WT/DS268/R 
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ANNEX D 
 
 
ORAL STATEMENTS, FIRS T AND SECOND MEETINGS 
 
 
Contents Page 
Annex D-1 Opening and Closing Oral Statements of Argentina – First Meeting D-2 
Annex D-2 Oral Statement of the United States – First Meeting D-38 
Annex D-3 Third Party Oral Statement of the European Communities D-46 
Annex D-4 Third Party Oral Statement of Japan D-53 
Annex D-5 Third Party Oral Statement of Mexico D-59 
Annex D-6 Third Party Oral Statement of  the Separate Customs Territory of  
  Taiwan, Penghu, Kinmen and Matsu D-60 
Annex D-7 Opening and Closing Oral Statements of Argentina – 
  Second Meeting D-62 
Annex D-8 Opening and Closing Oral St atements of the United States –  
  Second Meeting D-86 
 WT/DS268/R 
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ANNEX D-1 
 
OPENING AND CLOSING ORAL ST ATEMENTS OF ARGENTINA – 
FIRST MEETING 
 
Opening Statement – 9 December 2003  
 
 
I. INTRODUCTION 
1. At the heart of this dispute is a fundamenta l disagreement between the United States and the 
rest of the WTO constituency rega rding the sunset obligation of Article 11.3 of the Anti-Dumping 
Agreement.  For the United States, Article 11.3 is practically devoid of obligations.1  For the United 
States, anti-dumping measures can be continued indefin itely and on almost any basis.  For the rest of 
the WTO constituency,2 including Argentina, Article 11.3 es tablishes a fundamental obligation to 
terminate an anti-dumping measure five years after its imposition.  Reliance on the limited exception 
to this obligation requires a Member to make specific findings that are based on evidence and that 
comply with the substantiv e standards established in the Anti-Dumping Agreement. 
 
2. In this case, the United States did not terminate the measure applicable to Argentine OCTG, 
but rather invoked the exception and continued the orde r for an additional 5 years, at least.  However, 
the United States did not  make the findings required by Article 11.3, as Argentina explains in its First 
Submission and elaborates today. 
 3. The United States accuses Argentina of having a weak case and of distorting facts.  Argentina 
does not believe such accusations are helpful.  In stead, Argentina will present its arguments with a 
focus on the Anti-Dumping Agreement obligation s, on the record of the underlying sunset 
proceedings, and on the practice of the United Stat es.  In doing so, Argentina will leave it for the 
Panel to evaluate the merits of the case. 
 4. The underlying facts are not complicated.  The only Argentine exporter ever investigated in 
this case, Siderca, was found to have been dumping in 1994, based on the prac tice of zeroing negative 
margins, at a level of 1.36 per cent.  Thereafter, the exporter stopped shipping to the United States, 
and the US Government conducted several reviews to confirm that it had stopped shipping.  In the so-
called sunset review proceedings five years later, the Department determined that dumping was likely to continue and the Commission determined that inju ry was likely to continue or recur.  These are the 
essential facts. 
 
5. This simple fact pattern may seem more complicated by the various types of procedures set 
up by the United States to implement its Article 11.3 obligations, the various levels of participation 
that are possible in these proceedings, and the conse quences that the US system attaches to each level 
of participation.  This is especially true with  respect to the likely dump ing determination by the 
Department of Commerce, whose suns et determinations have little to do with a substantive analysis of 
whether dumping is likely, and instead focus on the application of presumptions that lead to the 
inevitable conclusion that dumping is likely to continue or recur. 
 
6. In its First Submission, the United States denies that there are any presumptions at work, and 
it defends its sunset laws, its sunset practice, and its su nset determinations in this case.  As part of its 
                                                     
 
1 According to the United States, Article 11.3 is “very limited” and sets virtually no restraints or 
limitations on a Member’s ability to maintain anti-dumping measures. ( See US First Submission, para. 3.). 
2 See Third Parties submissions of Japan, European Communities, Chinese Taipei, and Korea.  WT/DS268/R 
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presentation today, Argentina will demonstrate certain contradictions that arise from a comparison of 
the US sunset determinations challenged by Argentina and the arguments advanced by the United 
States in its First Submission.  Indeed, Argentina will highlight several instances where the words of 
the sunset determination contradict the position assert ed by the United States in its First Submission.  
The US First Submission also has a number of irr econcilable internal contradictions.  Let me just 
review some of these examples, which we ha ve placed on Chart 1 for ease of reference. 
 
7. Chart 1 lists four issues related to the likel y dumping determination which were key to the US 
decision not to terminate the measure.  They go to the very heart of the issue of whether the United 
States made the type of determ ination required in order to invoke the exception provided for in 
Article 11.3.  Yet on these key issues, the United States takes a very different position in its First 
Submission than it did in its sunset determination. 
 
• With respect to waiver, the Department unambigu ously stated in its sunset determination that 
the respondents waived their right to participat e in the review.  In its First Submission, the 
United States says that the Department did not de em Siderca to have waived its participation. 
 
• With respect to Siderca’s response, the Departme nt clearly stated in its sunset determination 
that Siderca’s response was inadequate.3  In its First Submission (para. 213), the United States 
says the exact opposite – “Siderca did not fail to  file an adequate response but, rather, filed a 
complete substantive response.”  Moreover, elsewhere in the First Submission (para. 233), the 
United States asserts that:  “An in adequate response is one that lacks required information or is 
simply not submitted.”  
 
• Notwithstanding the application of  the waiver provisions to Side rca, the Department also cites 
in its final determination the provision for the conduct of an expedited review and application 
of “facts available,” which is the euphemism fo r adverse inferences.  In its First Submission 
(para. 214), the United States denies that it applied facts available to Siderca and explains that 
it applied facts available to the “non-responding respondents” from Argentina.  This 
explanation not only contradicts the references in  the sunset determination, but also contradicts 
the United States’ explanation that any such “non-responding respondents” waived their right 
to participate, which mandates a finding of likely dumping. 
 
• Finally, with respect to these “non-responding respondents,” the Department never mentioned 
such a term in the sunset determination or in the WTO consultations prior to this panel 
proceeding.  Yet Argentina learns through the First Submission filed by the United States that these “non-responding respondents” triggered th e application of the waiver provisions, the 
inadequacy determination, and the decision to conduct an expedited review. 
 
8. In addition to these contra dictions relating to the purported basis for the Department’s 
likelihood of dumping determination, the contrast  between the treatment of Siderca’s lack of 
shipments for the dumping and injury determinations is striking.  For the likelihood of dumping, the 
lack of shipments was the key factor leading to wa iver.  For the likelihood of injury determination, 
Argentina’s shipments were irre levant because the Commission relied on speculation regarding non-
Argentine imports, all of which were considered on a cumulated basis. 
 
                                                     
 
3 See ARG-46 (Department’s Sunset Determination at 66,701) (“On the basis of … inadequate 
responses… from respondent interested parties, the Department determined to conduct expedited reviews); 
ARG-50 (Department’s Determination to Expedite at 2) (“…we recommend that you determine Siderca’s response to be inadequate and that we should conduct an expedited (120 day) sunset review…); ARG-51 ( Issues 
and Decision Memorandum at 3, 7) (“the Department determined Siderca’s substantive response to be 
inadequate;” and “Siderca did not provide adequate substantive responses.”). WT/DS268/R 
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9. This case will challenge the Panel in severa l ways, especially because of the procedures 
established in US law to implement the Article 11 .3 obligation, and the contradictions between the 
sunset determination and the US First Submission.  Yet, underneath all the discussion of the 
procedures in the First Submission, there is only one factor that matters for the likelihood of dumping 
determination:  has the US industry participated in  the sunset review?  In the 217 cases in which the 
US industry has expressed an interest in continuing the anti-dumping measure, the Department has 
found a likelihood of a continuation or recurrence of dumping in each case.  The US industry has 
217 wins and 0 losses on the issue of likely dumping.  
 
10. For the Commission’s sunset determination, th e picture is equally troubling.  An analysis of 
the Commission’s determination in this case shows th at the Commission is not engaged in an analysis 
of whether injury is “likely” to continue or recur,  but rather makes its determination based on isolated 
factors that cannot satisfy the common meaning of th e term “likely.”  Further, the Commission makes 
its determination on a cumulated basis of all countrie s subject to the measure, which has the effect of 
negating the rights of individual Members who have the misfortune of being caught in the cumulated 
analysis.  
11. Argentina will not repeat all of the arguments set forth in its First Submission and notes that 
this oral statement should not be viewed as exhaus tive of Argentina’s arguments.  Argentina proposes 
to present its case in the following manner.  First, Argentina will review the na ture of the Article 11.3 
obligation, which is fundamental to this ca se.  Second, Argentina will explain the WTO-
inconsistencies of the “likely” dumping determination by the Department.  Third, Argentina will demonstrate the violations of the Agreement by the “likely” injury determination by the Commission.  
Fourth, Argentina will address briefl y the preliminary objections that the United States has raised, and 
which Argentina rebutted in full in its submission  of 4 December.  Finally, Argentina will draw 
conclusions that place this case in the proper and necessary context. 
 
II. THE ARTICLE 11.3 OBLIGATION 
A. I
NTERPRETING ARTICLE 11.3  AND DEFINING THE SUNSET OBLIGATION IN PROPER CONTEXT  
12. The only way to interpret the terms of Article 11.3 is to give the words their ordinary meaning 
and to interpret the words in their context – both the immediate context (i.e., the other paragraphs of 
Article 11) and the broader context (i.e., the othe r provisions of the Anti-Dumping Agreement, and 
the WTO Agreements as a whole), in accordance with their  object and purpose.  
13. Article 11.3 must be read in  the context of the overarching obligation set out in Article 11.1.  
Article 11.1 fundamentally limits the use of anti-dumping duties in three significant respects:  
duration (“only as long as necessary”); magnitude (“ only to the extent necessary”); and purpose (“to 
counteract dumping which is causing injury”). 
 
14. The panel in EC – Pipe Fittings  recently reaffirmed the clear mandate of Article 11.1, noting 
that it “contains a general, unambiguous and manda tory requirement that anti-dumping duties ‘shall 
remain in force only as long as and to the extent necessary’ to counteract injurious dumping.”  The 
Panel added that Article 11.1 states “a general and overarching principle.”  (DS219, para. 7.113)  This 
general principle is expressed substantively throughout the Anti-Dumping Agreement, including in the “sunset review” provisions of Article 11.3.  To  put it simply, and to paraphrase the Appellate 
Body’s statement in Steel from Germany , if there is no determination of likely continuation or 
recurrence of injurious dumping, the measure must be terminated. 
 
15. The United States would prefer to have th is Panel focus its attention exclusively on 
Article 11.3, and ignore both the immediate context of Article 11, and the broader context of the Anti-
Dumping Agreement.  The Vienna Convention  does not permit such an approach.  The United States 
cannot assert that the Panel should base an inte rpretation of Article 11.3 of the Anti-Dumping  WT/DS268/R 
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Agreement (as the United States does), entirely on the words used in that one provision; especially 
when the words used in that provision are defined elsewhere in the Agreement.  Rather, it is necessary 
to interpret Article 11.3 by exam ining the ordinary meaning of all the provisions that together 
prescribe the relevant obligations of Article 11. Th en the proper interpretation of the provisions must 
be applied to the facts of the case. 
 
16. To summarize, the United States asserts that Article 11.3 is an “empty shell.”  Argentina and 
the Third Parties participating in this case disagr ee, and contend that Article 11.3 incorporates the 
substantive standards of Articles 2, 3, 6, and 12.  As we will see later, th is fundamental difference 
regarding the meaning of Article 11.3 is the basis of this dispute.  B. T
HE PRIMARY OBLIGATION OF ARTICLE 11.3  IS TERMINATION OF THE MEASURE  
17. The Appellate Body in Steel from Germany  explained that the primary obligation of 
Article 21.3 – which parallels Article 11 .3 of the Anti-Dumping Agreement – is termination  of the 
measure after five years.  Continuation of the measur e is the exception, and only if the there is strict 
adherence to the requirements of the Agreement.  The Appellate Body has stated:  
[W]e wish to underline the thrust of Article 21.3 of the SCM Agreement.  An 
automatic time-bound  termination of countervailing duties that have been in place for 
five years from the original investigation or a subsequent comprehensive review is at 
the heart of this provision .  Termination of a countervailing duty is the rule and its 
continuation is the exception.  The continuation of a countervailing duty must therefore be based on a properly conducted review and a positive determination  that 
the revocation of the countervailing duty w ould “be likely to lead to continuation or 
recurrence of subsidization and injury.”  (para. 88, emphasis added). 
18. Article 11.3’s requirement to conduct a “rev iew” and make a “determination” precludes the 
authority from assuming that dumping and injury would likely continue or recur.  ( See Panel Report, 
Sunset Reviews of Steel from Japan , DS244, para. 7.177.)  The authority must take action and ground 
its determination on a “sufficient factual basis”  to allow it to “draw reasoned and adequate 
conclusions concerning the likelihood” of continuation or recurrence.  ( Id.)  In this regard, the 
authority’s determination cannot be based solely on outdated information, but rather “should rest on 
the evaluation of the evidence that it has gathered during the original investigation, the intervening reviews and finally the sunset review .”  (Id.)  The authority must make a “fresh determination” that is 
forward-looking and “based on credible evidence.”  (Appellate Body Report, Steel from Germany , 
para. 88.) 
 
19. The Appellate Body plainly stated the consequences where a WTO Member fails to conduct a 
sunset review or fails to make the required dete rmination under Article 11.3:  “If [a WTO Member] 
does not conduct a sunset review, or, having cond ucted such a review, it does not make such a 
positive determination, the duties must be terminated.”  ( Steel from Germany , para. 63). 
 
C. O
THER PROVISIONS OF THE ANTI-DUMPING AGREEMENT APPLY TO ARTICLE 11.3  REVIEWS  
20. The terms of Article 11 mandate complian ce with other provisions of the Anti-Dumping 
Agreement, including Article 2 (which defines “dumping” “for the purposes of the Anti-Dumping Agreement,” including sunset reviews), Article 3 (w hich defines the meaning of “injury” under the 
Anti-Dumping Agreement, including its use in the Article 11.3), and Article  6 (which applies to 
reviews conducted under Article 11 by virtue of th e cross-reference contained in Article 11.4), and 
Article 12.  The textual analys is of the Appellate Body in Steel from Germany  and the Panel Report in WT/DS268/R 
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DRAMS from Korea  confirms that key substantive provisi ons of the Anti-Dumping Agreement apply 
to Article 11.3 reviews.
4 
 
21. The Third Parties agree that key substan tive provisions of the Anti-Dumping Agreement 
(including Articles 2, 3, and 6) apply to reviews conducted under Article 11.3.5 
 
D. THE US AUTHORITIES APPLIED THE WRONG STANDARD :  THE ORDINARY MEANING OF 
“LIKELY ” IN ARTICLE 11.3  IS “PROBABLE ” AND NOT “POSSIBLE ” 
22. Article 11.3 requires the authorities to determin e whether the expiry of the measures would be 
likely to lead to continuation or re currence of dumping and injury.  The US authorities failed to give 
the term “likely” its ordinary meaning. 
 
23. Both WTO and US jurisprudence make clear that  “likely” does not have the same meaning as 
“possible.” 
 24. Both the ordinary meaning of the term “likel y” and the context of Article 11.3 require the 
application of a “probable” standard to the questio n of whether dumping and injury will continue or 
recur.  In other words, the continuation or recurrence of dumping and injury must be more likely than 
not.  Indeed, the United States itself has asserted before the WTO that the term “likely” means 
“probable.”  In Steel from Germany , the United States expressly stated that “[t]he word ‘likely’ carries 
with it the ordinary meaning of ‘probable.’”  (US Oral Statement at the First Meeting of the Panel, 
WT/DS213, 29-30 January 2002, para. 6).  
 
25. Hence, in order to make a determination that is consistent with Article 11.3, the Department 
and the Commission must find that it is “likely” ( i.e., more probable than not) that termination of the 
anti-dumping measure will lead to the continuance or recurrence of dumping and injury, respectively. 
 
E. S
UMMING UP THE ARTICLE 11.3  OBLIGATIONS IN THIS CASE  
26. The United States submits that it can invo ke the exception of Article 11.3 by initiating a 
review and making a determination.  The rest – the very substance of the determination – is not 
subject to any disciplines, according to the United States.  Argentina and th e Third Parties see it 
differently.  Reading Article 11.3 within its context re veals that it is full of s ubstantive obligations.  If 
a Member wishes to invoke the exception and continue a measure beyond the 5 year limit established in Article 11.3, it is subject to specific discipli nes that are common in the Anti-Dumping Agreement: 
 
• It must conduct a review and make determinatio ns within a specified time if it wishes to 
maintain the measure (required by Article 11.3); 
 
• The conduct of the review and the determin ations must satisfy the requirements of 
Article 6 and must be based on positive evidence; 
 
• The authorities must find that dumping (within  the meaning of Article 2) is “likely” to 
continue or recur (dumping must be more probable than not); and  
 
• The authorities must find that injury (within the meaning of Article 3) is “likely” to 
continue or recur (injury must be more probable than not). 
 
                                                     
 
4 Appellate Body Report, Steel from Germany , paras. 69 n.59, 79-81; Panel Report DRAMs from 
Korea , para. 6.59 n.501. 
5 Third Party Submissions of European Communiti es (paras. 89-96, 123-127), Japan (paras. 3-21), 
Korea (paras. 9-24), and Chinese Taipei (paras. 7-13).  WT/DS268/R 
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 The United States failed to satisfy its ob ligations in this case in every respect. 
 
III. THE DEPARTMENT’S SUNSET REVIEW OF OCTG FROM ARGENTINA 
27. Let us turn now to the Department’s determin ation of whether dumping is likely to continue 
or recur.  Throughout this oral presentation, Argentina will focus on the application of the US 
obligations in this specific case.  However, such an exercise leads directly to laws and regulations 
developed by the United States, the instruments th at inform those laws and regulations, and the 
Department’s consistent practice in sunset reviews.  Let us look briefly at the system that the United 
States established to implement its 11.3 obligation (s ection A), then let us look at the application of 
this system to Argentina in this case (section B), and finally we will look at the Argentine case in the 
context of the other cases the United States has decided (Section C). 
 
A. US SUNSET PROCEEDINGS  
28. There is only one variable that matters in the whole of the US sunset regime governing 
Department sunset reviews:  whether the domestic industry participates in the sunset review.   In 
all 217 sunset reviews (including Argentina’s review) in which at least one domestic interested party 
participated, the Department determined that termin ation of the measure would be likely to lead to 
continuation or recurrence of dumping.  
29. The basis for the Department’s determinat ion of likely dumping in each of these 
217 sunset reviews was either:  (1) application of the waiver provisions; or (2) resort to the three 
“checklist” criteria established by the Stat ement of Administrative Action and the Sunset Policy 
Bulletin . 
 
30. The Department applied the waiver provisions in 167 sunset reviews, 77 per cent of the 
sunset reviews in which the domestic industry participated.   In all of these cases, the Department 
issued a finding that dumping would likely continue or recur pursuant to the statutory mandate.  Illustrative of the swift – and to use the US de scription – “efficient” operation of the waiver 
mechanism is the sunset review of antifriction bearings from Sweden, where the Department stated, 
“[G]iven that . . . respondent interested parties have  waived their right to participate in this review 
before the Department, we determine that dumping is  likely to continue if the orders were revoked.”  
(Antifriction Bearings from Sweden  (found in Tab 6 of ARG-63)).  The Department made a similar 
statement in the case being reviewed  by the panel in this case:  The Issues and Decision Memorandum 
at 4-5 (ARG-51)(“In the instant reviews, the Depa rtment did not receive an adequate response from 
respondent interested parties. Pursuant to section 351.218(d)(2)(iii) of the Sunset Regulations, this 
constitutes a waiver of participation.”). 
 
31. The US waiver provisions violate Article 11.3 because they mandate a finding of likely 
dumping.  Article 11.3’s requirement to conduct a “review” and make a “determination” precludes a 
WTO Member from statutorily mandating an affirmative finding of likely dumping.  To do otherwise 
would be to reduce Article 11.3 to a nullity, some thing a treaty interpreter may not do.  If a WTO 
Member wishes to invoke the exception and continue an anti-dumping measure, it simply does not 
have the option of doing nothing, or of passively assuming that dumping and injury would be likely to 
continue or recur. 
 
32. Resort to the checklist criteria of the SAA/ Sunset Policy Bulletin .  In those cases in which 
the Department does not apply the waiver provisions, the Department instead uses its other tool:  the 
checklist criteria in the SAA and the Sunset Policy Bulletin .  These US instruments limit the 
Department’s so-called likelihood “analysis” solely to a consideration of: (1) the existence of 
dumping margins from the original investigation and subsequent administrative reviews; (2) whether 
imports of the subject merchandise ceased after issuance of the order; and (3) whether dumping was 
eliminated after imposition of the order an d import volumes declined significantly. WT/DS268/R 
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33. The United States has not, and cannot, point to a single case in which the domestic industry 
participated in a DOC sunset review and the Department determined that dumping would not be 
likely.  The facts of the DOC sunset reviews speak for themselves:  In 100 per cent of the sunset 
reviews in which a domestic interested party pa rticipated in the proceeding, the Department 
determined that dumping was likely to continue or r ecur; and in 100 per cent of the sunset reviews for 
which the Department determined that dumping was li kely to continue or recur, the Department relied 
on the directives of the SAA and the Department’s Sunset Policy Bulletin . 
 
34. For ease of reference Argentina has prepared  Chart 2, which depicts the DOC sunset review 
system.  
35. The first page demonstrates that there is only  one dispositive factor in DOC sunset reviews.  
That is, whether the domestic industry participates.  As the chart shows, in 100 per cent (all 217) cases 
in which the domestic industry participated, the Depa rtment determined that dumping would be likely.  
In those cases in which the US industry did not par ticipate (74), the Department terminated the order. 
 
36. Page 2 of the Chart shows the two tools us ed by the Department that give rise to the 
remarkable winning percentage of the US industry .  The Department reaches the likely dumping 
determination either thro ugh the application of the mandatory waiver provisions or reliance on the 
SAA/ Sunset Policy Bulletin  checklist criteria.  Together these two tools enable the Department to find 
likely dumping in any case in which the domestic indus try is interested.  At the end of the day, the 
waiver provisions and presumption under US law created by the SAA and Sunset Policy Bulletin  
simply preclude the Department from conducting a review and making the determination required by 
Article 11.3. 
 
37. Page 3 of the Chart depicts the “deemed wa iver” mechanism in US law, where a respondent 
interested party that attempts to participate in a DOC sunset review is “deemed” by the Department to 
have waived its right to participate by virtue of either an “incomplete” or “inadequate” substantive 
response.  A party’s response can be deemed inadequate solely on the basis that its imports are less 
than 50 per cent of the total exports to the United St ates from that party’s country.  This is precisely 
what happened to Siderca in this case. 
 
38. Finally, as Page 4 of the Chart shows, no ma tter what type of review, and irrespective of the 
Department’s adequacy determination, at the e nd of the day all roads lead to a likely dumping 
determination, whether through application of the mandatory waiver provisions or the presumption 
established by checklist criteria of the SAA and Sunset Policy Bulletin . 
 39. The evidence speaks for itself.   The United States has implemented a complicated sunset 
review scheme.  Yet, from a results standpoint, it does not really matter whether the Department 
issues a likelihood determination pursuant to applic ation of the waiver provisions, or through the 
application of the checklist criteria (whether in an expe dited or full sunset review).  It does not matter 
that under the regulations a substantive response may contain “any other relevant information or 
argument that the party would like the [Department] to consider.”  And it does not matter that 
respondent parties are afforded opportunities to su bmit comments.  Despite the US assertions to the 
contrary, there simply is no meaningful opportunity for respondents to participate in sunset reviews. 
 
40. In addition to the inflexible application of the waiver provisions, Argentina’s review of the Department’s sunset determinations  leads to the conclusion that th e Department applies a presumption 
in favour of finding likely dumping that no party has ever overcome.  The Appellate Body in Steel 
from Germany  explained that while it would be difficult for a single case to serve as conclusive 
evidence of the Department’s practice as such violating US WTO obligations, a comprehensive 
examination of all US sunset reviews and an analys is of the methodology used by the Department in 
those reviews might provide such an evid entiary basis.  (Appellate Body Report, Steel from Germany ,  WT/DS268/R 
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para. 148.)  The Appellate Body fu rther explained that a violation might be established by “evidence 
of the consistent application of such laws” and that “the nature and the evidence  required to satisfy the 
burden of proof will vary from case to case.” (para. 157). 
 
41. ARG-63 embodies the results of Argentina’s revi ew of all of the Department’s sunset reviews 
that were undertaken in order to provide empirical evidence in support of its claims.  As of September 
2003, the Department of Commerce had conducted 291 sunset reviews of anti-dumping duty orders.  
Argentina has analyzed all 291 of these sunset review s and has recorded the Department’s findings for 
each in ARG-63.  A perfect record of likely dumpi ng in all cases in which the US industry has shown 
the slightest interest can in no way be considered  to constitute a meaningful – or WTO-consistent – 
“determination” for the purposes of Article 11.3.  
B. T
HE DEPARTMENT ’S SUNSET REVIEW OF OCTG  FROM ARGENTINA  
42. Key facts.  The only Argentine exporter ever investigated in the case was the company, 
Siderca.  Siderca was the only expo rter investigated in the original  1994 investigation (as it was the 
only investigated party also in 1984 and 1985 anti-dumping investigations, and in several administrative reviews under US countervailing duty law).  Siderca had not shipped any OCTG to the 
United States for consumption during the relevant peri od for purposes of the sunset review.  Siderca 
stated this to the Department in its substantive response in the Department’s sunset procedure.  
Siderca made similar “no-shipment” representations during each of the relevant administrative review 
periods.  The Department conducted “no-shipment” reviews and in each instance verified Siderca’s 
claims that the company had not exported OCTG to the United States.  Curiously, the US First 
Submission states that “No administrative review s of the anti-dumping duty order on certain OCTG 
from Argentina were requested or conducted prior to the sunset revi ew” (para. 48).  However, four 
reviews were requested, even though they were resc inded when the Department verified the lack of 
consumption imports from Siderca.
6 
 
43. However, in the sunset review, the Department ’s import data showed the existence of some 
Argentine OCTG imports to the United States.  Be cause Siderca’s total exports of OCTG to the 
United States (zero exports) were less than 50 per cent of what was presumed to be OCTG exports 
from Argentina to the United States, the Depa rtment determined Siderca’s response to be 
“inadequate.” (ARG-50).  In this sense, Argentina’ s treatment in the sunset review depended entirely 
on the assumption that the US statistics were correc t, that there were other exports from Argentina, 
and that these alleged other exports were relevant enough to trigger a waiver and/or expedited review 
under the US law and regulations.  In fact, the US industry never alleged the existence of other 
Argentine exporters, the Department never reviewed or investigated other Argentine exporters, and 
the Department discovered through its  own review that the statistics in fact had incorrectly recorded 
non-consumption entries as consumption entries. 
 
