons, and considering in particular that Brazil's complaint involves
challenging a measure which is identical in the current dispute to the measure at issue in the dispute
within the framework of MERCOSUR, Argentina requests the Panel to refrain from ruling on the
41 claims of alleged inconsistency of the Argentine regulations with various provisions of the
Agreement on the Application of Article VI of the General Agreement on Tariffs and Trade of 1994
(Anti-Dumping Agreement) contained in paragraph 549 of Brazil's first written submission, andconsequently to reject the requests contained in paragraph 550 of that submission.
23. Should the Panel reject these pleadings and cons ider that it must rule on Brazil's claims,
Argentina has set out its reasoning in the following section concerning the WTO-consistency of
Resolution 574/00.
III. THE CONDUCT  OF THE ANTI-DUMPING INVESTIGATION
III.1 GENERAL
24. Argentina maintains that throughout the investigation it complied with all aspects of the
relevant provisions of the Anti-Dumping Agreement, though in particular as regards giving "due
consideration" to all the factors that impinge on price comparability, and the provisions establishing
the obligation duly to examine all the information submitted by the parties to the procedure and to
fulfil the obligations of the Agreement regarding notification of the Parties.
25. Throughout all the phases of the procedure, Argentina effectively kept Brazilian exporters and
the Government of that country abreast of the various actions that were taking place.
III.2 NOTIFICATIONS
26. Argentina therefore disputes the veracity of Brazil's claim of failure to notify seven Brazilian
exporters in sufficiently good time to allow them to reply to the questionnaires or that the text of the
application was not delivered to the exporters and to the Government of Brazil as soon as the
investigation began.
27. Throughout the entire process, the Implementing Authority consistently demonstrated its
readiness to provide the scope for the right of defe nce of the parties concerned, by all the means at its
disposal and insofar as it was able.
28. Proof of this is that as the various stages of the procedure unfolded, not only did it accord all
the extensions requested by the parties as shown by way of example in paragraph 130 of Argentina's
First Written Submission, but it also granted the Brazilian exporters a period longer than the 30 days
prescribed in the Agreement for replying to the questionnaires.
29. Argentina wishes to stress that as soon as the Implementing Authority became aware of the
seven exporters whose inclusion had been re quested by INTERAMERICANA COMERCIAL S.R.L.,
the request was granted.  This is clear evidence of  the readiness to open the way for participation byWT/DS241/R
Page B-70
all parties in the procedure and in a manner conducive to the optimum obtention of information so as
to arrive at an accurate determination.
30. Argentina refutes Brazil's claim that this action amounts to lack of compliance with the
Agreement, as it would have been illogical to expect the Authority to send the relevant questionnairesto those exporters, having been unaware of their existence.
31. In Argentina's opinion, this situation could have been remedied early in the investigation if
the Government of Brazil had decided to participate in the investigation as soon as it had been invited
and notified, i.e. from the very beginning, even ahead of the notifications in the WTO framework and
the consultations under the regional agreement.
32. This is also applicable to the treatment gi ven to the information submitted by the parties
during the investigation.
33. Contrary to Brazil's allegation, Argentina duly considered all the information submitted by the
parties in the course of the investigation concerning its various aspects.  This was done as prescribedin Article 2.4, bearing in mind the relevance to the procedure of the information furnished,  and based
on the Authority's assessment of its authenticity and verifiability.
34. In keeping with Article 2.4, each party was to ld expressly what information was required by
the Implementing Authority for the investigation in question, and it was made clear that it should beaccompanied by documentary evidence that would facilitate its use and confirm it reliability.
35. Argentina wishes to make clear in this connection that whenever possible, the information
supplied by the parties to the Implementing Authority was used, provided that it was verifiable.
36. Brazil nonetheless believes that, having failed to meet the Authority's request to furnish the
necessary documentary proof, the Authority should have conducted an in situ  verification, apparently
as the only viable way of remedying this omission.
37. Argentina is not denying the possibility of conducting verifications under the Agreement. It
wishes to make clear, however, that its interpretation of this possibility differs somewhat from that of
Brazil.
38. Argentina believes that as foreseen in the same Agreement, this mechanism allows for a
method of verification of the information contributed during an investigation, that must not
necessarily be used by the Authority when it needs to ascertain the veracity and/or relevance of any
evidence, and all the more so when the privat e sector has not complied with the Implementing
Authority's request to submit information.
39. The possibility to undertake verifications of the kind being proposed by Brazil is foreseen in
Article 6.7 of the Agreement, which establishes that:
"in order to verify information provided or to obtain further details, the authorities
may carry out investigations in the territory of other Members ... "  (Emphasis added)
40. Argentina repeats that according to its interpretation, the Article provides that the decision to
carry out verifications in the territory of the Member under investigation is optional for the Authority
and not an obligation under the Agreement.WT/DS241/R
Page B-71
III.3 ESSENTIAL FACTS
41. Argentina does not consider that there has been  any infringement of the obligation to inform
the interested parties "of the essential facts under consideration which form the basis for the decision
whether to apply definitive measures", as stated in Article 6.9 of the Anti-Dumping Agreement.  Onthe contrary, in earlier cases, WTO precedent clearly defined the scope of obligation contained in
Article 6.9, AD, and Argentina believes it has fully complied with the stipulations of that Article as
was defined in WTO precedent.
32
42. Accordingly, it is agreed that merely "giving access" to the records of the investigation to the
parties did not satisfy the requirement of Article 6.9, AD, which is intended to enable the interested
parties to defend their interests based on due access to the relevant information.  Argentina did notcontravene that purpose in the present case, for at no point in the investigation was there a cessation of
the additional task of processing the records and extracting the relevant information to compose a
separate report that was made available to the interested parties.
43. Contrary to Brazil's assertion, Argentina maintains that the relevant information was duly
broken down and made available to the interested parties through the Report on Action Taken prior to
the Closure of the Period for Obtaining Evidence ( Relevamiento de lo Actuado con Anterioridad al
Cierre de la Etapa probatoria) , dated 4 January 2002.  The obligation in Article 6.9, AD entails the
additional task of breaking down sufficient relevant information in good time so that the parties may
have access to the data actually used.  This assures the due handling of information and the right ofdefence of the parties.
44. That is the value that Argentina ascribes to the Report on Action Taken prior to the Closure of
the Period for Obtaining Evidence, by considering it an additional procedural step, in other words, an
"active step" (as the EC describes it in its submission)
33, whereby the Implementing Authority decided
that all the information gathered - which would not be further expanded - was to be duly processed,
broken down and ordered so as to identify the essential facts.  The interested parties would then be
informed that the relevant documentation was avai lable to them (DCD Notes of 5 January 2000).  In
this way the right of the interested parties to defend their interests was duly safeguarded.
                                                     
32 Report of the Panel on Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico,
WT/DS156/R, dated 24 October 2000, paragraph 8.230:
" … We do not accept an interpretation of Article 6.9 that would effectively reduce its substantive
requirements to those of Article 6.4.  In our view, an investigating authority must do more than simply provide
"timely opportunities for interested parties to see all information that is relevant to the presentation of their cases
… and that is used by the authorities …" in order to "inform all interested parties of the essential facts underconsideration which form the basis for the decision whether to apply definitive measures".
Similarly, the Report of the Panel on Argentina – Definitive anti-dumping measures on imports of ceramic floor tiles from Italy  ("Argentina
– Tiles"), WT/DS189/R, dated 28 September 2001, paragraph 6.125, stated:
" ... the requirement to inform all interested parties of the essential facts under consideration may be
complied with in a number of ways.  Article 6.9 of the AD Agreement does not prescribe the manner in which the
authority is to comply with this disclosure obligation.  The requirement to disclose the "essential facts under
consideration" may well be met, for example, by disclosing a specially prepared document summarizing the
essential facts under consideration by the investigating authority or through the inclusion in the record of
documents – such as verification reports, a preliminary determination, or correspondence exchanged between theinvestigating authorities and individual exporters – which actually disclose to the interested parties the essential
facts which, being under consideration, are anticipated by the authorities as being those which will form the basis
for the decision whether to apply definitive measures.  This view is based on our understanding that Article 6.9anticipates that a final determination will be made and that the authorities have identified and are considering the
essential facts on which that decision is to be made.  Under Article 6.9, these facts must be disclosed so that
parties can defend their interests, for example by commenting on the completeness of the essential facts underconsideration."
33 Third party submission of the EC, paragraph 23.WT/DS241/R
Page B-72
45. Argentina believes that it fully complied with the obligation under Article 6.9, AD, by means
of the Report on Action Taken prior to the Closure of the Period for Obtaining Evidence, having duly
identified the essential facts, in a separate procedural stage and in due time and form, so that the
interested parties could defend their interests.
III.4 MAJOR PROPORTION OF THE INDUSTRY46. Argentina submits that it does not share Brazil's view that the reference to "una proporción
importante de la producción nacional" ( a major proportion of [the total] domestic production)  in
Article 4.1, AD means a proportion greater than 50 per cent.
47. We believe that a categorical affirmation that Article 4.1, AD necessarily refers to at least
50 per cent cannot be accepted as valid by the WTO, and that moreover, there can be no claim here of
lack of compliance of Article 4.1, AD by Argentina.
48. In the first place, the Spanish version of Article 4.1 speaks of "una proporción importante",
and not of "la proporción más importante", or "la mayor proporción", or "la mayoría". We share the
EC's view which notes that in the English version Article 4.1 speaks of "a major proportion" and not
of "the major proportion".
34
49. Both the Spanish and English versions of Article 4.1, AD use terms that are more limited thanthe categorical "mayoría" ( majority)  or "superior al 50%" (more than 50 per cent)  that Brazil is
attempting to introduce.  Argentina's view is that the words used in Article 4.1, AD cannot be taken as
equivalent, for example, to the stipulations of Ar ticle 5.4, AD, (which expressly provides for "más del
50 por ciento" de la producción total) [more than 50 per cent of the total production …] .
50. Finally, even though Argentina agrees with Brazil that 46 per cent certainly does not
constitute "una mayoría" [a majority]  - by very little - we would venture to suggest that Brazil could
hardly deny, on the other hand, that 46 per cent does indeed constitute a "proporción importante que
no es mayoría" [a major proportion that is not a majority] . Argentina believes that it has fully
complied Article 4.1, AD, the purpose of which is to define the expression "domestic industry".
III.5 THE ADJUSTMENT51. Argentina submits that the adjustment made by the Authority in accordance with the method
supplied by the Petitioner must not be considered as anything but additional proof of the degree of
compliance of this procedure with the Anti-Dumping Agreement.
52. In this regard, Argentina wishes to make clear its position, which was at any rate already
outlined in its written submission to the Panel. As there was proof that the chickens being sold in the
city of São Paulo - which formed the basis for starting the investigation - did not have their head and
feet removed, unlike those being exported, the Implementing Authority was compelled to make the
adjustment, because the heads and feet represent a factor that - undeniably - influences pricecomparability.
53. At no time did the Brazilian exporters object to  the need for the adjustment.  But moreover, in
response to a request by the Authority for clarification, JOX sent a note
35 confirming the percentage
adjustment indicated by the Petitioner.  This was used by the Implementing Authority for lack of any
                                                     
34 Third party submission of the EC, paragraph 49.
35 First written submission of Brazil, Exhibit BRA-32.WT/DS241/R
Page B-73
other information that was shown to be more suitable and which could have been included in the
course of the investigation if the Brazilian exporters believed that the data used was not accurate.
III.6 CALCULATION OF ANTI-DUMPING DUTIES
54. The Argentine Republic insists that the system it used to impose anti-dumping duties is
consistent with Article 9 of the Anti-Dumping Agreement and that it is the Agreement itself and the
practice of WTO Members that underpin the possibility of applying anti-dumping duties, based on the
decision of the Implementing Authority, in the following manner:
(a) Fixed duties in relation to an ad valorem  tax;  (b) fixed in relation to a specific
amount; (c) variable.
55. The system of variable amounts used by Argentina to set prospective anti-dumping duties (the
difference between normal value and the FOB value declared for the shipment concerned) –
Article 9.3.2, AD - is designed precisely to ensure that the anti-dumping duty actually collected does
not exceed the margin of dumping determined. Hence, for example, if in the process of imposing the
duties the margin of dumping should disappear because the export price has been aligned with normalvalue, the duty payable would be zero under this system.  It is clear that this is perfectly consistent
with the principle set out in Article 9.3.
56. Similarly, if the imposition of duties could possibly give rise to a situation in which the duties
collected were higher than the margin of dumping determined, Articles 9.3.1 and 9.3.2 of theAgreement prescribe the way in which to correct this situation, and it can by no means be inferred that
under the system applied by Argentina, the interested parties so requesting could be denied
reimbursement of excess duties paid, by the means and in the manner foreseen under the applicable
regulations.
57. We would like to make absolutely clear that without prejudice to the general remarks made
about the system used by Argentina, in the present case, the minimum export value set for each of the
exporters for whom an individual margin of dumping was determined, as well as that set for the rest
of the exporters covered by the general level determined, were less than the Normal value determined
for each case during the investigation. As such, while the margins of dumping determined by the
Implementing Authority during the investigation were 14.91 per cent for SADIA SA, 15.48 per cent
for AVIPAL SA, and 8.19 per cent for the rest, the minimum export values, which stood at USD 0.92,USD 0.98 and USD 0.98 respectively, represent a difference of 13.74 per cent, 10.05 per cent and
5.63 per cent in each specific case, vis-à-vis  the f.o.b. values determined for each one during the
procedure.
58. Article 9.3 provides that " [t]he amount of the anti-dumping duty shall not exceed the margin
of dumping as established under Article 2 ".  In the light of the preceding paragraph and of the relevant
provision of the Agreement, it can be seen that Argentina has acted in a manner consistent therewith.
59. The resort to anti-dumping duties is the remedy open to a Member in particular circumstances
for correcting an unfair trade practice which, based on the findings of a prior investigation under theterms of the AD, causes injury to a sector of its domestic industry.
60. The obligation arising from Article 9.3 for any Member that imposes such duties is that the
latter must not exceed the amount of the margin established in Article 2, without such margin being
necessarily determined under the stipulations of Article 2.4.2, as Brazil would wish.  In this regard,WT/DS241/R
Page B-74
Argentina shares the opinion of Canada to the effect that the margin of dumping determined during
the investigation imposes no limit on the duty that may be applied to future imports.36
61. As can be seen, the alleged inconsistency is false, because:
(a) The AD does not prescribe WHAT system must be used to collect –anti-
dumping duties;
(b) the AD itself envisages the possibility that the duty paid could in some
situations diverge from the determined margin, and also includes the remedy
for such a situation; and
(c) nothing in the present case suggests that any such excess duty could be
withheld from Brazilian exporters.
62. Argentina wishes to draw the Panel's attention to a situation that could possibly result from an
erroneous interpretation of the provisions of the Anti-Dumping Agreement pertaining to the levyingof anti-dumping duties, which is obviously what Brazil is attempting to achieve.
63. If the system of variable duties were deemed to be inconsistent with the Anti-Dumping
Agreement merely because in a particular cont ext - foreseen elsewhere in the Anti-Dumping
Agreement together with the remedy therefor - th e duties collected were in excess of the determined
margin, a Member could easily arrange for a measure taken to correct the distortions caused by an
unfair trade practice to be challenged as inconsistent, simply by intensifying the unfair practice, i.e. by
widening the margin of dumping involved.
64. The purpose of Article VI would be completely thwarted in this way.
IV. CONCLUSION
65. In the light of the arguments put forward in the sections above, the Argentine Republic
respectfully requests of the Panel the following:
(1) That, in keeping with the reasoning developed in Section II and as already mentioned
in paragraphs 20, 21 and 22 of this Submission, the Panel refrain from ruling on the
41 claims of alleged inconsistency with various provisions of the Agreement on the
application of Article VI of the General Agreement on Tariffs ad Trade of 1994
(Anti-Dumping Agreement) submitted by Brazil.
66. Should the Panel decide not to accede to the above pleading by the Argentine Republic, as set
out in paragraph 23 of this submission and in the light of the arguments submitted in Section II, it is
respectfully requested to:
(2) Reject the Brazil's claims that Resolution 574/00 of the Ministry of the Economy of
the Argentine Republic is inconsistent with:
• Articles 5.2, 5.3, 5.7 and 5.8 of the Anti-Dumping Agreement;
• Article 12.1 of the Anti-Dumping Agreement;
                                                     
36 Third party submission of Canada, page 4.WT/DS241/R
Page B-75
• Articles 6.1.1, 6.1.2, 6.1.3, 6.2 and 6.8, as well as paragraphs 5, 6, and 7 of Annex
II, and with Articles 6.9, and 6.10 of the Anti-Dumping Agreement;
• Articles 2.4, 2.4.2, of the Anti-Dumping Agreement;
• Articles 3.1, 3.2, 3.4, 3.5 of the Anti-Dumping Agreement;
• Article 4.1 of the Anti-Dumping Agreement;
• Articles 9.2, 9.3 of the Anti-Dumping Agreement;
• As well as the various claims related to Article 12.2.2.
(3) Reject the request for the immediate repeal of Resolution 574/2000 imposing the
definitive anti-dumping duties.WT/DS241/R
Page B-76
ANNEX B-3
SECOND WRITTEN SUBMISSION OF ARGENTINA
(17 October 2002)
The Government of Argentina would like to thank the members of the Panel for this
opportunity to submit, for their consideration, its rebuttal to the arguments put forward by theGovernment of Brazil in the course of these proceedings.
I. INTRODUCTION
1. "The provisions of the WTO – AD Agreement (WTO Anti-Dumping Agreement)  were
incorporated in community legislation by DEC CM C No. 11/97 (Regulatory Framework, RF).  Since
by definition of Article 1, the RF is in conformity with the WTO-AD Agreement, failure to comply with
the former implies failure to comply with the latter.   Furthermore, should the RF disciplines not be
applicable for some legal reason that excludes such application, the provisions of the WTO
AD Agreement would apply pursuant to Article 19 of the Protocol of Brasilia (PB) as 'applicable
principles and rules of international law'.  The rules of the WTO Anti-Dumping Agreement are
binding for WTO Members, which include the States parties to MERCOSUR" .  (Emphasis added).
2. This paragraph from Brazil's submission (paragraph 30 of the Award
1) before the
MERCOSUR Ad Hoc Arbitral Tribunal helps to understand that Brazil's "insistence" on filing a
complaint at the regional level using the procedur e laid down in the Protocol of Brasilia in the
knowledge that there was no MERCOSUR legislati on governing intra-zone dumping shows that it
chose this course, in spite of the fact that Arge ntina repeatedly explained that the MERCOSUR should
be rejected as a forum for the settlement of the dispute2, because it wanted the dispute to be settled at
the regional level, and it was only following the un favourable ruling in that forum that it decided to
bring the case before the WTO.
3. The actual Ad Hoc Tribunal set up to hear and settle the dispute brought before MERCOSUR
ruled that:  "In this situation, the WTO Anti-Dumping Agreement stands as an appropriate reference,
not as MERCOSUR legislation, which it is not, but by virtue of Article 19 of the Protocol of Brasilia3
as an applicable principle of international law (Cfr. Second Arbitral Tribunal, paragraphs 59 et. seq.,
                                                     
1 "Award on poultry" – Award of the MERCOSUR Ad Hoc Arbitral Tribunal set up to rule on the
dispute between the Federative Republic of Brazil and the Argentine Republic on "Imposition of Anti-Dumping
Duties on Exports of whole poultry from Brazil (Res. 574/2000 of the Ministry of the Economy of the ArgentineRepublic)."  Date:  21 May 2001.
2 Idem , paragraph 80.
3 The Protocol of Brasilia was signed by the fo ur MERCOSUR States parties on 17 December 1991.
Article 19 thereof reads as follows:
"(1) The Arbitral Tribunal shall settle the dispute by applying:  the provisions of the Treaty ofAsunción, agreements concluded within the framework thereof, the decisions of the Council of theCommon Market, the resolutions of the Common Market Group, and applicable principles and rules ofinternational law.(2) This provision shall not prejudice the power of the Arbitral Tribunal to decide a Dispute ex aequo et
bono  if the parties agree thereto."WT/DS241/R
Page B-77
for a clarification of the concept of subsidies), in this case to shed light on the meaning and purpose of
anti-dumping proceedings."4  (Footnotes added).
4. Argentina respectfully requests the Panel to evaluate, in its analysis of the case, the fact that
Brazil successively brought its complaint first before MERCOSUR, and then, in view of theunfavourable outcome, before the WTO.
5. Since Brazil's way of proceeding makes it clear that it intended to reverse the previous
unfavourable ruling, Argentina repeats
5 that the Panel should bear in mind, in settling this case, that
Argentina and Brazil are not only WTO Member States, but also States parties to MERCOSUR, and
as such they must honour the commitments assumed in both fora.  Indeed, both fora generate a set of
legal relationships which bind the parties under public international law.
6. In short, Argentina considers that Brazil's conduct in bringing the dispute successively before
different fora, first MERCOSUR and then the WTO, as well as the legal arguments that Brazil put
forward in its submission to the Ad Hoc Arbitral  Tribunal at the regional level, based not only on
MERCOSUR rules, but also on the provisio ns of the WTO Anti-Dumping Agreement6, constitutes a
legal approach that is contrary to the principle of good faith and which, in the case at issue, warrants
invocation of the principle of estoppel.
7. Should the Panel reject the basis of Argentina's claim as set forth in the paragraph above,
Argentina submits, in the alternative, that in view of the relevant rule of international law applicable
in the relations between parties pursuant to Article 31.3(c) of the Vienna Convention on the Law of
Treaties, in the light of Article 3.2 of the DSU the Panel cannot disregard, in its consideration and
substantiation of the present case brought by Brazil, the precedents set by the proceedings in the
framework of MERCOSUR.
8. As argued in its first written submission, Argentina rejects the doubts raised by Brazil
concerning Resolution 574/2000 of the Ministry of the Economy on the basis of various
considerations of fact and law which are presented in the two main sections making up that
submission, namely Section II, dealing with the rules and principles of public international law
applicable to the case, and Section III, which refutes the substantive arguments contained in Brazil's
41 claims.
II. PRELIMINARY ARGUMENTS:  PRINCIPLES AND RULES OF INTERNATIONAL
LAW APPLICABLE TO THE CASE
II(a) Good faith – principle of estoppel
9. Brazil and Argentina assumed rights and obligations within the framework of MERCOSUR.
In Argentina's view, the Panel in the current case cannot disregard the fact that the dispute was
already discussed and resolved previously.
10. Moreover, in the framework of MERCOSUR it is a standing practice for all parties –
obviously including Brazil – to accept the obligations deriving from the legislative framework in
force, including the Treaty of Asunción and the Prot ocol of Brasilia.  In Argentina's view, a State
party is not acting in good faith if it first has reco urse to the mechanism of the integration process to
                                                     
4 "Award on Poultry" paragraph 159.
5 First written submission of Argentina, 29 August 2002, paragraph 18, and third party submission of
Paraguay, 9 September 2002, paragraph 7.
6 Submission by Brazil in the framework of MERCOSUR (paragraphs 30, 31, 32, 33, 34, 35, 36, 37,
38, 39 and 40 of the "Award on Poultry."WT/DS241/R
Page B-78
settle its dispute with another State party and then, dissatisfied with the outcome, files the same
complaint within a different framework, making matters worse by omitting any reference to the
previous procedure and its outcome.  This conduct, as corroborated by Brazil's peaceful acceptance of
previous awards, not to mention the fact that in some of these cases, the conclusions have revolved
around the principle of estoppel, cannot be disregarded by the Panel.
11. Contrary to what the United States has said7, Argentina does not claim in its first written
submission a breach of the Protocol of Brasilia by Brazil for the purposes of having the Panel reject
its claims;  rather, Argentina points out that the complaint existed, that Brazil has brought the case at
issue before the WTO in the full knowledge of that fact and by virtue of the unfavourable outcome of
its complaint at the regional level – and that it omits any reference to the matter.
12. Similarly, Argentina disagrees with the United States where it argues that it "also disagrees
with Argentina that the Panel may apply what Argentina calls the principle of estoppel.  The fact that
Argentina cites no textual basis for its request reflects the fact that Members have not consented to
provide for the application of any such principle of estoppel in WTO dispute settlement.  The term
estoppel appears nowhere in the text nor does Argentina cite to any provision which in substanceprovides Argentina the type of defence it asserts."
8
13. Argentina repeats9 that the essential elements of estoppel are "(i) A statement of fact which is
clear and unambiguous;  (ii) this statement must be voluntary, unconditional, and authorized;
(iii) there must be reliance in good faith upon the statement or the advantage of the party making thestatement".
10  Similarly, "[a] considerable weight of authority supports the view that estoppel is a
general principle of international law, resting on principles of good faith and consistency, and shorn of
the technical features to be found in municipal law.(…).  Thus before a tribunal the principle may
operate to resolve ambiguities and as a principle of equity and justice:  here it becomes a part of the
evidence and judicial reasoning."11
14. Firstly, with respect to the possibility for a pa nel to apply the principle of estoppel, Argentina
can find no provision or rule whatsoever that prohibits a panel from examining, and where it deems
appropriate applying, that principle.
15. Similarly, in the case United States – Standards for Reformulated and Conventional
Gasolene12, the report made it clear that:
"That direction reflects a measure of recognition that the General Agreement is not to
be read in clinical isolation from public international law." 13
16. In other words, the GATT and the WTO are subject to the general rules of international law.
                                                     