44. Application of Waiver Provision to Siderca.  The Department then determined that because 
Siderca’s response was deemed to be “inadequate,” the company was similarly deemed to have 
“waived” its right to participate in the sunset review.  I quote from the Issues and Decision 
Memorandum at 4-5 (ARG-51)(“In the instant reviews, the Department did not receive an adequate 
response from respondent interested  parties.  Pursuant to section 351.218(d)(2)(iii) of the Sunset 
Regulations, this constitutes a wa iver of participation.”).  ( See Chart 1) 
 
45. Now let’s look at what the United States has sa id in its First Submission to this panel.  The 
United States argues that the Department did not deem  Siderca to have waived its participation in the 
sunset review of OCTG from Argentina (US First Submission, paras. 211- 213).  Buried in 
footnote 216, the United States does concede ambiguity:  it states that “although based on this 
                                                      
6 See Exhibits ARG-28, ARG-32, ARG-37, and ARG-41 for the reviews.  See also  ARG-29, ARG-36, 
ARG-38, and ARG-43 for the outcomes. WT/DS268/R 
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language it may appear that Commerce deemed all res pondents interested parties to have waived their 
participation in the OCTG sunset review…”  The United States says instead that there were other
 
Argentine exporters who did not respond at all to the notice of initiation.  In paragraph 146, the 
United States tells us that such a failure to respon d has the consequence of a waiver, which, under the 
statute mandates an affirmative determination of cont inuation or recurrence of dumping.  Let us return 
to Chart 2, where we see that a failure to respond leads directly to waiver of participation, for which 
the statute then mandates an affirmative likelihoo d determination, without any substantive review. 
 
46. Thus, under the theory expressed in this part of the US First Submission (which is different 
than what the United States says in another part), the exporters considered to account for all exports of Argentine OCTG to the United States waived their pa rticipation by failing to respond to the notice of 
initiation, and the Department therefore had no choi ce but to follow the statutory mandate to make an 
affirmative finding of likely dumping in this case.  If this is true, how can the United States now 
contend that the waiver provision did not affect Side rca, or that it did not diminish Argentina’s rights 
under Article 11.3? 
 47. Why waiver violates Article 11.3.  The US waiver provisions violate Article 11.3 because 
they mandate a finding of likely dumping.  Articl e 11.3’s requirement to conduct a “review” and 
make a “determination” precludes the authority from  mandating statutorily an affirmative finding of 
likely dumping.  If the WTO Member wishes to invoke the exception and continue the measure, it 
simply does not have the choice of doing nothing, or of passively assuming that dumping and injury would likely continue or recur.  ( See Panel Report, Sunset Reviews of Steel from Japan , DS244, 
para. 7.177.)  The authority must take action and ground its determination on a “sufficient factual 
basis” to allow it to “draw reasoned and adequate conclusions concerning the likelihood” of 
continuation or recurrence. (Id.)  The authority mu st make a “fresh determination” that is forward-
looking and “based on credible evidence.”  (Appellate Body Report, Steel from Germany , para. 88.) 
 48. Additionally, waiver violates Articles 6.1 and 6.2.  The application of the waiver provisions 
in the Argentine case violated Article 6.1 becaus e it prevented the only known Argentine exporter, 
Siderca, from presenting evidence for meaningful consideration.  Siderca had notified the Department 
of its desire to participate in the sunset review  and its willingness to cooperate fully by filing a 
complete substantive response to the Department’s notice of initiation.  Neve rtheless, the Department 
deemed Siderca to have waived its  participation and thus issued a determination that dumping was 
likely pursuant to the statutory mandate of 19 USC. § 1675(c)(4)(B).  Accordingly, by issuing a 
determination of likelihood without any analysis  and without meaningful consideration of the 
information submitted by Siderca, the Department de nied Siderca an “ample opportunity to present . . 
. evidence which [it] consid ered relevant . . . .” 
 
49. The United States attempts to cast the waiver  provisions as an “efficiency” mechanism that 
enables the Department to save resources where respo ndent interested parties choose not to participate 
in the Department’s sunset review.  (US First Submission, paras. 148-49)  Casting the function of the 
waiver provisions as a vehicle for saving resources is not persuasive.  Purported efforts to save 
administrative resources can in no way negate a Member’s obligations under the Agreement. 
 
50. The point is that Article 11.3 imposes an obligation on the Member maintaining an anti-
dumping measure to conduct a review and make a determination of both li kely dumping and likely 
injury in order for it to maintain that measure.  If the national authorities are not willing to expend the 
resources necessary to satisfy their obligation to make a WTO-consistent “determination,” then they must terminate the measure.  Also, it must be noted that the Anti-Dumping Agreement provides only one mechanism for the treatment of respondents who do not participate or who are not cooperative:  
Article 6.8 and Annex II provide the limited circumstances in which a Member may make a decision 
based on facts available for such parties.  Thus, an additional so-called efficiency mechanism, that 
statutorily mandates a finding of a likelihood of a continuation or recurrence of dumping, is not 
permitted.  WT/DS268/R 
 Page D-11 
 
 
 
51. Finally, it must be stated that, in the name of “efficiency,” the United States has applied the 
waiver provision in 167 of its 291 sunset reviews.  In Argentina’s view, this is something other than 
efficiency. 
 
1. The Department’s decision to conduct an expedited review 
52. The Department’s determination cites both the “waiver” provisions (19 USC. § 1675(c)(4)(B) 
and 19 C.F.R. 351.218(d)(2)(iii)) and the “facts available” provision (19 C.F.R. § 
351.218(e)(1)(ii)(C)).  The Department’s determinati on purports to rely on both provisions.  However, 
there is no basis under US law for the simultaneous application of these provisions to a single respondent.  Indeed, these provisions are mutually exclusive.  ( See discussion in Argentina’s First 
Submission, para. 100). 
 
53. Putting aside the unambiguous language that the Department deemed Siderca’s inadequate 
response to constitute “wai ver” of participation ( Issues and Decision Memorandum , ARG-51 at 5), 
and despite language in its determ inations regarding the application of facts available (ARG-51 at 3), 
the United States asserts that the Department did not  apply facts available against Siderca.  (US First 
Submission, paras. 214, 221, 234-36.)   Again, the answer that the United States provides in its First 
Submission lies in the so-called “non-responding Argentine respondents;” that is, companies other 
than Siderca who never responded to the invitation to file a substantive response. 
 54. Here, the United States enters into a series of  contradictions.  First, the US assertion runs 
counter to the language in the Department’s determination.  In the Department’s determination to 
conduct an expedited review, it noted that “[d]uring the five-year period from 1995 to 1999, the 
combined-average annual percentage of Siderca’s exports of OCTG to the United States with respect 
to the total of exports of the subject merchand ise to the United States was significantly below 
50 per cent.” (ARG-50)  Based on this finding, the Department determined Siderca’s substantive 
response to be “inadequate” under 19 C.F.R. § 351. 218(e)(1)(A)(i) and thus conducted an expedited 
review pursuant to 19 C.F.R. § 351.218(e)(1)(C)(2).  (ARG-51) ( Issues and Decision Memorandum  at 
3, 7) (“the Department determined Siderca’s substan tive response to be inadequate;” and “Siderca did 
not provide adequate substantive responses.”); Determination to Expedite at 2 (ARG-50)(“we 
recommend that you determine Siderca’s response to be inadequate”).  Based on such statements in the key documents explaining the Department’s actions,  it is hard to understa nd how the United States 
can say in its First Written Submission that Siderca’s response was not inadequate (para. 225, 237), 
and that it did not apply facts available to Siderca. 
 
55. Second, according to the Department’s sunset re gulations, if the respondent interested parties 
have provided an inadequate response, the Department will normally conduct an expedited review and 
issue its final results “based on  the facts available[.]”  (19 C.F.R. § 351.218(e)(1)(ii)(C); see also  
19 USC. § 1675(c)(3)(B).)  Section 351.208(f)(2) provides that the “facts available” consist of 
dumping margins from prior determinations and information contained in parties’ substantive 
responses.  Again, this is precisely what the Depa rtment’s Issues and Decision Memorandum says that 
it did, but which the United States now says that it did not do. 
 
56. Third, the US explanation in its First Written Submission at paragraphs 214, 216, and 233 that 
facts available was applied to th e “non-responding respondents” is flatly inconsistent with its 
explanation in paragraph 146 that the waiver provisions applied to the “non-responding respondents.”  
If the waiver provisions app lied, then there was no need to apply facts available. 
 
57. The Panel and Argentina deserve a straight answer from the United States to two critical 
questions:  (1) was Siderca’s response adequate (in the proceeding, the United States expressly said 
no, and now it says yes); and (2) what happens when non-responding respondents do not respond to 
the notice of initiation (the United States says in  paragraph 146 that the waiver provisions apply, WT/DS268/R 
Page D-12  
 
resulting in a mandatory affirmative finding, and th e United States asserts in paragraphs 214, 216, 233 
that they apply facts available to these companies).   
 
58. Argentina submits that the Panel must review the decisions taken by the authorities, as 
explained by the authorities at the time they took the decision, and not as they later attempt to justify 
these decisions.  Based on the statements in the Department’s determinations, there can be no serious 
dispute that the Department:  (1) determined Side rca’s response to be inadequate; (2) applied the 
waiver provisions to Argentina; and (3) made the lik ely dumping determination, at least in part, based 
on the conduct of a expedited review and application of facts available.  These actions by the United 
States were unjustified by the facts and objectivel y unreasonable, and in substance they violated 
Articles 11.3, 2, 6.8, 6.1 and 6.2, and Annex II.  
59. With respect to the facts, there was no reasonable basis for the Department to have considered 
that there were other Argentine producers/e xporters, and that the failure of these other 
producers/exporters to respond justified the decision to expedite the review and resort to “facts 
available.”  
(a) Siderca was the only Argentine producer/exporter investigated in the original 
investigation, and it was the only producer /exporter named in the subsequent reviews 
requested by the US industry.  During the five-year period after imposition of the 
order, the domestic industry requested four administrative reviews, naming Siderca as the only exporter each time.  (ARG-28; ARG-32; ARG-37; ARG-41.)  In at least one case, the representatives of the US indust ry identified Siderca as “the only know[n] 
producer” of the subject merchandise.  (ARG-58).  The Department initiated an 
administrative review in each year, but ulti mately rescinded the reviews because there 
were no shipments to evaluate.  (ARG-29;  ARG-36; ARG-38; ARG-43.)  In all of 
these instances, however, Siderca’s “no sh ipment certifications” led to additional 
questions from the Department and additional comments from the US industry.  In all 
cases, Siderca explained that it was shipping to the United States, but that all of its 
shipments were either non-subject mercha ndise, or were not entering the United 
States for consumption in the United States .  In all cases, the Department ultimately 
agreed with Siderca’s certification that it made no shipments for consumption in the 
United States of subject merchandise, and therefore rescinded the annual reviews. 
(b) Further, the record developed in the Depa rtment’s sunset review indicated that 
Siderca was the only producer/exporter of the subject merchandise.  In its substantive 
response, Siderca indicated that it was the only producer of seamless OCTG, and, to 
its knowledge, it was the only producer/exporter of Argentine OCTG.  The 
Department acknowledged these statements  (while misstating them slightly) by 
stating that “Siderca asserts that it is the onl y producer of OCTG in Argentina, and to 
its knowledge, there is no other producer of  OCTG in Argentina.”  (ARG-50 at 2).  
Thus, at the very least, the record developed by the Department casts doubt on the 
statistics relied upon by the Department for the adequacy determination.  It is not 
clear why the Department chose to believe the statistics, instead of its understanding 
of Siderca’s position. 
(c) The Department had reason to doubt its data.  On previous occasions, the Department 
concluded that the official statistics contained errors, in one case incorrectly 
classifying non-consumption entries as consumption entries (ARG-36 at 40,090), and 
in another case misclassifying mechanic al pipe as OCTG (ARG-43 at 8949).  
60. From this record, it is not reasonable for th e Department to have assumed that there were 
other Argentine producers/exporter s who should have responded to the initiation notice, and whose 
failure would have such consequences for Argentina’s rights under Article 11.3.  This unfounded  WT/DS268/R 
 Page D-13 
 
 
assumption had dire consequences fo r Argentina as it resulted in the deemed waiver of Siderca.  In 
any event, whether the determination is based on waiver, or is made on the basis of the checklist 
criteria (whether in an expedited or full review), the outcome is the same – a determination of likely 
dumping.  
 
61. The Department’s conduct of an expedited re view, its application of the checklist 
criteria, and its reliance on facts available violated Article 6.8 and Annex II.    “Facts available” 
can be used only as a last resort when investigating authorities are faced with recalcitrant and 
uncooperative parties.  Accordingly, Article 6.8 and Annex II permit an investigating authority to 
make determinations based on “facts available” only when an interested party “refuses access to, or otherwise does not provide, necessary information w ithin a reasonable period or significantly impedes 
the investigation.”  In this case, however, Si derca provided all information required by the 
Department’s sunset regulations in  its substantive response to the no tice of initiation.  Thus, Siderca 
was not an uncooperative party.  Nevertheless, the Department considered Siderca’s complete 
substantive response to be inadequate based on the 50 per cent test and thus determined to conduct an 
expedited review on the basis of the facts available pu rsuant to the statute and regulation.  In doing so, 
the Department violated Article 6.8 and Annex II, because these provisions do not permit the 
application of facts available to a cooperative respondent. Even worse, there was no determination 
that Siderca failed to co operate.  Moreover, the Department faile d to notify the parties of “essential 
facts” forming the basis of its decisi on, as required by Article 6.9.    
 62. As for the US argument in its First Submission that it used facts available only for the non-responding Argentine respondents, there is no support for this statement in the sunset determination.  
The concept of non-responding Argentine respondents is never even mentioned directly in the sunset 
determination.  Even if they had been mentioned,  it was not a reasonable and objective assessment of 
the facts to consider that such parties existed and to condition Argentina’s rights in this way without 
further investigation.  
 
63. The Department’s conduct of an expedite d review and reliance on facts available 
violated Articles 6.1 and 6.2.  Argentina was surprised by the Department’s adequacy determination, 
and the resulting determination to conduct an expedited review based on facts available.  The only 
investigated Argentine exporter had filed a complete  substantive response, and had indicated that it 
would cooperate fully in the Department’s review.  Further, the Department had direct knowledge that 
official statistics had been demonstrated to be incorr ect in the past.  Again, th e Department’s failure to 
provide notice of the “essential facts” forming the basi s of its decision to conduct an expedite review 
based on facts available was inco nsistent with Article 6.9. 
 
64. The United States argues that, by limiting its substantive response to a “mere” four pages in 
length and not taking advantage of other opportunities to submit comments, Siderca failed to fully 
avail itself of the opportunities granted by the sunset regulations for the presenta tion of evidence.  (US 
First Submission, paras. 228-29, 237).  In addition  to the substantive response to the notice of 
initiation, the United States explains, Siderca coul d have submitted comments on the Department’s 
adequacy determination (19 C.F.R. § 351.309(e)) and rebuttal comments to any other party’s 
substantive response (19 C.F.R. § 351.218(d)(4)).  Therefore, the United States concludes, the 
Department’s sunset review of Argentine OCTG wa s not inconsistent with Articles 6.1 and 6.2. 
 
65. The US argument fails for several reasons.  First, contrary to the US assertion, Siderca did not 
fail to take the opportunity to present evidence.  As  the United States repeatedly recognizes, Siderca’s 
response to the notice of initiation was a “compl ete substantive response” that met all of the 
Department’s regulatory requirements.  (US First Submission, paras. 211, 213, 214, and 216).  The 
Department thus received what it considered to be  the requisite information to make the likelihood 
determination.  Having submitted  a “complete substantive response” and having offered to cooperate 
fully, Siderca could not have been expected to know  that something more was necessary in order to 
have the Department undertake a substantive evaluation of whether dumping would be likely to WT/DS268/R 
Page D-14  
 
continue or recur.  Under Annex II, it was the Department’s obligation to “specify in detail the 
information required” from Siderca.  
 
66. Second, regarding the Department’s adequacy  determination, the regulation provides that 
submitted “comments may not include any new factual information or evidence
 (such as 
supplementation of a substantive response to the notice of initiation) and are limited to five pages.” 
(19 C.F.R. § 351.309(e) (emphasis added).  Thus , the regulation precluded Siderca from submitting 
any new evidence with respect to the Department’s determination that Siderca’s response was 
inadequate.  
 67. Third, by the time that the Argentine s unset review began, it was well-known that the 
Department had designed and implemented a syst em which avoided any type of substantive 
determination.  Hence, respondent participation was widely considered to be futile.  The analysis done 
by Argentina for the purposes of this panel proceeding confirms the widely-held perceptions at the 
time:  in every sunset review in which the domestic industry participated, the Department limited its 
“analysis” to the SAA and Sunset Policy Bulletin  checklist criteria and found a likelihood of dumping.  
Consequently, it would not have mattered wh ether Siderca had submitted comments to the 
Department’s adequacy determinatio n, rebuttal comments, or had been granted a full review.  By not 
truly considering all evidence submitted, the Departme nt denies foreign interested parties an ample 
opportunity to present evidence and fully defend thei r interests, contrary to the obligations established 
by Articles 6.1 and 6.2.  Despite US protestations to the contrary, the United States is well aware of 
the fact that even if Siderca availed itself of other opportunities to submit comments, the outcome 
would have been the same.  The United States cannot credibly argue that a more active intervention 
by Siderca would suddenly have tilted the record from 217/0 to 216/1.  
 2. The substantive basis for the Department’s Likelihood of Dumping Determination 
violated Article 11.3 
68. Let us now turn to the stated substantive basis of the Department’s likelihood of dumping 
determination.  As noted above, the Department did no t gather or evaluate additional facts at the time 
of the sunset review, but instead based its decision that dumping would likely continue or recur only 
on the following facts available: (1) the 1.36 per cent dumping margin calculated for Siderca in the 
original investigation, and (2) the fact that Siderca had ceased to ship OCTG to the United States. ( See 
Issues and Decision Memorandum  at 5 (ARG-51).  This is the sum total of what the European 
Community aptly characterized in their Third Part y Submission as the “meagre crumb” of evidence 
supporting this likely dumping determination. 
 
69. This does not constitute the “sufficient fact ual basis” for the substantive and meaningful 
determination required by Article 11.3.  For se veral reasons, the Department’s reliance on the 
1.36 per cent dumping margin established in the original investigation in 1995 cannot serve as a basis 
for the Department’s determination that dumping would be likely to continue or recur.   
 
• First, the rate is historic, with no relationshi p whatsoever to the forw ard-looking determination 
required to invoke the exception of Article 11.3 and continue the measure.  The United States 
has still never offered a logical explanation of wh at this rate says abou t future dumping, let 
alone the likelihood of future dumping.   
 
• Second, in the original investigation, the Depart ment calculated the 1.36 per cent margin based 
on the practice of zeroing negative margins.  In fact, without the zeroing practice, there would 
have been no dumping margin at all, and th ere would have been no measure to review.
7  The 
Appellate Body has held that zeroing negative ma rgins is inconsistent with Article 2.4.2 of the 
                                                      
7 See on that issue, the Third Party Submissions of European Communities (paras. 79-89) and Japan 
(paras. 22-28).  WT/DS268/R 
 Page D-15 
 
 
Anti-Dumping Agreement.  ( See Appellate Body Report, Bed Linen from India , para. 55.)  
Accordingly, the Department cannot rely on a WTO-inconsistent margin as a basis for a 
determination of likelihood of dumping under Article 11.3. 
 
70. In order to establish in a sunset review wh ether it is necessary to maintain an anti-dumping 
measure, the authority will have to make a finding of likely dumping.  To know whether dumping 
would likely “continue” or “recur” under Article 11. 3, an authority must have current information 
about dumping.8  In other words, it becomes necessary to determine if dumping exists in order to 
assess its probable continuation.  Alternatively, it becomes necessary to determine the absence of 
dumping in order to asses prospectively the probability of recurrence.  The Department’s reliance on the 1.36 margin from the original investigation cann ot satisfy either possibility.  The United States 
argues that the Department determined that “dumping  continued to exist throughout the history of the 
order . . . .”   (US First Submission, para. 218.)  The Department, however, had rescinded each of the 
four administrative reviews of Siderca following the order, and thus did not have evidence of 
dumping margins throughout the history of the order.  All it had was the five year-old margin from the 
original investigation – with a razor thin dumping margin, calculated on the basis of a WTO-inconsistent zeroing practice.  There was no eviden ce that dumping continued after the issuance of the 
order and, consequently, the five-year old dumping margin could not provide the basis for a 
determination that dumping woul d be likely to “continue.”    
 
71. Indeed, particularly in the facts of this ca se, where the Department relied on Siderca’s small 
dumping margin of only 1.36 percent, the Department had an obligation to gather and evaluate “persuasive evidence” in order to ju stify its determination of likelihood of dumping.  As the Appellate 
Body has ruled, “mere reliance” on the determination ma de in the original investigation is not enough.  
(See Appellate Body Report, Steel from Germany , para. 88.). This reinforces Argentina’s view of the 
extreme and unfair situati on presented in this case. 
 72. The likely margin of dumping of 1.36 per cent determined by the Department and 
reported to the Commission violated Articles 2 and 11.3.  The Department determined that if the 
order were revoked, the likely dumping margin to prevail would be 1.36 per cent.  The Department 
reported this margin to the Commission for purposes of the Commission’s sunset review and its 
likelihood of injury determination.  Because the 1.36 per cent was inconsistent with Article 2 (because 
it was based on the WTO-inconsistent practice of zeroing negative margins), and additionally 
constructed on the basis of the Department’s “circumstance of sale” adjustment
9, the Department’s 
determination that this margin constituted the like ly margin to prevail violated Articles 11.3 and 2. 
 73. The United States notes that the Departme nt’s reporting of the likely margin to the 
Commission in a sunset review is a construct of US  law, rather than a requirement of Article 11.3.  
(See First Submission by the United States at para. 267.)  Consequently, the United States argues, the 
Department’s reporting of the 1.36 per cent margin to the Commission was not inconsistent with 
Article 11.3.  This argument cannot  be accepted.  Once a Member undertakes either to calculate a 
dumping margin or to rely on a dumping margin , that margin must be consistent with the 
requirements of Article 2.  In the case at hand, si nce the United States did not make a WTO-consistent 
determination that dumping would be likely to cont inue or recur, it was requi red to have terminated 
the measure.  
 
                                                     
 
8 See also Third Party Submission of the European Communities (para. 12).  
9 See Argentina’s First Submission, footnote 14. WT/DS268/R 
Page D-16  
 
C. S
IDERCA ’S CASE CONSIDERED IN THE OVERALL CONTEXT OF THE IMPLEMENTATION OF 
ARTICLE 11.3  BY THE UNITED STATES AND THE DEPARTMENT ’S CONSISTENT SUNSET 
PRACTICE  
74. As is evident from the foregoing, the Department’s sunset determination did not come close 
to satisfying the requirements of Article 11.3 and the substantive standards incorporated therein.  The 
sunset review of OCTG from Argentina is not unique  in this respect.  Viewed in the context of 
consistent US practice in sunset reviews by the Department, the Argentine experience is, 
unfortunately, all too predictable and consistent.  
 
75. First, as noted previously, the Department applied the waiver provisions in 167 sunset reviews, 77 per cent of the sunset reviews in which the domestic industry participated.  In all of these 
cases, the Department issued a finding that dumping would likely continue or recur pursuant to the 
statutory mandate ( See ARG-63).
10 
 
76. In all 217 sunset reviews in which at least one domestic interested party participated, the 
Department rendered an affirmative likelihood determ ination.  Domestic indust ry participation is the 
only determinative factor in a Department sunset revi ew.  No matter what type of sunset proceeding is 
undertaken by the Department, the Department does not conduct the “review” and “determination” 
required by Article 11.3.  The results  are pre-ordained when the US in dustry participates.  Indeed, the 
Department found that termination of the order wo uld be likely to lead to continuation of dumping 
even where the producer could no longer export to  the United States because its sole production 
facility was destroyed as a result of military acti on and, in any event, tr ade sanctions prevented 
imports into the United States.11 
 
77. The Department’s rigid adherence to the mandate of the SAA and the Sunset Policy Bulletin  
limits its likelihood “analysis” solely to a mechanical review of:  (1) the existence of dumping 
margins from the original investigation or subseque nt administrative reviews; (2) whether imports of 
the subject merchandise ceased after issuance of the order; and (3) whether dumping was eliminated after imposition of the order and import volumes declined significantly. 
 
78. The Department’s “consistent application of ” these checklist criteria in the SAA and the 
Sunset Policy Bulletin  in its reviews demonstrates the mandatory nature of these instruments.  
Nevertheless, the United States ta kes the position that there is no i rrefutable presumption of likely 
dumping in the Department’s practice. (Para. 172.) 
 
79. As noted previously, the United States has not cited a single case in which the domestic 
industry participated in a DOC su nset review and the Department determined that dumping would not 
be likely. 
 
80. The United States argues that there were only 35 “contested cases.”  (Para.151.)   The US 
argument again misses the point. 
 