7 Oral Statement of the United States at the Third-Party Session with the Panel, 26 September 2002,
paragraph 4.
8 Idem , paragraph 5.
9 Intervention by the Argentine Republic at the meeting of the Panel with the Parties,
25 September 2002, paragraphs 12, 13, 14, 15 and 16.
10 Brownlie Ian, "Principles of Public International Law", Fourth Edition, Clarendon Press.  Oxford,
1990, page 641.
11 Idem , page 641.
12 Report of the Appellate Body in United States – Standards for Reformulated and Conventional
Gasolene , adopted on 20 May 1996.
13 Idem , page 20.WT/DS241/R
Page B-79
The Appellate Body recognized, in United States – Standards for Reformulated and
Conventional Gasolene , that GATT/WTO legislation forms part of international law, and hence the
general principles of international law apply to the work of the panel and the Appellate Body.
17. Among the arguments put forward by the United States is the statement that no panel to date
has applied a principle of estoppel.14  In Argentina's view, this argument is devoid of any legal
foundation and can be refuted empirically.  It is devoid of legal foundation because the panels are
called upon to apply public international law to settle the disputes brought before them.  And it can be
refuted empirically because the United States itself 15, in its oral submission, mentions two cases16 in
which the scope of estoppel is expressly discussed.
18. In European Communities – Asbestos:17
"From a legal point of view, the question seems to be whether there is  estoppel  on
the part of the EC because they notified the Decree or because of their statements,
including those during the consultations.  This would be the case if it was determined
that Canada had legitimately relied on the notification of the Decree and was nowsuffering the negative consequences resulting from a change in the EC's position."
19. In the case "Guatemala – Cement:
18
"Guatemala uses both the concepts of 'acquiescence' and 'estoppel' in support of this
argument.  We note that 'acquiescence' amounts to 'qualified silence', whereby silencein the face of events that call for a reaction of some sort may be interpreted as a
presumed consent. The concept of estoppel, also relied on by Guatemala in support of
its argument, is akin to that of acquiesce nce.  Estoppel is premised on the view that
where one party has been induced to act in reliance on the assurances of another
party, in such a way that it would be prejudiced were the other party later to changeits position, such a change in position is 'estopped', that is precluded." (Footnotes 789
and 790 omitted)
20. Argentina respectfully requests the Panel to examine the case in the light of the principle of
estoppel because the current dispute brought by Brazil before the WTO involves the  following
elements:
(i) Brazil contradicts itself by filing the complaint against Argentina first within the
framework of MERCOSUR, on the understanding that it was a bilateral dispute
in the framework of a regional integr ation scheme in which WTO anti-dumping
legislation was applied, and then mainta ining that the same dispute exceeded the
scope of MERCOSUR;
(ii) taking advantage of its own contradictions  after  having  brought its complaint
before MERCOSUR and obtained an adverse ruling, Brazil turned to the WTO in
                                                     
14 Oral Statement of the United States at the Third-Party Session with the Panel, 26 September 2002,
paragraph 6.
15 Idem , paragraph 6.
16 WT/DS135/R, European Communities – Measures Aff ecting Asbestos and Asbestos-Containing
Products,  report adopted on 5 April 2001, and WT/DS156/R, Guatemala - Definitive Anti-Dumping Measure on
Grey Portland Cement from Mexico,  report adopted on 17 November 2000.
17 WT/DS135/R, European Communities – Measures Aff ecting Asbestos and Asbestos-Containing
Products, paragraph 8.60 .
18 WT/DS156/R, Guatemala – Definitive Anti-Dumping Measure on Grey Portland Cement from
Mexico , paragraph 8.23.WT/DS241/R
Page B-80
order to reverse the unfavourable ruling contained in the arbitral award, invoking the
same legislation, but acting contrary to its previous practice of respecting awards
based on the Protocol of Brasilia;
(iii) prior to19 and  following20 this case Brazil, through its conduct and/or silence,
maintained an attitude that was clearly fa vourable to the acceptance of the scope of
the obligations deriving from MERCOSUR, and created favourable expectations
among the other States parties with res pect to the behaviour that is was
reasonable for the three remaining parties to expect from it.  Consequently Brazil's
previous conduct with respect to the acceptance of awards, confirmed by the
signature of the Protocol of Olivos, in validates the complaint against Argentina
that Brazil is now trying to substantiate on the basis of the DSU.
21. Finally, Argentina refutes the arguments by Brazil21 and the EC22,and repeats23 that it has not
argued primarily for the application of the doctrine of "res judicata".
II(b) Evidence
22. In the interest of transparency and to ensure that it is possible for the Panel to make an
objective assessment under Article 11 of the DSU, Argentina would like to state to the Panel that it is
prepared to hand over its submissions in the MERCOSUR proceedings and invites Brazil to do
likewise, thereby providing the Panel with the full evidence of the procedures that took place withinMERCOSUR with respect to the subject of the current dispute.
24
II(c) The relevant rule of public international law:  Art. 31(c) of the Vienna Convention
23. Firstly, Argentina does not agree with the statement of the United States that "[b]y its plain
terms, Article 3.2 is limited to the rules of interpretation used to clarify the existing provisions of the
WTO Agreement."25
24. Argentina submits that Article 3.2 of the DSU provides a rule of interpretation for the Panel
and WTO legal practice has confirmed that rule by referring to Articles 31 and 32 of the Vienna
Convention on the Law of Treaties.
25. Article 31.3(c) of the Vienna Convention on the Law of Treaties specifically stipulates that
for the purposes of interpretation, account shall be ta ken of " … any relevant rules of international law
applicable in the relations between the parties."
26. In the words of Jiménez de Arechaga26 "[t]his provision means that a treaty must be
interpreted within the framework  of the rules of international la w in force between the parties" .
                                                     
19 First written submission of Argentina, paragraph 20 and footnote 12.
20 Signature of the Protocol of Olivos, ex pressly including a choice of forum clause.
21 Oral Statement of Brazil, First Meeting with the Panel, 25 September 2002, paragraph 4.
22 Third party submission of the European Communities, 9 September, paragraph 5.
23 Intervention by the Argentine Republic at the meeting of the Panel with the parties,
25 September 2002, paragraph 7.
24 Annex ARG-LXII -  Table comparing the MERCOSUR dispute with the WTO dispute.
25 Oral Statement of the United States at the Third-Party Session with the Panel, 26 September 2002,
paragraph 7.
26 Jiménez de Arechaga, Eduardo "El derecho internacional contemporáneo", Editorial Tecnos, Madrid
1980, page 61.WT/DS241/R
Page B-81
27. The same author also refers to a 1975 resolution by the International Law Institute27 in which
it is stated that:  "The interpretation of a treaty must take account of all relevant rules of international
law applicable between the parties at the time of implementation."
28. In Argentina's view, the regulatory framew ork of MERCOSUR and the legal consequences
deriving from the implementation of the Protocol of Brasilia by the Ad Hoc Arbitral Tribunal in the
case at issue are relevant rules of public international law within the meaning of Article 31.3(c) of the
Vienna Convention on the Law of Treaties.
29. Argentina respectfully requests the Panel to take into consideration, for the purposes of
interpretation of the current dispute under the WTO and under the terms set forth in the preceding
paragraph, the rules forming part of the regulato ry framework of MERCOSUR on which the ruling of
the MERCOSUR Ad Hoc Tribunal was based.
II(d) Summary
30. To summarize, Argentina submits that in the ca se at issue, Brazil's current complaint against
it under the WTO is invalid in that Brazil's conduct not only runs counter to the principle of good
faith, but warrants estoppel.
31. For the reasons set forth in the preceding paragraph, the case for estoppel which the
United States defines as a procedural argument and which has been recognized as such in the WTO,and which is more generally considered by doctrine to be a substantive defence should, in Argentina's
view lead the Panel to refrain from ruling in the case at issue.  Even if the Panel considers that
estoppel in the WTO is only applicable as a procedural defence, it is more than enough to reject
Brazil's substantive arguments.
32. In the alternative, if the Panel should reject the arguments set forth in the previous paragraphs,
Argentina considers that the Panel should in any case refrain from making any findings or conclusions
regarding the consistency and compatibility of Resolution 574/2002 with the Anti-Dumping
Agreement, since the MERCOSUR regulatory framework, which includes the Protocol of Brasilia and
the legal consequences of the arbitral award, are relevant rules of international law that are applicable
between the parties in conformity with Articl e 31.3(c) of the Vienna Convention on the Law of
Treaties.
III. SUBSTANTIVE ASPECTS OF THE INVESTIGATION
III(a) Article 5.2 of the Anti-Dumping Agreement
33. Argentina reaffirms what it stated in its first written submission, namely that the evidence that
the applicant must provide at the initiation of the investigation must be the evidence reasonably
available to it.  As regards the implementing author ity, the obligation contained in this Article is to
determine that the evidence accompanying the applicat ion is sufficient to justify the initiation of the
investigation.
This condition of sufficiency means that the evidence must contain indications that dumping
has occurred, causing damage to the domestic industry.   However, the detail concerning the facts put
forward will always be less than the detail which emerges at a later stage from the investigation.
34. Thus, the evidence required must be of a standard that makes it possible to initiate the
investigation on the basis thereof.  As stated in paragraph 32 of its first written submission, Argentina
                                                     
27 Idem , page 63.WT/DS241/R
Page B-82
submits that to require of domestic producers a level of detail and knowledge in the evidence they
must submit that is materially beyond their reach would amount simply to denying them any access to
the proceedings.
With reference to the different standards of evidence required at the different stages of the
proceedings, Argentina recalls the statements by the Panels in United States – Measures Affecting
Imports of Softwood Lumber from Canada28, and Mexico – Anti-Dumping Investigation of High-
Fructose Corn Syrup (HFCS) from the United States29, referred to in paragraphs 38 and 44 of its first
written submission of 29 August 2002.
35. Brazil, which has said that it agrees with this argument by Argentina30, nevertheless claims
that in this case Argentina violated Article 5.2 because the evidence submitted by the applicant wasnot sufficient to determine that:
(i) The product sold in Brazil was physically different from that sold in Argentina;(ii) the differences in physical characteristics actually affected price comparability;(iii) the yield rate difference alleged by the applicant was correct.
31
36. This is not the case.  The evidence submitted by  the applicant to the investigating authority
contained sufficient data within the meaning of Article 5.2 of the Anti-Dumping Agreement that:
(i) Contrary to what Brazil claims, there were physical differences between the product
(whole poultry) taken as a basis for the calculation of normal value;
(ii) since these differences affected the trade performance of the products being
compared, they unquestionably affected the price comparability;
(iii) these differences called for an adjustment  to enable - prior to the initiation of the
investigation - a fair comparison to be conducted, for which purpose an adjustment
methodology was also provided.
III(b) Article 5.7 of the AD Agreement
37. As regards Brazil's claim that Argentina failed to comply with Article 5.7 of the AD
Agreement by not simultaneously considering the evidence of both dumping and injury in the
decision to initiate the investigation, Argentina maintains, as it did in its first written submission, that
this claim is unfounded.
38. Article 5.7 stipulates that the evidence of both dumping and injury shall be considered
simultaneously in the decision whether or not to initiate an investigation .
39. Although in its own first written submission32 Brazil attempts to demonstrate that Argentina
violated the AD Agreement simply because the reports respectively establishing the existence of
dumping and the existence of injury bear different dates, this does not in any way mean that the
                                                     
28 WT/DS236, paragraph 332.
29 WT/DS132/R, paragraph 7.76.
30 Oral statement of Brazil at the first meeting with the Panel, paragraph 15.
31 Oral statement of Brazil at the first meeting with the Panel, paragraph 17.
32 First written submission of Brazil, para. 171.WT/DS241/R
Page B-83
Authority, in its decision to initiate the investigation, did not simultaneously consider the evidence in
both reports.
40. In this connection, Argentina draws the Panel's attention to the Third Party Submission of the
United States, which states that "Brazil appears to believe that this language (i.e. that of Article 5.7)obligates a Member to ensure that its inves tigating authorities consider dumping and injury
information from simultaneous (i.e. identical) time periods.  Viewed in context, however, the term
'simultaneously' is linked to the term 'considered', not the term 'evidence'."
33
41. Argentina concurs with the United States and reiterates the argument made in its first written
submission that Brazil over-emphasizes the element of simultaneousness emerging from the
provisions of the AD Agreement, interpreting the ob ligations in Article 5.7 in a manner that is simply
incorrect.
42. Argentina repeats once again that the implemen ting authority, in deciding to initiate the
investigation, simultaneously took account of both the injury and the dumping analysis and the causal
link between the two.
III(c) Article 5.8 of the AD Agreement
43. As regards Brazil's claim that Argentina should have rejected the application for initiation of
the investigation because the application had failed to demonstrate injury, Argentina reiterates thestatement made in its first written submission and reaffirmed at the first meeting of the Panel with the
parties.  Argentina likewise reiterates its reply to question 16 of the Panel that since the applicant
provided updated information in keeping with the requirements of the application, the new
information had to be examined in order to de termine its relevance to the ongoing proceedings.
44. As specified in the aforementioned reply, the examination of new information is expressly
provided for in Article 60 of the Regulations of the National Law on Administrative Procedures
(RLNPA, approved by Decree N o. 1759/72 and harmonized by Decr ee No. 1883/91), which was duly
notified to the relevant WTO Committees and stipulates that the competent body (in this case, which
involves injury, the CNCE) shall intervene once ag ain in the proceedings if any new developments
occur or come to its knowledge.  In the case at issue, the additional submission by the applicant
introduced new items of evidence which called for a further intervention by the CNCE, at the request
of the competent bodies and in strict conformity with the law.
45. Argentina wishes to lay special emphasis on th e following points, duly brought to the Panel's
attention with respect to the above:
(1) The information presented by the applicant supplemented that submitted at the time
the case was opened;  it was intended to provide the authority with data that had not
been included in the initial submission and enabled the CNCE to make an affirmative
determination.
(2) During the stage prior to the initiation of the investigation, third party rights are not
affected.
(3) Brazil's suggestion to file the case at that stage of the investigation, with the
introduction of additional information, would have adversely affected the individualrights of the applicant, in breach of the law.
                                                     
33 Third party submission of the United States, para. 3.WT/DS241/R
Page B-84
III(d) Article 12.1 of the AD Agreement
46. Here Argentina simply refers to its first written submission, emphasizing that it fulfilled the
obligation to notify all parties known to the investigating authority.  It draws attention to
paragraphs 112, 113 and 114 of the text so that the Panel can verify the various documents submittedand the steps taken by Argentina in order to comply with Article 12.1.
47. As regards the claim that the exporters were notified eight months after the initiation of the
investigation, it would have been impossible to do so any earlier because the authority did not learn of
their existence until the firm INTERAMERICANA COMERCIAL made its submission.
The same is true of Brazil's claim under Article. 6.1.2.  The Authority cannot be said to have
failed to fulfil its obligations towards enterprises that did not join as interested parties.
III(e) Article 6.1.1 of the AD Agreement
48. As specified in Argentina's first written submission, the investigating authority granted all the
periods stipulated in the AD Agreement to all the pa rties with an interest in the investigation.  In
addition to the procedural time-frames, however, Ar gentina showed every good will in allowing all
the exporters sufficient time to supply the information required to properly defend their interests.
This is evidenced by the successive extensions granted by the Authority in each case, as recorded in
paragraphs 126 to 136 of the submission.
III(f) Article 6.2 of the AD Agreement
49. Here again, Brazil refers – as a basis for its claim that Argentina acted inconsistently with
Article 6.2 – to the eight exporters involved in the investigation as a result of the request by the firmINTERAMERICANA COMERCIAL.
50. Argentina refers yet again to its first written submission and specifically paragraphs 148 to
161.  It also strongly re-emphasizes that although the Brazilian Government had been notified from
the very outset of the investigation, through a request for cooperation "in identifying the interested
producers/exporters in this investigation and providing them with the attached requests for
information…",
34 Argentina was not informed of the alleged interest35 of the firms whose right of
defence it had allegedly impaired and which were only involved in the investigation on the basis of a
request by one of the parties.
III(g) Articles 6.8 and 12.2.2 of the AD Agreement
51. As regards Brazil's various claims in respect of the authority's use of the information supplied
by the exporters during the investigation and the lack of proper explanation, in some cases, why
certain data had been disregarded, Argentina's first written submission gives a detailed list36 of the
different types of information provided by each firm in the course of the investigation and specifies
the way in which the information was used, where such use was warranted in the proceedings and metthe formal requirements of Argentine legislation, of which each of the parties was duly aware.
52. In spite of the above, Argentina considers it important to revert to a number of points
repeatedly raised by Brazil in connection with the use of the information and the possibility of
verifying its accuracy.
                                                     
34 First written submission of Argentina, para. 112.
35 Ibid. , para. 147.
36 Ibid. , paras. 187-206.WT/DS241/R
Page B-85
53.  Brazil claims that the Brazilian exporters supplied all the information requested by the
investigating authority and that the latter decided, for no apparent reason, to discard that information
and use only the data provided by the applicant.
54.  This is not the case.  Indeed, Argentina has demonstrated that once the exporters had
supplied the supporting evidence needed, at a minimum, to corroborate the information they had
provided, that information was used.
55. As regards the export price data, Brazil claims that Argentina used the applicant's data.
However, it apparently fails to mention that the information actually used by Argentina in this case
was the official data from the register of the General Customs Administration, which is the body incharge of supervising and controlling all foreign trade transactions.  The register serves as a database
for other State, and private, bodies and contains the most detailed and accurate information available
on values and prices for each transaction.  Any information presented to Customs by economic
agents - i.e. exporters and importers – is recorded in the form of a sworn statement.
56. In other cases such as those of FRANGOSUL and CATARINENSE, the information was not
used simply because, in FRANGOSUL 's case, the data provided was insufficient and was submitted
after the deadline that would have permitted its use had expired
37 and, in CATARINENSE's case,
because the data was insufficient.38
57. At the risk of belabouring the point, Argentina reiterates that each time the parties suppliedthe information in the prescribed timely and appropriate fashion, the information was used.
Argentina had to resort to other sources of information in cases where any aspect of those
requirements had not been met.
58. Brazil claims, moreover, that the Authority should have conducted on-the-spot verifications
of the information supplied by the exporters since they had offered it the possibility of doing so during
the proceedings.
59. Argentina has repeatedly emphasized that the conduct of on-the-spot verifications is optional
for the investigating authority and is not an obligation under the AD Agreement.  It nevertheless
considers it important to reaffirm its oral statement at the meeting of the Panel with the parties on25 September 2002.
60. Argentina is not denying the possibility of conducting verifications under the Agreement. It
wishes to make clear, however, that its interpretation of this possibility differs somewhat from that of
Brazil.
61. The possibility to undertake verifications of the kind proposed by Brazil is foreseen in
Article 6.7 of the Agreement, which establishes that:
"…the authorities may carry out investigations in the territory of other Members… ."
(Emphasis added)
62. Argentina thus considers that, as foreseen in  the Agreement, this mechanism allows a method
of verification of the information added to the file during an investigation that does not necessarily
have to be used by the authority when it needs to ascertain the truth and/or relevance of any evidence,
                                                     
37 Ibid. , paras. 187-200.
38 Ibid. , para 203.WT/DS241/R
Page B-86
especially when the private sector fails to comp ly with the implementing authority's request for
information.
63. In Argentina's view, this is the most correct interpretation of Annex I, paragraph 1, which
details the procedures applicable to Article 6.7 and establishes that:
"Upon initiation of an investigation, the authorities of the exporting Member and the
firms known to be concerned should be informed of the intention to carry out on-the-
spot investigations." (Emphasis added)
64. A joint reading of Article 6.7 and Annex I, pa ragraph 1, of the AD Agreement clearly reveals
the discretionary nature of this mechanism, ruling  out any claim as to its binding character.  Its
optional nature is further confirmed by paragraph 3 of that same Annex, which provides that theexplicit agreement of the firms concerned should be obtained as a prerequisite to any on-the-spot
investigation.
65. Brazil appears, moreover, to interpret the above possibility as an obligation to be fulfilled in
addition to the timely and appropriate submission of information requested by the authority.
66. Argentina therefore refers to the relevant pa rt Annex I, paragraph 8, which reads as follows:
"As the main purpose of the on-the-spot investigation is to verify information
provided or to obtain further details, it should be carried out after the response to thequestionnaire has been received…;  further, it should be standard practice prior to
the visit to advise the firms concerned of the general nature of the information to be
verified and of any further information which needs to be provided… ."
67. As this provision shows, on-the-spot investigations do not release the interested parties from
the obligation to supply the information requested by the investigating authority – especially wherethe authority decides to carry out an investigation visit.  In other words, Brazil can hardly claim that
Argentina has violated a specific rule of the Agreement when the Brazilian exporters themselves did
not satisfy the obligation under the Agreement to facilitate the task that Brazil claims has not been
fulfilled.
III(h) Article 2.4 of the AD Agreement
68. Brazil claims that Argentina acted inconsistently with the Article 2.4 requirement to make a
fair price comparison, holding that its claim is substantiated by the different actions taken by
Argentina in the course of the investigation, as ou tlined below.  Brazil further claims that Argentina
has placed an unreasonable burden of proof on the Brazilian exporters by not specifying from the
outset the period for which the information was being requested.
69. Argentina reiterates that it complied, throughout the investigation, with the Article 2.4
requirement to make a fair comparison.
70. The above claims have already been extensively addressed in Argentina's first written
submission.  Argentina therefore repeats that it ma de all the adjustments it considered appropriate,
insofar as it had been demonstrated that:
(a) those adjustments were necessary;  and
(b) the adjustment values were correct, and not merely figures under a general heading
covering a certain period of time.WT/DS241/R
Page B-87
71. Thus, as regards freight adjustment, which Brazil claims Argentina should have made in the
case of SADIA, Argentina agrees with Brazil that adjustment would have been necessary – but only to
the extent that the investigating authority had received the relevant supporting documentation in a
timely and appropriate fashion.  Argentina also concurs with Brazil that SADIA did provide an
estimate in Annex VIII of the questionnaire sent to the exporters – but this was a purely general and
aggregate estimate covering a period of one year.
72. Argentina based its normal value calculation on prices drawn from a series of invoices
selected according to the random sampling method.  Those documents, which the exporter was duly
requested to supply, gave no indication whatsoever of the amounts to be deducted or of the items to
which the deductions should apply.
73. This is why the Authority did not make the deduction requested by Brazil, because if it had
applied a discount representing a general average for a given stage of the investigation, this would
have distorted the price to be used.  In any event, the exporter had ample opportunity, when it sent the
requested invoices, to inform the Authority of any items and amounts it considered necessary todeduct or add, according to the characteristics specific  to the transactions recorded in the documents.
74. As regards the adjustments which, again, Brazil claims should have been made to the normal
value calculated for the "other exporters", Arge ntina notes Brazil's advice to the Panel not to be
confused by Argentina's seemingly "hazy" arguments.
39
75. Argentina agrees that the Panel should not be misled and therefore believes that a few pointsshould be clarified in order to ensure that the Panel is not confused by Brazil's arguments.
76. The first point is that although Brazil claims throughout its Submission that Argentina should
not have used the information supplied by JOX, it appears to contradict itself in its oral statement
when it asserts that, for the purposes of the above adjustment, Argentina should also have used the
information provided by the consulting firm.
77. The second point refers to Brazil's argument that, had Argentina made the aforementioned
deduction on the price used to calculate normal value – even acknowledging that the f.o.b. value
includes inland freight and insurance, handling, loading and unloading and warehousing, it wouldhave been comparing prices at the same level of trade.
40
78. Argentina does not understand the reason for Brazil's assertion.  It is indeed true, as Brazil
points out, that export prices do not include domestic taxes.  However, the mere fact that such taxes
are not included, or – if they were – that they could be deducted, does not resolve the matter of theAgreement requiring the comparison to be made preferably at ex-factory level.
79. In other words, Brazil appears to believe that it would have been sufficient, for the purposes
of fair comparison within the meaning of Article 2.4, to make an adjustment to normal value and not
to the f.o.b. value in order to arrive at two prices  representative of the same level of trade.  Had
Argentina done that, however, it would have been comparing an ex-factory value (sales value of
goods deposited with the vendor) with an f.o.b. value (value of goods deposited plus the costs listed in
paragraph 44).
80. As regards Brazil's claim that an unreasonabl e burden of proof was imposed on its exporters,
Argentina refers to paragraphs 242 to 247 of its first written submission.
                                                     