                                                     
 
10 See, e.g., Antifriction Bearings from Sweden , 64 Fed. Reg. 60,282, 60,284 (1999)(ARG-63, Tab 6); 
Ball Bearings from Singapore , 64 Fed. Reg. 60,287, 60,289 (1999)(ARG-63, Tab 11); Aspirin from Turkey , 64 
Fed. Reg. 36,328, 36,330 (1999)(ARG-63, Tab 14)).  For ex ample, in the final results of the sunset review of 
antifriction bearings from Sweden, the Department stated, “[G]iven that . . . respondent interested parties have 
waived their right to participate in this review before the Department, we determine that dumping is likely to continue if the orders were revoked.”  ( Antifriction Bearings from Sweden , 64 Fed. Reg. 60,282, 60,284 
(1999)(ARG-63, Tab 6). 
11  Industrial Nitrocellulose from Yugoslavia , 64 Fed. Reg. 57,852 (Dep’t Comm. 1999)(final results 
sunset review) (ARG-42).  WT/DS268/R 
 Page D-17 
 
 
81. First, the premise of the US argument is fundamentally flawed because participation by 
respondents is an irrelevant factor given the SAA/ SPB checklist criteria and the presumption that has 
never been refuted in the Department’s sunset re views when the domestic industry was interested. 
 
82. Moreover, the substantive rights of WTO Me mbers under Article 11.3 cannot be conditioned 
upon the actions of private sector exporters.  Ar ticle 11.3 places an affirmative obligation upon a 
Member to terminate anti-dumping measures in five years unless that Member makes specific 
findings based on positive evidence.  In the event that a company fails to cooperate, then Members 
would be subject to the disciplin es of Article 6.8 and Annex II. 
 83. More importantly, however, even using the US erroneous figures,
12 35 out of 35 still proves 
Argentina’s claim.  These are still “unbeatable odds .”  Moreover, of these, the Department has 
conducted 28 full sunset reviews.  In each case, the Department found that dumping would likely 
continue or recur upon expiry of the order.  Argentina has satisfied its burden of establishing a prima 
facie  case demonstrating the presumption employed by the Department in sunset reviews has never 
been refuted in cases in which th e domestic industry participates. 
 
84. Underneath the clutter.   It is easy to get lost in the procedural rules the United States has 
created in its law.  Yet, from a results standpoint, the framework does not matter.  Through the waiver 
provisions or application of the ch ecklist criteria (whether in an expe dited or full sunset review), the 
Department issues a determination that dumpi ng would be likely to continue or recur.  At the end of 
the day, there is only one variable that matters  in the whole of the US sunset regime governing 
Department sunset reviews:  whether the domestic industry participates in the sunset review.   In 
all 217 sunset reviews (including Argentina’s review) in which at least one domestic interested party 
participated, the Department rendered an affirmative likelihood determination. 
 
85. That domestic industry participation is the only determinative factor in a Department sunset 
review demonstrates that – despite the statut e, regulations, and the Department’s purported 
consideration of parties’ argument s – the Department does not truly engage in a meaningful analysis 
based on adequate evidence of whether dumping would likely continue or recur upon termination of 
the order.  No matter what type of sunset proc eeding conducted by the Department, the Department 
does not conduct the “review” and make the “det ermination” required by Article 11.3 and the 
substantive provisions of the Anti-Dumping Agreement. 
 IV. THE COMMISSION’S SUNSET REVIEW 
86. We now turn, Mr. Chairman, to the aspect of the case involving injury.  Let us recall that 
injury is a common term in the implementation of  GATT Article VI.  Injury  retains this essential 
meaning in Article 11 of the Anti-Dumping Agreemen t.  In Article 11.3, injury is a fundamental 
precondition to the continuation of the order.  That is, a Member must find a likelihood that injury 
will continue or recur before it can continue a measure beyond 5 years. 
 
87. Article 11.3 requires a finding of likely injury based on an objective examination of positive 
evidence, and the obligation in Article 11.3 cannot be sa tisfied by a finding that recurrence of injury is 
                                                     
 
12 In any event, there were actually 43 cases in which the likelihood of dumping determination was – 
using the US term – “contested.”  Argentina’s Exhibit ARG-63 shows that the response from foreign interested 
parties was deemed adequate in 28 cases and inadequate (based on a foreign party’s attempt to participate) in 
17 cases.  Thus, foreign interested parties attempted to participate in 45 Department sunset reviews.  In 2 of these cases, however, the domestic industry withdrew from the proceeding.  Thus, the foreign and domestic 
parties “contested” the likelihood determination in 43 sunset reviews. 
 WT/DS268/R 
Page D-18  
 
one of several possibilities, without reaching the point of being “likely”.  That is precisely what 
happened in this case. 
 
A. T
HE COMMISSION GENERALLY DOES NOT APPLY THE “LIKELY ” STANDARD REQUIRED BY 
ARTICLE 11.3 
88. Let us first turn to the likely standard. 
 
89. At the outset, Argentina submits that the United  States should not be surprised that its trading 
partners are challenging the Commission’s interpre tation of the word “likely,” or the Commission’s 
implementation of this aspect of the Article 11.3  obligation.  The Commission has been subject to 
criticism and has been challenged in US courts for its incorrect interp retation of the term “likely.”  
There have been several challenges to the Commission’s “likely” standard in the US courts, and the 
decisions have been consistent:  in none of these cases was the Commission’s original sunset decision 
upheld as correctly applying a “likely” standard. 
 90. The United States takes the position before th is panel that the Commission applied a correct 
standard in the sunset determination of Argent ine OCTG.  The United States contends that the 
Commission is applying the correct standard, noting that US law uses the same term – “likely” – that 
appears in Article 11.3 (para. 282).  The United States contends that “[i]t is incorrect to conclude that 
‘likely’ can only mean ‘probable’ and cites secondary definitions of “ likely” that appear to convey a 
degree of certainty that is less than “probable” but more than “possible.”  (US First Submission, 
para. 282 n.300)  Moreover, the Commission has argued be fore US courts that “likely” does not carry 
its ordinary meaning of probable and that “the term  ‘likely’ captures a concept that falls in between 
‘probable’ and ‘possible’ on a continuum of relative certainty.”
13 
 
91. Argentina recognizes that US law uses th e same term “likely” as in the Anti-Dumping 
Agreement.  However, the similaritie s stop there.  The application of the likely standard to the facts of 
this case demonstrates the violation of Articles 3 an d 11.3.  Argentina will re view the application of 
the standard to the facts of this case later in our presentation. 
 
92. However, with respect the standard, we have  to recognize that the US position as to the 
meaning of the term “likely” has changed again.  In Steel from Germany  and DRAMS  from Korea  the 
United States accepted that “likely” means “probable.”  The distinctions that the United States now tries to draw between the meaning of the terms likely and probable is inconsistent with the position 
the United States has taken in the WTO and is not tenable. 
 
93. The United States tries to diminish the impor tance of these shifting positions in the sunset 
reviews, the US courts, and the WTO.  This is so es pecially regarding the US litigation of the one case 
which has completed the first stage of judicial review, where the United States contends that the court 
ultimately approved the Commission’s sunset determ ination, and that the result did not change from 
the original determination.  But this argument mi sses the point.  This acceptance of the Commission’s 
finding was possible only after
 the court insisted that the term likely means probable, and that the 
Commission had to change its analysis to apply a lik ely, or probable, standard.  Far from helping the 
US position, the affirmance of the remand determination only serves to emphasize the point that the 
Commission applied the wrong standard and that  the result could only be sustained after the 
Commission fixed its decision. 
 
                                                      
13 See Usinor Industeel, S.A. v. United States , No. 01-00006, slip op. 02-152 at 4-6 (CIT 
20 Dec. 2002)(ARG-16); Nippon Steel Corp. v. United States , No. 01-00103, slip op. 02-153 at 6-7 (CIT 
24 Dec. 2002).  WT/DS268/R 
 Page D-19 
 
 
B. ARTICLE 3 OF THE ANTI-DUMPING AGREEMENT APPLIES TO ARTICLE 11.3  REVIEWS  
94. With this background, we turn to the question of what must be “likely.”  For Argentina and 
the other trading partners involved in this proceeding, the answer is clear:  the answer is “injury,” 
which can only be injury as defined under the te rms of the Anti-Dumping Agreement.  For the United 
States, the issue is not so clear, and injury in Artic le 11.3 has a unique meaning, which is something 
different than injury as defined in Article 3. 
 
95. Article 3 defines “injury” as that term is  used throughout the Anti-Dumping Agreement.  
Thus, an authority’s determination under Article 11.3 of whether “injury” would be likely to continue 
or recur must satisfy the requirements of Article 3.  
96. Footnote 9 states:  “Under this Agreement
 the term ‘injury ’ shall, unless otherwise specified, 
be taken to mean material injury to a domestic in dustry, threat of material injury to a domestic 
industry or a material retardation of the establishmen t of such an industry and shall be interpreted in 
accordance with the provisions of this Article .”  The Appellate Body used the SCM equivalent of this 
very footnote as an illustration of how the injury concept applies throughout the Agreement, including in sunset reviews.  ( See Appellate Body Report, Steel from Germany , para. 69, n.59.) 
 
97. The US contention that Footnote 9 is a mere “drafting device” designed to avoid the need to 
recite each of the three distinct forms of injury th roughout the agreement is unpersuasive.  The Panel 
in DRAMs from Korea noted “that, by virtue of note 9 of the [Anti-Dumping] Agreement, the term 
‘injury’ in Article 11.2 ‘shall be in terpreted in accordance with the pr ovisions of Article 3.”  (Panel 
Report, DRAMs from Korea , Para. 6.59 n.501; see also Panel Report, Sunset Review of Steel from 
Japan , para. 7.99).  The United States has not offered any reasons for why injury for purposes of 
Article 11.2 should be treated differently than injury for purposes of Article 11.3. 
 
98. Nor does the United States attempt to explai n how injury in Article 11.1 could possibly be 
different from injury in Article 3.  Article 11.1 stat es that “An anti-dumping duty shall remain in force 
only as long as and to the extent necessary to count eract dumping that is causing injury.”  There is no 
suggestion that the drafters of the Agreement intended in Article 11.1 anything other than injury as 
defined in Article 3 and specified in footnote 9.  And there can be no question that the overarching 
principles of Article 11.1 provide the immediate cont ext of Article 11.3.  Is the United States saying 
that injury for the purposes of Article 11.3 is diffe rent than injury as referenced in Article 11.1?  
 
99. The Panel in DS244 (another case involving Article 11.3) stated that: 
 
The term ‘injury’ as it appears th roughout the Anti-Dumping Agreement  – including 
Article 11 – is to be construed in accord ance with this footnote, unless otherwise 
specified. This would seem to support th e view that the provisions of Article 3 
concerning injury may be generally applicable throughout the Anti-Dumping 
Agreement  and are not limited in application to  investigations. Article 11 does not 
seem to explicitly specify otherwise in the case of sunset reviews.” 
100. It is difficult to understand, and runs counter to logic, that negotiators who demonstrated care 
in choosing their words throughout the Agreemen t would define a term with such precision in 
footnote 9, specify that it applies throughout the Agreement, and then change the meaning of the term 
in Article 11.3 without being clear th at the negotiators were doing so.  
 
101. The US also raises the distinction between the “determination of injury” in an original 
investigation and a “determination of the likely cont inuation or recurrence of injury” in a sunset 
review.  To the United States, the drafters intended a different kind of injury in Article 11.3.  Again, 
missing from the United States argument is any re ference to Article 11.1,  which establishes the 
overarching general principle limiting the duration  of an anti-dumping duty, and linking the duration WT/DS268/R 
Page D-20  
 
to the same injury that was required in order to impose the duty.  Article 11.3 does nothing more than 
implement the principle of Article 11.1 in the specific context of a five-year review, and there is no 
indication that a different concept of injury was in tended by the drafters or accepted by the Members.  
 
102. Thus, an authority’s determination of whether “injury” would be likely to continue or recur 
under Article 11.3 must meet the requirements of Ar ticle 3.  Article 3.1 mandates that the authority’s 
“determination of injury” be based on “positive evidence” and “an objective examination” of the 
likely volume of dumped imports and the effect of su ch imports on prices in the domestic market for 
like products, and the likely impact of these impo rts on domestic producers of such products.  
Articles 3.4, 3.5, 3.7, and 3.8 impose further obligat ions related to considera tion of specific economic 
factors and indices having a bearing on the state of the domestic industry, causation, and special rules 
related to any future injury determinations.  
 
103. In sum, Argentina views the issue as one of the fundamental disagreements between the 
United States and other WTO Members involved in this proceeding.  Does “injury” as used in 
Article 11.3 differ from the meaning of “injury” as  defined under the Agreement in footnote 9, and do 
the substantive and procedural standards for eval uating injury contained in Article 3 apply to 
determinations made under Article 11.3?  Under the Agreement, the clear answer to both of these 
questions is “yes.”  Moreover, this is not merely Argentina’s view –  the Third Parties similarly agree 
that this interpretation is  mandated by the Agreement.  
 C. T
HE COMMISSION ’S APPLICATION OF A “CUMULATIVE ” INJURY ANALYSIS IN THE SUNSET 
REVIEW OF THE ANTI -DUMPING DUTY MEASURE ON ARGENTINE OCTG  WAS INCONSISTENT 
WITH ARTICLES 11.3  AND 3.3 
104. Article 11.3 does not permit cumulation.  A cumulative injury analysis under Article 11.3 
would require an assessment of the combined lik ely effects of terminating multiple anti-dumping 
measures.  Article 11.3, however, pertains only to  individual anti-dumping measures.  This is clear 
from the textual analysis of the provision and the object and purpose of the provision.  
105. Pursuant to its terms, Article 11.3 applies to “any definitive anti-dumping duty” and requires 
the “expiry of the duty.”  In each reference, the draf ters have chosen the singular and have avoided the 
plural.  In addition, the context of Article 11.3 re inforces the clear text that Article 11.3 prohibits 
cumulation.  Article 11.3 is an implementing provis ion of Article 11.  Article 11.1, the umbrella 
provision of Article 11.3, directs that “[a]n anti-dumping duty
 shall remain in force only as long as 
and to the extent necessary to counteract dumping wh ich is causing injury.”  Again, the drafters have 
used the singular.  Thus, on its face and interpreted within its context, Article 11.3 does not permit a 
cumulative analysis of the likely injurious effects of multiple anti-dumping orders. 
 
106. Through Article 3.3, the Anti-Dumping Agreement limits the use of a cumulative injury 
analysis to “investigations,” and even then only where certain conditions are met.  The fact that 
Article 3.3 provides for the conditioned use of cu mulation in “investigations” but not in “reviews” 
indicates that a cumulative injury analysis is not  permitted in the likelihood of injury determination 
made in an Article 11.3 review.  It is difficu lt to understand why a textual limitation permitting 
cumulation only in investigation should be interpreted differently that the concept of de minimis  
which, according to the Appellate Body’s inte rpretation, applies only to investigations.14  Indeed, the 
United States embraced the Appellate Body’s rationale on this point. 
 
107. The US violation of Article 11.3 is even more evident when one considers the extent to which cumulation undermined Argentina’s rights under Article 11.3 in this case.  Argentina, and each WTO 
Member, negotiated for the right to have an anti-du mping measure affecting its exports removed after 
five years, unless doing so would be likely to lead to  continuation or recurrence of injury.  Yet, the 
                                                     
 
14 See Appellate Body Report, Steel from Germany , paras. 68-69, 91-92.  WT/DS268/R 
 Page D-21 
 
 
United States never made such a finding in this case.  The Commission never analyzed the effect of 
removing the anti-dumping measure on Argentin e OCTG.  Rather, the Commission performed a 
cumulative assessment, which essen tially conditioned Argentina’s right under Article 11.3 upon the 
actions of exporters from other WTO Members, and th e Commission’s interpretation of those actions.  
There is no basis in the text of Article 11.3 or of the object and purpose of the provision to suggest 
that Argentina’s right to have the anti-dumping meas ure expire was intended to be conditioned in this 
way.  Instead, Argentina has a right to expect termination, unless there is a finding based on positive 
evidence that termination of the anti-dumping measure on Argentine OCTG (not all anti-dumping 
measures on OCTG from other countries) would be likely to lead to a continuation or recurrence of 
injury.  108. Finally, assuming arguendo  that Articles 3.3 and 11.3 do not preclude cumulation in 
Article 11.3 reviews, then the term s of Article 3.3 must be applied to any such cumulative analysis in 
a sunset review.  Indeed, the application of either the de minimis  or negligibility requirements (both of 
which must be satisfied) would have prevented cumu lation in the Commission’s sunset determination 
of Argentine OCTG.  The US rebuttal to Argentina’ s alternative argument relies on the premise that 
Article 3 does not apply to sunset reviews under Ar ticle 11.3.  As Argentina has noted, footnote 9 
provides that “injury” under the Anti-Dumping Ag reement “shall be interpreted in accordance with 
the provisions of … Article [3].” 
 
109. The Commission’s use of a cumulated injury an alysis in the sunset review of OCTG from 
Argentina was also inconsistent with Article 11.3, because it prevented the Commission from applying the correct “likely” standard.  In reach ing its decision to cumulate in this case, the 
Commission considered whether imports fr om each subject source had any possible
 discernible 
adverse impact on the domestic industry.  ( Commission’s Sunset Determination  at 6, 10-16.)  The 
Commission included the imports from Argentina in the cumulated injury analysis because it did not  
find that the Argentine imports would have no  discernible adverse impact on the domestic industry.  
In other words, the Commission cumulated imports from Argentina on the basis of a finding that these 
imports could have any possible  adverse impact on the domestic indu stry.  This low standard, cast in a 
double-negative, runs directly counter to the “likely”  standard established by Article 11.3.  The United 
States does not respond to this argument.  
 
110. This use of a double negative formulation is contrary to the panel’s decision in DRAMS from 
Korea .  “Not unlikely” does not set the same standard  as “likely.”  Worse still, “no” discernible 
adverse impact establishes a standard that is directly contrary to a “likely” standard.  Under this 
formulation, finding any discernible impact leads to cumulation, which as we see in this case can lead to a finding of “likely” injury without regard to an y “positive evidence” relating to probable imports 
from individual countries.  
 
111. The Commission’s use of a “possibility” standard for cumulation also conflicts with the 
reasoning of the Appellate Body in Steel from Germany , and the evidentiary requirements of 
Article 3.1 of the Anti-Dumping Agreement.  ( See Appellate Body Report, Steel from Germany , 
para. 81 (stating that “[i]t is unlikely  that very low levels of subsidization could be demonstrated to 
cause  ‘material’ injury,” and that “[w] here the level of subsidization at the time of the review is very 
low, there must be persuasive evidence that revocati on of the duty would nevertheless lead to injury to 
the domestic industry.”)  Such a statement only ma kes sense if one presumes that cumulation is not 
possible under Article 11.3.  
 112. As with the Commission’s failure to apply th e correct “likely” standard under Article 11.3, 
the Commission’s decision to conduct a cumulative injury analysis demonstrates that the Commission 
did not support its determination that injury would likely continue or recur upon termination of the 
order on Argentine OCTG with a sufficient factual basis.  It cannot seriously be argued that an 
affirmative likelihood of injury determination co uld have been made with respect to Argentina 
without a decision to cumulate the imports from several countries.  WT/DS268/R 
Page D-22  
 
 
D. T
HE COMMISSION ’S KEY FINDINGS DEMONSTRATE ITS FAILURE TO APPLY THE LIKELY 
STANDARD  
113. In order to determine whether the Commission satisfied the standards of Article 11.3, the 
panel must consider whether the facts were properly established and whether the assessment of the 
facts was objective. 
 
114. In the recent compliance panel appeal in the Bed Linens  case, the Appellate Body provided 
additional guidance on the applicab le standard under Article 17.6(i): 
 
In US – Hot-Rolled Steel , we stated that “[a]lthough the text of Article 17.6(i) is 
couched in terms of an obligation on panels . . . the provision, at the same time, in 
effect defines when investigating authorities can be considered to have acted 
inconsistently with the Anti-Dumping Agr eement.”  We further explained that the 
text of Article 17.6(i) of the Anti-Dumping Agreement, as well as that of Article 11 of the DSU, “requires panels to ‘assess’ th e facts and this . . . clearly necessitates an 
active review or examination of the pertinent facts.
”15 
115. To do this, the panel will have to review the written submissions of the parties in detail.  We will not recount all of that evidence here. 
 
116. Instead, we will focus on the volume findings in the Commission’s determination because these findings appear to drive the Commission’s overall conclusion, and b ecause the Commission’s 
analysis with respect to “likely volume” best illust rates what Argentina considers to be the problem 
with the Commission’s analysis – that is, it relies on isolated factors that indicated that certain 
outcomes were possible, rather than relying on posit ive evidence that certain events were likely to 
continue or recur.  117. The Commission concluded “that the volume of subject imports [was] likely to increase 
significantly in the event of revocation.”  ( See Commission’s Sunset Determination at 19-20 (ARG-
54).  The Commission made this conclusion de spite its recognition that the subject producers’ 
“capacity utilization rates represen t a potentially important constraint on the ability of these subject 
producers to increase shipments of casing and tubing to the United States.”  ( Id.)  Despite the 
existence of capacity constraints, the Commis sion determined that the subject producers had 
“incentives to devote more of their productive capacity to producing and shipping more casing and 
tubing to the US market.”  ( Id.)  The Commission based its conclusion that the subject producers had 
“incentives” to ship more OCTG to the United States  in the absence of the dumping measures on five 
findings.  Let’s review each of them. 
 
118. Again, Argentina has prepared a summary char t (Chart 3) for ease of reference.  Chart 3 
summarizes each of the five so-called incentives that the Commission cited, and explains why these 
“incentives” cannot defeat the positive evidence of ca pacity restraints, and cannot support a finding 
that injury is likely to continue or recur. 
 
119. First, the Commission found that, “[g]iven Tenaris’ global focus, it likely would have a strong incentive to have a significant presence in the US market, including the supply of its global 
customers’ OCTG requirements in the US market.”  ( Id. at 19.) 
 
- With respect to Tenaris, the Commission only examines “half” the story.  
Indeed, some of the companies forming the so-called Tenaris alliance were 
                                                     
 
 15 Appellate Body Report , Recourse to Article 21.5,  Bed Linen from India , para. 163.  WT/DS268/R 
 Page D-23 
 
 
outside of the anti-dumping duty orders under review.  Thus, there was no 
incentive for the companies subject to the order to ship, given the existence 
of members of the alliance outside of the order.  Moreover, other companies 
in the Tenaris alliance, such as Algoma,  were not subject to an order and did 
not ship to the United States. 
- The Commission characterized Tenaris as the “dominant supplier of OCTG 
products and related services to all of the world’s major oil and gas drilling 
regions except the United States.”  ( Id.) 
- Siderca, put forth positive evidence indicating that the subject producers’ 
output was committed in long-term contract s, and that it and its affiliates sold 
primarily to end users.  (Hearing Tr. At 5 (Testimony of German Cura)) 
- Yet the Commission concluded that th e companies referred to as Tenaris 
would act according to this incentive and ship OCTG to the United States, 
apparently regardless of the long-term commitments maintained by Siderca 
and the other affiliated producers.  The United States adds in its written 
submission that “many of those contracts were with the very end users most 
eager to see subject imports enter the US market.”  (US First Submission, 
para. 328.) 
- In making this assertion, the United States ignores the record evidence 
indicating that Tenaris, the dominant global supplier, had global contracts 
with companies that represented “only 12-14 per cent of US oil and gas rigs.”  
(Commission Sunset Determination  at 19 n.124.)  Moreover, the United 
States asserts that “testimony at the hearing indicated that customers already 
buying OCTG from the subject producers would immediately import the 
subject product if these or ders were revoked.”  ( Id.)  Yet in support of this 
assertion, the United States could only point to a second-hand statement that one customer had expressed such a desire.  ( Id. (citing Hearing Tr. At 58 (Mr. 
Ketchum, Red Man Pipe and Supply)(Exhibit US-20).) 
- In concluding that Tenaris had a strong incentive to ship OCTG to the United 
States, the Commission failed to cite positive evidence that this so-called 
“incentive” would justify breaking long-term contracts and turning away 
long-term customers, for which positive ev idence existed.  It is a matter of 
common-sense that one does not become a “dominant” (Argentina prefers 
“leading”) supplier by brea king long-term contracts. 
- The Commission’s finding that Tenaris had a strong incentive to ship OCTG 
to the US market was thus based on a me re possibility, rather than on positive 
evidence indicating that such shipments would be likely. 
120. Second, the Commission found that, because “ casing and tubing are among the highest valued 
pipe and tube products, . . . producers generally have  an incentive, where possible, to shift production 
in favour of these products from other pipe and tu be products that are manufactured on the same 
production lines.”  ( Id.) 
 
- On its face, this statement is a gene ral assumption rather than positive 
evidence.  The statement that “producers generally have an incentive” is not 
enough support for establishing that something is likely to occur. WT/DS268/R 
Page D-24  
 
- In addition, this again contradicts th e notion – based on positive evidence 
developed during the review – that a company would disregard long-term 
contracts to shift production. 
- The Commission’s statement also fails to recognize that Siderca (and even 
Tenaris) had established its position as the dominant world supplier without 
the US market.  This suggests that the company had developed a strategy that 
did not rely on the US market and was not, in fact, motivated by these 
purported “general incentives.” 
- In sum, it is clear that the so-called incentive to shift production is not based 
in any way on positive evidence, but rather only on conjecture and 
speculation. 
121. Third, the Commission found that “prices for casing and tubing on the world market are 
significantly lower than prices in the United States ,” and that this price differential created “an 
incentive for subject producers to seek to increase their sales of casing and tubing to the United 
States.”  ( Id. at 19-20.) 
 
- The Commission relied on anecdotal evidence with respect to its efforts to 
discern the so-called international prices. 
- There is, as the Commission recognizes, contradictory evidence as to the 
magnitude of the price differential. 
- Moreover, this anecdotal and contested ev idence related to the supposed price 
differential, and did not relate to the ultimate proposition relied on by the 
Commission – that the Argentine produ cer would react to this incentive 
despite its long-term contracts and it was selling to end users. 
- Notwithstanding the above points, the Commission embraces the evidence 
submitted by the US industry and once ag ain accepted what can be described 
as a general assumption that exporters will ship to the US market in quantities 
sufficient to cause injury. 
- Even accepting arguendo  the possibility of competing record evidence on 
this point, the evidence ultimately relied on by the Commission does not 
establish a likelihood that any export ers would act in accordance with this 
general incentive. 
122. Fourth, the Commission found that “subject co untry producers also face[d] import barriers in 
other countries, or on related products.”  ( Id. at 20.) 
 