39 Oral statement of Brazil – First Meeting with the Panel, para. 54.
40 Ibid. , para. 59.WT/DS241/R
Page B-88
III(i) Article 9.2 and 9.3 of the AD Agreement
81. The anti-dumping duties imposed by Argentina are in keeping with the requirements of
Article 9.2 and 9.3 of the AD Agreement, which stipulate that such duties "shall be collected in theappropriate amounts in each case" and "shall not exceed the margin of dumping as established under
Article 2".
82. As stated in its first written submission and reiterated in its oral intervention on
25 September 2002, Argentina uses the system of variable amounts to assess prospective anti-
dumping duties.
83. Although Article 9 of the AD Agreement does not specify the modalities for applying such
duties, the practice of WTO Members recognizes the system used by Argentina as one of the possible
methods.  Article 9.3 provides for the possibility of assessing duties on a retroactive or prospective
basis and also establishes the ways in which any duties paid in excess should be corrected.
84. In this case, Brazil claims that Argentina violated Article 9.2 and 9.3 by imposing variable
anti-dumping duties.
85. To uphold its Article 9.2 claim, Brazil proceeds from the assumption that if the Brazilian
exporters decided to export their product to Argentina with a margin of dumping in excess of thatdetermined during the investigation, their exports would be subject to a duty higher than that which
had been established.  This is not the case because, as specified in Article 2.1 of the AD Agreement:
"...a product is to be considered as being dumped, i.e. introduced into the commerce
of another country at less than its normal value, if the export price of the productexported from one country to another is less than the comparable price, in the
ordinary course of trade, for the like pr oduct when destined for consumption in the
exporting country."
86. In line with Canada's reasoning in its third party submission, Argentina wishes to make clear
that the above claim is not supported by Article 9.2, which merely provides that duties shall be
collected in "the appropriate amounts" – the determination thereof being established in Article 9.3.
87. As mentioned earlier, Article 9.3 establishes that the anti-dumping duty shall not exceed the
margin of dumping as established under Article 2 in its entirety – and not, as Brazil erroneously
contends, under Article 2.4.2, which deals with the margin of dumping during the investigation only.
88. Argentina has established anti-dumping duties and collects these duties in a manner consistent
with the Agreement, i.e. they were assessed on the basis of the margin of dumping established under
Article 2 and are collected pursuant to Article 9.2 and 9.3.  Argentina does not deny the claim that the
margin may be exceeded.  The fact that such a possibility exists, however, is not sufficient for
claiming that Argentina acted in a manner inconsistent with the Agreement.  Indeed, if the margin had
been exceeded, the exporters could have invoked Article 9.3 (if they so deemed appropriate) torequest the refund of duties paid in excess, but they did not do so.
89. In view of the foregoing, Argentina reiterates its request that the Panel reject Brazil's claim of
inconsistency with the above articles.WT/DS241/R
Page B-89
IV. PLEADINGS
90. In the light of the arguments put forward in the sections above, Argentina respectfully
requests the Panel:
(1) In keeping with the reasoning developed in Section II and as stated in paragraphs 30,
31 and 32 of this submission, to refrain from ruling on the 41 claims of inconsistency
with various provisions of the Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) submitted
by Brazil.
Should the Panel decide not to accede to the above request by Argentina, as set out in
Section II(d) of this submission and in the light of the arguments developed in Section III, it is
respectfully requested to:
(2) Reject Brazil's claim that Resolution No. 574/2000 of the Ministry of the Economy of
the Argentine Republic is inconsistent with:
• Article 5.2, 5.3, 5.7 and 5.8 of the Anti-Dumping Agreement;
• Article 12.1 of the Anti-Dumping Agreement;
• Article 6.1.1, 6.1.2, 6.1.3, 6.2 and 6.8, paragraphs 5, 6, and 7 of Annex II, and
Article 6.9 and 6.10 of the Anti-Dumping Agreement;
• Article 2.4 and 2.4.2 of the Anti-Dumping Agreement;
• Article 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement;
• Article 4.1 of the Anti-Dumping Agreement;
• Article 9.2 and 9.3 of the Anti-Dumping Agreement;
• and the various claims relating to Article 12.2.2.
(3) Reject Brazil's request for the immediate repeal of Resolution No. 574/2000 imposing
the definitive anti-dumping duties.WT/DS241/R
Page B-90
ANNEX B-4
REPLIES OF ARGENTINA TO QUESTIONS OF THE PANEL –
FIRST METING
(25 September 2002)
DSU Article 18.2
To Argentina
1. Argentina stated at this morning's meetin g that it was not opposed, as a matter of
principle, to Brazil having made its first written submission available to the public. Instead,
Argentina was concerned with the timing of Brazil's action.  Does this mean that Argentinaaccepts that a Member may make its written submissions to a panel available to the public at
some point in time without infringing Articl e 18.2 of the DSU?  Would Brazil violate DSU
Article 18.2 if it made its written submissions av ailable to the public after the Panel issued its
final report?
Reply to the first part of the question
Yes, following the provisions of Article 18.2 of the DSU.
Reply to the second part of the question
No.
Claim 1
To both parties
2. In the view of the parties, which are th e obligations under Article 5.2?  In addition,
would the parties agree that Article 5.2 imposes obligations on the applicant and not on the
investigating authority as stated in Guatemala – Cement II ?  Please explain.  In the event of
agreement with the conclusions in Guatemala – Cement II , what recommendations should a
panel reach in case that a breach of Article 5.2 ADA is found?  In particular, would arecommendation that a Member bring the measure into conformity be appropriate?
Reply
It is Argentina's understanding that the Agreement imposes obligations on Members.  In
principle, Article 5.2 imposes an obligation on Members with respect to the information that is
required to be provided with the application for the initiation of an investigation.  In other words,
Article 5.2 lays down the requirements governing what the sector wishing to file an application for the
initiation of an investigation must provide with its application.WT/DS241/R
Page B-91
In fact, Article 5.2 must be read in conjunction with Article 5.3 of the Anti-Dumping
Agreement, since the latter imposes on the authorities the obligation to examine the accuracy and
adequacy of the evidence provided by the applicant.
To Brazil
3. Does Article 5.2 ADA require that the application contain reasonably available relevant
evidence on any adjustment to be made if such  adjustment is required for applicant to allege
"dumping".  In this regard, should such ev idence identify:
(a) That an adjustment is required;
(b) the nature and extent of the adjustment;
(c) the basis/methodology for making such adjustment?Please explain.
4. Was information on the adjustments referred to in paras. 70 and 71 of Brazil's First
written submission ("FWS") 'reasonably available'  to the applicant at the time of filing the
application?  Please explain.
To Argentina
5. Did the application contain evidence to support that:  (1) the poultry sold in Brazil was
physically different from the poultry sold to Argentina;  (2) that the alleged physical
characteristics differences affect price comparability;  and (3) the alleged yield rate differencepresented by petitioner between the poultry sold in Brazil and to Argentina?  If so, please
provide the evidence supplied in the application.
Reply
The Jox publication of 30 June 1997 – Annex ARG-I - contains information concerning
"whole poultry".  Specifically, it states that the pri ces refer to chilled poultry marketed in the city of
São Paolo (Brazil), expressed in Reals, with feet, head and giblets.  This "physical" difference has an
impact on prices, since the difference has a value that is determined by the demand for the poultry
depending on the characteristics of the markets.  Similarly, the information contained in the file
reveals that the product exported to Argentina is eviscerated poultry.
6. Please comment on the definition of "evidence" set forth in paragraphs 63 and 64 of
Brazil's FWS.  In particular, the statement by Brazil in paragraph 64 that "information
provided in the application without supporting documentation does not qualify as evidence".
Please explain the basis of your response with specific reference to this case.
Reply
Regarding the requested evidence, the requirement to submit such evidence is clearly stated in
the legislation in force, as well as in Form No. 349 which has been valid since 12 November 1991.  It
is these requirements that must be met by the complainant in an alleged dumping case.
In this connection, and with specific reference to the case at issue, CEPA submitted:WT/DS241/R
Page B-92
(a) SYSDEC's report on imports of the product under investigation from January to
June 1997, the source for which was the Directorate-General of Customs;
(b) a copy of the report by the consulting firm Jox containing prices for chilled poultry in
São Paolo expressed in Reals, with head, feet and giblets, as stated in the publicationitself.  Since it also explains that there are differences requiring adjustments for the
purposes of price comparison, the firm adds a copy of the export price statistics for
poultry published by the review  Aves & Ovos of the Asociación Paulista de
Avicultura  of April and May 1997.  It also adds evidence of the legal status of CEPA,
and SENASA data concerning the representativeness of CEPA, in the area of
domestic poultry production.
At the same time, CEPA provided the necessary translations and authentications for each
piece of documentation submitted in a foreign language as required by Law No. 19.549 on
Administrative Procedures and the regulatory decree applicable on a supplementary basis to alleged
dumping or subsidy procedures.  Thus, the require ments laid down by the Implementing Authority in
connection with the application for initiation of an investigation were met.
In this connection, Argentina agrees with the definition of "evidence" provided by Brazil in
paragraphs 63 and 64 of its first written submission, keeping in mind that the elements supplied by
CEPA constitute sufficient documentary evidence for the initiation of an investigation.  Specifically,
the evidence provided as proof of normal value consists of excerpts from specialized journals and apublication by consultants of public notoriety, both of which constitute sufficient evidence of the
exact values at which the product in question is marketed.
Consequently, it is clear that the implementing authority complied with the Article 5.3
obligation and examined the " … accuracy and adequacy of the evidence provided in the application…".
Claim 2
To Argentina
7. Could Argentina please clarify what they consider to be "reasonably available"
information for an applicant under Article 5.2?  In this case, taking into account that Jox is a
consulting company that apparently publishes data on prices of poultry regularly, does
Argentina consider that information on domestic prices in Brazil from Jox concerning only one
day was all the information "reasonably available to the applicant" on no rmal value within the
meaning of Article 5.2 ADA?  Please explain.
Reply
The expression " … reasonably available" in Article 5.2 expresses the notion that the
applicant must supply such evidence as is available and within its reach, and by which it candemonstrate what it alleges.  Such evidence will be what the applicant can obtain at that particular
time by the means available to it.  CEPA provided Jox, a publication which enabled it to demonstrate
the values at which the product in question was being sold, and which, in addition to providing the
isolated value for one day, showed the price trend in the market as well as the cause of any variations.
We also repeat what was stated in paragraph 71 of Argentina's first written submission and in
the preceding reply, namely that the implementin g authority, in examining the accuracy and adequacy
of the evidence provided by CEPA, took account, firstly, of the fact that Jox was a specialized
publication providing an average representative value reflecting the state of the São Paolo market.WT/DS241/R
Page B-93
That market is one of Brazil's most representative markets, and, like Buenos Aires, it is a large urban
centre which reflects domestic consumption patterns.
8. Reference is made to the following portion of para. 32 of Argentina's FWS:
'The above-mentioned provision in Article 5.2 provides applicants with access to
proceedings of this kind in keeping with the right of parties to defend
themselves;  to require evidence that was beyond their reach would be to deny
them that right.'
What does Argentina understand by the words "beyond their reach"?  In the present
case, what information was "beyond the reach" of the applicant?
Reply
It is Argentina's understanding that what the Anti-Dumping Agreement requires in connection
with the application for the initiation of an investigation, i.e. what is "reasonably available to the
applicant", in addition to what was stated above, is such evidence as can be obtained withoutimposing an excessive burden of proof on the applicant that could make the submission of an
application impossible, and without placing the applicant in a situation in which knowledge of its
search for information could lead to a disclosure of  the investigation it intends to apply for, with the
commercial implications that such disclosure coul d entail.  Moreover, in Argentina's view, the term
used in the Agreement is intended to show the diff iculty involved in obtaining evidence, particularly
of normal value, in this instance, a difficulty which could be aggravated depending on the
characteristics of the market and the possibilities available to the applicant.  Moreover, if the applicant
had to resort to hiring a consultant to obtain domestic market prices in the country in question, or
resort to some dubious artifice to obtain those prices, the anti-dumping procedure would be deprived
of any meaning or practical relevance.
9. Please explain the process used by Argentina to receive and evaluate an application,
with particular reference to any additional information that may be supplemented by the
applicant.  Please explain with specific reference to this case, whether:
(a) The investigating authority asked for (or received) more information, in
particular on normal value, to decide on initiation;
(b) at what stage of the investigation was additional information requested/received;(c) was the additional evidence used to determine normal value for the purpose of
evaluation under Article 5.3;
(d) if the answer to (c) above is in the negative, was the additional evidence on
normal value used at any later stage for determination of normal value?
Reply
To submit an application for the opening of an investigation, the applicant had to fill out form
No. 349.  That form explains exactly what data th e applicant must provide in conformity with the
requirements of Article 5.2 of the Anti-Dumping Ag reement.  In addition, the applicant must supply
all of the supporting documentation for the informa tion provided in the said form so that the
Implementing Authority can examine the accuracy and adequacy of the "evidence provided".  Thus,
as regards normal value, the evidence considered was the Jox publication of 30 June 1997WT/DS241/R
Page B-94
accompanying the application, there being no additional requests by the implementing authority in
that respect.
10. Please provide a copy of the model form referred to in para. 43 of its FWS?
Form 349/91 is attached hereto as Annex ARG-XXXIX.
11. Please comment on the following paragraphs of Brazil's first oral statement:
(a) Paragraphs 21 to 23, which refer to a Panel report and allege that the
investigating authority in this case did no t give consideration to the impact of the
possible differences on the sufficienc y of the evidence submitted in the
application, nor did it seek further evidence, which was clearly necessary.
Reply to question 11(a)
The adjustment made by the implementing authority for the differences between the poultry
sold in Brazil and poultry sold in Argentina wa s included by the applicant when submitting the
application, and applied by the authority as from the initiation of the investigation on the
understanding that the said information was what was reasonably available to the applicant, that it was
reasonable and that the implementing authority did not have knowledge of any elements to suggest
that it should not be considered.  Having evaluated the said information, the authority did not considerthat it was necessary to request additional information in that respect in view of the standards
applicable to the information to be considered at that stage of the investigation.
(b) Paragraphs 24 to 25 which allege that the method used by Argentina to establish
the export price and consequently the du mping margin was based only on export
prices below the normal value, which in tu rn "would always result in a dumping
margin".  In this response, please ex plain the methodology used by Argentina in
this case.
Reply to question 11(b)
The methodology used by Argentina to establish the dumping margin can be explained as
follows:  all of the export transactions that were below the normal value were considered, excluding
those which yielded a negative dumping margin.  Th is methodology has also been used by other WTO
Members.  Indeed, the stage prior to initiation requires sufficient evidence of dumping.  The
calculation made does not bring in economic effects on the market.  What is required is the
knowledge that there have been transactions in volving dumping which justify, from that point of
view, the initiation of an investigation.
12. Reference is made to the following portion of paragraph 50 of Argentina's FWS:
'The evidence provided is a representative value taken from a specialized
publication for a given period.'
What does Argentina mean by the words 'a given period'?  Does it relate to a period of
one day, or longer?  Please provide your response with specific reference to this case.
Reply
What Argentina means by those words is a moment in the analysis period considered by the
implementing authority.  At the same time, although the Jox publication provides the price forWT/DS241/R
Page B-95
30 June 1997, the right-hand margin of the text contai ns CEPA's translation of the following words:  "
… production on the parallel market within São Paolo is sharply lower, so that the price remains on
very firm ground…".  In other words, the quotation did not vary much, but rather remained stable.
(Emphasis added)
13. Reference is made to the following portion of paragraph 50 of Argentine's FWS:
'This is why CEPA supplied, as evidence of normal value, the data contained in
what is recognized as a serious special ized publication which reflected – within
an acceptable margin of approximation in this instance – the same levels of
commercial sales.'
What does Argentina understand by the words 'within an acceptable margin of
approximation'?
Reply
By the words "… within an acceptable margin of  approximation in this instance", Argentina
intended to show that the values taken for the purposes of the comparison required by the Anti-
Dumping Agreement were at the same level of trade,  i.e. both the normal value and the export price
were at wholesale level.  In view of the nature of the stage prior to initiation, a precise approximation
of the levels of trade cannot be expected.  During the ensuing investigation, if it takes place, it is
possible to verify the equivalence of the levels of trade and make the necessary adjustments, on thebasis chiefly of the information provided by the parties.
To Brazil
14. Is Brazil's claim under Article 5.3 regarding frozen/chilled adjustment dependent on a
finding by the Panel that Argentina was correct to make the head/feet adjustment at the time of
initiation?  In other words, is Brazil arguing th at if the need for a head/feet adjustment was
obvious from the face of the app lication, then so was the need for a frozen chilled adjustment?
Claim 3
To Argentina
15. Please explain which authority (authorities) have the authority to:
(a) Accept/reject an application
(b) Initiate an investigation
(c) Conduct the investigation(d) Decide on the application of the duty
Reply
According to the regulatory Decree in force at the time of the investigation at issue,
No. 2121/94:
(a) The ex-UNDER-SECRETARIAT FOR FOREIGN TRADE (now the UNDER-
SECRETARIAT FOR TRADE POLICY AND MANAGEMENT) is the competentWT/DS241/R
Page B-96
authority to rule on the admissibility of applications for the initiation of an
investigation.
(b) The SECRETARIAT FOR INDUSTRY, TRADE AND MINING is the competent
authority to rule on the initiation of an investigation.
(c) The UNDER-SECRETARIAT FOR TRADE POLICY AND MANAGEMENT and
the NATIONAL FOREIGN TRADE COMMISSION are responsible for conducting
proceedings with respect to injury.
(d) The MINISTRY OF PRODUCITON is the implementing authority for the
application of anti-dumping duties.  At the time of the investigation at issue, thecompetent authority was the ex-MINISTRY OF THE ECONOMY AND PUBLIC
WORKS AND SERVICES.
16. Following the CNCE's finding that there was no indication of injury or threat thereof
suffered by the domestic industry in Acta No. 405, did the investigation authority reject the
application?  In other words, was Acta No. 405 effectively closing the file on the application?
Please explain.
Reply
Record No. 405 is not, per se,  a valid instrument for closing the investigation, nor is the
CNCE empowered to file the proceedings.
Similarly, it should be pointed out that the mentioned Acta No. 405 was issued on the basis of
information provided by the applicant applicable as of the date of issue.
As already stated in writing, and as emerges from the file, the applicants submitted updated
information in keeping with the re quirements of the application on 17 February 1998. As a result, the
Legal Department of the Ministry of the Economy and Public Works and Services, at the request of
the then Under-Secretariat for Foreign Trade, dete rmined that " … in view of the fact that the
information submitted by the Centro de Empresas Procesadoras Avícolas  (CEPA) in file
No. 061-001196/98 was not evaluated by the National Foreign Trade Commission when ruling oninjury to the domestic industry in Record No. 405/98, this Directorate-General considers that before
proceeding any further, the said National Commission should be asked to intervene once again in
order to rule on the items submitted … "  (folio 2302 of File CNCE No. 43/97).
The examination of the new information submitted is expressly provided for in Article 60 of
the Regulations to the National Law on Administrative Procedures (RLNPA – approved by Decree
No. 1759/72, Regulatory Enactment by Decree N o. 1883/91), duly notified to the relevant WTO
Committees, which stipulates that the competent body (in this case, which involves injury, the 
CNCE) shall intervene once again in the proceedings if any new developments occur or come to its
knowledge.  In the case at issue, the additional submission by the applicant introduced new items of
evidence which called for a further intervention by the CNCE at the request of the competent bodies
and in strict conformity with the law.
It should also be repeated that during the stage prior to the initiation of the investigation, third
party rights are not affected, the only relationship being between the applicant and the implementingauthority.  Thus, Brazil, which as interested party in the investigation had access to all of the folios
making up the file, will have noted that during the period of time between the applicant's submission
and the decision to initiate, a number of proceedings t ook place.  In light of the above considerations,
the suggested filing of the case would have been contrary to administrative law and would haveWT/DS241/R
Page B-97
adversely affected individual rights of the applicant with all of the administrative consequences that
such an act would entail.
In this connection, Article 5.5 of the Anti-Dumping Agreement is also applicable:  "The
authorities shall avoid, unless a decision has been made to initiate an investigation, any publicizing ofthe application for the initiation of an investigation…"
In the case at issue, the applicant provided updated information that warranted analysis and
led to the determination set forth in Acta No. 469.
Consequently, and in the light of the above-me ntioned provisions, CNCE Acta No. 405 in no
way constitutes an act by which the competent authority filed the application submitted, and a furtherintervention by the said authority was ultimately warranted under Argentine law.
17. What time-frame is envisaged by the word "promptly" in Article 5.8 ADA?  Please
respond with reference to this case.
Reply
Article 5.8 of the AD Agreement stipulates that:  "An application under paragraph 1 shall be
rejected and an investigation shall be terminated promptly  as soon as the authorities concerned are
satisfied that there is not sufficient evidence of either dumping or of injury to justify proceeding with
the case …"
Thus, it should be stressed that Argentina did not violate Article 5.8 of the AD Agreement,
since until the implementing authority (then the Secretariat for Industry, Trade and Mining) issues a
resolution ruling the initiation of the inve stigation (which is published in the  Boletín Oficial de la
Nación ), the activities of the authorities do not technically fall within the confines of an
"investigation".  There is no way that the two "Actas" of the CNCE prior to the opening of the
investigation could terminate promptly an investig ation that did not exist.  Thus, the scope which
Argentina gives to the term "promptly" in Article 5.8 of the AD Agreement is the scope determined
by the relevant domestic legislation which, on the occasion of the various notifications, was never the
subject of any objection by WTO Members in this respect.
Consequently, the term "promptly" must be interp reted in the context of an investigation that
has been initiated, in respect of which the necessary administrative steps must be taken for
termination once the authority is certain that there is no dumping or injury to justify continuing with
the procedure.
Claim 4
To Argentina
18. In paragraph 80 of its FWS, Argentina asserts that:
"the Report on the Initiation of the Investigation … contains the margins of
dumping established on the basis of the average for export transactions to
Argentina involving the product under investigation.  Consideration was given
in this connection to average exports for the period January-August 1997.  The
alleged margins of dumping calculated in points 1, 3 and 4 of the Report were
established for the purpose of conducting an additional analysis of the case at
issue."WT/DS241/R
Page B-98
With respect to this paragraph, this Panel has the following questions:
• Could Argentina explain the methodology used to calculate the f.o.b. export
prices reported in points 1 and 2 of Section 7 (Dumping margin') of the Report
relating to the Viability of the Initiation of the Dumping Investigation?  Withrespect to the dumping calculation in point 2 of Section 7, could Argentina
confirm that the import transactions th at were taken into account to calculate
the average export price were those contained in pages 489 to 492 of the Record
(both included)?
Reply
In point 1 of Section 7, and in this instance prior to the initiation of the investigation,
Argentina took the average f.o.b. export price for the period from August-October 1996.  Similarly,
applying the same methodology used for point 2, it took all of the transactions that were below 1.04,as of in detail on folios 508 and 509 and the lower table at folio 509.
Regarding point 2 of section 7, for the calculation of the export price Argentina considered
those import transactions that were under the normal value, which resulted in an f.o.b. export price of
0.90454.
For the purposes of Table 2 in section 7, Argentina used the details for the export transactions
set forth in the Annex at folios 485 to 488.  Similarly, the information used to calculate the f.o.b.
export price for point 2 can be found in the Annex at folios 489 to 492.
• Does the table included in page 10 of Section 6 of the above Report include all
imports of the product subject to investigation originating in Brazil during the
period January to May and August 1997?  Is the total amount reported in that
table (US$1,014.75/MT) the average f.o.b. export price for the product
concerned imported in Argentina from Br azil during the period January to May
and August 1997?  Please explain.
Reply
Yes, the table in section 6 includes all of the imports of the product under investigation, with
a price ranging from US$700 to US$1,330 per ton.
• The table in page 10 of Section 6 of the Report (folio 480) apparently includes
data on f.o.b. export prices supplied by the petitioner for the period January to
May and August 1997 .  In page 12 of Section 7 (page 482 of the Record), point (2)
reads 'taking into account the f.o.b. export  price data supplied by the petitioner
for the period January to June and August 1997  …'.  In paragraph 80 of its FWS,
Argentina asserts that 'consideration wa s given to average exports for the period
January-August 1997 .'  Could Argentina kindly clarify which period has been
used to calculate the average f.o.b. export price during 1997?
Reply
The period used to determine the f.o.b. export price in this case was January to June 1997 and
August 1997.  The month of July was not taken into consideration because the official Argentine
source the Monitoring Unit of the Secretariat for Industry, Trade and Mining, does not record anyWT/DS241/R
Page B-99
imports.  In other words, while the period considered was January to August 1997, no imports were
recorded for the month of July 1997.
19. Reference is made to paragraph 79 of Argentina's FWS:
"The technical department concerned examined the import transactions
identified in the source in question wi th a view to determining which ones
corresponded closest to the product under investigation so that the calculation of
the export price could be as precise as possible."
What does Argentina understand by the transactions that 'corresponded closest to the
product under investigation'?
Reply
In its examination, Argentina tried to determine which imports corresponded to the products
under investigation, placing emphasis on the physical characteristics of the product investigated.
Claim 5
To Argentina
20. Bearing in mind Brazil's statements in paragraph 124 of its FWS, was information on
normal value other than that concerning 30 June  1997 'reasonably available' to the applicant?
Reply
By Note 273-000887/99 of 29 July 1999, Section 26, folio 2103 (see Annex ARG-XL), the
implementing authority asked the applicant fo r further information on normal value on the
understanding that, with the investigation under way, it would be able to supply data, as it in fact did.
This does not alter the fact that prior to initiation, the authority considered that the evidence of
30 June 1997 was the evidence reasonably available to the applicant.
Claim 6
To Brazil
21. Paragraph 136 of Brazil's FWS reads in relevant part:
"If authorities had examined the accu racy and adequacy of the evidence
provided in the application they would have required that petitioner provide
prices of poultry for the entire period under analysis in order to correctly make
a fair comparison with export prices for the same period."
In the view of Brazil, which is the 'entire period under analysis'?WT/DS241/R
Page B-100
Claim 9
To both parties
22. In the present case, by virtue of which le gal instrument was the investigation initiated?
Reply
The investigation was initiated by Secretariat for Industry, Trade and Mining Resolution
No. 1/99, published in the Official Bulletin of 25 January 1999.
23. What interpretation is given by the part ies to the following excerpt from the panel
report in Guatemala – Cement II :  "we are of the view that Article 5.7 requires the investigating
authority to examine the eviden ce before it on dumping and injury simultaneously, rather than
sequentially?"
Reply
As Argentina has already stated, the simultaneous analysis stipulated in Article 5.7 requires
that both analyses take place at the same time and that the elements considered in the two analyses
correspond to a period that coincides sufficiently, taking into account of the differences involved in
investigating dumping on the one hand and injury on the other.
Claim 10
To both parties
24. What are 'interested parties known to the in vestigating authorities to have an interest'
within the meaning of Article 12.1 ADA?
Reply
According to Article 12.1, the implementing author ity shall notify "the Member or Members
… and other interested parties known to the investigating authorities to have an interest therein … anda public notice shall be given."
At the same time Article 5.2(ii), identifying the items of information to be supplied by the
applicant for an investigation, includes "the names of the country or countries of origin or export in
question, the identity of each known exporter or foreign producer and a list of known persons
importing the product in question".
Thus, it is Argentina's understanding that notification must be given to those parties that are
considered interested within the meaning of Article 6.11, that are known and identified in such a way
as to make such notification possible and identified it as interested parties.  Both the notification to theMember country and the public notice are requirements that seek to supplement the knowledge that
the implementing authority has either per se  or on express and substantiated information from third
parties.
25. When were each of the follow ing parties notified of the initiation of the investigation:
Government of Brazil, Avipal, Seara, Frigor ifico Nicolini, Sadia, Fransgosul, Chapeco,
Minuano, Perdigao, Catarinense, CCLP, Pena Branca, and Comaves?WT/DS241/R
Page B-101
Reply
In response to question 25, Argentina refers to the information contained in the tables
attached hereto as Annexes ARG-XLI, ARG-XLII, ARG-XLIII, ARG-XLIV, ARG-XLV, ARG-
XLVI, ARG-XLVII, ARG-XLVIII, ARG-XLIX, ARG-L, ARG-LI and ARG-LXI.  Annex ARG-LXIlists, in addition, the notifications sent by the DCD to the different parties in two different stages:
first, once the investigation was formally opened,  and second, following the submission by the
company Interamericana Comercial.
To Argentina
26. How does Argentina reconcile the fact that while exporters were listed in the  Report of
7 January 1998 regarding the Viability of the In itiation of the Dumping Investigation, they
appear not to have been notified?
Reply
While Argentina had received indications from a number of exporters, this did not constitute,
in itself, an "identification" which made it possible to send them the relevant questionnaires.  For the
purposes of notification, it requested the cooperation of the Brazilian Government, which had
knowledge of the application prior to the initiation of the investigation (see paragraph 112 of
Argentina's first written submission).  Unfortunate ly, the relevant information was not forthcoming,
and finally, with the investigation already well advanced, it was possible to notify the exporters in
question thanks to the information provided by the importing firm Interamericana Comercial, as
explained in Argentina's first written submission (paragraphs 118 and 119).
We also refer to folios 3020 and 3021 of the Report on the Final Determination of the Margin
of Dumping of 23 June 2000.  Although there is, indeed, an obligation to notify the interested parties,
Argentina took the necessary action in this respect by directly notifying those exporters that were
appropriately identified for the purposes of notification and asking for the cooperation of the
exporting member country.  This does not, in any way, imply a shift of the burden to Brazil -  it was
merely an attempt to obtain, through its cooperation, the participation of Brazilian exporters during
the investigation and as from its outset, as provided for in the Agreement itself.
Claim 11
To both parties
27. What is meaning of the word 'questionnaires' in Article 6.1.1. ADA?  In the view of the
parties, is the word 'questionnaires' confined to the questionnaires provided at the initial stage
of the investigation only?
Reply
Article 6.1 sets forth the obligation to give notice of the information required to the parties,
and to give them the opportunity to present, in writing, all of the relevant evidence.  Article 6.1.1
points to the existence of questionnaires to be sent to foreign exporters or producers – either directly
or through the representations of the exporting Member country – and stipulates a minimum of
30 days for reply, stating that preferential consideration should be given to requests for extension.
In this connection, Argentine practice, in conform ity with the legislation in force, is to send
questionnaires upon initiating the investigation, granting the stipulated time-period;  and if, as a result
of the proceedings, additional or supplementary information is required, the time-limit for theWT/DS241/R
Page B-102
submission of such information is directly related to  the content of the requirement, and consideration
is also given to requests for an extension.
To Argentina
28. Which is the nature of the requests addressed to certain Brazilian exporters on
15 September 1999?  In particular, are those requests original questionnaires?  Are they the
same as the questionnaires sent to the other ex porters earlier in the investigation?  Please
explain.
Reply
The implementing authority learned of the elements that enabled it to contact the other
Brazilian exporters through the importing company Interamericana Comercial at an advanced stage in
the proceedings, as the result of a request to seek evidence.  Accordingly, the authority proceeded to
ask for the said evidence which consisted, inter alia , of sales prices in the domestic market, export
prices and costs, and for the sole purpose of responding adequately to the general requirements andenabling exporters to attach any other information th at they considered important, it also provided a
copy of the questionnaire forms sent out at the beginning of the investigation.
We refer as well to paragraphs 118 and 119 of Argentina's first written submission.
29. Reference is made to paragraph 135 of Argentina's first written submission:
" … it should be pointed out that the CNCE delivered the questionnaire to only
eight exporters in full conformity with the provisions of Article 6.1 … "
Which are the eight exporters to which the CNCE sent the injury questionnaire?  When
were these questionnaires sent to those exporters?  How and when did the CNCE obtain the
addresses for these eight exporters?  Please provide copies of the communications from the
CNCE to these exporters.
Furthermore, the DCD's questionnaire was sent to five exporters:  why wasn't the
DCD's questionnaire sent to the same eight exporters that the CNCE sent its questionnaire to?
Reply
To answer the last question first, the DIRECTORATE OF UNFAIR COMPETITION and the
NATIONAL FOREIGN TRADE COMMISSION are different bodies, the former being responsiblefor the determination of dumping, and the latter for the determination of injury.
Under Argentine legal procedure, the DCD and the CNCE act independently in their
respective areas of competence.
On 10 February 1999, the CNCE questionnaire for exporters was transmitted to the Brazilian
companies Sadia, Frangosul, Avipal, Frigorífico Nicolini and Seara (copies of the respective notes,
the originals of which appear at folios 3092 to 3096 of CNCE file No. 43/97, are attached as
Annex ARG-LII).  As explained in Record  (Acta)  No. 576, " … the exports to Argentina reported by
the Brazilian companies that responded to the CNCE questionnaire for exporters represented morethan half of the total imports of all eviscerated poultry from Brazil for 1995, 1996, 1997 and
1998 … ".WT/DS241/R
Page B-103
The list of companies that replied to the said questionnaires between 22 February and 3 May,
with references to the corresponding folios  in file CNCE 43/97, is provided below:
QUESTIONNAIRE FOR THE EXPORTER REPLIED
Seara YES  (folio 3464/82)
Frigorífico Nicolini YES (folio 4556/68)Avipal YES (folio 4868/896)Sadia YES (folio 5296/308)Frangosul YES (folio 4904/61)
30. Did the invoices attached to the commun ication of Interamericana Commercial S.R.L.
to the DCD of 21 April 1999 (EXHIBIT ARG-VII) contain the address of Comaves Industrial?Can you please provide copies of those invoices?
Reply
While the implementing authority had before it an invoice submitted by the importing
company containing an alleged address for the company Comaves Industrial (Section 27, folio 2296,
sheet 4), it was not clear that the company was a producing-exporting firm and that this was its current
domicile.  A copy of the said invoice is attached as Annex ARG-LIII.
31. We refer to your statement in paragraph 1 34 of your First written submission that the
"investigating authorities granted the Brazilian ex porters a deadline longer than that specified
in the Agreement to reply to the DCD's questionnaires".  Should the 30-day period provided for
in Article 6.1.1 be provided from the outset when the questionnaire is first sent out, or is it
sufficient to provide a lesser period at the outs et, provided that the total period allowed for
response is at least 30 days?
Reply
In response to this question, Argentina refers to the information provided in the tables
contained in Annexes XLI to LI, and LXI.
Without prejudice to the above, we note that Argentina grants exporters the 30 days stipulated
in the AD Agreement for submitting the forms, as stat ed in the form itself.  Exporters have a right to
the 30 days, and the 30 days are granted.  The alternative examined by the Panel of initially granting a
lesser period and then increasing the number of days to 30 does not reflect the system applied by
Argentina.  What the Argentine authority stated was that in addition to the 30 days, it granted the
requested extensions.  It is understood that the time-limits granted for responding to the requestsshould be in keeping with the nature and complexity of those requests.  Thus, the initial 30-day period
for replying in full to the basic investigation questionnaire at the outset is appropriate.WT/DS241/R
Page B-104
Claim 12
To both parties
32. What is the meaning of the word "participating" in Article 6.1.2 ADA?  Would the
parties consider that companies that are aware of  an ongoing investigation but that do not show
an interest in it qualify as "parties participating in the investigation"?
Reply
In order to be able to answer this question, Argentina would ask the Panel to elaborate.
However, we understand that the interested parties are those that have proven to be interested partiesduring the investigation itself by expressing their interest in participating.
33. What is the meaning of the word "promptly" in Article 6.1.2. ADA?
Reply
In response to this question, we refer to the last paragraph of our reply to question 35.
Claim 14
To both parties
34. What are "known exporters" within the meaning of Article 6.1.3 ADA?  In particular,
would producers in the exporting country that have  been identified as exporters of the product
concerned by the applicant in the application qualify as "known exporters"?
Reply
Argentina understands "known exporters" to be those whose domicile is known together with
all of the data needed to identify them and transm it to them the relevant notifications.  The authority
of the Member country initiating an investigation does not necessarily have to complete information
on exporters.  Indeed, the AD Agreement provides for the participation of the exporting Membercountry as the appropriate vehicle for obtaining all of the information needed so that its producers can
be informed of the existence of the investigation, including the documentation necessary to participate
actively in the investigation.
35. Would the parties agree with the finding of the panel Guatemala – cement II  that "the
term 'as soon as' conveys a sense of substantial urgency" and that "as soon as" and
"immediately" can be considered interchangeable terms?  Please explain.
Reply
The Panel in Guatemala – Cement II   states that "as soon as" conveys a sense of substantial
urgency.  It adds that the terms "as soon as" and "immediately" are interchangeable.  Argentina
considers that while the Panel's interpretation must be viewed in the context in which it was made, it
is essential that the terms be evaluated in the complete context of the applicable legislation and
domestic procedures.  In the case of Argentina, the said legislation and procedures were notified to theMember countries and were not challenged.
One thing that makes a difference to the interpretation and conclusion that the terms are
interchangeable is the full meaning of the context in which they appear.  The context and purpose inWT/DS241/R
Page B-105
the Guatemala II  case is not the same as the context and purpose we are examining in the case at
issue.
Indeed, in the case at issue, the objective of the action is to try to ensure that there are no
unjustified obstacles to trade between countries.  In other words, to ensure that measures that are in
force or investigations under way are not maintained when it is learned that they are not appropriate in
the framework of the provisions of the AD Agreement.
In this case, in which there are rights that are protected by legislations, the term "as soon as"
must take account of, and be consistent with the need for greater speed, on the one hand, and the need
to comply with the relevant legal provisions on the other.
To Brazil
36. What is the meaning of the words "as soon as an investigation has been initiated" in
Article 6.1.3 ADA?  In the particular case at stake, when was the investigation initiated?
To Argentina
37. Please comment on paragraphs 42 and 43 of Brazil's first oral statement.
Reply
Regarding paragraph 42 of Brazil's first oral statement, Argentina understands the term
"facilitar ", on the basis of the accepted meaning in our language, as meaning to permit access to a
thing or element that is of interest to the other party.  In other words, our interpretation is not
substantially different from that of Brazil, nor is it different from the interpretation used by variousmember states with respect to the specific matter at issue.  The difference that is being sought to be
introduced here applies to the way in which access to the element is " facilitado ".  The copy of the
application is available to the interested parties and the government of the exporting country from the
outset of the investigation and interested parties that are duly accredited under Argentine law are
provided permanent access to the file to the extent possible.
Regarding paragraph 43, it should be pointed out with respect to the documentation supplied
by Sadia and Frangosul (Section X, folio 1012, sheet 4) that, for example, although Sadia explains
that the technical specifications for the products marketed in Brazil and Argentina are the same, in
Section IX, folio 999 (Annex ARG-XXIII to Argentina's first written submission), the representative
of the company Sadia, who is also the representative of Frangosul, Seara and Avipal, in a way
challenges the adjustment made but without saying how it should be made.
This is why Argentina considers the simple allegations of the representative to have been
insufficient – they should have been documented so that they could be verified.
Claim 15
To Brazil
38. With regard to  EXHIBITS BRA-22, 23, 24  and 26, please indicate precisely where
exporters reported that the poultry sold to Argent ina was identical to the poultry sold in Brazil.WT/DS241/R
Page B-106
To Argentina
39. Brazil has asserted that the investigating authorities did not request supporting
documentation for all information requested from exporters.  Please comment.
Reply
Brazil's statements on this issue reflect a confusion which would appear to arise from an
interpretation of the procedures determined by the particular way in which that country applies them
rather than an orderly and systematic reading of the way in which the Argentine implementing
authority proceeds.  Firstly, it should be expl ained that the implementing authority follows a
procedure which is notified to the parties through its legal provisions and the instructionsaccompanying the requests for information.  Thus, the authority, as is customary and in keeping with
its usual procedure, requested supporting documentation for the arguments put forward insofar as
those arguments are based on documentation which is substantially in the hands of that party.  This
methodology is applied concurrently to all of the parties involved, and does not in fact discriminate
against, or conceal anything from exporters.
Argentina did not request copies of all of the invoices, but only  the supporting documentation
for the arguments put forward.  On the basis of the information supplied by the parties throughout the
proceedings, the authority evaluates the possibil ity of requesting further documentation, without
prejudice to what has already been requested in the questionnaire for exporters.
Claim 17
To Argentina
40. Where in its final determination, or any ot her document made available to interested
parties, does the DCD explain why it rejected the relevant exporters' export price data?
Reply
The Report on Action Taken (folio 2757, Section 63) – EXHIBIT BRA-28 – identifies in
detail what information submitted in the course of the proceedings Argentina would take intoconsideration in its final determination.  Similarly the Report on the Final Determination
(EXHIBIT RA-15) also mentions the reasons why individual determinations of margin of dumping
were not made.
As stated earlier on, and as the parties are aware, the information supplied must be submitted
in conformity with the formal and substantive provisions of Argentine law and with the provisions
specifically set forth in the request for informati on.  Failure to comply with these provisions means
that the implementing authority cannot use the information correctly and legally for the purposes of its
determinations.
Claim 19
To Brazil
41. Argentina asserts that Frangosul's normal value data was submitted out-of-time. Please
comment.WT/DS241/R
Page B-107
Claim 20 ( inter alia )
To Argentina
42. Regarding paragraph 190 of Argentina's first written submission, please provide copies
of the "several notifications" that were sent to Frangosul "with a request to provide the lists of
Notas fiscales"   What was the deadline for Frangosul's submission of normal value data?
Reply
Regarding the copies of the "numerous notas fiscales " requested from Frangosul, they were
attached to Argentina's first written submission as Annexes 27 and 28.  However, we attach heretoAnnex ARG-XLV, containing a table listing all of the notifications sent to Frangosul.  See also
Annex ARG-LIV, attached hereto, containing copies of the requested n otas.
The final deadline granted to the company Frangosul was indicated in Note  DCD No. 273-
001413/99, which provided for "a period of no more than five days following the reception of thisnote".  The Note is attached hereto as Annex ARG-LV.  After the granted deadline of
29 November 1999 had elapsed, the company made a submission, on 30 December 1999, containing a
diskette.  In other words, beyond the period of time granted by the DCD.
43. Precisely what normal value data did the DCD ask Cararinense to provide? Please
provide supporting documentation.
Reply
In order to help the Panel understand this issue, we note with respect to Catarinense that the
Report on the Final Determination, at folios 3053/3054, states that the information supplied on normal
value is reported on an aggregate basis in Annexes V and VI, and for a longer period.  It was also
reported that the information had not been document ed.  The fact that it was provided in aggregate
form made it impossible for the implementing authority to consider only what corresponded to the
investigation period.
44. Please indicate where, in the DCD's Final Determination, the reasons are given for not
calculating individual dumping margins for Frangosul and Catarinense?
Reply
Once again we note, with respect to Catarinense, that Report on the Final Determination
(EXHIBIT BRA-15) states, at folios 3053/3054, that the information provided on normal values was
reported on an aggregate basis in Annexes V and VI, and for a longer period.  It was also reported that
it had not been documented.
Similarly, at folio 3087, the final Report makes the following statement:  "Finally, we stress
that in the case of the companies Catarinense Limitada, Frangosul, Comave, Da Granja Agroi, Sadia
Concordia, Minuano De Alimentos,  Acaua Industria, Felipe Avicola, Agroi, Veneto, Chapeco and
Litoral Alimen, the implementing authority did not have sufficient additional information or
supporting documentation to enable it to reach an individual final determination of the margin of
dumping.  That being the case, the implementing authority had to fall back on the relevant legislationin force, considering, to that end, the best information that it had obtained prior to the current stage of
the proceedings … ".WT/DS241/R
Page B-108
45. Please indicate where, in the DCD's final determination, or in any other document
prepared by the DCD at that time, the reasons for not calculating individual dumping margins
for Frangosul and Catarinense are provided?  Did the DCD have sufficient export price data in
respect of these two exporters?
Reply
We stress once again that the DCD Report on the Final Determination (EXHIBIT BRA-15)
states, at folio 3087, the following: "Finally, we st ress that in the case of the companies Catarinense
Limitada, Frangosul, Comave, Da Granja Agroi, Sadia Concordia, Minuano De Alimentos, Acaua
Industria, Felipe Avicola, Agroi, Veneto, Chapeco and Litoral Alimen, the implementing authority did
not have sufficient additional information or supporting documentation to enable it to reach anindividual final determination of the margin of dumping.  That being the case, the implementing
authority had to fall back on the relevant legislation in force, considering, to that end, the best
information that it had obtained prior to the current stage of the proceedings … ".
With respect to Frangosul, only documentation on export prices was provided – there was no
information concerning sales prices on the domestic market.  It seems perfectly clear that the
implementing authority did not have the necessary elements for calculating individual dumping
margins given, as emerges from the Agreement, that  this margin reflects the ratio between the two
values and that specifically, information on sales prices in the domestic market is in the hands of the
exporter.  Regarding Catarinense, we refer to our reply to Question 43.
Claim 19
To Brazil
46(a). Please provide a copy of Catarinense's questionnaire response of 3 November 1999.
46(b). Argentina asserts that Frangosul's normal value data was submitted out-of-time.  Please
comment.
Claim 21
To Argentina
47(a). In paragraphs 340-350 if its FWS, Brazil asserts that certain information was not
provided to the exporters.  Please indicate preci sely where, if at all, this information can be
found in the authority's Report of 4 January 2000.
Reply
The Report on Action Taken (EXHIBIT BRA- 28) clearly states what information was
provided by each one of the exporters in the course of the proceedings, and of that information, whatdocumentation would or would not be used for the final determination of the margin of dumping.
Particularly relevant are Parts VIII, VIII.1 and VIII.3 et seq.
However, in order to help clarify this issue, we refer to the tables attached hereto as
Annexes XLI to LI, and LXI.WT/DS241/R
Page B-109
Claim 23
To Argentina
47(b). Did the DCD Sadia to provide additional information regarding its request for "flete
interno" adjustment (i.e. after Sadia provided the data set forth in Annex VIII of its
questionnaire response?)
Reply
In response to Question 47(b), Argentina refers to the information contained in the table
attached hereto as Annex XLIV.
48. Please provide a copy of Expediente No. 061-000739/2000, as referenced at page 95 of
the DCD's final dumping determination (EXHIBIT BRA-15).  Please also provide a copy of
Expediente No. 061-000663/2000, referenced at page 97 of the same document.
Reply
Copies of File No. 061-000739/2000 and 061-000663/2000 are attached hereto as
Annex ARG-LVI and ARG LVII respectively.
To Brazil
49. When did Avipal first request a normal va lue adjustment for freight charges?  Did
Avipal provide supporting documentation with its request?  If so, please provide a copy of that
supporting documentation.
50. Is Brazil's argument regarding the investigation authority's failure to use information
submitted by exporters limited to adjustments for the purpose of Article 2.4, or also to other
factors/claims?
Claims 23-27
To Brazil
51. Please explain precisely what evidence was in the record that you consider the
investigation authorities failed to use.
To Argentina
52. Please comment on paragraphs 61 and 65 of Brazil's first oral statement.
Reply
We must begin by determining what, in the view of Members, is meant by the term
"excessive burden".  If carried to the extreme, the concept of excessive burden could render the
request for information from the parties meaningless.  The information requested might have had a
different weight in proportion to the trade importance of each exporter, but it is equivalent to theinformation that is requested of all parties, in all investigations, information that is supplied, as in the
case at issue, by a few of the producers-exporters.  In any case, the exporters, like any other interested
parties, were welcome to contact the implementing authority and explain that they considered the
evidence they were to provide to be "excessive" (in quality and quantity), providing sufficientWT/DS241/R
Page B-110
justification for their claim.  However, the parties did not make use, during the investigation, of the
opportunity granted to them under the actual proced ure, an "omission" which is now being presented
to the Panel as a failure by the implementing aut hority to take sufficient action.  Argentina would
further like to explain to the Panel that it never requested, let alone required, that the exporters provide
an invoice copy for "all of the sales transactions".  Argentina was unable to find the part of the filethat Brazil was referring to in this connection, which is not surprising, given that the request was not
made.
Without prejudice to the above, Argentina would like to point out with respect to
paragraph 61 that it did not consider the request for information from the producers-exporters to be an
excessive burden, since certain exporters provided information that did in fact comply with the DCD's
requests.  Moreover, if certain exporters did in fact consider the evidence requested to be excessive,they should have informed the authority accordingly and explained that it was impossible to comply.
However, at no point was this done.
At the same time, Brazil should indicate, in connection with paragraph 65, where in the file
Argentina required that the exporters provide "an invo ice copy for all of the sales transactions in the
home market".  The tables attached as Annexes XLI to LI and LXI, show exactly what requests for
information were made by Argentina.
Claim 24
To Argentina
53. Certain data (regarding adjustments) submitted by Jox appears to have been rejected
because if was submitted in Portuguese.  If that was the case, why was the other Jox data – also
submitted in Portuguese – accepted by th e DCD (EXHIBITS BRA-19 and 32, regarding normal
value data and the adjustment for different characteristics)?
Reply
The Jox information submitted by CEPA in File No. 61-006544/99 (Section 25 – folio 2096)
(Exhibit Brazil 19) was translated following a request by the implementing authority made in
Note No. 273-000887/99 (folio 2103 – Section 26) (see Annex ARG-LVIII).  The translation wasprovided in File No. 061:006874/99 (folio 2115 – Section 26)(see Annex LIX).
As can be seen, the implementing authority considered evidence of normal value that was
translated in conformity with the Law on Admini strative Procedures and its regulatory Decree.
Claim 25
To Brazil
54. Please provide all of the exporters' replies to Sections B.2 and C.1.1 of the DCD's
questionnaire (as set forth on "folios" 8 and 9 in EXHIBIT BRA-22).WT/DS241/R
Page B-111
Claim 26
To Argentina
55. Was the additional normal value data submitted by CEPA on 26 July 1999
(EXHIBIT BRA-19) relied on by the DCD for the purpose of making a final determination on
dumping?
Reply
Yes, that information was considered in making the final determination, as revealed by the
Report on Action Taken prior to the closure of the period for obtaining evidence, dated4 January 1999 (folios 2809 – 2811), Part VIII.1.2.2 and in the Final Determination of the Margin of
Dumping (folios 3038-3040), Part VIII.1.2.2.
56. Please comment on paragraph 59 of Brazil's oral statement.
Reply
The implementing authority carried out the ad justments to the extent that they were
documented by evidence as required for that purpose under Argentine law, which was known to the
parties.  In this connection, the Law on Administrative Procedures and its regulatory DecreeNo. 1759/72 are applicable to anti-dumping procedures, on a residual basis, as stated in the regulatory
Decree to Law 24425.  The said Decree No. 1759/72 to the Law on Administrative Procedures
stipulates in Article 28 that documents under foreign jurisdiction shall be submitted with a translation
into Spanish by a certified translator.  Pursuant to the said legislation and given that the
documentation supplied by Jox Asesoria following an additional request by the implementingauthority was not provided with a translation, and that none of the exporters provided translations, the
said adjustments for inland freight and taxes were not considered.
The implementing authority made it clear that since it was aware that there were possible
factors requiring adjustment, it would require information substantiated by relevant evidence, and if
that evidence complied with the legislation in forc e, it would be considered for the purposes of its
determinations.  Any other approach would mean vi olating Argentine law, the Agreement itself and
the legitimate right of all parties involved to defend their interests and be treated with equity.  In the
case at issue, this is clearly revealed by the fact that Brazilian exporters Sadia, Avipal, Nicolini and
Ceara did submit the relevant documentation, and that evidence was considered for the purposes of
making an individual determination of the margin of dumping.
Claim 27
To Argentina
57. Please explain exactly why the DCD's sample of domestic transactions (used for
calculating normal value) was statistically valid .  Is any such explanation contained in the
DCD's final documentation, or any other document made available to interested parties?  If so,
where?
Reply
A sample is statistically valid with an acceptable margin of error.  The fact that use was not
made of the entire range of information is justified by lack of access thereto, lack of time to process it
all and the need to reduce the number of errors associated with the processing of large quantities ofWT/DS241/R
Page B-112
data.  Thus, the aim is to draw inferences concerning population parameters on the basis of sample
statistics.  We note that the Agreement on implementation of Article VI of the GATT 1994 provides
for the use of statistical methods to determine normal value.
We attach hereto the explanation provided by the DCD in the Report on the Final
Determination (EXHIBIT BRA-15), folios 3046/3047.
Claims 28-30
To Argentina
58. With regard to the statement in parenthesis in the second line of paragraph 55 of
Argentina's first oral statement, was the "minim um export price" determined for each exporter
(for the purpose of the variable anti-dumping dut y) less than, equivalent to, or more than the
normal value calculated (during the invest igation) for each exporter respectively?
Reply
Argentina sought to follow the suggestion made by the AD Agreement and to use a value less
than the margin of dumping in the conditions established by the Agreement to ensure that trade
between Members can benefit from competition without prejudice to the domestic industry.
In the case of AVIPAL, the value taken was barely less than the normal value determined
during the investigation.  In the case of SADIA, it was less:  the normal value determined was 0.94
and the value applied was 0.92.  For the other companies it was also less, the normal value determined
being 1.0385 and the minimum export value applied being 0.98.
Claims 32-40
To Argentina
59. Please comment on paragraphs 69-70, and 79-82 of Brazil's first oral statement.
Reply
Paragraphs 69-70
First of all, there is no obligation to analyse any indicator outside the period established by the
authorities as the investigation period.
In accordance with international practice in certain countries, Argentina considered a number
of variables accessible to the public in order to double check the trends observed during the
investigation period.  If we were to insist on the constant updating of all indicators during the
investigation, as Brazil seems to suggest in this case, the investigation would be endless.  We repeat
that this is not the objective of the AD Agreement, nor is it the practice of those countries which, like
Argentina, examine certain relevant indicators of reference data.
Comments on paragraphs 79-82
Paragraph 79
We repeat what we stated in our first written submission, in paragraphs 277 to 282.
Argentina would like to make it clear to the Panel that the evolution of the productivity factor wasWT/DS241/R
Page B-113
analysed specifically in Record CNCE No. 576, as was the case for al l of the factors listed in the
AD Agreement.  Indeed, the said Record states that " … the relative stability of the number of
employees in spite of the increased production would indicate higher physical labour productivity,
probably due to the above-mentioned introduction of new technology."  Brazil calls the attention of
the Panel to the fact that the data submitted – production, employment, wages and cost structure –does not refer specifically to the productivity factor.  Argentina wonders why Brazil should wish to
call the Panel's attention to this issue, since the mentioned factors are those which made the CNCE's
analysis possible.
Paragraph 80
Argentina repeats what it stated in paragraph 292 of its first written submission.  Regarding
the fact that Brazil fails to find an evaluation of other factors affecting the price of whole eviscerated
poultry during the investigation period, we note that this evaluation appears both in CNCE
Record No. 576 and in the Technical Report.  Ind eed, regarding the evolution of the price of a
substitute product – red meat – the said Record states the following:  "An econometric exercise was
conducted which showed that for the period from January 1995 to June 1999, the price of the producton the domestic market depended on the volume of imports for the previous month, the price of the
imported product and the price of bovine meat.  The inclusion of the price of maize in the mentioned
model did not produce satisfactory results, indicating that the considerable variability of the price of
whole eviscerated poultry does not coincide with the price of maize.  Nevertheless, both variables
showed similar patterns … ".  This analysis was based on the elements set forth in the TechnicalReport at folios 7371/2 and 7491/507.  CNCE Record  No. 576 also refers to the analysis of the
evolution of the general level of activity, stating that "[t]he economic recession did not particularly
affect the consumption of whole eviscerated poultry, which continued to increase (in 1998 it increased
by 14 per cent)."  Finally, with respect to relati ve prices, CNCE Record No. 576 states that "…with
regard to the price of industrial goods taken as a whole and of bovine meat - represented respectivelyby the Wholesale Industrial Price Index for Manufactured Goods and the simple average of the
consumer price indices for fresh bovine meat, front and hind cuts - followed the same trend as the
sales revenue described above, although in the case of bovine meat, the annual variations reflected a
stronger decrease in 1998 as a result of the increase in the price of bovine meat recorded that year."
The above analysis was supported by the information provided in the Technical Report, in particular
Table No. 16 at folio 7474 and the description at folio 7410.  Regarding Table No. 16 of the Technical
Report, Argentina notes that according to Brazil it contains only the average sales revenue for poultry,when in fact it also provides the relative prices mentioned above.
Paragraph 82
Argentina evaluated the specific accounts of the companies and the main economic and
financial variables contained in the accounting and financial instruments required in connection with
the corporate characteristics of the companies.  It is these factors that define, among other elements,
the capacity of a company to raise capital, and ultimately, its capacity for growth and investment.
Contrary to what Brazil claims in paragraph 82 of its oral submission of 25 September 2002, this
explanation appears in the Technical Repo rt GEGE/ITDF 03/99 and in Record No. 576.
60. Please also comment on Brazil's assertion at paragraph 74 of its first oral statement that
is "not true" that the CNCE did not take into account imports from Nicolini and Seara for the
purpose of its injury determination.
Reply
With respect to this assertion, Argentina repeats what it stated in paragraphs 269-273 of its
first written submission.WT/DS241/R
Page B-114
Claim 34
To Brazil
61. If non-dumped imports are to be excluded for the purpose of an Article 3 injury
analysis, doesn't this suggest that the determin ation of dumping must precede the determination
of injury?  If so, how is a Member to ensure  that evidence of dumping and injury will be
considered simultaneously in conformity with Article 5.7?
Claim 34
To Argentina
62. Please explain how the investigating auth orities ensure that non-dumped imports were
excluded for the purpose of the injury determination.
Reply
In response to this question, Argentina refers to its reply to question 60.
Claim 38
To Argentina
63. At paragraph 278 of its FWS, Argentina refers to a number of page references.  Please
indicate precisely which documents these page  numbers refer to.  Please also indicate
corresponding file page numbers (for example,  page 1 of Acta No. 576 (EXHIBIT BRA-14) is
page 7303 of the file).  Furthermore, please indicate precisely which extracts from these pages
that Argentina is referring to.
Reply
The references made by Argentina in paragraphs 278 of its first submission concerning
improvements in the sector's productivity are the following:
(a) Record No. 576:  page 12 (paragraph 2), page 13 (paragraph 4), page 14
(paragraph 1), page 20 (paragraphs 3 and 4)
(b) Technical Report:  page 26 (paragraph 5), page 28 (paragraphs 5 and /), page 29-30
(paragraph 2) and page 95 (paragraphs 3 and 4).
64. Regarding paragraph 279 of Argentina's FWS, please indicate in which document
'CEPA confirmed that the leading productivity  indicators … are similar to those in the
Brazilian industry'.
Reply
The exact words used by the Centro de Empresas Procesadoras Avícolas (CEPA) in its
submission at folio 7135 of File CNCE No. 43/ 97, dated 2 December 1999 (post-hearing submission),
a copy of which is attached hereto as Annex ARG-LX, were:  " … for a number of years now, there
has been no difference between our productive out put and that of Brazilian poultry producers …".WT/DS241/R
Page B-115
Claim 41
To Brazil
65. Regarding paragraph 87 of its first oral statement, is Brazil alleging that Argentina's
failure to explain why it considered a percentage  lower than 50 per cen t "a major proportion"
constitutes a violation of Article 4.1, or of some other provision of the AD Agreement?  If so,
please explain how this claim falls within the Panel's terms of reference.WT/DS241/R
Page B-116
ANNEX B-5
SECOND ORAL STATEMENT OF ARGENTINA
(26 November 2002)
I. INTRODUCTION
1. Argentina is grateful for the possibility of presenting before the Panel its arguments in the
light of the second written submission of Brazil (rebuttal submission) dated 17 October 2002.
2. At this stage of the proceedings, Argentina would like to highlight – in summary form – and
respond to certain arguments put forward by Brazil in its latest submission.
II. PRELIMINARY ARGUMENTS
3. Argentina repeats that it considers accusations of bad faith1 of a generic nature such as the one
made by Brazil in its first written submission to be out of place, and consequently, the Panel shouldreject the arguments contained in the second paragraph of the section "Anti-Dumping Standard of
Review" in Brazil's second written submission.
4. It is very difficult for Argentina to understand how the use of the term "generic" can be
rejected on the grounds of Brazil's attempted justification
2 whereby the listing of the 41 claims in
paragraphs 3 and 4 of its first written submission, not to mention the contents of paragraphs 11
through 544 of that submission provide a greater degree of precision to the accusation of bad faith.
5. A distinction has to be drawn between the claims  and the legal justifications thereof in respect
of which Brazil states that " the identification of these claims, the related facts and legal arguments
are not general in nature and are not without relevance in this WTO proceeding "3 on the one hand,
and the accusation of bad faith on the other.  The alleged inconsistencies of Argentina's  Resolution
574/2000 with WTO rules bear no relationship with the principle of bad faith.
II.2 THE DOCTRINE OF RES JUDICATA
6. Contrary to Brazil's statement4 that " it appears, in fact, that Argentina is suggesting that the
ruling by the Mercosul Tribunal has the effect of res judicata.  In the event that Argentina is alleging
the application of res judicata  … ", Argentina repeats5 that it has not argued for the application of the
doctrine of " res judicata ".
                                                     