- With regard to trade barriers in thir d-country markets, the Commission could 
point to only one outstanding order on the subject merchandise:  an anti-
dumping order in Canada against import s from Korea.  (Id. at 20.)  This is 
hardly the “positive evidence” required to  support a conclusion that increased 
exports would be likely to enter the US market. 
- Moreover, the underlying premise supporting the Commission’s reliance on 
the existence of other anti-dumping orders one is the so-called incentive to 
shift production.  As noted above, there was no evidence of product-shifting, it ignored evidence that product shifti ng would not occur, and in the end 
amounted to conjecture and speculation.  WT/DS268/R 
 Page D-25 
 
 
123. Finally, the Commission concluded that the industries in the subject countries were 
“dependent on exports for the majority of their sales.”  From this, the Commission classified these 
producers as “export-oriented.”  In turn, from this, it then stated that “the export orientation of the 
industries in the subject countries indicates that they would seek to re-enter the US market in 
significant quantities, as they did in the original investigation.”  This st atement deserves some 
analysis.  In essence, from the observation that certain companies have been successful in exporting, 
the Commission reaches the conclusion that these companies will:  1) increase exports to the US 
market; 2) in significant quantities; and 3) in similar proportion as in 1994-95.  This is the basis of the 
Commission’s so-called incentive.  Argentina submit s that this is pure conjecture, built upon several 
layers of speculation that does not even approa ch the standard requir ed by Article 11.3. 
 124. Moreover, it must be noted that in connection with the Commission’s analysis of the so-called 
“incentives,” the Commission never considered how these incentives would operate with regard to 
producers and exporters in Argentina.  Argentina finds it hard to accept that its right to termination 
under Article 11.3 can be completely disregarded with out an examination of that focuses on Argentine 
producers and Argentine OCTG exports.  
125. Argentina further recalls that these five  factors were centra l to the Commission’s 
determination with respect to its finding that the lik ely volume would increase.  In the end, what did 
the Commission do?  The Commission determined that “the ability to achieve high levels of overall 
capacity utilization depends on mainta ining high levels of casing an d tubing production . . . capacity 
utilization rates represent a potentially important cons traint on the ability of these subject producers to 
increase shipments of casing and tubing to the Unit ed States.”  The natural conclusion flowing from 
this positive evidence is that there would not be an increase in volume.  However, instead, the 
Commission invented “incentives,” based on conj ecture and speculation, and then the Commission 
substituted these incentives to overcome the positive evidence of capacity constraints. 
 
126. Similar short-comings exist with respect to the Commission’s price analysis and its impact 
analysis.  Argentina invites the panel to ke ep this in mind as it reviews the Commission’s 
determination in evaluating whether the Commission satisfied the likely standard of Article 11.3. 
 
V. COMMENT ON US REQUEST FOR PRELIMINARY RULINGS 
127. Before concluding, Mr. Chairman, Argentina w ould like to turn briefly to the US request for 
preliminary rulings. 
 
128. Argentina’s 4 December submission responds fully to the allegations made by the United 
States in its Request for Preliminary Rulings.  Howeve r, Argentina here briefly highlights some of the 
WTO case law that should guide the Panel in asse ssing its interpretation of DSU Article 6.2.  
Argentina’s submission responds specifically to the three categories of allegations made by the 
United States:  (i) the so-called “Page Four” claims; (ii) the claims under Sections B.1, B.2 and B.3; 
and (iii) the “certain matters” that the United Stat es asserts were not incl uded in Argentina’s Panel 
request. 
 
129. Argentina first recalls the general principles enunciated by the Appellate Body: 
 
- the terms of reference serve the due pr ocess objective of providing notice to 
the defending party and the third parties of the nature of the complainant’s 
case.  Any finding that Article 6.2 has been violated is tantamount to a finding that due process rights
 have been violated;16 
                                                      
16  Appellate Body Report, Steel from Germany , para. 126. WT/DS268/R 
Page D-26  
 
- compliance with the requirements of Article 6.2 must be determined by 
considering the panel request as a whole
, and not simply on the basis of 
isolated portions;17 and 
- compliance must be assessed in the light of “attendant circumstances,” 
including actual prejudice  to the defendant during the course of the panel 
proceedings .18 
130. First, Argentina’s panel request must be read as a whole.  In crafting its preliminary objection, 
the United States turns the principle of DSU Article  6.2 on its head.  Indeed, rather than read 
Argentina’s panel request as a whole, the United States  artificially severs the re quest, parses isolated 
language, and then contends that in this context th e United States cannot discern the particular claims 
of Argentina.  The US position is untenable.  Consid ering the panel request as a whole, it is quite clear 
which violations are being alleged by Argentina.  Indeed, Argentina has set out the WTO-
inconsistencies with precision. 
 
131. Second, the United States has not satisfied its burden of demonstrating it suffered actual prejudice during the course of the panel proceedings (which have only just begun).  This is a critical 
flaw in the US complaint.  A review of the US First Submission confirms that in no way have the 
“due process rights” of the United States been vi olated.  The United States has provided detailed 
(albeit unconvincing) argumentation on the full rang e of claims, demonstrating clearly that the United 
States is fully aware of Argentina’ s claims, and has responded substantively to them.  It should also be 
noted that previous panels examining the issue of “prejudice” under DSU Article 6.2 have also 
considered, as a highly relevant factor, whether there was any prejudice to the interests of third parties 
by any alleged deficiencies in the panel request.  In Bed Linens , for example, the Panel found that the 
fact that the third parties were able to make su bstantive submission on the issues “suggests a lack of 
prejudice to third parties' interests in this dispute.”
 19 
 132. In the present case, none of the Third Parties have raised any concerns about any aspects of Argentina’s claims.  Indeed, the European Communit ies, far from expressing any concerns about the 
alleged lack of clarity of Argentina’s request, stated to the contrary that the “Panel should not follow 
the United States suggestion …  Rather, in order to  establish whether the co nditions of Article 6.2 
DSU are met, the Panel should consider the request as a whole.”
20 
 133. In summary, the US request for preliminary ru lings fails both prongs of the two-part test set 
out by the Appellate Body for determining whet her a panel request meets the requirements of 
Article 6.2 of the DSU.  First, an examination of Argentina’s panel request, read as a whole, indicates 
that it is detailed, clear and specific, fully setting out Argentina’s claims.  Second, the United States 
has utterly failed to substantiate its claim that it was allegedly prejudiced during the course of the 
Panel proceedings.  In any event, as indicated above, the United States has been well aware of the full 
nature and extent of Argentina’s claims for over a year.  In light of the attendant circumstances in this 
case, the United States cannot credibly claim that it was not aware of Argentina’s claims, “sufficient 
to allow it to defend itself.”  
 
134. Accordingly, Argentina respectfully request s the panel to dismiss the US request for 
preliminary rulings in their entirety.  
                                                     
 
17  Id. at para. 127. 
18  Appellate Body Report, Korea Dairy , para. 127. 
19 Panel Report, European Communities - Anti-Dumping Duties on Imports Of Cotton-Type Bed Linen 
from India , WT/DS141/R, adopted 12 March 2001, paragraph 6.28. 
20 Third Party Submission of the European Communities, 14 November 2003, Section 2.  WT/DS268/R 
 Page D-27 
 
 
VI. CONCLUSION 
135. Let us conclude, Mr. Chairman.  Argentina is confident that the Panel appreciates the extreme 
nature of this case, and the extreme nature of th e conflict of the Departme nt’s and the Commission’s 
determinations with the obligations of Article 11.3.  Here we are, nearly a decade after a 1.36 per cent 
margin was calculated for Argentina’s only investigated exporter.  This margin, everyone concedes, 
was calculated on the basis of zeroing, and is below what is today a de minimis  margin.  Injury was 
determined originally on the basis of cumulated imports, as it was once again in the US sunset 
proceeding. 
 
136. Despite these defects, this measure continues, and it is very likely to continue to exist well into the future if nothing is done.  How is this  possible in light of the fact that WTO Members 
included in the Uruguay Round a specific provision that requires termination of an anti-dumping 
measure unless specific conditions are met?  
 
137. Argentina has presented to this Panel and to the WTO Members its view of how this troubling result has occurred.  
138. With respect to likely dumping, the United St ates has arranged three different procedures to 
implement its Article 11.3 obligation, each depending  on the perceived level of participation in the 
process.  In the end, it does not matter
 which procedure the United States uses.  All roads lead to the 
application of mandatory criteria which prevent preci sely the type of factual and legal review that 
Article 11.3 requires in order to in voke the exception to termination.  This can be seen plainly in this 
case, and in all the other cases in which the US industry has expressed an interest.  There is no 
analysis, no positive evidence from which to infer likely behavior; in the end, no review. 
 
139. With respect to likely injury, although the Commission does develop evidence, in the end it 
fails to apply the correct legal standard – a “likel y” standard.  It explains how there are several 
possibilities supporting injury.  This case is a clear ex ample of the varied uses of “possible” scenarios 
to support a finding of “likely” injury. 
 
140. Argentina cannot conclude without noting the stark contradiction in the approach of the 
Department and the Commission in their respective sunset reviews.  For its part, the Department 
considered Argentina’s only inves tigated exporter to be irrelevant  and therefore concluded that the 
Argentine exporter had “waived” its participation in  the review.  For its part, the Commission based 
its determination on speculation about the Tenaris alliance and on a cumulative assessment of exports 
from other countries, both subject to, and not subject to, the measure.  In other words, the 
Commission’s analysis is anything but an order-wi de analysis, but rather conditions each Member’s 
rights upon the actions of other companies from other Members.  In the end, neither the approach of 
the Department or of the Commission is consistent  with Article 11.3.  There is one principal 
obligation under Article 11.3.  Argentina had the right under Article 11.3 to have the anti-dumping 
measure on OCTG terminated unless the specified requ irements of Article 11.3 have been satisfied to 
invoke the exception to maintain  the measure.  Argentina’s righ ts have been violated by the 
exceedingly limited approach of the Department and by the overly expansive approach of the 
Commission. 
 
141. Argentina respectfully requests the Panel: 
 
- to find that in this case the US measur es identified by Argentina, as such and 
as applied, violate US WTO obligations; 
- to recommend that the United States brings its measures found to be 
inconsistent with the covered agreements into conformity with its WTO 
obligations; and WT/DS268/R 
Page D-28  
 
- to suggest, pursuant to DSU Article 19.1, that the only way for the United 
States to comply with these recommendations is through the immediate 
termination of the measure. 
142. Argentina recalls that DSU Article 3.7 provid es that the “first objective” of the dispute 
settlement mechanism is usually to “secure the withdr awal” of the WTO-inconsistent measure.   This 
is particularly appropriate in the present case.  Indeed, immediate termination of the anti-dumping 
duty is the only possible remedy, given the pervasive violations committed by the United States in this 
case.  Article 11.3 requires termination after five years unless certain findings have been made within 
the specified time on the basis of evidence.  Here, the United States did not make these findings and 
cannot now “cure” the multiple defects through another review or any action other than the immediate termination of the anti-dumping duty. 
 
143. Unless the panel recommends termination in this  case, this story will repeat into the future, 
not only for Argentina but for all the trading partners affected by US anti-dumping measures.   WT/DS268/R
 Page D-29 
 
 
CHART 1:  Contradictions in US Position  
 
 
Issue 
 In Sunset Determination  In First Submission  
Waiver The Department deemed respondent interested 
parties to have waived participation 
ARG 51 (Issues & Decisions Memorandum at 5) 
 Siderca was not deemed to have waived participation 
(paras. 211-213) 
Siderca’s Response Inadequate 
ARG 51 (Issues & Decision Memorandum at 3, 7) 
ARG 50 (Adequacy Determination at 2) 
ARG 46 (DOC Sunset Determination at 66,701)  Adequate 
(para. 213, 216, 233, 234) 
Facts Available Applied to Siderca 
ARG 51 (Issues & Decision Memorandum at 3) 
 Not applied to Siderca 
(paras. 214, 221) 
Significance of “Non-responding 
Respondents” Never mentioned The reason for waiver, inadequacy, expedited review 
and “facts available”  
(paras. 214, 216) 
 
 
 
 
 
 
   
 
   WT/DS268/R 
Page D-30  
 
CHART 2CHART 2
DepartmentDepartment SunsetSunset Review (Dumping)Review (Dumping)
US US Domestic Domestic 
Industry Industry 
ParticipationParticipationTermination of Termination of 
MeasureMeasure
= = 7474casescases
LikelyLikely DumpingDumping
217 cases (100%)217 cases (100%)NONO
YESYES
 
   WT/DS268/R
 Page D-31 
 
DepartmentDepartment SunsetSunset Review (Dumping)Review (Dumping)
US US Domestic Domestic 
Industry Industry 
ParticipationParticipationTermination of Termination of 
Measure Measure 
= = 7474casescases
LikelyLikely DumpingDumping
217 cases (100%)217 cases (100%)NONO
YESYESSAA/SPBSAA/SPB
“Checklist”“Checklist”
CriteriaCriteria
WaiverWaiverReview
 
 
  WT/DS268/R 
Page D-32  
 
Department SunsetDepartment Sunset Review (Dumping)Review (Dumping)
US US Domestic Domestic 
Industry Industry 
ParticipationParticipationTermination of Termination of 
Measure Measure 
= = 7474casescases
LikelyLikely DumpingDumping
217 cases (100%)217 cases (100%)NONO
YESYESDeemed
WaiverSAA/SPBSAA/SPB
“Checklist”“Checklist”
CriteriaCriteriaReview
WaiverWaiver
 
   WT/DS268/R
 Page D-33 
 
DepartmentDepartment SunsetSunset Review (Dumping)Review (Dumping)
US US Domestic Domestic 
Industry Industry 
ParticipationParticipationTermination of Termination of 
Measure Measure 
= = 7474casescases
LikelyLikely DumpingDumping
217 cases (100%)217 cases (100%)NONO
YESYESSAA/SPBSAA/SPB
“Checklist”“Checklist”
CriteriaCriteria
WaiverWaiverComplete?Complete?
ExpediteExpedite
ForeignForeign ProducerProducer
Response Response to to 
NoticeNotice ofof
InitiationInitiationAdequateAdequate ?? FullFull
YESYES
NONONONO NONO
Deemed
Waiver
 
  WT/DS268/R 
Page D-34  
 
CHART 3:  The Commission’s “5-Incentive” Analysis  
 
Factors relied on as  “incentives” by the Commission  . . . are not “likely” because:  
1) Global Focus 
Tenaris has a Global Focus Tenaris has a strong incentive to have a 
significant presence in the U.S. • Evidence on the record does not support 
the “strong incentive” argument. 
• Tenaris mills from non-subject countries 
could have, but did not, access the U.S. market. 
• Tenaris developed its leading position 
without relying on the U.S. market 
 
2) OCTG Pricing 
Casing and tubing are among the highest valued 
pipe and tube products generating among the 
highest profit margin There is an incentive to shift production to OCTG 
and to ship more OCTG to the U.S. There was positive evidence regarding products 
other than casing & tubing products that were part 
of Tenaris’ overall strategy, associated with 
service to the oil and gas industry.  Therefore, the 
ITC’s “product shifting” is not possible for a 
leading, full range supplier. 
 
3)  U.S. OCTG Pricing Casing and tubing prices in the U.S. are higher than 
prices on the world market 
 There is an incentive to focus on the U.S. market 
for OCTG products 
 • Evidence regarding price differentials was 
disputed 
• Several producers had commitments to 
supply other markets 
 
4)  Trade Remedies 
There was one antidumping order in Canada against 
Korean OCTG 
 Exporters faced barriers in  other countries or in 
related products, which would lead the exporters 
to ship more OCTG to the U.S. 
 There are no barriers against Argentine OCTG or 
related products 
 
5) Export Orientation  
Producers are dependent on exports for the majority 
of their sales 
 Producers are export-oriented, and therefore 
shipments to the U.S. would be increased 
 There’s a strong commitment to long-term 
contracts with overseas multinational companies.  It is not logical to risk those contracts for spot sales in the US market 
 
 
  WT/DS268/R 
 Page D-35 
 
 
 
Closing Statement – 10 December 2003  
 
 
1. Mr. Chairman, Members of the Panel:  on one level, this case may seem very complex.  There 
are many US laws, regulations and practices, including some of which even the US delegation 
characterized as “inartfully” drafted.   
 
2. Yet underneath all the complexity of the US lega l system lies a very simple truth:  if the US 
industry wants a dumping order to be continued, the Department will find that dumping is likely to continue or recur.  It’s as simple as that.  Even a quick review of Argentina’s Exhibit 63 will indicate 
how clear and straightforward this case really is.   
 
3. Argentina is confident that the Panel realizes full well the mechanical, pre-ordained nature of 
US sunset “determinations.”  This approach is at  odds with the requirem ents of the Agreement. 
 4. Mr. Chairman, let us consider briefly what we heard yesterday from the United States on 
“likely” dumping.    With respect to waiver – an d this is directly the Chairman’s questions to the 
United States and the US response to that question – the United States asserts on the one hand that 
waiver is applied on a company-specific basis.  On the other hand, the United States indicated several 
times that the sunset determination is conducted on  an order-wide basis, and that it never makes a 
likelihood of dumping determination on a company-sp ecific basis.  Yet the mandatory provisions of 
the statute unambiguously state that, in the event of “waiver,” the Department shall conclude that 
dumping is likely to continue or recur.  What precisely does the statute mean?  And, furthermore, 
what precisely did the Department mean when it said in its Issues and Decision Memorandum  that, 
and I quote, “[S]ection 751(c)(4)(B) of the Act prov ides that the Department shall determine that 
revocation of an order is likely to lead to continuation or recurrence of dumping where a respondent 
interested party waives its participation in the suns et review.  In the instant reviews, the Department 
did not receive an adequate response from respondent interested parties.  Pursuant to 
section 351.218(d)(2)(iii) of the Sunset Regulati ons, this constitutes waiver of participation.” 
 
5. In response to a panel question yesterday, the United States spoke of “inartful” drafting with 
regard to the Department’s waiver regulation.  The United States also declared “inartful” the drafting 
of certain aspects of the Department’s decisions.  Argentina agrees with these characterizations of 
“inartful” drafting, but this explanation cannot excu se the US failure to comply with its obligations 
under Article 11.3.   
6. But, as I stressed before, in the end, it does not matter
 which procedure the United States uses, 
and Argentina has demonstrated this through its empirical analysis provided in ARG-63.  In the end, 
the US will apply its mandatory cr iteria, which prevent the type of  factual and legal review that 
Article 11.3 requires in order to maintain the order.  This can be seen plainly in this case, and in all 
the other cases in which the US industry has expressed an interest.  There is no analysis, no positive 
evidence from which to infer likely behaviour; in the end, no review. 
 
7. After some of the US statements yesterday, th is result is not surprising to Argentina.  The 
United States recited criteria from the Sunset Policy Bulletin .  To paraphrase the US assertions, if a 
company dumped in the past it is reasonable to assume that it will dump in the future.  If a company 
stopped shipping after the imposition of an anti-du mping duty order, it is reasonable to assume that 
the company cannot export without dumping.  If a company’s volume has declined, it is reasonable to assume that the company will dump again if the order is lifted.  These statements are the criteria 
established by the statute, SAA and the Sunset Policy Bulletin .  These statements speak for 
themselves.  These are in fact the sole criteria re lied upon to make the likely dumping finding.  
Assumptions based on speculation cannot, howe ver, satisfy the Article 11.3 standard.  
 WT/DS268/R 
Page D-36  
 
8. With respect to the Commission’s likely injury determination, the Commission confirmed that 
it did not consider the impact of likely Argentine OCTG imports on the United States industry; rather, 
it considered the impact of cumulated imports from 5 countries.  Argentina cannot accept that such an 
approach is consistent with Article 11.3.  If it we re, Argentina’s right to have measures terminated 
after 5 years is severely limited, and is something very different from what the text of Article 11.3 
says that it is. 
 
9. We also heard yesterday that the cumulated approach was essential in this case because of the 
“Tenaris” alliance.  Yet, we also heard yesterday that the Commission did not consider the fact that 
the Tenaris Alliance had members outside of the order,  free to export to the United States without any 
restrictions, but in fact did not do so.  If Tenaris were motivated to act as the Commission presumes, why was it not shipping to the United States through its Tenaris Alliance member in Canada?  Is this 
not positive evidence supporting the notion that these producers would not significantly increase their 
volume to the United States?  It is, and it is essentially ignored by the Commission. 
 
10. On the procedural issues, Mr. Chairman, I can be  brief.  As I said yesterday, we welcome the 
admission by the United States that Argentina’s panel request has identified the specific measures at 
issue.  This confirms what Argentina has said all along – that the US measures that Argentina are 
challenging are limited, specific, and have been identified with precision in our Panel request. 
 
11. This concession by the United States also  means that there now only remains one single 
Article 6.2 issue before the Panel:  did Argentina fa il to “present the problem clearly,” such that the 
United States has suffered actual prejudice during the course of the panel proceedings? 
 
12. Mr. Chairman, I will not repeat what is set out in our 4 December submission, which 
demonstrated the Argentina has complied fully with  the Article 6.2 requirement to “present the 
problem clearly.” 
 
13. With respect to the alleged prej udice to the United States:  as the Canada Aircraft  decision 
stated, a Panel cannot assess prejudice during the panel process until the end
 of the panel process.  In 
this regard, we recall what the statement with wh ich the United States opened this proceeding 
yesterday, and I quote:  “for anyone who follows WTO dispute settlement, most of the issues in this 
dispute should sound very familiar.”  Since the United States is “very familiar” with the issues, it 
seems highly unlikely that it, or any of the “potentia l” third parties, suffered any prejudice from the 
alleged lack of clarity in the claims set out in Arge ntina’s Panel Request.  I have to add that Argentina 
was quite surprised yesterday to hear the US delegation argue that actual prejudice may not be a fundamental prerequisite under Article  6.2.  This is a complete contradiction of what the United States 
argued before the Canada Wheat Board , where it asserted, and I quote:   
 
even if a panel request is insufficiently detailed “to present the problem clearly,” the 
panel is not automatically deprived of ju risdiction over the matter. Rather, the panel 
must examine, based on the “particular circumstances of the case,” whether the defect 
has prejudiced the ability of the responding pa rty to defend itself [original emphasis]. 
14. There is much more I could say on these issues, particularly in light of the US oral statement 
of yesterday.  We will respond fully to the US 9 December oral statement regarding Article 6.2 
objections in our Second Written Submission.  
 
15. Mr. Chairman, we would respectfully request that the Panel continue to bear in mind one 
fundamental point.  At the end of the Uruguay Ro und, the drafters of the Anti-Dumping Agreement 
agreed that dumping orders would not, and could not, exist in perpetuity.  Argentina and other WTO 
members negotiated – and paid for – the right to have  orders terminated after five years, unless very 
stringent conditions were met.  These conditions  patently have not been met in this case. 
  WT/DS268/R 
 Page D-37 
 
 
16. Argentina respectfully requests the Panel: 
 
- to find that in this case the US measur es identified by Argentina, as such and 
as applied, violate US WTO obligations; 
- to recommend that the United States brings its measures found to be 
inconsistent with the covered agreements into conformity with its WTO 
obligations; and 
- to suggest, pursuant to DSU Article 19.1, that the only way for the United 
States to comply with these recommendations is through the immediate 
termination of the measure.  This is th e only remedy that can restore the right 
Argentina obtained in Article 11.3 to have measures applicable to its exports 
terminated after 5 years. 
17. Argentina thanks the Panel for the opportunity to present its case. 
 
 
 
  WT/DS268/R 
Page D-38  
 
ANNEX D-2 
 
ORAL STATEMENT OF THE UNITED  STATES – FIRST MEETING 
 
9 December 2003 
 Mr. Chairman, members of the Panel: 
  
1. On behalf of the United States delegation, I would like to thank you for agreeing to serve on 
this Panel.  
 
2. Today, it is our pleasure to present the views of  the United States concerning the issues in this 
dispute.  Organizationally, we will first talk about so me of the substantive issues, and then turn to the 
procedural issues. 
 
3. With respect to the substantive issues, in ou r First Written Submission, we fully addressed the 
Argentine arguments made to date.  Today, we will focu s on what we consider to be the central issues.  
We will begin with a discussion of some of the issu es concerning "dumping," and then turn to some of 
the issues relating to "injury."  
Issues concerning the likelihood of continuation or recurrence of dumping
 
 
4. Mr. Chairman, for anyone who follows WTO dispute settlement, most of the issues in this 
dispute should sound very familiar.  Indeed, Argentina’s "as such" claims largely raise issues that either have been directly addressed in other disputes  or that are closely rela ted to those addressed in 
other disputes.  In either case, the Panel faces a straightforward task.  It should apply the WTO 
obligations in question based on the approaches taken in recent panel and Appellate Body reports. 
 
5. For example, Argentina claims that an "irrefutable presumption" exists simply because Commerce has found likelihood in a particular number of sunset reviews.  However, as a series of 
panels have found – including those in US – Export Restraints , US – India Plate , and US – Japan 
Sunset  – the frequency of a particular outcome does not transform that outcome into a "measure" that 
may be challenged independently for its alleged WTO inconsistency. 
 
6. With respect to Commerce’s expedited s unset review regulations, Argentina has not 
demonstrated how these regulations breach Article 11.3  or any other obligation of the AD Agreement.  
This is not surprising given that, as the US – Japan Sunset  panel observed, Article 11.3 does not 
prescribe how a Member should go about making a likelihood determination in a sunset review. 
 
7. Argentina’s claim that Commerce’s reported "m argin likely to prevail" is WTO-inconsistent 
rings hollow because Argentina has not demonstrated  that any obligation exists to quantify dumping 
in a sunset review.  In US – German Steel , the Appellate Body addressed Article 21.3 of the SCM 
Agreement – the counterpart to Ar ticle 11.3 – and found that there is no obligation to apply any de 
minimis  threshold in a sunset review because Article 21.3 does not explicitly or implicitly contain 
such an obligation.  The same holds true for Article  11.3 and the obligation to calculate a margin of 
dumping to determine likelihood.  Indeed, given that almost identical language is found in both 
Article 21.3 of the SCM Agreement and Article 11.3  of the AD Agreement, the analysis applied by 
the Appellate Body for Article 21.3 is equally  persuasive with respect to Article 11.3. 
 