1 First written submission of Brazil, paragraph 28, page 12.
2 Rebuttal submission of Brazil, Section III – "R uling by MERCOSUL Ad Hoc Arbitral Tribunal",
paragraph 12, page 4.
3 Idem .
4 Rebuttal submission of Brazil, Section III – "Ruling by the MERCOSUL Arbitral Tribunal",
paragraph 18, page 5.
5 Intervention by the Argentine Republic at the meeting of the Panel with the parties,
25 September 2002, paragraph 7.WT/DS241/R
Page B-117
7. Nevertheless, Argentina feels that it should refute the arguments put forward by Brazil in this
connection in its rebuttal submission and provide a number of clarifications.
8. In the case India – Autos6, the Panel stated that it would have to examine the applicability of
the doctrine in the WTO, and secondly, that it would be necessary to determine whether the facts inthe dispute were such as to satisfy the requirements of the doctrine.
9. However, the examination of the doctrine of res judicata in the case India – Autos  was based
on circumstances different from those that apply to the dispute brought by Brazil.
10. In India – Autos  the treatment of res judicata referred to two successive cases:  India –
Quantitative Restrictions
7 and India – Autos,  both settled under the WTO.  And indeed, footnote 333
of the Panel Report in India – Autos  dwells on the examination of two disputes brought under the
WTO.  These disputes considered claims calling for the establishment of successive panels
concerning the same issue.  The two cases referred to were India – Patents8 and Australia –
Automotive Leather II .9  Both cases involved disputes brought before the WTO in which res judicata
was deemed irrelevant since there was no identity between the parties to the disputes ( India –
Patents10), or there was a void in the previous decision of the Panel with respect to the matter at issue
(Australia – Automotive Leather II ).11
11. As Argentina has argued, the dispute brough t by Brazil against Argentina under the WTO is
not comparable with any of the three cases in which past panels have had the opportunity to examinethe scope of the theory of res judicata .
12. Without prejudice to the fact that it did not invoke the applicability of the doctrine, Argentina
feels that it is necessary to point out the substantial differences between the current dispute and the
cases cited by the EC and Brazil in their respective submissions.
− They are not successive complaints under the same forum :  In the case at issue,
we have an arbitral award issued by a tribunal set up at the request of Brazil in the
framework of MERCOSUR, and not a prior ruling within the WTO.
− The identity of the parties  is beyond doubt if we compare the case brought before
MERCOSUR and the current case before the WTO.  Moreover, as Argentina has
                                                     