8. In this regard, there is also no basis in the AD Agreement for Argentina’s claim that a 
determination of likelihood of continuation or recu rrence of dumping under Article 11.3 of the AD 
Agreement must be made by determining a current level of dumping in a sunset review.  To the  WT/DS268/R 
 Page D-39 
 
 
contrary, footnote 22 of the AD Agreement makes cl ear that a current level of dumping determined 
immediately prior to a sunset review is not determin ative of the issue of likelihood in a sunset review. 
 
9. Finally, Commerce’s Sunset Policy Bulletin  is not a legal instrument with independent status 
under US law – it is not a "measure."  Nor is it  "mandatory" within th e meaning of the well-
established mandatory/discretionary distinction. 
 
10. Turning to Argentina’s "as applied" claims, Argentina has based these claims either on an 
inaccurate understanding of the facts on the record or upon facts that Argentina failed to put in the 
record.  11. For example, Argentina claims that Siderca was found to have provided an inadequate 
submission in the sunset review proceeding and th at this alleged finding resulted in an expedited 
review.  This statement is disproved by a simple re view of the record, and Argentina has not cited one 
instance in the administrative record of the OCTG review where Commerce made this alleged finding.  
In fact, in each of the three separate document s – the Final Sunset Determination, the Decision 
Memorandum, and the Adequacy Memorandum – Commerce clearly stated that Siderca had fully 
cooperated in the sunset review and had filed a complete substantive response.  Notwithstanding 
Argentina’s claims to the contrary, Commerce also clearly articulated in the Decision Memorandum 
and the Adequacy Memorandum that it had determined to expedite th e review because none of the 
firms that had actually exported Argentine OCTG to th e United States were participating in the sunset 
review proceeding.  
12. Similarly, Argentina’s claims that the e xpedited review process denied Siderca a full 
opportunity for submission of evidence and defence of  its interests are belied by a simple examination 
of the facts.  Notwithstanding the expedited nature  of the review, Siderca had the right to file a 
complete substantive response, but chose to comment on only two issues and its treatment of those 
issues amounted to two pages of text.  Siderca also  chose not to exercise its right to file a rebuttal 
response.  Siderca did not submit "any additional info rmation" on its own behalf or on the behalf of 
the Argentine exporters, as permitted by sec tion 351.218(d)(3)(iv) of Commerce’s Sunset 
Regulations.  In addition, no other Argentine intere sted party submitted any information or requested 
to participate in the proceeding.  Given that Siderca and the Argentine exporters did not avail 
themselves of the existing opportunities for par ticipation and defence of their interests, it is 
disingenuous for Argentina to now claim that the e xpedited nature of the proceeding resulted in a 
denial of opportunities to participate in contravent ion of Article 6.  Moreover, the opportunities for 
defence and participation in an expedited review  provide all that is required by Article 6. 
 
13. Finally, Argentina claims that Commerce’s re port of the "margin likely to prevail" in the 
absence of the anti-dumping duty order breaches Articles 2 and 11.3, as applied in this case, because 
it objects to the calculation methodology used in the or iginal investigation to derive the margin.  First, 
as previously noted, there is no WTO obligation to  quantify any margin for the dumping that is likely 
to continue or recur for purposes of a sunset revi ew under Article 11.3 of the AD Agreement.  Nor is 
there any WTO obligation to consider particular ma rgins in a sunset injury analysis.  Second, the 
measure at issue in this dispute is the sunset revi ew, not the original investigation.  If Argentina 
intended to make claims concerning that distinct me asure, it has failed to properly do so.  Finally, we 
note that Argentina has made no claim that, if th e allegedly problematic methodology were modified, 
the margin likely to prevail would be affected or that there would be any change in the margin that 
would be meaningful for the US Internatio nal Trade Commission’s ("ITC") analysis. 
 
Issues concerning the likelihood of co ntinuation or recurrence of injury
 
 14. Argentina has raised a number of issues regarding the ITC’ s determination of likelihood of 
continuation or recurrence of injury in the OCTG su nset review.  We will focus today on four of those 
issues:  first, whether the ITC applied the correct standard for determining wh ether termination of the WT/DS268/R 
Page D-40  
 
anti-dumping duty orders would be likely  to lead to continuation or recurrence of injury; second, 
whether the obligations of Article 3 of the AD Agr eement apply to sunset reviews; third, whether the 
ITC’s determination was consistent with the evidentiary standards of Article 3.1; and fourth, whether 
the time frame provided for under US law for the likely recurrence of injury is consistent with 
Article 11.3 of the AD Agreement. 
 
The ITC applied the correct standard for determ ining whether termination of the anti-dumping 
duty orders would be likely to lead to continuation or recurrence of injury  
 15. Argentina argues that the ITC misinterpreted th e term "likely" in Article 11.3.  Essentially, 
Argentina maintains that "likely" can only mean  "probable," and that the ITC disregarded this 
meaning and interpreted "likely" to mean "possible."  Both of these arguments are incorrect. 
 
16. Trying to pin down the meaning of "likely" by seeking a synonym for that word – such as 
"probable" – is not helpful.  The drafters did not use a synonym; they used "likely."  Moreover, 
dictionaries define "likel y" in various ways.   And even if only one synonym were applicable, this 
would merely beg the question of how that synonym should be interpreted. 
 
17. To properly define "likely," one must bear  in mind the context in which it is used.  In 
particular, one must consider the fundamental nature  of the inquiry called for by sunset reviews.  
Sunset reviews inherently involve less certainty  and precision than original investigations. 
 18. Contrary to Argentina’s assertion, the ITC did not find that the recurrence of injury was 
merely possible.  It examined the likely volume, price effects, and impact of imports if the orders 
were revoked.   It examined each of these factors cl osely.  For example, with respect to likely volume, 
the ITC found that the significant increases in im port volume during the original investigation, 
substantial excess capacity in several of the subject countries, and a strong incentive on the part of 
foreign producers to establish a presence in the la rge, relatively higher-priced US market, supported 
the conclusion that the likely volume of imports would be significant if the orders were revoked. 
 Article 3 does not apply to sunset reviews
 
 
19. Argentina claims that Article 3 of the AD Agre ement applies in its entirety to sunset reviews.  
But, there are numerous textual indications that this  is not the case.  For example, there are no cross-
references in Article 3 to Article 11, or in Article 11 to Article 3. 
 20. Moreover, a determination of injury under Ar ticle 3 and a determination of likely recurrence 
of injury under Article 11.3 are entir ely different animals.  This is underscored by the fact that many 
of the obligations described in Article 3 simply cannot be applied in sunset reviews.  For example, 
Article 3.1 specifies that a determination of injury shall involve an examination of the "volume of the 
dumped imports and the effect of the dumped imports on prices."  Yet, in a sunset review imports may 
not even be present in the market at the time of that review, and they may not be sold at dumped 
prices. 
 
21. Another example of the incompatibility between  the provisions of Article 3 and the inquiry 
involved in a sunset review can be found in Article 3.5.  Article 3.5 refers to the "dumped imports" 
and speaks of such imports in the present tense as "c ausing injury."  However, in a sunset review there 
may be no dumped imports.  Article 3.5 refers al so to existing "injury" and describes an existing 
causal link between dumped imports and that injury.  Again, in a sunset review, with an anti-dumping order in place, there may be no current injury or causal link.  Indeed, it would be surprising if there 
were given the remedial effect of an anti-dumping measure. 
 
22. In sum, it is clear from these textual provisions, and others described in our First Submission, 
that the obligations of Article 3 do not extend to sunset reviews.  WT/DS268/R 
 Page D-41 
 
 
 The ITC’s Sunset Determination was consistent with Article 3.1
 
 23. Even though Article 3.1 does not apply to sunset reviews, the ITC’s sunset determination 
effectively satisfies the Article 3.1 requirements.  The ITC’s determination was based on a proper 
establishment of the relevant facts and an unbiased and objective evaluation of those facts – as 
required by Article 17.6(i) of the AD Agreem ent –  and was based on positive evidence.  
 
24. As is clear from its report, the ITC carefully reviewed an extensive array of factors and 
evidence relative to the likely volume, price effect and impact of imports on the domestic industry.  
We will focus in this statement only on the ITC’s findi ngs with regard to the likely volume of imports, 
as it is representative of the ITC’s approach. 
 
25. The ITC first reviewed the volume of imports in  its original injury investigation, to see how 
imports developed in the absence of dumping measur es.  The original investigation showed that the 
rate of increase in imports was far greater than the increase in demand at that time, and that the market share of subject imports rose significantly, at the expense of that of the domestic industry.  After the 
anti-dumping duty orders went into effect, imports fell but remained a factor in the US market.  
 
26. Turning to the likely volume of imports if the dumping orders were revoked, the ITC found 
that producers in the five countries involved had both the capacity and the incentive to increase their exports to the United States.  The ITC gave five reasons for this.   
27. First, the ITC found that the Tenaris alliance  of OCTG producers (which has members in four 
of the five countries at issue here) with its global focus would have a strong incentive to gain a 
significant presence in the US market.  Second, the ITC found that the subject producers would have 
an incentive to devote more of their capacity to shipping casing and tubing to the US market in that 
casing and tubing were among the highest valued pipe and tube products.  Third, the ITC found that 
prices for casing and tubing on the world market we re significantly lower th an prices in the United 
States.  Fourth, the ITC found that the subject produce rs faced import barriers on casing and tubing in 
other countries or on related products in the United States.  Finally, the ITC found that the OCTG 
industries in at least some of the subject countries, especially Japan and Korea, were heavily 
export-dependent. 
 
28. Argentina takes issue with only three of the ITC’s reasons.  First, it questions whether the 
Tenaris producers could re-orient to the United St ates production that was committed under existing 
contracts.  But the evidence before the ITC plainly supports its finding.  Tenaris is the dominant 
supplier of OCTG products and related services to all of the world's major oil and gas drilling regions 
except the United States.  The United States repres ented the best growth opportunity for the Tenaris 
producers.  The chief executive officer of one of the world’s largest distributors of OCTG, in sworn 
testimony, told the ITC that:  "It is simply not imaginable that [Tenaris] or the other subject 
companies would stay out of the United States which buys as much OCTG as the rest of the world 
combined and has the highest prices."
1 
 
29. Argentina’s second reason for challenging the IT C’s volume finding is that there is only one 
trade barrier in third country markets facing casing and tubing.  Argentina quite clearly overlooks the 
fact that the ITC examined not only import barriers  on casing and tubing in third country markets but 
also barriers on related products in the United St ates – that is, lower-priced products that were 
produced in the same facilities as casing and tubing.  
 
                                                      
 1 See Exhibit US-20. WT/DS268/R 
Page D-42  
 
30. Finally, Argentina takes issue with the ITC’ s finding that foreign producers had an incentive 
to export casing and tubing to the United States beca use prices in the United States were higher than 
in other markets.  As explained more fully in our First Submission, Argentina inaccurately 
characterizes both the evidence on which the ITC re lied and the ITC's analysis of this issue.  The 
evidence shows that the ITC did conduct an independent investigation of this issue by considering the 
relevant evidence submitted by both parties – and that this evidence demonstr ated the existence of a 
substantial price gap between the United States and the rest of the world. 
 
31. In sum, the ITC had ample evidence to support its finding that subject producers had strong 
incentives to shift into the US market and that the subject imports were likely to increase in volume. 
 
The time frame in which injury would be likely to recur
 
 32. Argentina claims that the provisions of US la w regarding the time frame within which injury 
would be likely to recur are inconsistent with Ar ticles 3 and 11.3 of the AD Agreement.  These 
provisions instruct the ITC to determine whether inju ry would be likely to continue or recur "within a 
reasonably foreseeable time" and to "consider that the effects of revocation or termination may not be 
imminent, but may manifest themselves only over a longer period of time." 
 
33. Argentina misconstrues Article 11.3, which do es not specify the time frame relevant to a 
sunset inquiry.  In the absence of any specific provision in Article 11.3, Members remain free to determine under their own laws and procedures the ti me frame relevant in sunset inquiries.  It is 
inherently reasonable for the United States to consider the likelihood of continuation or recurrence 
"within a reasonably foreseeable time" and that the "effects of revocation or termination may not be 
imminent, but may manifest themselves only over a longer period of time." 
 
Procedural issues
 
 34. Turning to the procedural issues, in its submission of 4 December,
2 Argentina fails to rebut 
the US case that portions of Ar gentina’s panel request fail to co mply with the requirements of 
Article 6.2 of the DSU and that certain claims asse rted by Argentina in its First Submission are not 
within the Panel’s terms of refere nce.  To a large extent, Argentin a’s submission of 4 December fails 
to respond to US arguments at all, responding inst ead to arguments that the United States never made. 
 
35. For example, Argentina asserts that the United States has alleged an inconsistency with the 
third requirement of Article 6.2 of the DSU – the re quirement to "identify the specific measures at 
issue."  This assertion is simply wrong.  Nowhere in the US First Submission is there an allegation 
that Argentina’s panel request is inconsistent with  that requirement.  Instead, the United States has 
complained about Argentina’s failure to comply w ith the fourth requirement of Article 6.2 – the 
requirement to "present the problem clearly."  T hus, paragraphs 25-28 and 33-38 of the 4 December 
submission contain responses to argu ments the United States never made. 
 
36. Similarly, notwithstanding Argentina’s asse rtions to the contrary, the United States has not 
argued that a panel request must include arguments or  that it must include narrative descriptions of 
claims.  Thus, the Panel can ignore Argentina’s argumentation on these points, as well. 
 
37. What the United States has argued is that Article 6.2 requires that a panel request contain a 
"brief summary of the legal basis of the complaint sufficient to present the problem clearly."  Where, as here, a "measure" is described ambiguously (such as by the phrase "certain aspects"), where the 
treaty provision in question is described ambiguously (such as by a reference to  an entire article with 
                                                     
 
 2 Submission from Argentina on the Request by the United States for Preliminary Rulings Under 
Article 6.2 of the DSU , 4 December 2003 [hereinafter "4 December Submission"].  WT/DS268/R 
 Page D-43 
 
 
multiple paragraphs and obligations), and where ther e is no accompanying narrative description or 
argument, the problem will not be presented clearly.3 
 
Page 4  
 
38. Turning to the specific defects in the panel re quest, let us begin with what we have called 
"Page 4."  Regarding Page 4, Argentina’s assertion that the United States did not consider the panel 
request as a whole is simply wrong.  In paragraphs 88-89 of the US First Submission, the United 
States explained how it looked at Sections A and B of the panel request to try and figure out the 
nature of the problems set forth on Page 4, and how it concluded – as would any reasonable and 
objective person – that the problems complained about on Page 4 were different from the problems 
complained about in Sections A and B.  For exam ple, when Argentina makes "as such" claims in 
Sections A and B regarding section 751(c)(4) and s ections 752(a)(1) and (5) of the US Tariff Act of 
1930, and then on Page 4 says that it "also" considers certain aspects of sections 751(c) and 752 to be 
WTO-inconsistent, a reasonable and objective person would conclude that Argentina was asserting 
new claims and not merely repeating the claims in Sections A and B. 
 39. Argentina’s arguments appear now to have switc hed.  Argentina told the DSB that Sections A 
and B of the panel request contain Argentina’s "particular claims."  Now, Argentina says "the essence 
of Argentina’s claims" – whatever "essence" means – are contained in Sections A and B.
4  This is just 
inaccurate.  For example, Page 4 identifies the ITC’s sunset regulations as a source of some 
(unidentified) problem, but where in Sections A or  B is the "essence" of Argentina’s "claim" set 
forth?  The answer is:  nowhere. 
 
40. Finally, Argentina claims to have provided a narrative description in the first part of the panel 
request that remedies the deficiencies that  otherwise exist with respect to Page 4.5  However, this 
narrative is little more than a chronology of events , which concludes, on page 2 of the panel request, 
with the same ambiguous assertion that appears on Page 4; namely, that "certain aspects of US laws, regulations, policies and procedures related to the ad ministration of sunset reviews are inconsistent 
with US WTO obligations."  
 Sections B.1, B.2 and B.3
 
 41. Turning to the defects in Sections B.1, B. 2 and B.3 of the panel request, we recall that these defects involve instances in which Argentina alleges inconsistencies with Articles 3 and 6 of the AD 
Agreement in their entirety.  What is most interest ing about Argentina’s justification for these defects 
is what Argentina does not argue.  Argentina does not take issue with  the findings of prior panels that 
citations to entire articles of the AD Agreement – including Article 6 – can fail to satisfy the 
requirements of Article 6.2 of the DSU.
6  Argentina also never explains why, in other portions of its 
panel request, it was able to identify with precisio n the particular paragraphs  of Articles 3 and 6 of 
concern to it.7  Given Argentina’s insistence that the entire panel request be considered, this omission 
on its part is especially curious. 
 
42. With respect to the arguments that Argentin a does make, they are unavailing.  Argentina’s 
main argument is that the United States someho w knew from the consultations what Argentina’s 
problems were.8  However, as the panel in the Canada Wheat  dispute found, this type of argument is 
                                                      
 3 See First Submission by the United States of America, 7 November 2003, para. 87 [hereinafter "US 
First Submission"]. 
 4 4 December submission, note 26. 
 5 Id., para. 45. 
 6 US First Submission, para. 105, note 119. 
 7 Id., para. 106. 
 8 4 December submission, paras. 71-77. WT/DS268/R 
Page D-44  
 
legally irrelevant for purposes of determining whether a panel request complies with Article 6.2 of the 
DSU.
9  Moreover, as a factual matter, Argentina’s argument fails, because the United States already 
has demonstrated how the consultations failed to shed light on the nature of Argentina’s problems.10 
 
43. Interestingly, Argentina seems to object to the US discussion of Argentina’s questions at 
consultations.11  This is a curious objection, given that it  was Argentina that first cited these questions, 
arguing to the DSB that they somehow made up for any deficiencies in Argentina’s panel request. 
 "Certain matters"
 
 44. Finally, there are the "certain matters" that are not within the Panel’ s terms of reference, 
discussed in Section IV.D of the US First Submis sion.  Because these matters are not within the 
Panel’s terms of reference, the United States does not need to demonstrate prejudice as part of its 
analysis in this case.  However, to be clear, the United States was, in fact, prejudiced by the inclusion 
in Argentina’s First Submission of matters that were not included in Argentina’s panel request. 
 
45.  In the interests of time, the United States  will not comment on Argentina’s defence of each 
one of these "matters," but instead will limit itself to one example that should suffice to demonstrate the fatal flaws in Argentina’s arguments. 
 
46. The United States has asserted that the claims set forth in Section VIII.C.2 of the Argentina 
First Submission are not within the Panel’s terms of reference.
12  This section contains an "as applied" 
claim regarding the time period considered by the ITC.  However, the only portion of the panel 
request dealing with the time period considered by th e ITC is Section B.3, which clearly is limited to 
an "as such" claim regarding the relevant statutory provisions. 
 
47. Argentina argues that an "as applied" claim should be read into Section B.3 because the 
heading of Section B refers to the "Commission’s Sunset Determination."13  The problem, though, is 
that Section A of the panel request also has a head ing that refers to Commerce’s determinations, but 
the individual paragraphs of Section A clearly dis tinguish between "as such" and "as applied" claims.  
Section A.1 makes an "as such" claim with respec t to Commerce’s expedited review regime, while 
Sections A.2 and A.3 clearly make "as applied" claims regarding certain aspects of the expedited 
review regime as applied in the sunset  review of OCTG from Argentina.   
 48. Thus, anyone reading the panel request as a whole – as Argentina says one must – would conclude that Argentina deliberately limited its clai ms regarding the time period considered by the 
ITC to an "as such" claim regarding the relevant  statutory provisions.  If Argentina had intended 
otherwise, it would have distinguis hed between the "as such" and the "a s applied" claims as it did in 
Section A with respect to Commerce ’s expedited review system. 
 
                                                     
 
 9 See US First Submission, para. 109, quoting Canada –  Wheat , para. 25. 
 10 Id., paras. 107-108. 
 11 4 December submission, para. 75. 
 12 US First Submission, paras. 123-125. 
 13 4 December submission, para. 111.  WT/DS268/R 
 Page D-45 
 
 
The United States has been prejudiced  
 
49. Argentina’s attempts to demonstrate complia nce with Articles 6.2 and 7 of the DSU simply 
highlight the deficiencies in its panel request and its First Submission.  The forced interpretive efforts 
in which Argentina engages to try to demonstrat e the "clarity" of its panel request speak for 
themselves. 
 
50. Thus, Argentina is really left with nothing other than the baseless assertions that: (1) the 
United States is afraid to engage on the substantive issues;14 and (2) the United States has not been 
prejudiced.  51. Concerning the first argument, the United States simply notes that we could have been spared 
this debate if Argentina simply had withdrawn its  panel request and submitted a proper one after the 
United States expressed its concerns.  Argentina waited over a year before even requesting 
consultations, so it is difficult to understand why Argentina refused to take approximately one more 
month for panel establishment in order to co mply with the requirements of the DSU. 
 
52. On the topic of prejudice, although this shou ld not be relevant where – as here – there is a 
clear failure by Argentina to comply with the DS U, nonetheless the United States and potential third 
parties were prejudiced by Argentina’s failure to comply with the requirements of the DSU.  Members 
were unable to know the matter being referred to th e Panel until well after panel establishment, and 
the United States was prejudiced in its ability to prepare its defence.  
53. Moreover, it is appropriate to take into acc ount not only the disadvantage experienced by the 
United States, but the utter lack of any justificatio n by Argentina for the de ficiencies in its panel 
request.  For example, Sections A and B of the pa nel request show that Argentina is capable of 
drafting claims with precision, but yet Argentina offers no plausible explanation for the ambiguity on 
Page 4.  
 
54. In summary, this Panel should follow  the precedent set by the panel in the Canada Wheat  
dispute.  Although in that case the panel found a failure to comply with the third requirement of 
Article 6.2 of the DSU – the requirement to identif y the specific measures at issue – the panel’s 
reasoning applies with equal force to Argentina’s failure to "present  the problem clearly."  As that 
panel made clear, the due process objective of Arti cle 6.2 requires that a panel request provide the 
respondent with the information necessary to begi n preparing its case.  The panel found that the US 
failure to comply with Article 6.2 "creates signific ant uncertainty regarding the identity of the precise 
measures at issue and thus impairs Canada’s ability to ‘begin preparing its defence’ in a meaningful 
way."
15 
 
55. In this case, Argentina’s failure to comply with Article 6.2 created significant uncertainty 
regarding the matters at issue, thereby impairing – i.e., prejudicing – the United States’ ability to 
begin preparing its defence in a meaningful way.   
 
56. Mr. Chairman, that concludes the opening stat ement of the United States.  The US delegation 
looks forward to your questions and engaging in a constructive dialogue with the Panel. 
  
                                                     
 
 14 4 December submission, para. 2. 
 15 Canada – Wheat , para. 28. WT/DS268/R 
Page D-46  
 
ANNEX D-3 
 
THIRD PARTY ORAL STATEMENT OF THE 
EUROPEAN COMMUNITIES 
 
10 December 2003 
 
TABLE OF CONTENTS 
Page  
1. Introduction................................................................................................................ .............47 
2. Summary of written submission ............................................................................................47 
3. Inadequacy Determination and Waiver of Participat ion....................................................47 
4. United States' interpretation of Arti cle 11.3 of the AD Agreement in isolation 
from the rest of the AD Agreement ........................ ...................... ................ ........................48 
5. Likely continuation of dumping ............................................................................................50  
6. Zeroing..................................................................................................................... ................52  
 
 
Table of cases referred to in this statement  
 
Short Title Full Case Title and Citation of Case 
Argentina – Floor Tiles Panel Report, Argentina – Definitive Anti-Dumping Measures on 
Imports of Ceramic Floor Tiles from Italy , WT/DS211/R, adopted 
5 November 2001 
EC – Tube and Pipe Panel Report, European Communities – Anti-Dumping Duties on 
Malleable Cast Iron Tube or Pipe Fittings from Brazil , 
WT/DS219/R, final report circulated 7 March 2003 
 
Appellate Body Report, European Communities – Anti-Dumping 
Duties on Malleable Cast Iron Tube  or Pipe Fittings from Brazil , 
WT/DS219/AB/R, adopted 18 August 2003 
Egypt – Steel Rebar Panel Report, Egypt – Definitive Anti-Dumping Measures on Steel 
Rebar from Turkey , WT/DS/211/R, adopted 1 October 2002 
Guatemala – Cement II  Panel Report, Guatemala-Definitive Anti-Dumping Measures on 
Grey Portland Cement from Mexico , WT/DS156/R, adopted 
17 November 2000 
US – Carbon Steel from 
Germany Panel Report, United States – Countervailing Duties on Certain 
Corrosion-Resistant Carbon Steel Flat Products from Germany , 
WT/DS213/R, final report circulated 3 July 2002 
 Appellate Body Report, United States – Countervailing Duties on 
Certain Corrosion-Resistant Carbon Steel Flat Products from 
Germany , WT/DS213/AB/R, adopted 28 November 2002 
US – DRAMs Panel Report, United States – Anti-Dumping Duty on Dynamic 
Random Access Memory Semiconductors (DRAMs) of one Megabit 
or above from Korea,  WT/DS99/R, adopted 19 March 1999 
  WT/DS268/R 
 Page D-47 
 
 
Thank you Chairman and Members of the Panel. 
 
1. Introduction 
1. The European Communities intervenes as a thir d party in this case because of its systemic 
interest in the correct interp retation of the AD Agreement. 
 
2. Summary of written submission 
2. Our written submission contained observations on six points. 
 
3. First, with respect to the preliminary objecti on raised by the United States, we consider that 
the Panel should assess Argentina’s Panel Request as a whole, and not one specific part of it in 
isolation from the rest. 
 
4. Second, with respect to the inadequacy determination, we consider that the cumulative effect 
of the relevant provisions in this case led to a situation in which the investigating authority was 
essentially relieved from any obligat ion to investigate, in a manner that is inconsistent with the AD 
Agreement. 
 
5. Third, with respect to the likelihood determina tion, we consider that it was inconsistent with 
Article 11.3 AD Agreement, being based on ou t-of-date data together with a prospective 
determination.  
6. Fourth, with respect to the Sunset Policy Bulletin , we consider it to be a measure subject to 
challenge under the WTO Agreement and “as such” inconsistent with Article 11 of the AD 
Agreement. 
 7. Fifth, with respect to zeroing, we agree that the United States was not entitled to use, for the 
purposes of a sunset review investigation under Ar ticle 11.3 AD Agreement,  a dumping determination 
made using a zeroing methodology inconsistent with Article 2 AD Agreement .  
 