6 India – Measures Affecting the Automotive Sector  (WT/DS146/R, WT/DS175/R), 21 December 2001,
paragraph 7.55.
7 India – Quantitative Restrictions on Imports of  Agricultural, Textile and Industrial Products
(WT/DS90/R).  Subsequently, complaints were brought by the United States and the EC in the case India –
Measures Affecting the Automotive Sector  (WT/DS146/R and WT/DS175/R).
8 India – Patent Protection for Pharmaceutical and Agricultural Chemical Products  (WT/DS79)
complaint brought by the EC.
9 Australia – Subsidies Provided to Producers and Exporters of Automotive Leather  (WT/DS126/R),
report adopted on 16 June 1999.
10 WT/DS79.  The United States had previously filed a similar complaint:  India – Patent Protection
for Pharmaceutical and Agricultural Chemical Products  (WT/DS50).
11 In the case Australia – Automotive Leather II (WT/DS126/R) Australia, according to paragraph 9.14,
asked the Panel to read into the DSU an implicit prohibition on multiple panels between the same partiesregarding the same matter that does not exist in the text of the DSU.  However, the Panel ruled that "[n]or is thisa case where a complainant has sought a second panel before a first panel has completed its work with respect tothe same matter because it was dissatisfied with developments in the first panel.  Although the first panel in this
case was established, it was never composed and thus never began its work."WT/DS241/R
Page B-118
pointed out, there is an element of "added value" in that both States are States party to
the same integration process, namely MERCOSUR.12
− There is identity of the measure being challenged , i.e. Resolution ME 574/2000, as
stated by Argentina in its first written submission13 and also acknowledged by the
EC.14
− There is identity of the legal basis of the claim :  In this respect, Argentina has
already pointed out15 the high degree of similarity between the arguments made under
MERCOSUR and those made under the WTO.  A comparative table was included inAnnex ARG-LXII which clearly illustrates the mentioned coincidences in Brazil's
successive submissions in the two fora.
13. In short, despite the differences between the current dispute brought by Brazil and the cases
already settled within the framework of the WTO in which res judicata was invoked, Argentina has
decided not to argue the application of this doctrine for two basic reasons:  firstly, because Argentina
recognizes that in the absence of an applicable  MERCOSUR regulatory framework in this area, each
State Party to MERCOSUR is governed by the provisions of the Anti-Dumping Agreement
16;  and
secondly, in spite of this fact Brazil, fully awar e of the situation, resorted to MERCOSUR, and the
Ad Hoc Tribunal proceeded to examine the case and settle it taking account, because Brazil itselfincluded them in the regulatory framework, both in the legal grounds and in the description of legal
inconsistencies, of the articles of the Anti-Dumping Agreement which in Brazil's view were
infringed by Resolution ME 574/2000 .
14. Thus, in Argentina's view the case broug ht before MERCOSUR and the arbitral award
resulting from the complaint filed by Brazil cannot be overlooked, not because of res judicata , but
because of the pertinence of Brazil's conduct in filing of the complaint twice successively, and
because the MERCOSUR regulatory framework comes w ithin the relevant rules applicable to the case
under Article 31.3(c) of the Vienna Convention on the Law of Treaties.
II.3 OTHER PRINCIPLES AND RULES OF PUBLIC INTERNATIONAL LAW
APPLICABLE TO THE CASE
15. Argentina would like to provide a few clarifications in connection with Brazil's arguments in
the section "Ruling by the MERCOSUL Ad Hoc Arbitral Tribunal" of its rebuttal submission.
16. Firstly, while it is true, as Brazil maintains
17,that Article 1 of the Protocol of Brazil sets forth
the scope of the Protocol, Argentina's arguments are directed towards drawing the attention of the
Panel to the fact that the dispute brought by Brazil before the WTO had already been heard at the
regional level, a fact which must have legal consequences in these proceedings.
17. Indeed, the Panel has a right to be informed of all precedents to the case, and Argentina
stresses in that connection that it was Brazil that opted to resort to MERCOSUR to settle the dispute,
that invoked and argued its claims on the basis of WTO rules and regulations in defending its case
                                                     
12 Intervention by the Argentine Republic at the first meeting of the Panel with the parties, paragraph 8.
13 First written submission of Argentina, paragraph 16.
14 Third party submission of the EC, paragraph 7.
15 Intervention by the Argentine Republic at the meeting of the Panel with the parties, paragraph 8.
16 See rebuttal submission of Argentina, paragraph 2, and paragraph 18 of this statement by Argentina
at the second meeting of the Panel with the parties.
17 Rebuttal of Brazil, Section III, "Ruling by the MERCOSUL Ad Hoc Arbitral Tribunal",
paragraph 23.WT/DS241/R
Page B-119
before MERCOSUR, and that avoided any reference to precedent in the request for consultations, the
request for the establishment of the Panel, the request for the constitution of the Panel and its first
written submission before the WTO.
18. Among the "Preliminary Arguments" of its first written submission to the MERCOSUR
Ad Hoc Arbitral Tribunal18, Argentina requested that " if it agrees with the Argentine position that
there is no MERCOSUR legislation that gives th e Tribunal the power to review proceedings with
respect to intra-zone dumping and application of anti-dumping duties fully governed by and applied
under the domestic law of a State party, the Tribunal terminate its action ."  In other words,
throughout the conduct of the proceedings it kept Brazil informed of its dissenting view that the
matter was not being settled in the appropriate forum.
19. Nevertheless Brazil, knowing full well th at the MERCOSUR regulato ry framework did not
include any express provision on this subject, persisted in submitting its dispute in that forum, and
rather than accepting the unfavourable result, initiated proceedings before the WTO.
20. Argentina agrees with Brazil that the Ad Ho c Tribunal set up to hear the case brought by
Brazil before MERCOSUR had to apply MERCOSUR regulations, but in this case it happens to be
Brazil itself that has decided to include in its submission to that forum – both in the legal grounds and
in the description of legal inconsistencies – the alleged violations of the WTO Anti-Dumping
Agreement arising from Resolution 574/2000.  In this connection, Brazil argued that "[t]he provisions
of the WTO – AD Agreement were incorporated in community legislation by DEC CMC No. 11/97
(Regulatory Framework, RF).  Since by definition of  Article 1, the RF is in conformity with the WTO-
AD Agreement, failure to comply with the former implies failure to comply with the latter.   
Furthermore, should the RF disciplines not be applicable for some legal reason that excludes such
application, the provisions of the WTO AD Agreement would apply pursuant to Article 19 of the
Protocol of Brasilia (PB) as 'applicable principles  and rules of international law'.  The rules of the
WTO Anti-Dumping Agreement are binding for WTO Members, which include the States parties to
MERCOSUR ".19  (Emphasis added).
21. It is particularly important in this case to poin t out that "[t]he tribunal confirms that it is right
to apply the Protocol of Brazil in the case at issue"20, and that, furthermore, "[t]he Tribunal shall
settle the dispute in the framework of the subject as defined above.  To that end, it proposes to address
and decide on the following questions in order:  (…) (b) if there are no MERCOSUR regulationsexpressly covering this subject, what is the consequence?  What legal system should apply?"
21  The
same Tribunal then goes on to state that it was resorting to the WTO Anti-Dumping Agreement, given
that "[i]n this situation, the WTO Anti-Dumping Agreem ent stands as an appropriate reference, not as
MERCOSUR legislation, which it is not, but by virtue  of Article 19 of the Protocol of Brasilia as an
applicable principle of international law (Cfr. Second Arbitral Tribunal, paragraphs 59 et. seq., for aclarification of the concept of subsidies), in this case to shed light on the meaning and purpose of
anti-dumping proceedings."
22
22. In conclusion, Argentina repeats that Brazil's conduct in bringing the same case twice
successively in different fora – first in the framework of MERCOSUR, and then, faced with anunfavourable result, before the WTO – claiming viol ations of the same provisions of the WTO Anti-
Dumping Agreement in both cases, is in breach of the principle of good faith which calls for
compliance with treaties – both the agreements concluded in the framework of MERCOSUR and the
                                                     
18 Arbitral Award (paragraph 50).
19 Submission of Brazil before MERCOSUR (reference to paragraph 30 of the Arbitral Award).
20 Arbitral award (paragraph 101).
21 Idem , paragraph 109.
22 Idem , paragraph 159.WT/DS241/R
Page B-120
obligations assumed under the WTO; and as a result of Brazil's conduct we have a situation of
estoppel.23
23. In this connection, Argentina rejects Brazil's arguments concerning the Protocol of Olivos.24
Argentina repeats25 that the Protocol of Olivos confirms Brazil's previous conduct with respect to the
acceptance of awards and their scope, and from that point of view invalidates the complaint against
Argentina that Brazil is now trying to substantiate on the basis of the DSU.
II.4 RELEVANT RULE OF PUBLIC INTERNATIONAL LAW
24. Argentina repeats26 that the regulatory framework of MERCOSUR and the legal
consequences deriving from the application of the Protocol of Brasilia by the Ad Hoc ArbitralTribunal in the case at issue are relevant rules of public international law within the meaning of
Article 31.3(c) of the Vienna Convention on the Law on Treaties.
25. Argentina respectfully requests the Panel to take into consideration the  actions taken and the
regulations applied within the framework of MERCOSUR , since the fulfilment of obligations
under the agreements covered by the WTO cannot be considered in isolation
27, but rather as one more
element in the international regulatory system governing relations between WTO Members, which in
this case are also States parties to MERCOSUR.
26. In particular, the " Conclusions " and  "Decision " sections and paragraphs of the Arbitral
Award28 are of special significance in that they involve a ruling on the claims and allegations of Brazil
which the Panel should take into account in dete rmining the scope, in the case at issue, of the
Argentine obligations with respect to the Anti-Dumping Agreement, refraining from ruling on them.
III. SUBSTANTIVE ASPECTS OF THE INVESTIGATION
III.1 INITIATION OF THE INVESTIGATION
27. Argentina repeats that the information submitted by the applicant to the investigating
authority contained sufficient evidence within the meaning of Article 5.2 of the Anti-Dumping
Agreement and that it represented what was reasonably available to the applicant.
28. Similarly, Argentina repeats that the applicant for the initiation of an investigation is not
required to prove beyond all doubt the existence of dumping, injury and causal link, since the final
determination of these elements is the responsibility of the investigating authority, which conducts a
thorough investigation once the initiation has been decided.
29. Argentina also repeats that there are different standards of evidence according to the different
stages of the proceedings.  We recall, in this respect, the statements of the panels in United States –
Measures Affecting Imports of Softwood Lumber from Canada29 and Mexico – Anti-Dumping
                                                     
23 Rebuttal submission of Argentina, paragraph 20.
24 Rebuttal submission of Brazil, section entitled "Ruling by the MERCOSUL Ad Hoc Arbitral
Tribunal", paragraphs 32, 33 and 34.
25 Rebuttal submission of Argentina, paragraph 20, footnote 20.
26 Idem , paragraphs 28 and 29.
27 See rebuttal submission of Argentina, paragraph 15.
28 Arbitral Award, "III. Conclusions" and "IV. Decision".
29 WT/DS236, paragraph 332.WT/DS241/R
Page B-121
Investigation of High Fructose Corn Syrup (HFCS) from the United States30 reproduced in
paragraphs 38 and 44 of our first written  submission.
30. Thus, the implementing authority having examined the accuracy and adequacy of the
evidence submitted, verifying that it contained indications of dumping that was causing injury to thedomestic industry, it concluded that this evidence was sufficient to declare the initiation of the
investigation.
31. Argentina repeats in this connection that Article 5.3 does not impose any obligation to
conduct, at that stage, a thorough investigation, since the standard of "sufficient" evidence to justify
the initiation of an investigation is considerably lower than the standard required for the decision to
apply a preliminary or definitive measure.
32. As regards Brazil's claim that Argentina failed to comply with Article 5.7 of the AD
Agreement simply because the reports respectively establishing the existence of dumping and the
existence of injury bear different dates, we repeat that this difference of dates does not in any way
mean that the authority, in its decision to initiate the investigation, did not simultaneously consider theevidence in both reports.
33. With respect to Brazil's claim that Argentin a failed to comply with Article 5.8 of the AD
Agreement in that it should have rejected the application for initiation of the investigation because the
application had failed to demonstrate injury, Argentina refers to its statements in this connection in its
written submissions, its oral statement and its reply to questions 16 and 17 of the Panel.
34. We repeat in this connection that with respect to the submission of new evidence, under the
relevant Argentine legislation the competent author ity is required to intervene once again in the
proceedings if any new developments occur or come to its knowledge.  In this case, the additionalsubmission by the applicant introduced new items of evidence which called for a further intervention
by the CNCE at the request of the competent bodies and in strict conformity with the law.
III.2 CONDUCT OF AN APPR OPRIATE INVESTIGATION – EVIDENTIARY AND
PUBLIC NOTICE REQUIREMENTS
ARTICLE 12.1
35. Argentina reaffirms that the investigating auth orities acted in accordance with the requirement
laid down in Article 12.1 to give public notice an d to notify the interested party known to the
investigating authority to have an interest therein, as well as the Government of Brazil.  Indeed, we
repeat that it would have been impossible to notify parties whose interest in the investigation was not
known.  We refer in this connection to Argentina's replies to questions 25 and 26 of the Panel.
36. Argentina reiterates that throughout the proceedings it provided the Government of Brazil
with facts concerning the application through its Chargé d'Affaires in Argentina31, with a view to
obtaining its cooperation in identifying the producers-exporters interested in the investigation.
Similarly, Argentina has noted that although invited32, no representative of the Government of Brazil
attended the information meeting held on 25 February 1999 to which all parties potentially interested
in participating in the proceedings were invited and at which officials from the Directorate of Unfair
Competition replied to questions from those who attended, nor is there any record that any interested
party attended the meeting.
                                                     
30 WT/DS132/R, paragraph 7.76.
31 Note SSCE No.121 of 1 February 1999, provided as Annex ARG-III.
32 Record of 25 February 1999, Annex ARG-VI.WT/DS241/R
Page B-122
37. This is why it is difficult to understand how Brazil can try to deny any responsibility in this
respect by stating in paragraph 50 of its rebuttal submission that Argentina never requested Brazil's
cooperation in providing the address or contact info rmation of the companies whose interest in the
investigation was not known.  Indeed, the means of exporters were mentioned, but this did not, initself, constitute an "identification" that made it possible to send the questionnaires.  As Argentina
stated in its reply to question 26 of the Panel, th is does not imply shifting the burden to Brazil, but
rather, it represents an attempt to obtain through Brazil the participation of the Brazilian exporters
during the investigation and from the outset as provided for in Article 10.
38. We reaffirm in this connection that only through the request from the company
INTERAMERICANA COMERCIAL S.R.L. did Argentina learn of the interest of the seven otherexporting enterprises mentioned by Brazil.
33  In fact, having determined the adequacy of the request
and to ensure full participation of the producers/exporters, even though the Brazilian Government had
not singled out specific exporters, the implementing authority asked certain Brazilian companies and
institutions to provide reports (Comaves, Catarinense, Minuano, Chapeco and Perdiagao) concerning
actual sales, prices for kilogramme of poultry actually paid, etc.34, and asked the company
INTERAMERICANA COMERCIAL S.R.L. to provide a  list of addresses of those firms.35
ARTICLE 6.1.1
39. In keeping with the evidence already presented, Argentina reaffirms that it granted the
Brazilian exporters a period of thirty days to reply to the questionnaires of the DCD.  This is proven
by the fact that the said questionnaires were provided during the information meeting held on
25 February 1999, with a deadline for submission to the DCD of 29 March 1999.  Similarly, as has
been documented, due consideration was given to the requests for  extensions, which were granted
whenever practicable.36
40. Regarding the Brazilian claims in paragraphs 59 and 60 of its rebuttal, Argentina agrees withBrazil that because of the large volume of informa tion requested in the questionnaires, the exporters
and producers relied on a minimum period of thirty days to allocate the necessary resources in order
to respond.
41. However, Argentina does not understand how Brazil can adduce in this respect that there
were seven exporters that did not enjoy their right of defense when, as stated in Article 143 of
Argentina's first written submission, the replies to the questionnaires received from those exporters
clearly show that two of  them (CCLP and CHAPECO)
37 did not export to Argentina during the period
under investigation, while the other f our (MINUANO, COMAVES, PENABRANCA and
PERDIGAO) demonstrated their lack of interest in the investigation by not providing any informationwhatsoever, not even following the expiry of the deadline and the extension granted.
38
42. This is why, contrary to Brazil's claim, Ar gentina reaffirms that the investigating authority
granted the Brazilian exporters a deadline longer than  that specified in the Agreement to reply to the
DCD's questionnaires, having due regard for the exporters' requests for extensions, which weregranted whenever practicable, pursuant to Article 6.1.1.
                                                     
33 Annex ARG-VII.
34 Idem .
35 Annexes ARG-VIII, IX and X.
36 First written submission, paragraphs 130 to 132, and Annex ARG-XI.
37 See Annexes ARG-XXVI and XIV.
38 See Annexes ARG-VIII, XV, XVI, XVII, XVIII, XIX and XX, and first written submission,
paragraph 133.WT/DS241/R
Page B-123
43. It also bears repeating that the CNCE delivered the injury questionnaire to five exporters, in
full conformity with the provisions of Article 6.1, since the exports to Argentina notified by the
Brazilian companies that replied to the CNCE quest ionnaire for exporters represented more than half
of the total imports of whole eviscerated poultry from Brazil – so that the claim made by Brazil inparagraph 35 of its rebuttal submission is absolutely unfounded.
44. Thus, in addition to stressing that Brazil never questioned the circumstances now being
complained of in its various statements in the cour se of the investigation, Argentina reaffirms that the
implementing authority acted in full conformity with Article 6.1.1.
ARTICLE 6.1.245. Argentina reaffirms that the authorities acted consistently with the obligation laid down in
Article 6.1.2 in that they promptly made available to  the other interested parties participating in the
investigation evidence presented in writing by the in terested parties, and the other interested parties
could at all times consult the file and obtain a copy thereof.
46. Consequently, Argentina repeats that if the parties with a supposed interest in the
investigation did not participate, as stated before it was they, and not the implementing authority, that
failed to defend their own interests.  Indeed, it  would have been impossible for the investigating
authorities to place evidence presented by the interested parties at the disposal of the seven mentionedBrazilian companies, since those companies did not even join as interested parties.  Thus, Argentina
submits that it acted consistently with Article 6.1.2.
ARTICLE 6.2
47. In accordance with the above considerations, Argentina reaffirms that all of the interested
parties had full opportunity to defend their interests throughout the investigation:  they were given
access to the proceedings, and their right of access to the records was in no way impaired, let alone
their right of defence.  Thus, the investigating au thorities met the obligation laid down in Article 6.2.
Moreover, the authorities allowed any party that consider ed itself as having an interest to present itself
at the investigation, expressing that interest.
48. This determination on the part of the authorities to offer interested parties the broadest
possible opportunity not only to participate in the proceedings, but also to gather the information
needed to ensure an accurate final determination, is evidenced by the record of the submissions made
by the participating firms and the conclusions reached on the basis of those submissions, and in
particular the work of the Technical Department in requesting and putting together thedocumentation.
39
49. Argentina therefore considers that the investig ating authorities complied with the obligation
laid down in Article 6.2.
ARTICLE 6.1.3
50. Argentina reaffirms that the competent authorities satisfied the requirements of Article 6.1.3
by providing Brazilian exporters and the Brazilian Government with the full text of the written
application as soon as the investigation was initiated.  In this connection, the Argentine authoritiessatisfied the obligation to provide by making the records of the proceedings available to the
authorized interested parties.  Moreover, from the moment notification of initiation of the
                                                     
39 See Annex ARG-XXII and Annexes ARG-XXI, XX, XVI, XVIII and XIII.WT/DS241/R
Page B-124
investigation appeared in the Official Bulletin, interested parties with accredited status were able to
gain immediate access to the records of the proceedings.
51. Moreover, and notwithstanding the above, once the initiation of the investigation had been
decided upon, the Argentine authorities notified that fact to the Brazilian Chargé d'Affaires inArgentina
40, pursuant to Article 6 of the Anti-Dumping Agreement.
ARTICLES 6.8 and 12.2.252. Regarding the treatment of the information provided by the exporters during the investigation,
Argentina has repeatedly stated throughout these pr oceedings that this information was used to the
extent that it complied with the formal requireme nts laid down by Argentine law, which were known
to all of the parties.
53. Argentina once again repeats in this connection that the Brazilian claim that its exporters
complied in supplying all of the information request ed by the investigating authority, and that the
investigating authority decided for no reason to reje ct that information and use only the information
provided by the applicant, is untrue.  Argentina has shown that wherever the information supplied by
the exporters was accompanied by the documentary evidence needed, at a minimum, to corroborate
the information they had provided, that information was used.
54. As regards the information used for export prices, Argentina reaffirms that this was official
data from the General Customs Administration, which is the body responsible for supervising and
controlling all foreign trade transactions.  In cases such as CATERINENESE and FRANGOSUL, we
repeat that the information was not used simply because, in the case of the former, what was provided
was insufficient
41, while in the case of the latter, not only was the information insufficient, but it was
submitted after the expiry of the deadline for its use.42
55. Argentina has also repeatedly stated, with respect to the claim that the authorities should haveconducted on-the-spot verifications of the information provided by the exporters, that this is
something which is left to the discretion of the investigating authority, and is not an obligation under
the AD Agreement.
III.3 FAIR COMPARISON, INJURY, CAUSAL LINK AND PUBLIC NOTICE
ARTICLES 2.4, 3.1, 3.4, 3.5 and 12.2.2
Excessive burden of proof on exporters
56. Regarding Brazil's claim that the implementin g authority imposed an excessive burden of
proof on the exporters, Argentina would like to repeat what it stated in its first written submission.
57. Brazil's argument is contradictory in that the complaint in some cases has been that the
implementing authority did not request more information, while in other cases the complaint was thattoo much information was requested.  It should be noted that when the implementing authority
requested further information, it was for a particular purpose relating to the determination of normal
value and export value.
                                                     
40 See Annex ARG-III.
41 First written submission of Argentina, paragraph 203.
42 Idem , paragraphs 187 to 200.WT/DS241/R
Page B-125
58. It should also be remembered that the implementing authority took account of the comments
of the parties to the effect that the large volume of operations by enterprises on the local market made
it difficult for them to provide documentary evidence of all of the transactions, and in order to avoid
imposing an excessive burden on exporters, only requested the submission of evidence for those
transactions chosen on the basis of a statistical sample for which it was essential to have certain basicinformation.
59. As regards Brazil's statement in paragraph 94 under claim 26 of its rebuttal submission, it
would appear that Brazil attributes more relevance to the information on how to make a fair
comparison than the evidence required to make a precise determination of normal value and export
value, which needs to be done before a fair comparison can be made.  Without evidence of normal
value and export value from exporters, it is impossible to make a proper fair comparison consideringphysical differences that affect price comparability.
60. Similarly, with respect to Brazil's statement in paragraph 95 under claim 26 of its rebuttal to
the effect that it did not request the information required to make a fair comparison considering
physical differences, Argentina would like to point out that the exporters denied that in Brazil, poultrywas sold with head and feet, but never contribute d any evidence to the file to invalidate the fair
comparison put forward and substantiated by the applicant.  Similarly, it should be stressed that in an
investigation, the parties can supply all of the info rmation and evidence they consider relevant without
its being requested by the implementing authority.
61. Concerning Brazil's claim that an excessive burden was imposed on exporters because they
were asked for information for years that were not included in the investigation period, Argentina
repeats that the Agreement neither defines nor limits the period for collecting information, nor does it
define or limit the actual period under investigation.  The implementing authority therefore has
discretion to request the documentation it deems n ecessary for the purposes of determining the
existence of dumping, and may require further information when this is necessary to guarantee due
process to the interested parties.
62. In conclusion, we note that the requests for information by the authority were supported by
the requirements imposed under Article 6.1 and 6.2, i.e. to guarantee the parties' right of legitimate
defence.  These two paragraphs also enable the interested parties to provide all of the evidence which
they consider relevant in the course of the investig ation, i.e. this is a right of the interested parties.
63. Regarding Brazil's statement concerning the opinion of the EC in paragraph 97 under
claim 26 of its rebuttal, Argentina points out that it agrees fully with the interpretation of the
Communities, and consequently we understand Brazil to have erred in claiming inconsistency with
Article 2.4 under its claim 26.
64. As regards the adjustment made by the implementing authority, Argentina repeats that this
was done correctly and on the basis of the evidence and the methodology provided by the applicant.
Based on the evidence provided, the adjustment was clearly necessary – poultry with head and feet
sold on the São Paolo market and poultry exported to Argentina without head and feet.  Similarly, aswe stated earlier, the Brazilian exporters did not provide any evidence to the contrary.  Nor did the
Brazilian exporters object to the adjustment me thodology at any time during the proceedings.  We
repeat that at the request of the authority, the company JOX sent a note validating the percentage
adjustment made by the applicant.
Use of different periods to analyse the injury factors
65. Turning to Brazil's claim that the implementing authority used different periods to evaluate
some of the injury factors, Argentina repeats that the use of a longer period for the analysis of certainWT/DS241/R
Page B-126
factors – in a threat of injury investigation – than for other factors does not imply, per se , that the
implementing authority conducted an evaluation of the evidence that was not objective.  Argentina's
position coincides with the position presented by the United States in its written submission, backed
by the Panel in " United States – Hot-Rolled  Steel".43
66. Contrary to what Brazil claims, Argentina considers that the CNCE acted with particular case.
Argentina repeats what it said in its first written submission, mainly that the CNCE decided to analyse
the trends in imports for the first half of 1999, taking as a basis both international rules and relevant
practices in that area which provide that in cases of threat of injury, it is possible to undertake an
analysis beyond the period of the investigation in order to find out whether there is a growing trend in
imports and, as a result, give the investigation a more substantial factual basis.
67. We recall that the existence of a voluntary agreement between the parties from October 1998
to March 1999 meant that it was necessary to analyse imports without the effects produced by that
agreement, so the analysis was extended until June 1999, both for imports and for all apparent
consumption variables.
68. In this connection, we refer to Record No. 576, in which the Commission duly stated that if
there had been no such agreement between the exporters and the Argentine producers, " … in 1998
imports would have increased even more and, subsequent to the investigation period, in the first half
of 1999, the upward trend would have continued … ".
Evaluation of all of the factors
69. Argentina repeats what it has said throughout these proceedings, namely that the
implementing authority acted consistently with the provisions of the Anti-Dumping Agreement by
evaluating, in respect of injury, all the factors listed in Article 3.4 and their impact on prices of thelike domestic product as well as their impact on the domestic industry concerned.
70. We recall, in this connection, what Argentina stated in paragraph 277 of its first written
submission, namely that the applicant submitted information on the productivity situation in the sector
which showed that, at the initiation of the investigation, the Argentine poultry industry was on an
equal footing with the Brazilian industry and also with the leading producers at the global level
44, a
statement which was not questioned during the course of the investigation either by the Brazilianexporting companies or by importers in the Argentine market.
71. At the same time, we reiterate that the Argentine industry's costs are comparable to those of
the most competitive producers at the international level.  This was achieved through a large-scale
programme to restructure the industry and adapt production
45, which was affected by the uncertainty
caused in the local market by the importation of Brazilian products, particularly since Brazil utilized
the Argentine market as an alternative market in order to resolve problems of local or foreign demand.
We recall that the extent of Brazil's production capacity and the generation of exportable surpluses
mean that Brazil can easily redirect its effort to third markets when there are domestic or external
imbalances, despite the large size of its own domestic market.46
72. We refer, in connection with the above considerations, to paragraphs 283-285 of Argentina'sfirst written submission, which describe the characteristics of the Argentine poultry sector as regards
                                                     
43 WT/DS184.
44 Record 576, folios 12, 13, 14, 20, and Technical Report, folios 26, 28, 29, 30 and 95 as well as
Tables 1, 11, 12, 13 and 14 of Annex I to the Technical Report (EXHIBIT BRA-14).
45 See Annex ARG XXXVI.
46 See Section VI.2 ("MERCOSUR") of the Technical Report (BRA-14).WT/DS241/R
Page B-127
the export coefficient, consumption, demand, demand profile, comparative price behaviour47,
sensitivity to minor variations in supply, etc., as well as Brazil's status as price fixer in the Argentine
market, even with relatively low volumes, owing to  the enormous potential for increasing shipments
on very short notice, all of which necessarily led to price adjustments for the domestic sector.
73. Argentina therefore repeats that the decline in domestic prices in a context of sustained
growth in apparent consumption owing to a change in consumer habits can only be explained by the
existence of imports under unfair competition.48
74. Regarding Brazil's claim in paragraph 113 of its rebuttal (claim 38), it is difficult to
understand how Brazil can fail to see the connection between the information contained in Table 16 of
the Technical Report and factors affecting domestic prices, since that Table shows the evolution ofprice indexes for substitute products, mainly red meat, as well as the general level of activity of price
indexes in the most important sectors.
49
75. Argentina therefore reiterates that the CNCE properly considered all of the factors which, in
addition to imports, could have had an effect on the prices of the domestic product.  Similarly, giventhe potential impact on Argentine production, bearing in mind the characteristics of the domestic
market and the Brazilian market, the investigating authority correctly evaluated that margins of
dumping of 8 and 14 per cent were significant.
Public notice of the final determination
76. Argentina repeats that the public notice of the final determination complied with all of the
requirements of the Agreement.  Article 12.2 – which introduces Article 12.2.2 of the AD Agreement
– stipulates that the findings and conclusions considered material by the investigating authorities shall
be published in sufficient detail.  In other words, the text of Article 12.2 does not require that all of thefindings and conclusions be published.  Moreover, the authority has the discretion to decide which are
the findings and conclusions which it considers relevant for the purposes of publication.  Here,
Argentina fully agrees with the interpretation by the United States
50 to the effect that not all of the
factors listed in Article 3.4 must be published.
III.4 COLLECTION OF ANTI-DUMPING DUTIES
ARTICLE 9.2 and 9.3
77. Argentina reiterates, as it has maintained in the various stages of these proceedings, that the
manner in which it applies and collects anti-dumping duties is consistent with the requirements of the
Agreement.
78. In light of the claims in Brazil's rebuttal, however, Argentina deems necessary to make a
number of comments that will give the Panel all the information it needs to reach a reasoned
conclusion on the matter.
79. For clarity's sake, we propose to divide our argument on this issue into two parts, namely:
(a) we shall respond to Brazil's various claims that a violation of Article 9.2 is entirely
dependent on a violation of Article 9.3;  and
                                                     
47 See the Table on page 21 of Record 576 (EXHIBIT BRA-14).
48 See Annex ARG-XXXVII.
49 See EXHIBIT BRA-14.
50 Written submission by the United States as third party, paragraph 15.WT/DS241/R
Page B-128
(b) we shall demonstrate that Brazil's claim that Argentina applies anti-dumping duties in
a manner inconsistent with the AD Agreement has no basis whatsoever.
80. Starting with point (a), Argentina concurs with  Brazil that paragraphs 2 and 3 of Article 9 of
the AD Agreement are closely related.51  On the other hand, Argentina disagrees that a violation of
Article 9.2 is entirely dependent on a viol ation of Article 9.3 of the AD Agreement.
81. The express obligation in Article 9.2 is that duties " shall be collected in the appropriate
amounts ", while Article 9.3 provides that these " shall not exceed the margin of dumping as
established under Article 2 ".  An anti-dumping duty could therefore hypothetically be collected in an
inappropriate amount – i.e. in breach of Article 9.2 therefore – without, however, exceeding themargin of dumping established under Article 2, i.e. without violating Article 9.3.
82. Brazil's analysis, which concludes that any violation of Article 9.2 is dependent on failure to
respect the limit specified in Article 9.3, stems from its interpretation that the margin referred to in
Article 9.3 is that determined pursuant to Article 2.4.2, which sets out the method to be  used during
the investigation phase  to determine the existence of margins of dumping.  Brazil hence concludes
that the Article 9.2 reference to "appropriate amounts" is the margin of dumping established during
that stage in the proceedings.
83. Argentina disagrees with this interpretation, which leads it directly to point (b) of its
argument.  While Article 2.4.2 is clearly the only provision that explains in detail how a margin of
dumping is to be established, what is just as clear is that that same Article limits the application of the
provision in question to a specified period, namely " during the investigation phase ".
84. In focusing exclusively on Articles 9.2 and 9.3 and 2.4.2, Brazil apparently fails to consider
other relevant provisions of the anti-dumping regime, which not only should be analysed in order to
ascertain the alleged violation but also are those which in fact contain the obligations that Brazil
claims Argentina has failed to meet.
85. Contrary to Brazil's claim,
52 there is a difference between the margin of dumping determined
during the investigation phase and the anti-dumping duty ultimately established as a result of the
investigation.   The difference is clear from a full reading and interpretation of the Article in itscontext, namely not only the AD Agreement in its en tirety but also Article VI of the GATT 1994, the
implementing provisions of which are set out in detail in the AD Agreement.
86. Article 2.1 of the AD Agreement provides that:  "For the purpose of this Agreement, a product
is to be considered as being dumped, i.e. introduced into the commerce of another country at less thanits normal value, if the export price of the product exported from one country to another is less than
the comparable price, in the ordinary course of trade, for the like product when destined for
consumption in the exporting country."
87. Article VI.1 of the GATT 1994 contains a definition of dumping similar to that in Article 2.1
of the AD Agreement.  The relevant part of paragraph VI.2 likewise establishes that:
" ... For the purposes of this Article, the margin of dumping is the price difference
determined in accordance with the provisions of paragraph 1."
                                                     