8. Sixth, with respect to injury, we consider  that the provisions of Article 3 of the AD 
Agreement also apply in the context of a sunset review investigation and determination.  9. To these observations we would like to add the following, concerning : the inadequacy 
determination; the United States proposition that Ar ticle 11.3 AD Agreement must be interpreted in 
isolation from all other substantive provisions of the Agreement; the likeliho od determination; and 
zeroing. 
 
3. Inadequacy Determination and Waiver of Participation 
10. Under DOC’s regulations,
1 DOC will consider a response to be ‘adequate’ only if respondent 
interested parties account for more than 50 per cen t of total exports to the United States. If the 
response is considered inadequate, DOC will decide to expedite the review, and decide on the basis of 
“facts available”.2  Since Siderca had not exported to the United States during the period under 
review, and even though DOC found that it had filed a complete substantive response, DOC considered that its response was inadequate, and therefore decided to expedite the review. 
 
                                                     
 
1 Section 351.218(e)(1)(ii)(A). 
2 Section 351.218(e)(1)(ii)(C). WT/DS268/R 
Page D-48  
 
11. As Korea has rightly stated, the 50 per ce nt threshold for determining the adequacy of 
responses of respondent interested pa rties has no basis in the AD Agreement.
3  Panels have 
consistently held that an investigating authority may decide on the basis of “facts available” only  
under the specific conditions of Article 6.8 AD Agreement.4 
 
12. Article 6.8 AD Agreement  permits the authority to decide on the basis of facts available only 
in cases “in which any interested party refuses access to, or otherwise does not provide, necessary 
information within a reasonable period or signific antly impedes the investigation”. Article 6.8 does 
not permit an authority to resort to facts available merely because a respondent interested party, which 
has filed a complete substantive re sponse, does not meet certain qu antitative requirements regarding 
its import share.  
13. The decision to expedite the review may lead to the exclusion of relevant evidence from the 
sunset review investigation, in a manne r inconsistent with Article 6.1 and 6.2  AD Agreement. 
Moreover, it has the additional effect of largely relie ving the investigating authority of the obligation 
to investigate imposed on it by Article 11.3  AD Agreement. The European Communities therefore 
considers that DOC’s regulations, as well as the deci sion to expedite the review in the present case, 
are incompatible with Articles 11.3 and 6.1, 6.2, and 6.8 AD Agreement.  
 
14. Argentina has also challenged the provisions of United States law which provide that in 
certain cases, a respondent interested party is  deemed to have waived participation in the 
proceedings.
5  The European Communities notes that the United States has responded that DOC did 
not apply the waiver provision in the proceedings concerning Siderca.6 
 
15. This notwithstanding, the European Commun ities considers that the provisions of United 
States law as such  are incompatible with the AD Agreement.  DOC’s regulations provide that failure 
by a respondent interested party to file a complete substantive response will be considered as a waiver 
of participation in the sunset review.7  Under United States law, the waiver has the effect that the 
administering authority shall conclude  that revocation of the order or termination of the investigation 
would be likely to lead to continuation or recurren ce of dumping with respect to that interested party.8 
 
16. If a respondent interested party fails to pr ovide necessary information, Article 6.8 AD 
Agreement provides that the investigating authority may decide on the basis of the facts available. 
However, no provision of the AD Agreement allows the investigating authority to simply assume  that 
dumping is likely to continue or recur. By provid ing that, in the absence of a complete substantive 
response, the investigating authority will conclude , without further investigation, that dumping is 
likely to continue or recur, United States law is establishing a presumption which has no basis in the 
AD Agreement .  The waiver provisions as such are ther efore incompatible with Articles 11.3 and 6.8 
AD Agreement. 
 
4. United States interpretation of Article 11.3 of the AD Agreement in isolation from the 
rest of the AD Agreement 
17. The foundation of the United States’ defence is its assertion9 that: 
 
                                                      
3 Korea's Written Submission, para. 31. 
4 Panel Report, Argentina – Floor Tiles  para. 6.20; Panel Report, Egypt – Steel Rebar , para. 7.147.  
5 Argentina's First Written Submission, para. 109 and following. 
6 US First Written Submission, para. 211. 
7 Section 351.218(d)(2)(iii). 
8 19 USC § 1675(c)(4)(B). 
9 US First Written Submission, para. 3.  WT/DS268/R 
 Page D-49 
 
 
“Article 11.3 is the only provision  of the AD Agreement that sets forth the 
substantive requirements for determining whether an order should be revoked five 
years after its imposition.” (emphasis added) 
18. Thus, according to the United States, procedural provisions aside, an investigating authority is 
free to ignore all other provisions of the AD Agreemen t when applying and interpreting Article 11.3. 
As the United States puts it10: 
 
“In sum, aside from the obligations containe d in Article 11.3 and those provisions of 
Articles 6 and 12 discussed above, the AD Agreement leaves the conduct of sunset 
reviews to the discretion of the Member  concerned.” (emphasis added) 
19. The European Communities does not agree with that assertion. We identify (non-
exhaustively) at least six provisions of the AD Ag reement that include requirements that are more 
than merely procedural, and which an investigati ng authority may not ignore in a sunset review 
investigation and determination. They  are: Article 1; Article 2; Artic le 3; Article 4; Article 9; and 
Article 11.1.  20. The European Communities considers that it cannot be said that Article 1 of the AD 
Agreement is wholly irrelevant to the applicatio n and interpretation of Article 11.3. Article 1 is 
entitled “Principles”. It refers to the rules set out in Article VI GATT 1994. It twice refers to the 
“provisions” of the AD Agreement,  without qualification or restriction – that is, to all of them, 
including Article 11.3. An investigating authority ca nnot therefore ignore the principles set out in 
Article 1 of the AD Agreement when applying an d interpreting Article 11.3 , any more than it can 
ignore Article VI GATT 1994. 
 
21. Similarly, the European Communities does not ag ree with the United States when it asserts, in 
the above quotation, that an investigating authorit y is free to ignore Article  2 of the AD Agreement 
when applying and interpreting Article 11.3. Indeed, th is bare assertion is not one that, ultimately, the 
United States is able to sustain, itself admitting that :  
 
“Article 2, therefore, provides the general meaning
 of the term “dumping” as it is 
used throughout the AD Agreement, including in Article 11.3.”11 (emphasis added) 
22. The same comments apply with respect to Ar ticle 3 of the AD Agreement, concerning the 
determination of injury. Article 11.3 does not “othe rwise specify” – so, in accordance with the terms 
of footnote 9 of the AD Agreement, the term “injur y” in Article 11.3 must be taken to mean what is 
set out in the definition. The defined term in footnote 9 is “injury” not, as the United States would have it, “determination of injury”, which is simply the title of Article 3.
12  It may be that the United 
States wishes that the title of Article 3 would have b een used in the definition in footnote 9, instead of 
the term “injury”. That is not, however, what  the text of the AD Agreement provides for. 
 
23. The European Communities further notes that  Article 11.3 of the Agreement contains the 
words “domestic industry”. Article 4 of the Agreement contains the “definition of domestic industry”. 
The European Communities does not therefore agr ee that an investigating authority can ignore 
Article 4 of the AD Agreement when ap plying and interpreting Article 11.3. 
 24. Similar comments may be made with rega rd to Article 9 of the AD Agreement, which 
concerns not only the collection of anti-dumping du ties, but also their “imposition”. Article 11.3 of 
the AD Agreement expressly refers to five years from the “impositio n” of the duty; it also refers to 
                                                     
 
10 US First Written Submission, para. 142. 
11 US First Written Submission, para. 256. 
12 US First Written Submission, paras. 289 to 292. WT/DS268/R 
Page D-50  
 
“the expiry of the duty”, meaning the expiry of the imposition of the duty; and to the rule that “[t]he 
duty may remain in force” meaning the imposition of the duty may remain in force. Thus, a decision 
under Article 11.3 not to terminate the duty is a decision to impose the duty for a further period of up 
to five years. The European Communities does not therefore agree that an investigating authority is 
entitled to proceed without any rega rd whatsoever to Article 9 of the AD Agreement when applying 
and interpreting Article 11.3. 
 
25. As outlined in our written submission, Article  11.1 of the AD Agreement also applies to 
sunset review investigations and determinations, as the Appellate Body has confirmed.
13  T h e  
European Communities does not therefore agree w ith the United States when it asserts that an 
investigating authority is free to ignore Article  11.1 of the AD Agreement when applying and 
interpreting Article 11.3. 
 
26. We conclude that the foundation of the Unit ed States’ defence in this case is manifestly 
erroneous. 
 
5. Likely continuation of dumping 
27. We would now like to make some comments in relation to the determination of likely 
continuation of dumping. 
 
28. First, responding to certain assertions made by the United States,14 we would like to comment 
on the precise nature of the determination in this case. It is in the issues and decisions memorandum,15 
Section 1, the sub-sectio n entitled “Department’s Position”, final paragraph, final sentence, which 
states that DOC finds that dumping has continued over the life of the Argentine order. The only 
reason given for that finding is the dumping margin  calculated in relation to the original period of 
investigation (1 January to 30 June 1994). 
 
29. We conclude that the finding is one of continuation of dumping and that the sole basis for that finding was the original dumping margin calculated by reference to the period 1 January to 
30 June 1994. Thus the determination was based on out-of-date data together with the prospective 
determination. 
 30. Second, we would like to re-iterate the im portance of Article 11.1 of the AD Agreement, 
which the Appellate Body has correc tly confirmed is releva nt to the interpretation of Article 11.3.
16 
The text of Article 11.1 AD Agreement, and particul arly its use of the present tense, clearly confirms, 
in the opinion of the European Communities, that there must be a minimum temporal relationship 
between a finding of dumping and the imposition of a duty. A dumping determination has a shelf-life. 
It is not forever. Thus, once the relevance of Ar ticle 11.1 of the AD Agreement is acknowledged – a 
relevance erroneously denied by the United States – the inevitable outcome of the analysis becomes 
clear. 
 
31. Third, the European Communities does not agr ee with the unqualified assertion made by the 
United States that in a sunset revi ew investigation “an authority is co nsidering what will happen in the 
future”.17  The investigating authority must also consider what happened in the past. The United 
                                                      
13 Appellate Body Report, US – Carbon Steel from Germany , para. 70; Panel Report, EC-Tube and 
Pipe, para. 7.113. 
14 US First Written Submission, para. 54. 
15 Exhibit ARG-51. 
16 Appellate Body Report, US – Carbon Steel from Germany , para. 70; Panel Report, EC – Tube and 
Pipe, para. 7.113. 
17 US First Written Submission, para. 255.  WT/DS268/R 
 Page D-51 
 
 
States admits this in paragraph 151 of its First Wr itten Submission, when it admits that the authority 
will consider information about “prior and current dumping margins”. 
 
32. Fourth, the European Commun ities does not agree with the distinction drawn by the United 
States between “the existence of a dumping margin” and “the magnitude of a dumping margin”,18 at 
least for the purposes of the present case, which concer ns the continuation of an alleged margin of just 
1.36 per cent. Given such a small alleged margin, it is impossible to be certain whether or not it exists 
“in general terms”, without calculating its magnitud e (and sign) in a meaningful and mathematical 
way by reference to the rules in Article 2 AD Agre ement. Furthermore, if the only known previous 
measurement was made (years earlier) using rule s now known to have influenced the outcome 
decisively one way rather than the other, it is imposs ible to rely on that earlier measurement in order 
to assert that, in general terms, the margin still ex ists, without in fact investigating and determining its 
current magnitude and sign. And it is doubly problematic to proceed in that way when what is 
asserted is the existence of a continued  margin, and when the means of measuring that margin have, in 
the intervening period, changed as a matter of law. 
 33. Fifth, the United States makes much of its as sertions that Siderca had ample opportunity to 
submit information to the investigating authority; and insists that the relevant factual information is 
that “… contained in the administrative records of Commerce and the ITC …”.
19  So be it. The factual 
information on the basis of which Siderca’s dumping margin, if any, during the period from 1 January 
to 30 June 1994, was calculated and could again be calculated is in DOC’s administrative records. All 
DOC would have needed to have done would have been to run the data through a standard computer programme - little more than the push of a button . Unnecessary, says the United States, because in 
general terms there is du mping as defined by Article 2 AD Agreement ( I know a dumping margin 
when I see one ) and it is certain that if I make a specif ic measurement the presence of dumping will 
be confirmed. But in circumstances where it is in fa ct certain that specific measurement will reveal no 
dumping at all, and all the data is already in the ha nds of the investigating authority, in the opinion of 
the European Communities, such an approach is not consistent with the requirement that an authority 
conduct an unbiased and objective investigation. 
 
34. Sixth, in US-DRAMs , the Panel concluded : 
 
“… the scope of application of the AD Agre ement is determined by the scope of the 
post-WTO review. Any aspects of a pre-WTO measure that are not covered by the 
scope of the post WTO-review do not become subject to the AD Agreement by virtue 
of Article 18.3 of the AD Agreement. By way of example, a pre-WTO injury 
determination does not become subject to the AD Agreement merely because a post-
WTO review is concluded relating to the pre-WTO determination of the margin of 
dumping.”
20 
35. Assuming, for the sake of argument, that this is correct, it follows that any aspect of a pre-
WTO measure that is covered by the scope of the post WTO-review does become subject to the AD 
Agreement. The critical question then becomes whet her or not, if there woul d be a post-WTO review 
covering the aspect of dumping, in which reliance would be made on a post-WTO dumping 
determination inconsistent with the Agreement, th e review determination co uld be attacked on the 
grounds that the original determination is flawed. If the answer to this question is in the affirmative, 
then it follows from the above quotation, cited with approval by the United States,21 that, by virtue of 
Article 18.3 of the AD Agreement, the same would apply when, as in the present case, the original 
dumping determination was made under the Tokyo Round Agreement. The Panel must answer this 
                                                      
18 US First Written Submission, para. 254. 
19 US First Written Submission, para. 131. 
20 Panel Report, US – DRAMs , para. 6.14. 
21 US First Written Submission, para. 260. WT/DS268/R 
Page D-52  
 
critical question in the affirmative, because the United States itself affirms that if, in the original 
determination, there is some brea ch of Article 2 of the AD Agreemen t “in general terms”, the review 
determination will also be vitiated.
22  US – DRAMs  therefore confirms that the fact that the original 
determination was made under the Tokyo Round Agreement offers no valid defence for the United 
States. The United States cannot escape this conclusion in this case particularly because it made a 
single determination of continuation  of dumping, spanning the original  investigation pe riod, the life of 
the order, and stretching into the future. 
 
6. Zeroing 
 
36. With respect to zeroing, we would like to ta ke this opportunity to re-iterate our agreement 
with the arguments presented not only by Argentina, bu t also by Korea, at pages 2 to 7, 12 and 14 of 
its written submission; by Japan, at pages 1 to 3, 5 to 8 and 19 of its written submission ; and by the 
Separate Customs Territory of Ta iwan, Penghu, Kinmen and Matsu, at pages 2 to 4 of its written 
submission. The relationship between Articles 2 and 11 of the AD Agreement is such that the United 
States was not entitled to use, in the contested sunset determination, the original dumping determination made in respect of the period 1 January to 30 June 1994 – a determination that involved 
zeroing inconsistent with Article 2 of the Agreement – as the sole basis for its determination of 
continuation of dumping. 
 
*  *  * 
 
 Thank you for your attention. 
  
 
 
                                                     
 
22 US First Written Submission, para. 256.  WT/DS268/R 
 Page D-53 
 
 
ANNEX D-4 
 
THIRD PARTY ORAL STATEMENT OF JAPAN 
 
10 December 2003 
 
TABLE OF CONTENTS 
Page  
I. INTRODUCTION ..................................................................................................................5 4 
II. ARGUMENT....................................................................................................................... ....54  
A. DUMPING DETERMINATIONS IN SUNSET REVIEWS ....................................................................54  
1. The US arguments on requirements for “dumping” determination in sunset 
reviews are incorrect.......................................................................................................... .....54  
2. Dumping determination based on margins calculated in a pre-WTO proceeding 
using the zeroing methodology is WTO-inconsistent...........................................................55  
B. INJURY DETERMINATIONS IN SUNSET REVIEWS ........................................................................55  
C. WTO- INCONSISTENCY OF WAIVER PROVISIONS AS SUCH ........................................................56  
1. Inconsistency of Waiver Provisions with Article 11.3 as such ............................................56  
2. Failure of US arguments based on Article 6.........................................................................56  
3. Expedite review procedures are also inconsistent with Article 6.2. ...................................57  
D. WTO- INCONSISTENCY OF THREE SCENARIOS IN SUNSET POLICY BULLETIN  AS SUCH ...............57  
III. CONCLUSION ..................................................................................................................... ..58 
 
 
 WT/DS268/R 
Page D-54  
 
I. INTRODUCTION 
1. Mr. Chairman and distinguished Members of the panel, on behalf of the Government of 
Japan, I thank you for your attention to this import ant matter.  This morning, we will not repeat our 
arguments in our written submission.  Rather, we wo uld like to focus on certain arguments presented 
by parties that we did not address in detail in our written submission.  Before discussing specific 
issues, Japan would like to note that the panel report in  US – Carbon Steel from Japan
1 is currently 
pending before the Appellate Body.  It is regretta ble that the schedule of this panel meeting does not 
allow us to offer an argument based on the Appell ate Body report.  Japan believes that the Appellate 
Body will accept our arguments and re spectfully requests this Panel to carefully review its analysis.   
 2. First of all, we would like to briefly touch upon the request by the US for preliminary ruling 
under Article 6.2 of the DSU. We don’t intend to make a detailed argument on this matter. We 
confine ourselves to saying that we have had no  particular problem with the panel request of 
Argentina, when drafting our third party submission. 
 
II. ARGUMENT 
A. D
UMPING DETERMINATIONS IN SUNSET REVIEWS  
1. The US arguments on requirements for “dumpi ng” determination in sunset reviews are 
incorrect  
3. The United States confuses the determination of “dumping” with the precise calculation of 
future dumping margins, and then attempts to rej ect the application of Article 2 to Article 11.3.2  
These arguments must be rejected. 
 
4. The US argument does not recognize th e significance of the terms “continuation or 
recurrence” in Article 11.3. The words “determine” and “continuation or recurrence” in Article 11.3 
require the authorities to determine whether the dumping currently exists at the time of a sunset review and how the current state is li kely to continue or change at a po int in the future.  Focusing only 
on the future event, the US fails to give any meaning to these explicit terms in Article 11.3.  
 5. Contrary to the US argument, Article 2 does not require the US authority to calculate 
precisely future dumping margins.  The authoriti es’ discretion, however, is not unlimited. As 
discussed in our third party submission, the aut horities must base its determination on credible 
evidence in accordance with Articles 2 and 11.3.  To determinate the current state of dumping, the 
authorities must have the credible evidence show ing a positive margin of dumping, which may be 
calculated in the sunset review, or in some case s, in the most recent administrative review. To 
determinate that the dumping is likely to continue  or recur, the authorities must have the credible 
evidence showing the projection of the export price and the normal value of the product at a point in the future.  In both determinations , precise calculation of dumping margin is not the requisite.  Thus, 
US argument should be rejected. 
 
                                                     
 
1 Panel Report, United States – Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon 
Steel Flat Products from Japan , (“US –  Carbon Steel from Japan ”), WT/DS244/R (14 August 2003). 
2 See US First Submission, para. 254.  WT/DS268/R 
 Page D-55 
 
 
2. Dumping determination based on margins ca lculated in a pre-WTO proceeding using 
the zeroing methodology is WTO-inconsistent 
6. The United States argues that Article 18.3 prevents Argentina from challenging the validity of 
the dumping margin calculated in the pre-WTO proceeding.3  We disagree. 
 
7. Contrary to the US argument, Article 18.3 exp licitly sets forth that the provisions of the AD 
Agreement shall apply to “reviews of existing measures .”  This clarifies that the entire process of the 
sunset review of this OCTG case is subject to th e current AD Agreement, including the establishment 
and evaluation of evidence.  The panel report in US – DRAMs further clarified that the dumping 
margins in the original investigation, when it is us ed as the evidence in a sunset review, must be 
consistent with the provisions of the AD Agreemen t.  The panel has specifically stated “the AD 
Agreement applies to those parts of a pre-WTO measures that are included in the scope of a post-
WTO review.”4  The scope of a post-WTO review, a sunset review in this case, is not limited to the 
determination itself, but extends to evidence, on which the determination of  the sunset review is 
based.  The authorities cannot make a WTO-consistent  determination, if its evidentiary basis is WTO-
inconsistent.   Therefore, the determination base d on the margin of dumping calculated in a pre-WTO 
proceeding using the zeroing methodology, which is in consistent with Article 2, is inconsistent with 
Articles 2 and 11.3 of the AD Agreement.   
 
B. INJURY DETERMINATIONS IN SUNSET REVIEWS  
8. The US argument on footnote 95 of the AD Agreement is not based on the interpretation of its 
ordinary meaning, and thus must be rejected. As discussed in our third party submission, the first 
phrase of footnote 9 “{u}nder this Agreement” clar ifies that the term “injury” throughout the whole 
AD Agreement, including the term in Article 11.3 shall be understood in accordance with footnote 9.    
 
9. The phrase in the said footnote “shall be interp reted in accordance with the provisions of this 
Article ”6 further clarifies application of substantive ru les in Article 3 to Article 11.3.  The phrase 
“likely to lead to continuation or recurrence” in Article 11.3 does not change the core concept of 
“injury”.  To find a “recurrence” of injury, for example, the authorities must first find that injury 
through the effects of dumping ceased, and then must find that the injury will recur at a point in the 
future.  These analyses do not aff ect the substantive requirement that the authorities must find injury 
based on positive evidence and on objective examinati on of the effect of dumped imports on prices 
and the volume of dumped imports. In the same ve in, the requirement for evaluating economic factors 
listed in Article 3.4 as well as the causation and non-attribution requirements  under Article 3.5 must 
be satisfied under the sunset review proceeding. 
 
10. The United States argues that likelihood of injury as defined in Article 11.3 requires 
“decidedly different analysis”7 from that for the injury analysis in the original investigation. Contrary 
to the US argument, Article 3 expects prospective analysis even in the original investigation.  
Footnote 9 and the provisions of Article 3 clarify that all the provisions of Article 3 apply to the 
determination of the threat of material injury.  Ar ticle 3.7 then sets forth that the authorities must 
examine a situation at a point in the future, at which the effects of dumping will cause material injury 
to the domestic industry.  In a threat case, therefore, the examination of economic factors and 
causations under Articles 3.4 and 3.5 also must be made at the point in the future.  The analysis of 
                                                      
3 See US First Submission, paras. 258-260. 
4 Panel Report, United States – Anti-Dumping Duties on Dynamic Random Access Memory 
Semiconductors (DRAMs) of One Megabits or Above from Korea (“US – DRAMs”), WT/DS99/R 
(29 January 1999), para. 6.14. 
5 See US First Submission, paras. 290-296. 
6 Ibid. 
7 US First Submission, para. 301. WT/DS268/R 
Page D-56  
 
“injury” in sunset reviews is quite analogous to th e analysis required in Article 3 for the threat of 
material injury.  As such, Article 3 contemplates the prospective injury analysis, as Article 11.3 
requires.  The US argument thus has no merits. 
 
11. In this OCTG case, the ITC failed to evaluate individual factors as listed in Article 3.4.  The 
ITC also failed to separate and distinguish the effects of known factors, which the ITC knew at the 
time of the sunset review, from effects of dumpin g.  The ITC’s injury dete rmination in the sunset 
review, therefore, was inconsistent  with Articles 3.4 and 3.5.   
 
C. WTO-
INCONSISTENCY OF WAIVER PROVISIONS AS SUCH  
1. Inconsistency of Waiver Provisions with Article 11.3 as such 
12. As discussed in our third party submission, the Waiver Provisions are inconsistent with 
Article 11.3 because they require DOC to make an affirmative dumping determination in a sunset 
review without reviewing any evidence on the record  or considering likelihood of continuation or 
recurrence of dumping, where a responding party fails to submit its substantive response.  13. Japan would like to note that the US argument  that “the affirmative likelihood determination 
described in section 751(c)(4)(B) is lim ited to the party that failed to respond”
8 appears to contradict 
with its own argument that a “dumping” determination in a sunset review must be made on an “order-
wide” basis.9  If an affirmative finding for a non-responding party pursuant to the Waiver Provisions 
would be a basis of the overall order-wide dete rmination, then the af firmative finding would 
necessarily affect adversely other pa rties.  The United States should cl arify this apparent discrepancy. 
 2. Failure of US arguments based on Article 6  
14. The United States also attempted to justify its Waiver Provisions upon assumption that an 
exporter is obliged to submit information within  30 days after the initiation of a sunset review.
10  Lack 
of a response from a responding party, however, doe s not provide justification for the authorities to 
make an affirmative dumping determination without any positive evidence.  As discussed in our third 
party submission, the authorities have the serious primary  burden to demonstrate the likelihood of 
continuation or recurrence of dumping.  The bu rden cannot be shifted until the authorities establish 
the prima facie  case based on positive evidence. 
 15. In addition, it appears that the United States considers that a public
 notice of the initiation in 
the Federal Register  constitutes the questionnaire, and thus se rves as notice to responding parties 
under Article 6.1.11  We disagree.  
 
16. This requirement under Article 6.1 must be understood in the context of Article 6.1.1 and 
Annex II.  Article 6.1.1 requires that the responding parties shall be given at least 30 days for reply 
after “receiving  questionnaires.” Thus, the requirements of Article 6.1 is based on the action of the 
authorities’ delivering questionnaires. In this case, DOC did not even issue questionnaires to 
respondents. DOC stated in the Federal Resister  only that interested parties may “respond to the 
notice of initiation.” DOC cannot passively sit by and hope that all the relevant  information will 
simply appear, nor can DOC fault an interested party for not providing information that was not 
specifically requested.     
                                                     
 
8 US First Submission, para. 146. 
9 US First Submission, para. 214 (“the sunset determination is made on an order-wide basis, not a 
company-specific basis.”) 
10 See US First Submission, para. 144-145. 
11 See US First Submission, paras. 222-223.  WT/DS268/R 
 Page D-57 
 
 
17. Further, paragraph 1 of Annex II provides that  the authorities shall “ensure  that the party is 
aware that if information is not supplied within a reasonable time , the authorities will be free to make 
determinations on the basis of the facts available. ”  A public notice in the territory of a Member 
cannot be a sufficient method to “ensure” that the party, which may be on the other side of the earth, 
is aware that DOC will be free to determine on the ba sis of the facts available, if the party fails to 
submit its response.  DOC’s public notice, theref ore, does not satisfy the notice requirements under 
Article 6.1. 
 