51 Second written submission of Brazil, Section VII – "Claims related to the imposition and collection
of antidumping duties as a result of the antidumping investigation", paragraph 40.124, page 22.
52 Idem , paragraph 127.WT/DS241/R
Page B-129
88. Article 9.1 of the AD Agreement stipulates that:  "The decision whether or not to impose an
anti-dumping duty in cases where all requirement s for the imposition have been fulfilled, and the
decision whether the amount of the anti-dumping duty to be imposed shall be the full margin of
dumping or less, are decisions to be made by the au thorities of the importing Member.  It is desirable
that the imposition be permissive in the territory of all Members, and that the duty be less than the
margin if such lesser duty would be adequate to  remove the injury to the domestic industry."
89. A reading of the Articles cited above raises a question that is crucial in evaluating Brazil's
claim that Article 9.2 is dependent on Article 9.3 of the AD Agreement. The margin of dumping
established during the investigation phase does not necessarily have to be equivalent to the anti-
dumping duty finally established.  In the decision to impose anti-dumping duties, the implementing
authority is required to take account not only of irrefutable evidence that the unfair practice has takenplace but also of the fact that the duty imposed as a result of the investigation is adequate to remove
the injury to the domestic industry attributable to dumping.  If definitive anti-dumping duties were
established solely on the basis of the margin of dumping established during the investigation, the
injury analysis would be irrelevant and hence the provisions of Article VI of the GATT 1994 and
Article 9.1 of the AD Agreement would be devoid of all substance.
90. In paragraphs 131 et seq. of its second written submission, Brazil claims, moreover, that both
Argentina and Canada erred in their interpretati on regarding the absence of restriction on the anti-
dumping duty collected.  This is not so.  Argentina recognizes that the restriction on applying anti-
dumping duties is that established in Article 9.3, and nothing in Canada's written submission appearsto uphold Brazil's interpretation.
91. The point on which both Argentina and Canada agree, and Brazil disagrees, is that nothing in
the AD Agreement requires a Member to impose duties limited to the margin of dumping established
pursuant to Article 2.4.2, that is, during the investigation phase;  and, if it does so, as we said before,the implementing authority should analyse the Article in its entirety, in the light of the objectives
contained in Article 9.1 of the AD Agr eement and Article VI of the GATT 1994.
92. The hypothesis on which Brazil builds its rejection of Canada's argument that changes in
market conditions, or exporters' improved produc tivity, may create a situation where prices in both
markets (the exporter's domestic market and the importer's market) are reduced, is perfectly correct.
On the other hand, what is equally correct is that this is but one of many hypothetical situations thatcould arise and that it provides no answer in respect  of the other – also highly likely – situation argued
by both Canada and Argentina, under which – if Br azil's claim, i.e. that anti-dumping duties are
limited to the margin of dumping found during the investigation phase, were to prevail – an exporter
with considerable means to exercise international price discrimination could easily disregard a
Member's attempt to halt an unfair practice, while deeming the measure imposed to be inconsistent,by practising even greater dumping.  Hence Argentina sees nothing in the AD Agreement to support
Brazil's position.
93. The situation illustrated by Brazil could in fact easily be remedied through provisions laid
down in the AD Agreement for that purpose.  Article 11.2 establishes a procedure for dealing with achange in circumstances such as Brazil's example of a drop in prices in both the export and the import
market.  And under Article 9.3.2, exporters may request the refund of all duties paid in excess.
94. In paragraph 41 of its Rebuttal, Brazil further contends that the minimum export prices
determined in Resolution 574/2000 do not qualify as anti-dumping duties, since they do not reflect thenormal value and export prices as provided by the exporters and examined by the investigating
authority.WT/DS241/R
Page B-130
95. Argentina fails to understand Brazil's grounds for such a claim.  On the one hand, Brazil itself
provided, as an annex to its first written submission53, the various technical reports that were prepared
by the bodies in charge of the investigation and were reportedly used by the implementing authority
as a basis for determining the applicable duties.
96. On the other, Argentina has also demonstrated that, in accordance with Article VI.2 of the
GATT 1994 and Article 9.1 of the AD Agreement, the minimum prices for each of the exporters
subject to individual anti-dumping duties and for the "other" exporters were set in amounts lower than
the margin of dumping established as a result of the investigation.54
97. Here again, Brazil appears to be seeking to induce the Panel to find that the system of variable
amounts used by Argentina to set anti-dumping duties on a prospective basis is inconsistent with theAD Agreement.
98. Argentina is therefore compelled to repeat that the AD Agreement contains no provision as to
how the Members should assess their anti-dumping duties and that, in practice, they use any of three
systems.
55  Moreover, Article 9, entitled " Imposition and Collection of Anti-Dumping Duties ",
describes the manner in which those duties could be collected (on a prospective or a retrospective
basis) but does not specify the system to be used by the Members for that purpose.
99. What Article 9.1 does specify is that "[i]t is desirable that the imposition be permissive in the
territory of all Members, and that the duty be less than the margin if such lesser duty would beadequate to remove the injury to the domestic industry".
100. To summarize, and on the basis of the foregoing, Argentina wishes clearly to point out that:
(i) Since Article VI of the GATT 1994 and Article 2 of the AD Agreement define what
dumping is, they also define what should be considered a margin of dumping, the
latter being nothing more than a manner of expressing the former, except in the case
of specific provisions that apply to particular stages such as that indicated in
Article 2.4.2 of the AD Agreement;
(ii) the limit imposed by Article 9.3 of th e AD Agreement on the imposition of anti-
dumping duties therefore refers to Article 2 in its entirety and not to Article 2.4.2, asBrazil maintains;
(iii) the anti-dumping duty imposed as a result of an investigation conducted in
accordance with the AD Agreement does not necessarily have to be equivalent to the
margin of dumping established during the investigation phase;
(iv) the practice of WTO Members, in the absence of specific provisions in the AD
Agreement, has established the use of three systems for applying anti-dumping duties,
one of them being the system of variable amounts used by Argentina.
101. Consequently, Argentina respectfully requests the Panel to find that it has acted consistently
with the WTO AD Agreement in assessing and collecting  the duties imposed in this case, and to reject
Brazil's claim of inconsistency with Article 9.2 and 9.3.
                                                     
53 See mainly EXHIBIT BRA-15.
54 See first written submission of Argentina, paragraph 316, and intervention by the Argentine Republic
at the first meeting of the Panel with the parties, paragraph 57.
55 See first written submission of Argentina, paragraph 315, and intervention by the Argentine Republic
at the first meeting of the Panel with the parties, paragraph 54.WT/DS241/R
Page B-131
IV. PLEADINGS
103. In the light of the arguments put forward in the sections above, Argentina respectfully
requests the Panel:
(1) In keeping with the reasoning developed in Section II and as already mentioned in
paragraph 26 of this Submission, to refrain from ruling on the 41 claims of
inconsistency with various provisions of the Agreement on the Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping
Agreement) submitted by Brazil.
104. Should the Panel decide not to accede to the above request by the Argentine Republic, as set
out in Section II:26 of this Submission and in the light of the arguments developed in Section III, it is
respectfully requested to:
(2) Reject Brazil's claim that Resolution 574/2000 of the Ministry of the Economy of the
Argentine Republic is inconsistent with:
- Article 5.2, 5.3, 5.7 and 5.8 of the Anti-Dumping Agreement;- Article 12.1 of the Anti-Dumping Agreement;
- Article 6.1.1, 6.1.2, 6.1.3, 6.2 and 6.8, and paragraphs 5, 6, and 7 of Annex II,
and Article 6.9 and 6.10 of the Anti-Dumping Agreement;
- Article 2.4 and 2.4.2 of the Anti-Dumping Agreement;- Article 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement;- Article 4.1 of the Anti-Dumping Agreement;- Article 9.2 and 9.3 of the Anti-Dumping Agreement;
as well as the various claims relating to Article 12.2.2.
105. Reject Brazil's request for the immediate repeal of Resolution 574/2000 imposing the
definitive anti-dumping duties.WT/DS241/R
Page B-132
ANNEX B-6
REPLIES OF ARGENTINA TO QUESTIONS FROM
THE PANEL – SECOND MEETING
(28 November 2002)
Note:  The Panel has referred to claim numbers for ease of reference only.
Questions to Argentina
Preliminary issues
66. Regarding para. 13 of Argentina's second submission ("ASS"), what was the "statement
of fact" (point I) allegedly made by Brazil?  Please explain how Argentina relied in good faithupon that alleged statement (point III).
Reply
Firstly, Argentina considers that Brazil's conduct in successively filing its case and activating
dispute settlement proceedings in different fora, first in MERCOSUR and then in the WTO –
particularly in view of the precedents described in Argentina's first written submission1, i.e. recourse
to the dispute settlement mechanism under the Protocol of Brasilia to settle conflicts with other
MERCOSUR States parties and compliance with the content and scope of the arbitral awards in all of
the disputes – provides statements of fact which meet the requirement of being clear, unambiguous,
voluntary, unconditional and authorized, the essential elements of estoppel under the definition
provided in paragraph 13 of Argentina's submission.
In paragraph 20 of its rebuttal submission2, Argentina sets out the elements which are present
in the current dispute brought by Brazil before the WTO.  Among these elements, the last sentence of
subparagraph (iii) of paragraph 20 states that:  "Consequently Brazil's previous conduct with respect
to the acceptance of awards, confirmed by the signature of the Protocol of Olivos, invalidates thecomplaint against Argentina that Brazil is now trying to substantiate on the basis of the DSU."
Moreover, the fact that Brazil signed the Prot ocol of Olivos on 18 February 2002 – by which
it expressly accepted the choice of forum clause – and then, seven days later, on 25 February 2002,
requested the establishment of a Panel in the curren t dispute, displays a clear contradiction in its
conduct, in which Argentina had had full confidence, both countries being member States of
                                                     
1 First written submission of Argentina, 29 August 2002, paragraphs 18-22 and corresponding
footnotes.
2 Rebuttal submission of Argentina, 17 October 2002, paragraph 20.WT/DS241/R
Page B-133
MERCOSUR;  and Argentina is now suffering the negative impact of this change of position.3  This
fact was also raised in the submissions of the EC4 and Paraguay5 as third parties.
67. At para. 13 of ASS, Argentina asserts that th e principle of estoppel is a general principle
of international law.  Is the principle of estoppel  a "customary rule[] of interpretation of public
international law" within the meaning of Article 3.2 of the DSU?  Please explain.  Is a general
principle of international law the same as a rule of interpretation of international law?  Please
explain.
Reply
The rules of interpretation of public international law to which Article 3.2 of the DSU refers
concern Article 31 of the Vienna Convention on the Law of Treaties.
Article 31 of the Vienna Convention sets fort h the rules to be followed with respect to
interpretation;  and the rules of interpretation are applied by the adjudicating body taking account, in
all cases, of the sources of law.
The sources that may be applied to interpretation are set forth in Article 38 of the Statute of
the International Court of Justice, which lists, as a principal source, treaties, international custom, and
the general principles of international law.
Consequently, Argentina understands the principle of estoppel, as a general principle of
international law, to constitute a legitimate source to which any international tribunal called upon to
settle a dispute may have recourse.
In the current dispute, it is in this light that Argentina considers that the principle of estoppel
argument should be taken into account by the Panel in carrying out its functions under the DSU.  This
is in keeping with the obligation laid down in Article 3.2 of the DSU to clarify the existing provisions
of the agreements in accordance with customary rules of interpretation of public international law.
Moreover, Argentina repeats what it stated in its second written submission6, namely that
other panels have already examined the principle of estoppel in past disputes:  " European
Communities – Asbestos "7 and " Guatemala – Cement "8.
Claim 1
68. In reply to question 6, Argentina refers to the Aves & Ovos review.  If the applicant
submitted more extracts from that review than are contained in Exhibit BRA-1, please providea copy of such additional extracts.  Please explain precisely how information from the Aves &
Ovos review, as supplied by the applicant, supported the need for a 9.09 per cent adjustment to
                                                     
3 In fact, Argentina has already approved the Protocol of Olivos.  On 9 October 2002, the National
Congress adopted the Protocol of Olivos by Law 25.663, promulgated by the Executive through Decree 2091/02of 18 October 2002 and published in Official Bulletin of the Republic of Argentina No. 30008 of21 October 2002.
4 Third party submission of the European Communities, 9 September 2002, paragraph 17 and
footnote 17.
5 Third party submission of Paraguay, 9 September 2002, paragraph 8.
6 Second written submission of Argentina, 17 October 2002, paragraphs 17, 18 and 19.
7 WT/DS135/R, European Communities – Measures Aff ecting Asbestos and Asbestos-Containing
Products , Report adopted on 5 April 2001, paragraph 8.60.
8 WT/DS156/R, Guatemala – Definitive Anti-Dumping Measure on Grey Portland Cement from
Mexico , Report adopted on 17 November 2000, paragraph 8.23.WT/DS241/R
Page B-134
normal value. Furthermore, on what basis did th e investigating authority assign the same value
to the head and feet as to other parts of the chicken?
Reply
We stress that the review Aves & Ovos does not provide any information with respect to the
9.09 per cent adjustment carried out.  The mention of the said review in Argentina's reply to
question 6 of the Panel following the first meeting was made in connection with the listing of
evidence provided by the applicant in its application.  As regards the question concerning the basis on
which the investigating authority assigned the same va lue to the head and feet as to the other parts of
the chicken, we note once again that the head and feet were not considered to have the same value as
the other parts of the animal for the purposes of assessing the adjustment.  On the contrary the
9.09 per cent adjustment is the result of an evaluation of the specific recovery of heads and feet.
Claim 2
69. Regarding Argentina's reply to question 12, the Panel notes that the extract from the
JOX document quoted by Argentina is included under the heading "Frango Vivo"?  Is there asimilar statement for eviscerated poultry?  What does it meant to say that "the price remains on
very firm ground"?
Reply
No, the JOX publication specifically refers to live poultry.  Nevertheless, the reference to the
words "production on the parallel market within São Paulo is sharply lower, so that the price remains
on very firm ground" relates to the fact that live poultry is the fundamental and principle input for the
product under investigation.  Thus, it is perfectly reasonable, at this stage prior to the opening of the
investigation, to deduce that if the price of the input remains essentially unaltered, the price of the
end-product – i.e. the product under investigation – will not vary substantially.
In other words, the phrase "so that the price remains on very firm ground" means that the
price would remain essentially unaltered, thus constituting an acceptable element at this stage prior to
the investigation.
Claim 3
70. When did the Secretary receive Act No. 405 from the CNCE (dated 7 January 1998)?
When did the Secretary receive the report from the ADPCDS (also dated 7 January 1998)?
Reply
The Secretary of Industry, Trade and Mining received Record No. 405 on 9 January 1998,
and the DCD Report on Dumping on 27 January 1998.
71. Regarding the first sentence of the third paragraph of Argentina's reply to question 16,
what is meant by the phrase "in keeping with the requirements of the application on
17 February 1998"?  What precisely are the "requirements of the application"?
Reply
The requirements of the application are those contained in form 349 provided in Annex
ARG-XXXIX.  The meaning of the phrase is that on 17 February 1998, the applicants provided
updated information on the basis of what was requested in the mentioned form 349.  This information,WT/DS241/R
Page B-135
on the basis of a legal finding by the relevant ministerial department and in conformity with Law
No. 19549 on Administrative Procedures, was transmitted to the CNCE with the instruction that it be
analysed.  The analysis resulted in the issue by the CNCE of Record No. 464 and the corresponding
Technical Report.
Claim 10
72. How and when did the Authority obtain the addresses of the Brazilian exporters which
were contacted in February 1999?  If those a ddresses were obtained from a document on the
record of the investigation, please provide a copy of this document.
Reply
The addresses of the producers/exporters notified in February 1999 were provided by
telephone through the importers interested in the investigation.  Having learned of the initiation of the
investigation through the Official Bulletin, they co ntacted the investigating authority and provided the
said addresses.
73. Please comment on para. 36 of Brazil's Second Oral Statement.
Reply
With respect to paragraph 36 of Brazil's Statement, we refer to what Argentina has already
stated in connection with Article 6.1.1, namely that the parties interested in the investigation were
given ample opportunity to participate, with due regard for the requests for extensions that were
submitted.
Claim 11
74. Following on from Argentina's reply to question 29, was all of the information contained
in the application sent to both the DCD and the CNCE, or did they only receive those parts of
the application dealing with dumping and injury respectively?
Reply
Both entities received the same application, with the same information.  Upon submitting an
application for the initiation of an investigation, the applicant had to complete the form approved by
Resolution No. 349 of the former Secretariat for Industry and Trade before the former
Under-Secretariat for Foreign Trade (SSCE).  In keeping with Articles 36 to 40 of Decree
No. 2121/94, the application was filed with the fo rmer SSCE, which transmitted a complete copy
thereof to the CNCE so that the latte r could make an injury determination.
The CNCE received, on 9 September 1997, a copy of the application for the initiation of the
investigation filed by CEPA w ith the SSCE on 2 September 1997.  The two submissions are identical,
and the submission transmitted to the CNCE can be found in Section I of file CNCE No. 43/1997
(folios 2 to 284).  Thus, both entities had at their disposal complete copies of the application for
measures submitted by CEPA.
Claim 15
75. Regarding the second sentence of Argentina's reply to question 39, what precisely is the
"procedure" (for supporting documentation) followed by the investigating authority?  How was
an interested party to know what supporting documentation it was required to provide?  WhereWT/DS241/R
Page B-136
exactly has the "procedure" been specified?  Where exactly is the request for supporting
documentation set forth?  Please provide copies of the relevant sources.
Reply
Regarding the procedure followed by the in vestigating authority to obtain supporting
documentation, attached to the questionnaire are instructions explaining how it should be completed
and stating that it should be accompanied by supporting documentation.  At the same time, the
instructions state that where it is not possible to provide supporting documentation, the source of the
information should be indicated.  By supporting documentation, the authority means documentation
that backs the statements or arguments of the inte rested parties.  For example, if the implementing
authority is expected to make an adjustment for fr eight, it would be helpful for the interested party to
attach the contract with the shipping company or any other documentation at its disposal which
records the value or percentage that should be discounted for freight.
These instructions can be found in the first part of the questionnaire to be completed by the
exporter.
A blank copy of the questionnaire for exporters is provided as Annex ARG-LXIII.
Claim 20
76. Regarding question 43, please indicate prec isely what normal value data Catarinense
was asked to provide.  Please specify the document(s) in which the request was made.
Furthermore, for what period of time was Catarinense asked to provide the relevant normal
value data?
Reply
The information that the company Catarinense was asked to supply was the information
requested in Note DCD No. 273-001065/99, provided by Brazil in Exhibit BRA-13, in which it can be
seen that the period for which the information was requested was 1998 – January 1999.  We recall in
this connection that independently of the documentation requested, in the last note sent by the
implementing authority – Note DCD No. 273-001321/99 provided in Exhibit BRA-27 - thecompanies were reminded that they were to comply with the requirements of the National Law on
Administrative Procedures, particularly as regards certification of legal status, a basic prerequisite for
a party to be considered in an investigation.
77. With regard to Catarinense's normal value data, Argentina asserts that those data were
submitted in an aggregate form.  However, it is apparently stated in Section VII.3.2 of the Final
Dumping Determination that Catarinense had submitted information on sales made in the
domestic market corresponding to 1998 and January 1999 disaggregated by transaction.  Please
comment.
Reply
As stated, in Section VII.3.2 of the Final Report on the Determination of the Margin of
Dumping there is a reference to Annex VIII:  "Sales in the domestic market for 1998 and
January 1999, disaggregated by transaction" at folio 3023.  That is, with respect to normal value for
the requested period, Catarinense submitted a list of domestic market sales transactions withoutproviding any supporting documentation and without any magnetic media.  Finally, we repeat that
Catarinense at no time provided any certification of legal status although this had been requested in
Note DCD No. 273-001321/99.WT/DS241/R
Page B-137
Section VIII.1.3.3.5 of the Report on the Final Determination on the Margin of Dumping, at
folios 3053/3054, states that the values reproduced at folio 3054 were obtained from the information
from the exporting company in aggregate form in  Annexes V and VI of the questionnaire for
exporters and that it covered a longer period than that requested by the implementing authority.  Thus,the processing of the information in Annexes V and VI yields the detailed values in the table
appearing at folio 3054.  As indicated in the footnotes to Annexes V and VI, in the case of 1999 the
information was accumulated until September.  We attach as Annex ARG-LXIV a copy of Annexes V
and VI, as submitted by Catarinense.
78. Please comment on the first two sentences of para. 53 of Brazil's Second Oral Statement.
Reply
With respect to the first two sentences of paragraph 53, there is no contradiction whatsoever
as Brazil tries to suggest, since Argentina said that the export price information was indeed provided,
but since for the reasons already given the determination of normal value could not be made, thenotified export prices could not be considered.  In this connection, Argentina had official information
on export prices for both companies which is the information that was used in the final determination.
Claim 21
79. It would seem from para. 185 of Argentina's First Written Submission that parties were
informed of the 'essential facts' through the Report on Action Taken of 4 January 2002.  Could
Argentina confirm that this is the only instrume nt on the record of the investigation through
which the investigating authority informed interested parties of the 'essential facts'?
Reply
Yes, the Report on Action Taken is the document by which the investigating authority
informed the interested parties of the essential fact s.  In this connection, Argentina reaffirms what it
stated in paragraph 185 of its first written submission.
80. The Panel notes Argentina's reply to question 47(a). As a follow-up question, the Panel
would appreciate it if Argentina could reply the following questions:
(1) In the investigation at stake, which we re the 'essential facts' informed by the
investigating authority to interested parties?
(2) Where, if at all, the information refe rred to in paras. 340-350 of Brazil's First
Written Submission and para. 87 of Brazil's Second Written Submission can be
found?
In replying to these questions, Argentina is requested to point out with precision the
paragraph or page number where the information is contained on the record of the
investigation, if any, and to provide a copy of the relevant documents.
Reply
The essential facts are those which appear throughout the Report on Action Taken of
January 2000 (folio 2757).WT/DS241/R
Page B-138
However, to be more precise with respect to the normal value and the export price, we refer
by way of example to Section VIII.1 and VIII.1.3.3 of the said report, which explains the
methodology used by Sadia for the calculation of no rmal value.  The same is done for Avipal SA in
Section VIII.1.3.3.2, which contains detailed information and a description of the methodology
applied to calculate normal value for that company.  Corresponding information is also provided forNicolini (folios 2819 and 2820) and for Seara (folio 2821).
Consequently, what Brazil stated in paragraphs 340-350 of its first written submission does
not correspond to reality.  Indeed, the interested parties were given ample opportunity to express their
views with respect to the essential facts that the authority considered for the calculation of normal
value and the export price.
Concerning the copy of the essential facts report, see Exhibit BRA-28.
Claim 23
81. At para. 73 of ASS, Argentina suggests that the exporter had ample opportunity to
inform the DCD of any adjustments that needed to be made when it submitted the invoices
requested by the DCD. Why should Sadia have requested an adjustment for freight costs when
submitting its invoices if it had already requested that adjustment in its questionnaire response?
Reply
Argentina reaffirms what it said in paragraphs 210 and 211 of its first written submission.
Indeed, Sadia replied to the questionnaire item concerning internal freight, but never provided any
supporting documentation for that item.  Nor do the invoices submitted provide any indication of the
percentage and/or amount of the adjustment to be made.
In other words, although in Annex X Sadia provided a US$/Ton value to be discounted for
freight, and also did so in Annex VIII – Sales in the domestic market – these values were presented in
annualized form without any supporting documenta tion that would have enabled the authority to
verify whether they corresponded to the reality and hence carry out the said adjustment.
In this connection, a " nota fiscal " (tax receipt) from SADIA has been provided showing
clearly that the box corresponding to cost of freight does not contain any figure at all.  And the box
corresponding to " frete por conta " contains the indication "1", which corresponds to " emitente ".
The kind of supporting documentation to which we refer in this case would be, for example, a
contract between Sadia and a shipping company or any other documentation from the company whichclearly indicates the amount to be discounted for freight.  We insist that the " notas fiscales ", which
did not reveal the indicative amount of the requested adjustment, were the only documentation on
hand.
Attached hereto as Annex ARG-LXV is a pho tocopy of the invoice and a photocopy of
Annexes VIII and X of the Questionnaire for Exporters.
82. Argentina has asserted that it did not grant Sadia's request for a freight cost adjustment
because Sadia failed to support its request with documentary evidence. Please indicate precisely
(page number, paragraph number, line number) where the investigating authority explainedthe reason for rejecting Sadia's request in its final determination, or in any other document
prepared by the investigating authority at the ti me of its determination. If the Panel does not
already have a copy of the relevant document, please provide a copy thereof.WT/DS241/R
Page B-139
Reply
The relevant explanation can be found in Section VIII.1.3.3.1 of the Report on Action Taken.
In that report, the DCD identified the informati on that it would use for the determination of normal
value, which did not include any adjustment for freight.
Claim 22
83. Please comment on para. 59 of Brazil's Second Oral Statement.
Reply
To begin with, it should be noted with respect to Brazil's question as to why the authority did
not proceed in the same manner with Catarinense and Frangosul, that Catarinense never provided
certification of legal status, i.e. it did not comply with an essential requirement that must be met by
any interested party wishing to participate in the investigation in accordance with the National Law on
Administrative Procedures (Law No. 19.49) which, pursuant to Article 76 of Decree No. 2121/94,
applies on a residual basis in investigation proceedings.
This law was duly notified to the WTO Anti-Dumping Committee, which is why the last note
sent to Catarinense, which appears in Exhibit BRA-27, states that it should comply with the
requirements of the National Law on Administrative  Procedures.  Instead, not only did Catarinense
persist in not making any submission, but as mentioned, it failed to provide certification of legal
status.
In the case of Frangosul, in spite of the successive extensions granted and the numerous
requests for information from the implementing auth ority (see the summary table for the company in
question, which was transmitted to the Panel together with Argentina's replies to the questions posed
following the first meeting), no information was available in connection with domestic market sales
transactions, needed by the authority to determine the individual margin of dumping.
We recall in this connection that, as can be seen in the summary table for Frangosul, by Note
DCD No. 272-001181/99 of 12 October 1999 and No te DCD No. 273-001412/99 of 18 November of
1999, the implementing authority asked Frangosul for the last time to provide lists of domestic marketsales.  In the second of these two notes, it granted a maximum of five days to do so.  The purpose of
this time-limit was to ensure that the implementing authority would have sufficient time to analyse
and process the requested information.
However, Frangosul, once the time-limit for the submission for the information had elapsed,
provided, in magnetic form only (diskette), the list of notas fiscales.   Indeed, Frangosul failed to
provide a hard copy of the list as required unde r the National Law on Administrative Procedures.
This Law applies on a residual basis to anti-dumping proceedings pursuant to Article 76 of Decree
No. 2121/94.
For the sake of clarity, we cite below Articles 7 and 15 of Decree No. 1759/72 which
regulates the mentioned Law.
"Article 7 – The identification under which a record of proceedings is initiated shall be
retained throughout successive proceeding regardless of the bodies participating in them.  All of theunits are under obligation to provide information from a file on the basis of its initial identification.
The title page shall indicate the body with primary responsibility for the proceedings and the
time-limit for its settlement. "WT/DS241/R
Page B-140
"Article 15 – Documents shall be typed or legibly handwritten in ink, in the national
language" …The top of the page shall contain a summary of the pleadings.  They shall be signed by
the interested parties, or their legal representati ves or attorneys.  Each document, with the sole
exception of the document initiating the proceedings, shall be headed by the identification of the file
to which it corresponds, and where appropriate, shall contain a precise indication of the representation
exercised …".
Administrative proceedings in Argentina are written.Once again, Argentina would like to draw the Panel's attention to the numerous requests by
the implementing authority to the exporting comp anies concerning documentation to be submitted,
and is ready to provide the Panel with any documents that it may consider relevant in this respect.
Claim 24
84. In respect of claim 24, please indicate precisely (page number, paragraph number, line
number) where the investigating authority gave the reasons for not making the various
adjustments to the JOX domestic price data, either in the investigating authority's final
determination, or in any other document prepared  by the investigating authority at the time of
its determination. If the Panel does not already  have a copy of the relevant document, please
provide a copy thereof.
Reply
At folio 3040 of the Report on the Final Determination, Section VIII.1.3, there is an
explanation of the circumstances of the request fo r information by the implementing authority to the
President of the JOX publication.
85. Did the investigating authority ask JOX to provide a Spanish translation of its letter of
3 August 1999 through which JOX had given information in Portuguese?  If so, please provide a
copy of the document containing that request.
Reply
The translation was not requested because it was assumed that the parties to the anti-dumping
proceedings, to which the National Law on Administrative Procedures applies on a residual basis,
would know what was required under that Law.
86. Please comment on para. 68 of Brazil’s second oral statement.
Reply
We agree with Brazil in theory that to conduct a fair comparison, all of the appropriate
adjustments need to be made both to the normal value and the export price.
However, in the case at issue, with respect to the JOX publication, the information that would
have made it possible to carry out some of the adjustments that Brazil mentions did not comply withthe requirements of the National Law on Administra tive Procedures (Law No. 19549) in that under
Article 28 of Decree No. 1759/72 regulating the said Law, documentation in a foreign language must
be translated into Spanish by a registered translator.WT/DS241/R
Page B-141
Claim 32
87. Please indicate precisely (page number, paragraph number, line number) where the
investigating authority explained why it looked at 1999 data for only certain injury factors and
not others, either in the investigating authority' s final determination, or in any other document
prepared by the investigating authority at the time  of its determination.  If the Panel does not
already have a copy of the relevant document, please provide a copy thereof.
Reply
Lines 1 to 6 in the second paragraph of Section V (State of the Domestic Industry) of Record
No. 576 of 23 December 1999, which appears in CNCE File No. 43/1997 (folio 7313), clearly statethat:
"The 'period under analysis' corresponds to the period from January 1996 to December 1998.
For certain variables, such as domestic production, prices, imports, national exports and
apparent consumption, data is included for the first half of 1999.  Data for 1995 is providedfor reference purposes.  Variations for the first half of 1999 are against the same period for
the previous year." (Emphasis added)
Nevertheless, Argentina reiterates what it stated in its two previous submissions, and for a
better understanding of the overall context, we repeat our reply that:
"First of all, there is no obligation to analyse any indicator outside the period established by
the authorities as the investigation period.
In accordance with international practice in certain countries, Argentina considered a number
of variables accessible to the public in order to double check the trends observed during the
investigation period.  If we were to insist on the constant updating of all indicators during the
investigation, as Brazil seems to suggest in this case, the investigation would be endless.  We
repeat that this is not the objective of the AD Agreement, nor is it the practice of those
countries which, like Argentina, examine certain relevant indicators of reference data."
It should be noted that the determination of threat of injury was based on the period from
January 1996 to December 1998, and the other data, as stated in previous replies and in the Record in
question, was used for reference purposes.
Claim 38
88. Please explain precisely how Table 16 of Act No. 576 (para. 292 of Argentina's first
written submission) constitutes an evaluation of "factors affecting domestic prices" within the
meaning of Article 3.4 of the AD Agreement.  Please provide a more detailed explanation than
that set forth in paragraph 74 of Argentina's second oral statement.
Reply
Table No. 16, which belongs to Technical Report GEGE/1TDF No. 03/99 and is an integral
part of Record No. 576, provides the average sales revenue for one kilogram of eviscerated poultry,
fresh or chilled, and the relative prices of the comparable product, with regard to the price ofindustrial goods taken as a whole and of bovine meat – represented respectively by the Wholesale
Industrial Price Index for Manufactured Goods and the simple average of the consumer price indices
for fresh bovine meat, front and hind cuts.WT/DS241/R
Page B-142
The comparison made with respect to the Wholesale Industrial Price Index for Manufactured
Goods was based on the need to assess whether the price of the product in question was following the
same trend as the other manufactured goods.
With regard to the second index, Argentina has traditionally been a consumer of red meat, so
that it was considered appropriate to use this index to analyse the impact of variations in that product
on poultry meat as from a certain degree of substitution between bovine meat and poultry meat.
As can be seen from the table, the two relative prices analysed followed the same trend as
average sales revenue for the product in question, although in the case of the price in relation to the
simple average for bovine meat the annual variations reflected a stronger decrease in 1998 as a result
of the increase in the price of bovine meat recorded that year.  Indeed, as indicated in the MarketChapter of Technical Report GEGE/ITDF No. 03/99, Section VI.5 (Recent evolution of the market),
folio 7371, paragraph 3:  "During 1998 there was a further increase in the demand for poultry as a
result of the substitution effect following the sharp increases in the price of bovine meat, which
reached its peak in the middle of 1998.  No decline in the consumption of poultry was recorded
following the subsequent fall in the price of bovine meat.  This because the market perception is thatthe price of poultry is so low that it is even pushing the price of bovine meat downwards".
Consequently Article 3.4 was clearly taken into consideration where it provides that "[t]he
examination of the impact of the dumped imports on the domestic industry concerned shall include an
evaluation of all relevant economic factors and indices having a bearing on the state of the industry,including … factors affecting domestic prices …".
89. Regarding Argentina's reply to question 59 concerning paragraph 80 of Brazil's first
oral statement, please provide exact citations (e.g., page number, paragraph number, line
number) for the various extracts from Act No. 576.
Reply
Concerning the citations referred to in paragraph 80:
• The citation "An econometric exercise was conducted which showed that for the
period from January 1995 to June 1999, the price of the product on the domesticmarket depended on the volume of imports for the previous month, the price of the
imported product and the price of bovine meat.  The inclusion of the price of maize in
the mentioned model did not produce satisfactory results, indicating that the
considerable variability of the price of whole eviscerated poultry does not coincide
with the price of maize.  Nevertheless, both variables showed similar patterns … "
can be found in Section VIII (Conditions of Competition between the Like Productand the Imported Product), § 1, folio 7328, last paragraph, and folio 7329, first
paragraph.
• The citation according to which "[t]he economic recession did not particularly affect
the consumption of whole eviscerated poultry, which continued to increase (in 1998 it
increased by 14 per cent)" can be found in Section VIII (Conditions of Competitionbetween the Like Product and the Imported Product), § 1, folio 7329,
second paragraph.
• Finally, the citation "…with regard to the price of industrial goods taken as a whole
and of bovine meat – represented respectively by the Wholesale Industrial Price
Index for Manufactured Goods and the simple average of the consumer price indicesWT/DS241/R
Page B-143
for fresh bovine meat, front and hind cuts – followed the same trend as the sales
revenue described above, although in the case of bovine meat, the annual variations
reflected a stronger decrease in 1998 as a result of the increase in the price of bovine
meat recorded that year" can be found in Section V (State of the Domestic Industry),
at folio 7318, last paragraph.
Questions to Brazil
Claim 22
90. It is stated in para. 319 of Brazil's First Written Submission that 'Frangosul and
Catarinense submitted the requested information on normal value and export price, which was
disregarded by the DCD without explanation.'  Would Brazil agree that, if the data submitted
by Frangosul and Catarinense had been disregarded in accordance with relevant provisions of
the ADA, the investigating authority would not have been required to calculate an individual
dumping margin for Frangosul and Catarinense?  Please explain.
91. It is stated in para. 324 of Brazil's First Written Submission that 'the DCD provided no
explanation, either in the final determination or  in any other document on the record of the
investigation, as to why, in this case, it was not possible to determine an individual margin for
Frangosul and Catarinense.' Would Brazil agree that, if the investigating authority had
disregarded the data submitted by Frangosul and Catarinense in accordance with relevant
provisions of the ADA, it would not have been required to explain in the final determination or
in any other document on the record of the in vestigation why an individual dumping of margin
for those exporters had not been calculated?
Claim 2392. Please comment on para. 210 of Argentina's first written submission.Claim 2493. Please comment on paras 77 – 79 of ASS.
Claim 27
94. Does Brazil consider that the investigating authority would have violated Article 2.4.2 if
the exporters had agreed that the investigating authority could calculate normal value on the
basis of those domestic transactions for which invoices had been requested?
Questions to both parties
Claim 21
95. What are 'essential facts under consideration which form the basis for the decisions
whether to apply definitive measures' within the meaning of Article 6.9 ADA?  In particular,
would 'essential facts' cover only facts or also reasoning supporting a certain conclusion?
Reply
They are the facts upon which the implementing authority bases its conclusions.
96. At para. 8.229 of its report, the Panel in Guatemala – Cement II found that:WT/DS241/R
Page B-144
'An interested party will not know whether a particular fact is "important" or not
unless the investigating authority has explicitly identified it as one of the "essential
facts" which form the basis of the authorit y's decision whether to impose definitive
measures.'
Would you agree with the above finding?  Please explain.
Reply
Argentina agrees with the position of the Panel in Guatemala – Cement II  - indeed, all that is
reported in the Report on Action Taken makes up the facts which will form the basis of the authority'sdecision, a circumstance of which the implemen ting authority informs the interested parties.
Claim 22
97. What do parties understand by the words "for each known exporter or producer
concerned of the product under investigation" cont ained in the first sentence of Article 6.10?  In
the view of the parties, would the cited portion of the first sentence of Article 6.10 require the
calculation of an individual margin of dumpin g for each exporter known to the investigating
authority? Would that also be the case wh en a known exporter does not provide relevant
information requested by the investigating authority?  Please explain.
Reply
A condition for the determination of an individual margin of dumping for each exporter is that
the exporter should be known, and should supply the documentation needed to reach such adetermination.
98. In the view of the parties, would the fi ndings in paras. 6.86 to 6.101 (both included) of
the panel Argentina – Ceramic tiles be applicable to the facts in this dispute?  In particular,
would the following finding of the Panel be relevant to the current dispute: 'The basis of the
normal value determination has no bearing on the ability to calculate an individual dumping
margin for the producer whose normal value is in  question'?  Would the lack of information on
normal value, export price or cost of producti on, automatically allow the non-calculation of an
individual dumping of margin in accordance with Article 6.10?  Please explain, identifying and
providing relevant factual support to the Panel.
Reply
It does not apply to the present case, since in the arguments of the Ceramic Tiles  case, the
investigating authority, in calculating the margin of dumping, took account of circumstances relating
to "cases where the number of exporters, producers, importers or types of products involved is so
large as to make such a determination impracticable  …".  In other words, the considerations on which
the Panel relied were related to the fact that th e Argentine authority had decided to determine the
margin of dumping on the basis of "a reasonable number of interested parties … using samples which
are statistically valid on the basis of information available to the authorities at the time of the
selection, …".  Thus, the findings are not applicable to this case.WT/DS241/R
Page B-145
ANNEX B-7
REPLIES OF ARGENTINA TO QUESTIONS OF
BRAZIL – SECOND MEETING
(26 November 2002)
Questions from Brazil to Argentina
Brazil understands that right after the investigation was initiated the DCD sent
questionnaires to the Brazilian exporters Sadia, Avipal, Frangosul, Seara and Nicolini, which
required export price and normal value data for the years 1996, 1997, 1998 and the months in
1999 where data was available.  On 15 September 1999, the DCD sent notifications of the
investigation and the questionnaires to the Brazilian exporters CCLP, Catarinense, Chapecó,
Minuano, Perdigão, Comaves and Pena Branca, requiring dumping data for the period 1998
through January 1999.  With that in mind, please provide:
1. When did the investigating authority decide that the dumping period of data collection
for Sadia, Avipal and Frangosul would be from January 1998 through January 1999, and not
the years 1996, 1997 and 1998?
2. When did the investigating notify Sadia, Av ipal and Frangosul that the dumping period
of data collection would be from January 1998 through January 1999, and not the years 1996,
1997 and 1998?
Reply
1 and 2.  The Brazilian exporters were informed of the period of data collection at the
preliminary determination stage of the investigation.
As can be seen in the annexes to the Report on the Preliminary Determination, the
implementing authority had already decided that the investigation period would be January 1998 toJanuary 1999.
All of the exporting companies could clearly see what investigation period was being
examined by the authority.  In the case of AVIPAL, SADIA and FRANGOSUL, the requests for
documentation by the DCD provided indications of what the investigation period to be examinedwould be.
Likewise, we refer to the Summary Table attached as a supplement to Argentina's replies to
the questionnaire provided by the Panel following the First Meeting of the Panel with the Parties.
3. What basis did the investigating author ity use to select January 1998 through
January 1999 as the period of data collection for dumping purposes, as opposed to the period1996 through 1998, indicated in the dumping questionnaires sent to Sadia, Avipal and
Frangosul?WT/DS241/R
Page B-146
Reply
The authority based its determination of the period of investigation on the principle that the
information to be submitted should correspond to a period as close as possible to the initiation of the
investigation.WT/DS241/R
Page B-147
ANNEX B-8
COMMENTS OF ARGENTINA ON THE REPONSES OF BRAZIL
TO THE PANEL'S QUESTIONS – SECOND MEETING
(28 November 2002)
Questions to Brazil
Claim 22
90. It is stated in para. 319 of Brazil's First Written Submission that 'Frangosul and
Catarinense submitted the requested information on normal value and export price, which was
disregarded by the DCD without explanation.'  Would Brazil agree that, if the data submitted
by Frangosul and Catarinense had been disregarded in accordance with relevant provisions of
the ADA, the investigating authority would not have been required to calculate an individualdumping margin for Frangosul and Catarinense?  Please explain.
Regarding Brazil's response to question 90, Argentina wishes to point out once again that
Brazil is mistaken in claiming  that FRANGOSUL and CATARINENS E submitted all the information
and in therefore believing that the implementing authority was required to make an individual
determination of the margin of dumping.  In this connection, reference is made to Argentina's
response to question 83 regarding Claim 22.
Argentina wishes to emphasize that the reply given by Brazil does not answer the question
posed by the Panel.  Nevertheless, Brazil attempts to justify the fact that the implementing authority
should have determined the individual margin of dumping and seeks to draw an analogy with the
implementing authority's handling of the information submitted by SADIA and AVIPAL.
In Argentina's view, such a comparison is not appropriate because the information supplied
by SADIA and AVIPAL satisfied the requirements for it to be considered in the final determination.
It should be noted that, in their submission s, neither SADIA nor AVIPAL objected to the
methodology used for calculating the margin of dumping, particularly as regards the export price.Argentina therefore does not see why at this stage Brazil insists on stating its failure to understand and
disagreement with the handling of the expo rt price in the case of SADIA and AVIPAL.
In other words, when the parties had the opportunity to express their views on the
methodology used by Argentina for determining the export price, SADIA and AVIPAL made no
comment in that regard.
Lastly, we note that Brazil does not reply to the Panel's question;  following the above
reasoning, Brazil should therefore explain – as requested by the Panel in question 90 – the
methodology which it believes should be used in determining the individual margin of dumping wheninformation is disregarded for not having been submitted in accordance with the requirements of the
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, its
Regulatory Decree No. 2121/94, the National Law on Administrative Procedures and its Regulatory
Decree No. 1759/72, all of which were notified to the WTO Anti-Dumping Committee.WT/DS241/R
Page B-148
91. It is stated in para. 324 of Brazil's First Written Submission that 'the DCD provided no
explanation, either in the final determination or  in any other document on the record of the
investigation, as to why, in this case, it was not possible to determine an individual margin for
Frangosul and Catarinense.'  Would Brazil ag ree that, if the investigating authority had
disregarded the data submitted by Frangosul and Catarinense in accordance with relevantprovisions of the ADA, it would not have been required to explain in the final determination or
in any other document on the record of the in vestigation why an individual dumping of margin
for those exporters had not been calculated?
It would not appear to make sense for the implementing authority to report that it did not
intend to make an individual determination of the margin of dumping if it had already been explained
that normal value and export price information would not be taken into account because of thelacunae in the documentation submitted.  Hence it was obvious that there would be no determination
of the individual margin of dumping, meaning that Brazil's arguments in that respect are unnecessary.
Claim 23
92. Please comment on para. 210 of Argentina's first written submission.
Argentina refers the Panel to its response to question 81 regarding Claim 23.
Claim 24
93. Please comment on paras 77 – 79 of ASS.
The Panel is referred to Argentina's response to question 86 regarding Claim 24.
Claim 27
94. Does Brazil consider that the investigating authority would have violated Article 2.4.2 if
the exporters had agreed that the investigating authority could calculate normal value on the
basis of those domestic transactions for which invoices had been requested?
Brazil errs in maintaining that the determination of normal value could have been distorted as
a result of the use of a statistically valid sample of invoices from the exporting firms that substantiated
domestic sales transactions in order to establish normal value.
Secondly, Brazil's position on the subject is, again, surprising, because this argument was not
put forward by the Brazilian Government either during the course of the investigation or in its finalsubmission.  Nor did the exporters claim that the methodology for calculating normal value, on the
basis of the data supplied by the exporting firms, was – as the Brazilian Government now submits –
questionable or inconsistent with Article 2.4 of th e Agreement on Implementation of Article VI of the
General Agreement on Tariffs and Trade 1994.
Claim 21
95. What are 'essential facts under consideration which form the basis for the decisions
whether to apply definitive measures' within the meaning of Article 6.9 ADA?  In particular,
would 'essential facts' cover only facts or also reasoning supporting a certain conclusion?
Argentina reiterates the response given to this question at the time.WT/DS241/R
Page B-149
96. At para. 9.229 of its report, the panel in Guatemala – Cement II  found that:
'An interested party will not know whether a particular fact is "important" or
not unless the investigating authority has explicitly identified it as one of the
"essential facts" which form the basis of the authority's decision whether to
impose definitive measures.'
Would you agree with the above finding?  Please explain.
As regards Brazil's claims regarding the information submitted by FRANGOSUL and
CATARINENSE in the investigation, the line of reasoning is once again wrong.  In this connection, it
should be mentioned that the Report on Action Taken specifies the lacunae in the information
furnished by FRANGOSUL and CATARINENSE.  Furthermore, the parties' right of defence was notimpaired at any time, since FRANGOSUL offered comments on the content of that report in its final
submission.
Lastly, the paragraph from Guatemala – Cement II  cited by Brazil is superfluous, because
Argentina made the relevant report on essential facts available to all interested parties.
Claim 22
97. What do parties understand by the words "for each known exporter or producer
concerned of the product under investigation" cont ained in the first sentence of Article 6.10?  In
the view of the parties, would the cited portion of the first sentence of Article 6.10 require the
calculation of an individual margin of dumpin g for each exporter known to the investigating
authority?  Would that also be the case when a known exporter does not provide relevant
information requested by the investigating authority?  Please explain.
It would be important for Brazil to explain how  it calculates individual margins of dumping
when the information submitted – as in the case of FRANGOSUL and CATARINENSE – is not
consistent with the requirements of the Anti-Dumping Agreement, or in a specific case such as that of
CATARINENSE, whose submission presented the added problem of the firm never having provided
certification of legal status in the proceedings, as required by the National Law on Administrative
Procedures, which applies on a supplementary basis to anti-dumping investigation procedures and was
duly notified to the WTO.
98. In the view of the parties, would the fi ndings in paras. 6.86 to 6.101 (both included) of
the panel Argentina – Ceramic tiles b e  a p p l i c a b l e  t o  t h e  f a c t s  i n  t h i s  d i s p u t e ?   I n  p a r t i c u l a r ,
would the following finding of the panel be relevant to the current dispute:  'The basis of the
normal value determination has no bearing on the ability to calculate an individual dumpingmargin for the producer whose normal value is in  question.'?  Would the lack of information on
normal value, export price or cost of producti on, automatically allow the non-calculation of an
individual dumping of margin in accordance with Article 6.10?  Please explain, identifying and
providing relevant factual support to the Panel.
Brazil is now mentioning issues that were not raised in the course of the investigation.
Moreover, it continuously insists on stating its point of view regarding the information submitted by
FRANGOSUL and CATARINENSE.  This is confusing the Panel with considerations that are not
appropriate insofar as they do not correspond to the Panel's questions.  Furthermore, Argentina has
provided ample and repeated evidence as regards the nature of and the lacunae in the informationsupplied by these two exporting firms, during the investigation and throughout the course of these
proceedings.WT/DS241/R
Page B-150
Once again, Argentina reiterates the need for Brazil to explain how the individual margin of
dumping would be determined when the informati on is not in conformity with the Anti-Dumping
Agreement.
Brazil's response does not apply to the paragraph cited since the analysis conducted by that
particular panel refers to the sample and the data in that sample as submitted by the exporters.
Lastly, it is surprising that, in view of the numerous explanations offered by Argentina in all
of its responses, Brazil still fails to understand the situation at issue, the more so since it did not report
such circumstances in the course of the investigation.WT/DS241/R
Page B-151
ANNEX B-9
COMMENTS OF ARGENTINA ON THE SECOND ORAL
STATEMENT OF BRAZIL
(26 November 2002)
I. INTRODUCTION
1. Argentina thanks the Panel for the opportunity to offer its comments on the oral statement of
Brazil at the second meeting of the Panel with the parties.
2. Argentina will also comment briefly on Brazil's oral statement at the second meeting with the
Panel.
II. PRELIMINARY ARGUMENTS
3. Argentina first of all wishes to provide some clarification regarding Brazil's arguments in the
section entitled "Ruling by the MERCOSUL Ad Hoc Arbitral Tribunal".
4. Argentina will also provide clarifications regarding the issues raised by Brazil in connection
with the current dispute before the WTO, which, as both parties have already acknowledged, is
"similar"1 to that brought in the framework of MERCOSUR.
5. Brazil itself recognizes that the object of it s complaint is the alleged inconsistency of the
Argentine measure with the WTO Anti-Dumping Agreement.2  However, what Brazil fails to mention
is that, in its prior submission to the MERCOSUR Ad Hoc Tribunal, it included in the MERCOSUR
regulatory framework a reference to the WTO Anti-Dumping Agreement.3
6. As Argentina has already noted4, the arbitral award rendered by the Ad Hoc Tribunal
constituted to hear and settle the dispute brought before MERCOSUR states that the WTO Anti-
Dumping Agreement stands as a reference " (…) by virtue of Article 19 of the Protocol of Brasilia as
an applicable principle of international law (…), in this case to shed light on the meaning andpurpose of anti-dumping proceedings ".
5
7. Argentina rejects Brazil's claim6 that "[w]e have shown that the disputes are not the same"
and reiterates7 that the dispute refers to the same measure and that the legal grounds claimed by Brazil
before each forum are the same.
                                                     
1 Oral statement of Brazil at the second meeting with the Panel, 26 November 2002, paragraph 4.
2 Oral statement of Brazil at the second meeting with the Panel, 26 November 2002, paragraph 6.
3 Laudo sobre pollos  (Award on poultry) – Award of the MERCOSUR Ad Hoc Arbitral Tribunal
constituted to rule on the dispute between the Federative Republic of Brazil and the Argentine Republic
regarding the imposition of anti-dumping measures on exports of whole poultry from Brazil (Res. 574/2000 ofthe Ministry of the Economy of the Argentine Republic)".  Date:  21 May 2001.  Paragraph 30.
4 Rebuttal submission of Argentina, 17 October 2002, paragraph 3.
5 Laudo sobre pollos  (Award on poultry), end of paragraph 159.
6 Oral statement of Brazil at the second meeting with the Panel, 26 November 2002, paragraphs 7
and 12.
7 Oral intervention by Argentina at the first meeting with the Panel, 25 September 2002, paragraph 8.WT/DS241/R
Page B-152
8. Argentina notes that a reading of the arbitral award – in its entirety – clarifies the scope of the
paragraphs of the award cited by Brazil.8  In Argentina's opinion, these should be read in the context
of the full text of the award, and in particular section II-F-3-c) en titled " Conclusiones sobre el modo
como ha sido llevado el procedimiento antidumping " (Conclusions regarding the conduct of the
anti-dumping procedure).
9. Argentina also rejects Brazil's claim9 regarding the principle of estoppel.  It affirms that
Brazil's conduct, in successively bringing the same complaint before different forums – first before
MERCOSUR, and then, in view of the unfavourable  outcome, before the WTO – claiming violations
of the same provisions of the WTO Anti-Dumping Agreement in both forums, runs counter to the
principle of good faith requiring full observance of treaties and is a case for estoppel.
10. Argentina rejects Brazil's claims10 and affirms that the proceedings conducted in the context
of MERCOSUR and the arbitral award are releva nt, because the rules forming part of the
MERCOSUR regulatory framework – which includes th e Protocol of Brasilia and the award rendered
by the Ad Hoc Tribunal – are pertinent rules applicable to the case, within the meaning of Article 3.2of the DSU and Article 31.3(c) of the Vienna Convention on the Law of Treaties.
                                                     
8 Oral statement of Brazil at the second meeting with the Panel, 26 November 2002, paragraph 8.
9 Oral Statement of Brazil at the second meeting with the Panel, 26 November 2002, paragraph 12.
10 Oral Statement of Brazil at the second meeting with the Panel, 26 November 2002, paragraphs 14, 15
and 16.