3. Expedite review procedures are also inconsistent with Article 6.2 
18. Japan notes that the rationale on the inconsistency with Articles 6.2 and 6.9 of the Waiver 
Provisions discussed in our third party submission also may apply to DOC’s expedited review 
procedures.  DOC regulations on the expedite reviews provide that DOC does not make a preliminary 
determination,12 and accordingly does not disclose to res ponding parties essential facts under Article 
6.9, nor does DOC provide interested parties any opportunity to comment on these essential facts 
under Article 6.2.  Thus, DOC’s expedited review pr ocedures are also inconsistent with Articles 6.2 
and 6.9.    
D. WTO-
INCONSISTENCY OF THREE SCENARIOS IN SUNSET POLICY BULLETIN  AS SUCH  
19. The United States argues that the Sunset Policy Bulletin  must have “functional life of its own” 
and must be “mandatory” under its domestic jurisprudence to be WTO-inconsistent as such.13  The 
alleged criteria, however, are not provided in an y provision of WTO Agreements nor have been 
confirmed by the Appellate Body.  
 
20. Even assuming that the criteria of “functional life of its own” and “mandatory”  nature of the 
instruments are relevant, the manner to establish th at an instrument meets the criteria should not be 
limited to the mere language of the instrument.  The Appellate Body in US – Carbon Steel  has 
explained that a legal instrument is reviewable “a s such” upon showing “consistent application” of the 
instrument, among other evidence.14 
 
21. In this dispute, Argentina demonstrated that DOC applied the three scenarios in the Sunset 
Policy Bulletin  consistently to all sunset reviews.  Th e United States argues that DOC “may” depart 
from the Sunset Policy Bulletin , and that “Sometimes Commerce ‘normally’ will determine 
likelihood, and at other time it ‘normally’ will not”.15  The evidence, however, points to the contrary.  
DOC has strictly followed the three scenarios in all sunset reviews, and has never departed.  
Moreover, the mere language of “normally,” inserted immediately preceding the mandatory term 
“will,” does not relieve a Member from WTO-inconsis tency inquiry as such.  The three scenarios are 
therefore reviewable administrative procedures under Article 18.4. 
 
                                                      
12 See Appendix VIII-B-Schedule for Expedited Sunset reviews in DOC sunset regulations , 63 Fed. Reg. 
13516, 13525 (20 March 1998) (Exhibit US-3) 
13 See US First Submission, paras. 194 and 200. 
14 See Appellate Body Report, US – Carbon Steel , para 154. 
15 US First Submission, para. 181. WT/DS268/R 
Page D-58  
 
III. CONCLUSION 
22. For the foregoing reasons, Japan respectfully requests this Panel to clarify that the United 
States acted inconsistently with Ar ticles 2.1, 2.4, 3.1, 3.4, 3.5, 6.1, 6.2, 11.3, and 18.4 of the AD 
Agreement and Article XVI:4 of the WTO Agreement. 
 
  WT/DS268/R 
 Page D-59 
 
 
ANNEX D-5 
 
THIRD PARTY ORAL STATEMENT OF MEXICO 
 
10 December 2003 
  
Distinguished Members of the Panel 
 
1. The main point of this dispute is compliance by the United States with its obligations under 
Article 11.3 of the Anti-Dumping Ag reement.  The obligation consists in terminating definitive anti-
dumping duties after they have been in force for five years, unless it can be established that the 
requirements in the same article for maintaining them  in force are met.  Those requirements are that, 
in a review conducted under the terms of Article 11.3 of the Agreement, and other articles that are 
also applicable, it is determined that the expiry of the duty would be likely to lead to continuation or 
recurrence of dumping and injury. 
 
2. The main point of this submission is to emph asize that, regardless of the procedural method 
used by the United States Department of Commerce, whenever any interested party of the industry in that country has requested the continuation of anti-dumping measures, the Department of Commerce 
has unfailingly found a justification to arrive at a po sitive determination of continuation or recurrence 
of dumping and injury. 
 
3. Argentina has demonstrated in its submission the existence of a presumption, which operates 
without exception and without analysis in every case.  The case of oil country tubular goods from 
Mexico, another case appearing in the same group of measures imposed in 1995 and included as 
Tab 179 in Exhibit 63 of Argentina's submission, is  another very clear example.  In this case the 
Department of Commerce decided to conduct a five-year review or sunset review.  The background to 
that review was four annual reviews in which TAMSA, the main Mexican export firm, which 
participated in all of them, had had a dumping marg in of ZERO in the last three reviews.  YES, I 
repeat, the Mexican firm had a dumping margin of zero in three consecutive reviews. 
 
4. Despite this, and on the basis of the pattern of irrefutable presumption established by the SAA 
and the SPB, the Department of Commerce arrived at a positive determination of continuation or 
recurrence of dumping without making any positive an alysis or conducting a review based on actual 
evidence to substantiate its decision.  This clearl y shows that, over and above the arguments to try and 
"dress up" each case, the slightest participation by  United States industry automatically leads to a 
positive determination by the Department of Commerce, something that has occurred in 100 per cent 
of the cases of five-year reviews or  sunset reviews conducted to date. 
 
5. Lastly, allow me to refer to the preliminary objections to Argentina's request to establish a 
Panel.  In this connection, the Government of Me xico considers that the request fully complies with 
DSU Article 6.2 and that it is a delaying tactic by the United States Government to hold back an 
analysis by this Panel of the merits of the case.  Should the Panel decide to adopt an additional procedure to meet those objections, Mexico respectfull y requests that its rights as a third party to the 
dispute be respected. 
  
 WT/DS268/R 
Page D-60  
 
ANNEX D-6 
 
THIRD PARTY ORAL STATEMENT OF THE SEPARATE CUSTOMS 
TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU 
 
10 December 2003 
 
 
 Thank you, Mr. Chairman and members of the Panel.  We would also like to thank the 
delegations of Argentina and the United States for a llowing us the time to express our views in this 
dispute as a third party. 
 
 Pursuant to our strong systemic interest in the proper interpretation of relevant WTO 
provisions dealing with sunset reviews, we presen ted in our third party submission what we consider 
to be the correct reading of Article 11.3 of th e Anti-Dumping Agreement.  We made three main 
points:  
 First, we believe that Articles 2 and 3 of the Anti-Dumping Agreement should be taken into 
account during sunset reviews.  The text of Article 11.3 is unambiguous with regard to the 
requirements that authorities must meet in order to apply an anti-dumping order beyond five years: the 
authorities are obliged to “ determine , in a review…that the expiry of the duty would be likely to lead 
to continuation or recurrence of dumping  and injury  [emphasis added].”  While we recognize that 
the nature of a sunset review may differ from an  original investigation because of the prospective 
element indicated by the words “likely to lead to continuation and recurrence”, the underlying 
determination to be made by the authorities, neve rtheless, relates directly to dumping and injury. 
  Article 2 and Article 3 of the Anti-Dumpin g Agreement govern the “Determination of 
Dumping” and the “Determination of Injury.”  These two articles inform Members as to the principles 
to be applied in determining what constitutes dumpin g, and what constitutes injury.  Be it current or 
prospective, original or sunset review, the authorities, in making any determination on dumping and 
injury, cannot avoid referencing Article 2 and 3 because the two articles are the only articles in the 
Anti-Dumping Agreement that deals with the question of what constitute dumping and injury.  Therefore, Article 11.3, by instru cting the authorities to make a de termination on the likelihood of 
continuation or recurrence of dumping and injury, mu st necessarily be also instructing the authorities 
to apply, wherever appropriate, Article 2 and 3. 
 
 Moreover, we believe that the text of Article 11.3 includes an obligation to make a positive  
determination that takes into account information re levant to the determination at hand, namely the 
likelihood of continuation or recurrence of dumping and injury.  This determination should be separate from the original investigation.  Past determination of dumping does not inform as to the 
likelihood of future dumping.  Similarly, past injury based on past dumping margin does nothing to 
show the likelihood of future injury caused by dumping.  Therefore, data and information from the 
original investigation must be updated and made relevant to the specific determination for sunset 
review. 
 
 In making that positive sunset determination, authorities cannot completely discard the 
disciplines outlined by Articles 2 and 3.  Article  11.1 provides that “an anti-dumping duty shall 
remain in force only as long as and to the extent necessary to counteract dumping  which is causing 
injury [emphasis adde d].”  The Panel in EC – Pipe Fittings from Brazil  explained that Article 11.1 
contains “a general and overarching principle, the modalities of which are set forth in paragraphs 2 
(and 3) of that Article.”  Article  11.1 thus informs Members of the purpose behind Article 11.3, which 
is the termination of the anti-dumping order within fi ve years, except under limited circumstances.  In  WT/DS268/R 
 Page D-61 
 
 
order for Article 11.3 to achieve that purpose, the su nset determination must follow the disciplines of 
Articles 2 and 3.  Otherwise, Members would be ab le to conduct a cursory sunset review and extend 
the anti-dumping duty indefinitely, rendering Article 11.1 and 11.3 meaningless. 
 
 Second, we stated in our third party submi ssion that in our view, the expedited review 
procedure resulting from a waiver determination, pur suant to 19 USC §1675(c)(4)(B), is inconsistent 
with Article 11.3.  As we have alre ady stated above, we consider the te xt of Article 11.3 to require the 
authorities to make a positive determination on th e likelihood of continuation or recurrence of 
dumping and injury.  On its face, 19 USC §1675(c)(4)( B) does not allow such a determination by the 
authorities once a foreign interested party is deemed  to have waived its participation.  Instead, the 
Department of Commerce is directed automatically to conclude, once participation is deemed waived, 
that the termination of the order would likely lead to continuation or recurrence of dumping.  In our 
view, a review with the finding already mandated by statute can hardly be considered a 
“determination” within the meaning of Article 11.3.  Therefore, 19 USC §1675(c)(4)(B) is 
inconsistent with Article 11.3. 
  Third, with regard to the issue of irrefutable presumption, we disagree with Argentina that an 
irrefutable presumption of likely dumping based on the Statement of Administrative Action and the 
Sunset Policy Bulletin  can be inferred from the statistics on  US sunset review determinations 
compiled by Argentina.  We do believe, however, that the statistics raise a serious doubt as to the 
objectivity of the authorities in conducting sunset reviews.  Therefore, we see the fact that dumping was found likely to continue or recur in 100 pe r cent of the sunset reviews in which a domestic 
interested party participated in the proceeding s as strong evidence in establishing Argentina’s prima 
facie case of a violation of Article 3.1 of the Anti -Dumping Agreement.  Furthermore, in failing to 
make an objective examination with regard to injury, the authorities did not properly conduct its 
sunset review, thus violating Article 11.3. 
 
 Finally, with regard to the preliminary issue, we consider it unnecessary in this case for us, as 
a third party, to make substantial comments on a pure ly procedural question.  However, we would just 
like to state that we did not encounter any difficultie s related to DSU Article 6. 2 in preparing our third 
party submission and oral statement. 
 
 Members of the Panel, in sum, we believe th at Articles 2 and 3 apply to sunset reviews and 
that the United States has acted inconsistently w ith Article 11.3 of the Anti-Dumping Agreement.  
The Panel should make its finding accordingly. 
  Thank you. 
 
 
 WT/DS268/R 
Page D-62  
 
ANNEX D-7 
 
OPENING AND CLOSING ORAL ST ATEMENTS OF ARGENTINA – 
SECOND MEETING 
 
Opening Statement – 3 February 2004  
 
 I. INTRODUCTION 
1. Mr. Chairman, members of the Panel, on 9 January 2004, the DSB adopted the report of the 
Appellate Body in Sunset Review of Steel from Japan .  This decision expressly confirms the positions 
that Argentina has taken throughout this dispute about the obligations imposed on investigating 
authorities during sunset reviews. 
 
2. The Appellate Body made clear that Artic le 11.3 imposes significant and substantive 
obligations on any WTO Member seeking to maintain an anti-dumping order beyond its scheduled 
expiration date.  Indeed, the Appellate Body em phasized the “exacting nature” of the commitments 
under Article 11.3 (para. 113), and stated that authorities conducting a sunset review “must act with 
an appropriate degree of dilig ence” before arriving at a “reasoned conclusion on the basis of 
information gathered as part of a process of rec onsideration and examination.” (para. 111)  Nowhere 
in the Appellate Body decision is there an endors ement of “passivity” and “presumptions.”  To the 
contrary, the Appellate Body stressed that “Artic le 11.3 assigns an active rather than a passive 
decision-making role to the authorities.” 
 
3. Even prior to the Appellate Body decision, the US position in the current dispute lacked 
credibility.  Now, however , the US position has become completely untenable. 
 4. The US Second Submission provides scant reference to the Appellate Body decision.  
Moreover, when the decision was adopted by the DSB on 9 January, the US statement – incredibly – 
made no mention at all  of Article 11.3.  Unfortunately for th e United States, the Appellate Body’s 
decision in Sunset Review of Steel from Japan  is dispositive on many of the issues currently before 
this Panel.  Argentina highlighted the importance of the decision in its Second Submission, and will do so again this morning. 
 
5. In the First Meeting of the Parties, Argentina explained the simple facts giving rise to this 
dispute.  These facts led to several claims that US law, both as such and as applied, violates the 
substantive obligations of the Unite d States.  Argentina stands firmly behind all of its claims, which 
find significant support from the Appellate Body’s most  recent articulation of the sunset obligation in 
Sunset Review of Steel from Japan . 
 
6. In Argentina’s view, there is no basis to as sert that the US Department of Commerce’s (the 
“Department”) sunset review of Argentine OCTG was decided by an analysis of the facts.  Rather, the 
Department’s determinations make clear that the outcome of the case was the result of the application 
of the waiver provisions.  Argentina respectfully as ks that the Panel look to the Department’s written 
determination as the only valid explanation of what happened to Siderca/Argentina in the sunset 
review of Argentine OCTG.  Indeed, the Department’s  application of the waiver provisions to Siderca 
(or, at a minimum, to Argentina) is plainly indicated in the Department’s Issues and Decision 
Memorandum .  (ARG-51 at 5)  It is telling that the United States resorts to:  (1) ex post facto  
rationalizations in efforts to expl ain that its sunset determinations  do not mean what the words in 
those determinations indicate; and (2) argumentatio n that any confusion resulting from the language 
of the Department’s determinations is si mply the result of “inartful” drafting.  WT/DS268/R 
 Page D-63 
 
 
 
7. Nevertheless, even when giving the United States the benefit of the doubt that the Department 
actually engaged in an analysis of facts, the US position on the core issue is unsustainable.  Put 
simply, the legal and factual basis for the United States’ decision to invoke the exception in 
Article 11.3 is in direct conflict with the “ex acting” obligations of Article 11.3.  Indeed, a 
1.36 per cent dumping margin from the original investigation (calculated using the WTO-inconsistent 
practice of zeroing negative margins) and a declin e in import volume – and nothing more – whether 
taken together or considered alone are an insuffic ient basis for the Department’s determination of 
likely dumping under Article 11.3.  This is cl ear after the Appellate Body’s decisions in Steel from 
Germany , and Sunset Review of Steel from Japan . 
 8. It is also clear that when the domestic industry is interested in maintaining the measure, no 
respondent interested party has ever overcome the WTO-inconsistent presumption of likely dumping 
embodied in the US statute, the Statement of Administrative Action (“SAA”), and the Sunset Policy 
Bulletin , and as evidenced by the Department’s consistent practice.   The US industry has 223 wins 
and 0 losses on the issue of likely dumping.  ( See ARG-63 and ARG-64). 
 
9. As for the likelihood of injury determina tion, analysis of the US International Trade 
Commission’s (the “Commission”) sunset determination in this case shows that the Commission, 
consistent with its practice, did not engage in any me aningful analysis of whether injury is “likely” to 
continue or recur, but rather based its determination on isolated factors grounded in speculation that cannot satisfy the meaning of the term “likely” – wh ich, as the Appellate Body stated in December, 
means “probable.”  Further, the Commission made its determination on a cumulated basis of all 
countries subject to the measure, which has the effe ct of negating the rights of individual Members 
who are subject to a cumulated analysis. 
 
10. Argentina will not repeat all of the arguments set forth in its First and Second submissions, 
and in its first oral statement.  Today, Argentina will first review the natu re of the Article 11.3 
obligation in light of the Sunset Review of Steel from Japan  case.  Second, Argentina will demonstrate 
that the purported factual basis for the Department ’s determination of likely dumping is patently 
inconsistent with the requirements of Article 11.3.  Third, Argentina will highlight the contradictions 
that continue in the US position, noting several in stances where the US asks the Panel not to read 
literally the words used in the sunset determination.  Fourth, Argentina will demonstrate that none of 
the US arguments is credible in light of the WTO- inconsistent presumption that is applied in all 
Department sunset reviews in which the domestic industry is interested.  Fifth, Argentina will 
demonstrate the Commission’s violations of the Anti-Dumping Agreement.  Sixth, Argentina will briefly comment on the preliminary objections that  the United States has ra ised, that Argentina has 
rebutted, and that now seem to be abandoned.  Finally, Argentina will offer its conclusions. 
 II. TERMINATION OF THE MEASURE IS THE RULE; THE EXCEPTION CAN BE 
INVOKED ONLY THROUGH A “REVIEW” INVOLVING  A “RIGOROUS 
EXAMINATION” LEADING TO THE REQUISITE “DETERMINATION” UNDER 
ARTICLE 11.3 
11. The United States attempts to recast the Article 11.3 obligation as merely an obligation to 
afford parties the opportunity to participate in su nset reviews.  In paragraph 31 of its Second 
Submission, the United States says:  “the question in  this dispute essentially is whether Argentina has 
demonstrated that Commerce did not provide resp ondent interested parties the opportunity to 
participate in the review and present evidence.”  Argentina could not disagree more; this case is about substantive obligations also.  The United States cannot evade the “exacting” obligations under 
Article 11.3 by shifting the burden from the administ ering authority to respondent interested parties. 
 
12. The United States completely ignores the unamb iguous statements of the Appellate Body in 
Sunset Review of Steel from Japan  about the significant and substantive obligations imposed by WT/DS268/R 
Page D-64  
 
Article 11.3, including the following:  termination is the rule; continuation is the exception 
(para. 104); the nature of the obligations to  conduct a “review” and make a “determination” 
(para. 111); the likelihood determination requires a “forward-looking analysis” (para. 105); 
Article 11.3 contains “exacting” obligations an d requires a “rigorous examination” (para. 113); 
“dumping” as used in Article 11.3 means “dumping” in Article 2 (para. 109); the term “likely” in 
Article 11.3 means “probable”  (paras. 110-111); that the Sunset Policy Bulletin  is a measure that is 
subject to WTO-challenge (paras. 99, 101); that the Sunset Policy Bulletin  might be shown – with 
evidence of the Department’s consistent applica tion – to establish WTO-inconsistent presumptions 
(paras. 177-178).  The rights and obligations flowin g from Article 11.3 can hardly be characterized as 
simply “procedural.”  13. As Argentina has repeatedly stressed – and as the Appellate Body has made clear – the 
primary obligation of Article 11.3 is terminatio n of anti-dumping duties after five years.  The 
Appellate Body in Sunset Review of Steel from Japan  reaffirmed the principle it first articulated in 
Steel from Germany .  Continuation of the measure is the ex ception, and is only permissible if the 
authorities conduct a “review,” undertake a “rigorous examination” of the facts, and “determine” that termination of the anti-dumping measure would be “lik ely” to lead to continuation or recurrence of 
injurious dumping.  (Appellate Body Report, Sunset Review of Steel from Japan , paras. 104, 114)  The 
Appellate Body also reaffirmed that, “[i]f any one of  these conditions is not satisfied, the duty must be 
terminated.”  ( Id. at para. 104) 
 14. As noted above, in interpreting the mean ing of the words “review” and “determine” in 
Article 11.3, the Appellate Body noted the “investigatory and adjudicatory aspects” of Article 11.3 
reviews and that “authorities conducting a sunset review must act with an appropriate degree of 
diligence and arrive at a reasoned conclusion on the basis of information gathered as part of a process 
of reconsideration and examination.”  ( Id. at para. 111) 
 
15. With respect to the evidentiary basis for th e likelihood determination, the Appellate Body 
affirmed the Panel’s statement that the authority must  ground its determination on a “sufficient factual 
basis.”  ( Id., paras. 114-115 (citing Panel Re port, para. 7.271))  In addition, the Appellate Body has 
held that the authority must make a “fresh determin ation” in a sunset review that is forward-looking 
and “based on credible evidence .”  (Appellate Body Report, Steel from Germany , para. 88) 
 
16. Despite the clear findings of the Appellate Body, the United States continues to argue that 
Article 11.3 imposes only “limited requirements ” on Members.  (US Response to Panel Questions, 
para. 22)  By focusing on procedure over substance, the United States seeks to shift the burden of the obligation under Article 11.3 completely to respondent  interested parties.  In so doing, the United 
States essentially ignores the “exacting nature ” of the obligation Article 11.3 imposes on the 
importing Member in order to invoke the exception and justify the maintenance of an anti-dumping 
measure beyond five years:  that is, the obligation to  “determine” in a “review” that termination of the 
measure would likely lead to continuation or recurrence of dumping and injury. 
 
III. THE LIKELIHOOD OF DUMPING 
A. T
HE ALLEGED SUBSTANTIVE BASIS FOR THE DEPARTMENT ’S LIKELIHOOD DETERMINATION 
VIOLATES US WTO  OBLIGATIONS  
1. The Department’s reliance on the decline in import volume, and on the 1.36 per cent 
margin from the original investigation and th e related deposit rate is legally insufficient 
under Article 11.3 
17. The US Second Submission argues that the Department’s likelihood determination was based 
solely on two factors:  “Commerce found that dumping duties were levied and collected, at the 
dumping margins assigned in the or iginal investigation, against Argentine OCTG imported into the  WT/DS268/R 
 Page D-65 
 
 
United States during the five-year period preceding th e sunset review.  Commerce also . . . found that 
US imports of Argentine OCTG ha d declined substantially immediately after the order was imposed 
and remained at depressed levels for the entire five-year period prior to the sunset review.”  (US 
Second Submission, para. 34)   
 
18. A decline in import volume alone is a le gally insufficient basis for a Likelihood 
Determination under Article 11.3.   Following the imposition of the US anti-dumping measure on 
Argentine OCTG, Siderca chose to stop exporting to the US market.  The Appellate Body has 
explained that declines in import volumes followi ng the imposition of anti-dumping duties can result 
from many factors apart from the duties:  “The cessation of imports . . . and the decline in import volumes . . . could well have been caused or rein forced by changes in the competitive conditions of 
the market-place or strategies of exporters, rather th an by the imposition of the duty alone.  Therefore, 
a case-specific analysis of the factors behind a cessation of imports or a decline in import volumes 
(when dumping is elimin ated) will be necessary
 to determine that dumping will recur if the duty is 
terminated.”  (Appellate Body Report, Sunset Review of Steel from Japan , para. 177 (emphasis 
added))  Despite the fact that Siderca had developed a successful business strategy without relying on 
the US market, the Department presumed that declining import volumes indicated that dumping 
would be likely to continue or recur upon termination of the order.  In doing so, it was following the 
direction of the SAA and SPB. 
 
19. The Department did not analyze the factor s behind the decline in imports of Argentine 
OCTG.  Nor did it request additional information from Siderca, which had pledged to cooperate fully.   
 
20. The 1.36 per cent margin from the original in vestigation and the existence of a deposit 
rate are not evidence of continued dumping and cannot serve as the basis for the Department’s 
Likelihood of Dumping Determination.    The United States explains a new theory in its Second 
Submission regarding the continuation of dumping.  It goes like this:   a minimal quantity of OCTG 
was imported into the United States in the 5 years following the imposition of the measure, the US 
importer must have paid the 1.36 per cent deposit on the imports, and, because the importer did not 
request a review, the deposits were converted into definitive anti-dumping duties, thereby proving that 
dumping “continued.”  The argument has major flaws.   
 
• First , there is no mention of any of this on the record of the sunset review.  The Department 
simply stated that “there have been above de minimis  margins for the investigated companies 
throughout the history of the orders,” and therefore “dumping continued after the issuance of the 
orders[.]”  ( Issues and Decision Memorandum  at 5 (ARG-51)).  There is no reference to the payment 
of anti-dumping deposits constituting evidence of continued dumping.   
 
• Second , the explanation given in the Issues and Decision Memorandum  actually contradicts  
the new explanation by the United States.  Who are the “investigated companies” from Argentina to 
which the Department refers?  Everyone concedes that the only company ever investigated was 
Siderca (a seamless pipe producer), and the Departme nt determined several times that Siderca did not 
ship OCTG to the US for consumption in the US  If Siderca, the only “investigated company,” did not 
ship, how can there be “above de minimis  margins for the investigated companies  throughout the life 
of the history of the orders.” Clearly, the statemen ts are simply wrong with respect to Argentina, and 
just as clearly they contradict the new explanation that the importation of OCTG from other, non-
investigated, non-reviewed exporters constitutes the evidence of continued dumping.   
 • Third
, the Department keeps talking about the “entri es,” as if it had evidence on the record of 
many entries of Argentine OCTG during the releva nt period.  In fact, the Department had made 
several findings in annual reviews that any entries, if  they existed,  were extremely isolated, and were 
not explained on the record.  To clarify th is issue, Argentina refers the Panel to Chart 4  (Exhibit 
ARG-69), which summarizes the Department’s finding s with respect to import volume in the four 
annual reviews that it had completed by the time of its  sunset review determination.  In the end, the WT/DS268/R 
Page D-66  
 
record show possibly two entries, both welded, one of which was 154 tons and the other of an 
undetermined amount.  We also know that the statistics used as the basis of the alleged volume of 
imports in each review contained several errors ra nging from the misclassification of products to the 
inclusion of non-consumption entries.  Chart 4 also contains references to the Exhibit number so that 
the Panel can review this evidence. 
 
• Fourth
, the new explanation offered by the United States makes no sense.  The fact that an 
importer is required to pay a small anti-dumping duty deposit upon importation, and that the 
Department does not conduct a review of the import s made by the importer, says absolutely nothing 
about whether the imports are dumped or whether dumping has continued.  Article 2 of the WTO Anti-Dumping Agreement  defines dumping in terms of a substantive analysis of export price and 
normal value.  Nothing in Article 2 provides that payment of a required deposit can subsequently be 
“deemed” to be an admission of dumping either fo r Article 2 and certainly not for Article 11.3.  The 
United States cannot credibly argue that it has ever conducted such an analysis since the imposition of 
the measure in August 1995.  It is surprising that th e United States even offers this justification.  The 
United States often explains to its tr ading partners that the deposits re quired as part of its retrospective 
assessment system are not evidence of dumping, and that it cannot determine whether dumping has 
occurred until it performs a substantive review of the actual imports during the relevant period.  ( See 
Panel Report, US – Section 129(c)(1) , DS221, paras. 2.6-2.8), emphasizing the need for a substantive 
analysis in an anti-dumping review in order to de termine whether dumping exists in a retrospective 
system).  The explanation in the Second Submission that these deposits prove the continuation of dumping is simply wrong.  Any duties that might  have been collected resulted from the lack
 of an 
administrative review, so that entries were liquidated without  any substantive analysis of dumping.  
 
21. For these reasons, the Panel must conclude that the United States had no evidence  of 
continued dumping at the time of the sunset determination, and that the new theory offered now by 
the United States is nothing more than an ex post facto  justification that the Panel must not consider.  
Such justifications ca nnot be accepted.  ( See Panel Report, Poultry from Brazil , DS241, para. 7.49 
(“[W]e do not believe that, as a panel reviewing the evaluation of an investigating authority, we are to 
take into consideration any arguments and reasons th at are not demonstrated to have formed part of 
the evaluation process of the inve stigating authority); Panel Report, Argentina – Ceramic Tiles , 
DS189, para. 6.27; Panel Report, Guatemala Cement , DS156, para. 8.245)) 
 
22. Also, the United States still has never offered a logical explanation of what the 1.36 per cent 
rate says about future dumping, let alone the likelihoo d of future dumping.  The rate is historic, with 
no relationship whatsoever to the forward-lookin g determination required to invoke the exception of 
Article 11.3 and continue the me asure.  As the Appellate Body made clear, “the likelihood 
determination is a prospective determination.  In  other words, the authorities must undertake a 
forward-looking analysis and seek to resolve the issue of what would be likely to occur if the duty 
were terminated.”  (Appellate Body Report, Sunset Review of Steel from Japan , para. 105).  The 
Appellate Body ruled that “mere reliance” on the de termination made in the original investigation is 
not enough.  ( See Appellate Body Report, Steel from Germany , para. 88.)  The Appellate Body rulings 
reinforce Argentina’s view of the extreme an d unfair situation presented in this case. 
 
23. The Department’s reliance on the 1.36 margin  from the original investigation and the decline 
in imports cannot satisfy the obligation under Article 11.3. 
 2. Decisive reliance by the Department on a WTO-inconsistent margin as the basis for the 
Likelihood Determination is inconsistent with Article 11.3 
24. The United States claims that during sunset reviews “Members are not obligated to calculate 
‘new’ dumping margins.  They are merely obligat ed to provide respondent interested parties 
opportunities to offer evidence in support of nega tive likelihood determination.  Therefore, the 
magnitude
 of dumping is not pertinent to making a determination with regard to likelihood  of  WT/DS268/R 
 Page D-67 
 
 
dumping.”  (US Second Submission, para. 37, footnotes omitted).  This answer demonstrates how the 
United States is attempting to recast the obligations under Article 11.3 and erroneously shift 
responsibility from the administering authority (which holds the substantive obligations under 
Article 11.3) to the exporters of the Member holdi ng the right of termination under Article 11.3.  
 
25. Argentina has not argued, and is not arguing,  that Members are obligated to calculate a new 
dumping margin in connection with a review conduc ted under Article 11.3.  However, the Appellate 
Body has made clear that reliance on a WTO-inconsis tent margin – such as a margin calculated using 
the practice of zeroing – “taints” the likelihood de termination under Article 11.3.  Specifically, the 
Appellate Body found that “if a likelihood determination is based on a dumping margin calculated using a methodology inconsistent with Article 2.4, th en this defect taints the likelihood determination 
too.”  (Appellate Body Report, Sunset Review of Steel from Japan , para. 130) 
 
26. In this case, there can be no doubt that the 1. 36 per cent margin that the Department relied on 
as the basis for its likelihood of dumping determination was based on a calculation method that is 
inconsistent with Article 2.4.  To calculate the 1. 36 per cent margin, the Department applied “zeroing” 
by setting all negative margins to zero, and summed the remaining positive margins.  The effect was 
to disregard the existence and magnitude of the negative margins in determining the amount of 
“dumping” arising from the sales under review.  Th is can be seen clearly in Exhibit ARG-52 to 
Argentina’s First Submission and in Exhibit AR G-66 to Argentina’s Se cond Submission.  ( See 
Argentina’s Second Submission, paras. 43- 48).  Th ese Exhibits demonstrate that there would have 
been no dumping margin in this case without zeroing.  In fact, without zeroing the margin would have been negative 4.35 per cent
.  
 
27. The Appellate Body recognized in Sunset Review of Steel from Japan  that zeroing is not 
consistent with Article 2.4. ( See paras. 134-135.)  It does not yield a “fair comparison,” and it does 
not accurately reflect whether the product, as a whole, is being sold at less than normal value.  The 
Appellate Body ruled that when a Member relies on a dumping margin in making a determination in 
an Article 11.3 review, that margin must be WTO-consistent.  ( See Appellate Body Report, Sunset 
Review of Steel from Japan , para. 127)  The Appellate Body explained that zeroing (whether in the 
original investigation or otherwise) not only distorts the magnitude of the dumping margin, but may 
also result in a positive margin that otherwise would not exist:  
 
When investigating authorities use a zeroing methodology such as that examined in 
EC – Bed Linen   to calculate a dumping margin, whether in an original investigation 
or otherwise, that methodology will tend to  inflate the margins calculated.  Apart 
from inflating the margins, such a methodology could, in some instances, turn a 
negative margin of dumping into a positive margin of dumping.  As the Panel itself 
recognized in the present dispute, “zeroing . . . may lead to an affirmative 
determination that dumping exists where no dumping would have been established in 
the absence of zeroing.”  Thus, the inherent  bias in a zeroing methodology of this 
kind may distort not only the magnitude of a dumping margin, but also a finding of 
the very existence of dumping.  This conclusion led the Appellate Body to “reverse 
the Panel’s consequential finding . . . that the United States did not act inconsistently 
with Article 2.4 of the Anti-Dumping Agreement  in the CRS sunset review by relying 
on dumping margins alleged by Japan to have been calculated in a manner 
inconsistent with Article 2.4.”  ( See Appellate Body Report, Sunset Review of Steel 
from Japan , para. 128) 
28. To be clear, Argentina is not claiming that the original dumping determination violated US 
WTO obligations because it was calculated based on the practice of zeroing negative margins.  
Rather, Argentina challe nges the Department’s reliance on that margin as the basis for its 
determination that dumping would be likely to continue under Article 11.3.   The Appellate Body has WT/DS268/R 
Page D-68  
 
clarified that the Department may not rely on a dumping margin which is inconsistent with the 
substantive standard of Article 2.4 as the basis for its likelihood determination under Article 11.3. 
 
29. In Sunset Review of Steel from Japan , the Appellate Body clarified the application of these 
principles in an Article 11.3 review, but ultimately  did not find a violation by the United States.  The 
only reason that it did not do so was the fact that  the Panel had not considered the evidence and had 
not made a finding primarily because it decided that the disciplines of Article 2.1 did not apply to 
Article 11 reviews.  That view has been discre dited by the Appellate Body, and there can be no 
question that reliance on margins calculated in a ma nner inconsistent with the substantive standards of 
Article 2 may not serve as the basis for a likelihoo d determination under Article 11.3.  The evidence 
of zeroing in this case is square ly before this Panel.  Argentina respectfully submits that the Panel 
must consider this evidence and make the finding that was lacking in the panel decision before the 
Appellate Body in Sunset Review of Steel from Japan . 
 
3. The Department’s alleged application of facts available was inconsistent with 
Articles 11.3, 6.1, 6.2, 6.8, 6.9, and Annex II  
30. Assuming arguendo  that the waiver provisions were not the basis for the Department’s sunset 
determination in OCTG from Argentina, then the Department’s resort to the limited set of facts 
available – the 1.36 per cent margin and the decline in import volumes – was  inconsistent with 
Articles 11.3, 6.1, 6.2, 6.8, 6.9, and Annex II.  ( See Argentina’s Second Submission, Section III.C.2) 
 31. The Panel need not search further than the Department’s own regulations to observe the severe consequences of the decision to conduct an expe dited review in a case such as Argentina.  It is 
not, as the United States says, an issue of only ti me frame.  For example, section 351.218(e)(2)(i) 
virtually ensures that the only basis for the Depart ment’s likelihood determination will be the margin 
from the prior determinations, which in this case is limited to the original investigation.  The 
regulation states that the Department will “rely”  on the that  margin except “under the most 
extraordinary circumstances” in a full review
.  Therefore, respondents in an expedited review such as 
this have no chance of escaping the Department ’s “reliance” on the margin from the original 
investigation, which by definition always will be a positive margin. 
 
32. Articles 6.8 and Annex II permit an investigating authority to make determinations based on 
“facts available” only where an interested party “does not provide[] necessary information within a reasonable period or significantly impedes the inve stigation . . . .”  Siderca, however, submitted a 
complete substantive response to the Department’s notice of initiation and agreed to cooperate fully in 
the investigation, and the Department never foun d that Siderca failed to cooperate.  Thus, the 
application of facts available against Siderca was inconsistent with Articles 6.8 and Annex II, and the 
failure to disclose the essentia l facts infringed the su bstantive requirements in Article 6.9. 
 
33. The United States apparently recognizes that  the application of facts available to Siderca 
would have been inconsistent with the Anti-Dumping Agreement, and for this reason argues that the 
Department did not apply facts available to Siderca.  ( See US First Submission, paras. 214, 221, 234-
236)  According to the United States, the Department applied facts available to the “non-responding 
respondents,” rather than to Siderca.  ( See id.  para. 214)  Again, the US assertion is flatly contradicted 
by the Department’s Issues and Decision Memorandum  (ARG-51 at 3) which does not mention any 
non-responding respondents.  The US assertion is yet another ex post facto  rationalization.  Moreover, 
the US assertion is inconsistent with its previous explanation that the Department applied waiver to 
the non-responding respondents.  (US First Submission, para. 216)    
34. Even if the Department had applied facts avai lable, whether to Siderca or to the so-called 
non-responding respondents, the outcome is the same.  Under the relevant provision, expedited sunset 
reviews are conducted “without further investigation” on the basis of “the facts available.”  (19 C.F.R. 
§ 351.218(e)(1)(ii)(C))  Consequently, the Department ’s conduct of an expedited review in this case  WT/DS268/R 
 Page D-69 
 
 
precluded the Department from making the substantive and fresh “determination” required by 
Article 11.3, and denied Siderca the full opportun ity to present evidence an d defend its interest, in 
violation of Articles 6.1 and 6.2. 
 
B. THE US ATTEMPT TO EXPLAIN THE DEPARTMENT ’S SUNSET DETERMINATION AND ITS 
SUNSET PROCEDURES CANNOT CURE US VIOLATIONS OF ARTICLE 11.3 
1. The Waiver Provisions as applied in th e Department’s Sunset Review of Argentine 
OCTG violates US obligations 
35. As explained above, the Department’s affirm ative likelihood determination was not grounded 
on a sufficient factual basis.  In fact, Argentin a submits that the Department’s description of its 
decision demonstrates that it deemed Siderca to have waived participation in the sunset review and 
thus never engaged in any  analysis in this case. 
 
36. The Panel can disregard this set of US contradictory statements and ex post facto  
justifications and simply look at the wo rds used by the Department itself in its Issues and Decision 
Memorandum  states:  “In the instant reviews, the Department did not receive an adequate  response 
from respondent interested parties .  Pursuant to section 351.218(d )(2)(iii) of the Sunset Regulations, 
this constitutes a waiver of par ticipation.”  (at 5 (ARG-51)(emphasi s added))  As with the aggregate 
responses from Italy, Japan, and Korea, the Depa rtment found that Siderca’s complete substantive 
response was “inadequate.”  ( See Determination to Expedite  at 2 (ARG-50); Issues and Decision 
Memorandum  at 3, 7 (ARG-51))  Therefore, the statement in the Issues and Decision Memorandum  
that “the Department did not receive an adequate  response from respondent interested parties” and 
that “this constitutes a waiver of participation” leads to one incontrovertible conclusion:  The 
Department applied waiver to all  respondent interested parties, including Siderca. 
 
37. The Department’s application of waiver to Siderca precluded the Department from conducting the “review” and making the “determinati on” required by Article 11.3, and denied Siderca 
the opportunity to present evidence and defend it s interest.  The Department’s sunset review of 
Argentine OCTG was thus inconsistent  with Articles 11.3, 6.1, and 6.2. 
 
38. The United States has argued that the Department did not deem Siderca to have waived 
participation in the sunset proceeding.  ( See US First Submission, paras. 211-213, 216; US Answers to 
First Set of Panel Questions, para. 51)  The US argume nt is not persuasive for two reasons.  First, as 
Argentina has just shown, the express wording of the Issues and Decision Memorandum  flatly 
contradicts the US assertion.  Indeed, the United Stat es itself has recognized in these proceedings that 
the language of the Issues and Decision Memorandum  appears to indicate that the Department 
deemed Siderca to have waived participation.  ( See US First Submission, n.216)  For this reason, in its 
answer to Panel Question 11, the United States essen tially asks the Panel to not read words that are 
actually written and instead to replace the phrase “did not receive an adequate response” that is 
unambiguously set forth in the Issues and Decision Memorandum  with the phrase  “did not receive a 
complete substantive response” that the United States now asserts is what it meant to say.  Similarly, 
the United States asks the Panel to read “respondents from Japan, Korea, and Italy” when it wrote 
“respondent interested parties.”  ( See US Answers to First Set of Pa nel Questions, paras. 51-52)  
Thus, the US argument is not simply an ex post facto  rationalization, but rather a blatant attempt to 
change the unambiguous language in the Issues and Decision Memorandum  to other words that 
comport with the explanation of the sunset syst em now offered by the United States in these 
proceedings. 
 
39. Second, even accepting the US explanation th at it applied “waiver” to the “non-responding” 
respondents, and that waiver is only applied at the “company-specific” level, no one can dispute that 
the application of the waiver provisions in this  case led directly to an “order-wide” likelihood WT/DS268/R 
Page D-70  
 
determination.  The “waived” companies were assumed to account for 100 per cent of the exports.  
Siderca, with no exports, had no chance to influence the Department’s final determination. 
 
40. Finally, if true, the US assertion that th e Department deemed so-called “non-responding 
respondents” to have waived partic ipation in this case further demons trates the utterly passive nature 
with which the Department conducts sunset reviews.  This also highlights the illogical nature of the 
Department’s approach to determining “adequacy” – even accepting the US description of how it 
makes the adequacy determination.  The Department is never in a position to know (and did not know 
in sunset proceeding involving Argentine OCTG) how many exporters have not responded – i.e., it 
could be none, one, ten, or more.  Given the severe consequences flowing from the adequacy determination, the Department should have attempted to understand this basic fact.  
41. The US reliance on the minimal level of al leged OCTG exports during the period of 
review had severe consequences for Argentina.   The United States responds to a question from the 
panel by noting that the amount of exports averaged less than 900 tons in each year during the five-
year period following imposition of the measure, declinin g from a level of 45,000 net tons prior to the 
initiation of the original investigation.  According to  the United States, the domestic interested parties 
provided the import statistics, and the Department  verified the data by consulting the ITC Trade 
Database and the Department’s Census Bureau IM-145 import data. 
 
42. The US response highlights the flaws with the Department’s reliance on these import statistics.  Siderca participated in four “no shipme nt reviews” which revealed serious flaws with the 
statistics.  The US attempts to down play those flaw s, but Argentina insists th at they are important.  
For this reason, we have prepared in Chart 4  a chart summarizing the findings in the “no shipment 
reviews.”  It is no wonder that the United States did not precisely answer question 13a from the panel.  
To this day, the Department has no idea of the volum e of imports entering during the relevant period.  
This is a significant problem beca use those statistics led directly to:  (1) the determination that 
Siderca’s complete substantive response was “inadequa te”; (2) the application of  waiver to Siderca or 
to Argentina; (3) the finding that dumping continued over the life of the order; and (4) the ultimate 
determination that dumping would be likely to contin ue or recur.  Yet, despite the importance of the 
import statistics, the Department never disclosed to the parties the exact export figures, and the United 
States failed to respond to the Panel’s specific question on this point.  For these reasons, the 
Department violated Articles 11.3, 6.1, 6.8, 6.9, and Annex II.   
 
43. The United States now contends that, “through administrative review procedures, the United 
States has identified Acindar as another Argentine producer of OCTG, and one that may have shipped 
OCTG to the United States during the period of re view . . . .”  (US Response to Panel Questions, 
para. 64)  In carefully phrasing this response, the Un ited States fails to note that the administrative 
review to which it refers occurred years after the sunset review.  Nor  does the United States contend 
that the Department identified Acindar as anothe r Argentine OCTG exporter in the instant sunset 
review.  This is because there was no evidence in the record before the Department in either the sunset 
review or the four “no shipment reviews” that Ac indar was a producer and exporter of OCTG during 
the relevant period.   
 
44. If the Department had Acindar in mind, then the Department never disclosed these “essential 
facts” as required by Article 6.9.  On the contrary, the only evidence that existed was Siderca’s 
statement that, to its knowledge, it was the only Argentine producer and exporter of the subject 
products.   ( See Siderca’s Substantive Response , para. 6 (ARG-57))  The Department cited this 
statement, but gave no explanation of why it, as the investigating authority, did not at least attempt to clarify this issue.  This was consistent with statem ents by the US industry to the Department in the 
annual reviews, where the US industry only requested reviews of Siderca, and for the second 
requested review (for the period 8.1.96 – 7.31.97) stated:  “Review is requested of Siderca because it 
is the only known producer of oil country tubular goods in Argentina . . . .”  (ARG-58 at 2).  In 
addition, the petitioners also stated during the cour se of these “no shipment” reviews that Siderca was  WT/DS268/R 
 Page D-71 
 
 
the “sole producer of OCTG in Argentina.” (ARG-36, at 49090)  Therefore, the record evidence 
indicates that there was no reasonable basis for the Department to have considered that there were 
other Argentine producers/exporters that failed to  respond to the notice of initiation and who were 
thus the true subjects of the application of the waiver provisions. 
 
45. Consequently, the casual refere nce to Acindar as an Argentine OCTG exporter in its answers 
to the Panel’s questions is another ex post facto  justification by the United States to support its 
determination.  Argentina respectfully requests the Pa nel to consider only issues and facts reflected in 
the record.  Nevertheless, this reference further highlights the decisive weight the authorities assigned 
to the non-investigated, “non-respondent respondents” accounting for 100 per cent of Argentine OCTG imports that were deemed to have waived participation in the sunset review, thus leading to the statutorily mandated determination of “likely” dumping.  The United States also suggests in its 
Second Submission that the Argentine Government’s  failure to participate in the sunset review 
contributed to “Argentina’s ‘treatment in the sunset review.’” (para.39)  Argentina is surprised by this 
statement, as the United States never made this po int in any of its written sunset determinations, or 
indicated that this consideration supported the Depa rtment’s likelihood of dumping determination.  
This is the first time that Argentina has heard the Department put forth this rationale, as it was not 
raised in the underlying sunset proceeding, or at any stage of this dispute – not in the consultations, in 
the US First Submission, or in the US Opening Statement.     
 2. The US Waiver Provisions are inconsistent as such with Articles 11.3, 6.1, and 6.2 
46. Throughout these Panel proceedings, Argentin a has consistently argued that the US waiver 
provisions are inconsistent as such with Article 11.3 of the Anti-Dumping Agreement, because they 
preclude the Department from undertaking the rigorous “review” and making the substantive 
“determination” required by this Article.  The automatic judgments mandated by the US waiver 
provisions are patently inconsistent with the “exacting nature of the obligations imposed on 
authorities under Article 11.3 .”  (Appellate Body Report, Sunset Review of Steel from Japan , 
para. 113)  
47. In its Second Submission and responses to the Panel’s first set of questions, the United States 
asserts that the waiver provisions are not inconsiste nt with Article 11.3 as such because they do not 
mandate that the Department render an affirmative likelihood determination for the order as a whole.  
(See US Second Submission, paras. 19-21; US Answers to First Set of Panel Questions, paras. 3, 19, 
20, 23, 24, 28, 29, 30)  Instead, the United States emphasizes, these provisions mandate a likelihood 
of dumping determination only with  respect to the specific company that waived – or was deemed to 
have waived – participation in the sunset review.  ( See id. ) 
 
48. In making this argument, however, the United States never explains precisely how a 
company-specific waiver determination is made in the context of its so-called order-wide analysis.  
Nor does the United States explain why the statutory mandate of the waiver provisions – that the 
Department “shall” determine that the waiving company would be likely to dump – does not affect the 
order-wide determination.  The simple reason fo r this is because the United States cannot do so; 
otherwise, the words of the US statute would be meaningless. 
 
49. The United States thus refuses to acknowledge the impact of the waiver provisions on the 
Department’s final likelihood determ ination.  Even where applied to only one of multiple respondents, 
the waiver provision necessarily ta ints the final likelihood determinat ion.  Article 11.3 simply does 
not permit the authority to make automatic judgments regarding the likelihood of dumping, even if limited to a particular respondent.  Rather, the auth ority’s review must be “rigorous” and its ultimate 
determination must be based on positive evidence.  ( See Appellate Body Report, Sunset Review of 
Steel from Japan , paras. 113-115)  Article 11.3 does not  permit the administering authority to 
conclude – without any basis in fact – that any pa rticular respondent would be likely to dump upon 
termination of the measure.  The Appellate Body confirmed that there is no place for the use of WT/DS268/R 
Page D-72  
 
“presumptions” in sunset reviews in place of the obligations set out in Article 11.3.  ( See id. , 
para. 191) 
 
50. The US defence of the waiver provisions also fails to account for the numerous sunset 
reviews in which the Department did not receive a substantive response from any
 respondent 
interested party.  ( See US Department of Commerce Sunset Re views (ARG-63 and ARG-64))  In such 
instance, the waiver provisions necessarily mandat e an affirmative likelihood determination at the 
order-wide level.  Such an automatic judgment is patently inconsistent  with the Article 11.3 
obligation. 
 51. The United States suggests that the waiver prov isions are not inconsistent as such with the 
Anti-Dumping Agreement, because, “[i]n making the order-wide final sunset determination in an 
expedited sunset review, Commerce  will rely on all information on the administrative record of the 
sunset proceeding, including information in the su bstantive responses and rebuttal responses of the 
domestic interested parties, pr ior agency determinations, as we ll as the information submitted by 
respondent interested parties in their substantive and rebuttal responses.”  (US Second Submission, 
para. 25; see also  US Answers to First Set of Panel Questions, paras. 10, 16, 17, 22, 25, 32, 39, 42, 
61)  As we have just shown, however, this argument does not alter the fact that the waiver provisions 
require the Department to make automatic judgments without any basis in fact.  In addition, the US 
assertion is wrong on two levels. 
 52. First, the waiver provisions preclude the Department from considering company-specific 
information submitted by a respondent to which waiver has been applie d.  The United States 
acknowledges that a respondent that submits an in complete substantive response will be “deemed” to 
have waived participation.  ( See US Answers to First Set of Panel Questions, para. 42)  The statute 
thus mandates that the Department conclude that this respondent would be likely to dump upon 
termination of the anti-dumping measure, and, as  a result, the Department must disregard any 
company-specific information contained in that respondent’s substantive response.  Any other 
interpretation would render the plain language of th e statute meaningless.  The consequences of the 
“deemed” waiver – the denial of the opportunity to  present evidence and defend one’s interest – also 
demonstrate that the US waiver provisions are inconsistent with Articles 6.1 and 6.2. 
 
53. Second, the US sunset provisions as a whole restrict the Department’s “analysis” to the three 
scenarios prescribed in the SAA and the Sunset Policy Bulletin .  (See 19 USC. § 1675a(c)(2); 19 
C.F.R. §§ 351.218(d)(3)(iv)(A) and (e )(2)(iii); 19 C.F.R. § 351.308(f)(2); Sunset Policy Bulletin , 
Sections II.A.3 and II.C).  Therefor e, it is irrelevant that the Depa rtment’s regulations provide that 
respondent interested parties may include in th eir substantive responses “any other relevant 
information or argument that the party would like the [Department] to consider[,]” (19 C.F.R. § 
351.218(d)(3)(iv)(B)).  Also, the US regulations unreasonably restrict consideration of other 
information to “full reviews.”  ( See 19 C.F.R. § 351.218(e)(2)(iii)) 
 
54. As the preceding discussion has shown, in a ttempting to defend the Department’s likelihood 
determination in the sunset review  of Argentine OCTG, the United States has made assertions that not 
only contradict the Department’s published determinations, but also contradict the United States’ own 
arguments.  And then after the Panel pursued cert ain contradictions further, the United States was 
forced to concede that it made mistakes not only in  the written sunset determination, but also in its 
First Submission.  ( See US Response to Question 9( a) from the Panel)   
 55. In its First Oral Statement, Argentina presented in Chart 1  a list of significant contradictions 
between the Department’s sunset de termination and its First Submissi on.  The United St ates has tried 
to cure several contradictions with new arguments, which were never stated at the time of the sunset 
decision, and therefore are ex post facto  rationalizations which cannot be considered by the Panel.  
For the Panel’s convenience and further review, we ha ve organized the contradictions into two charts:  
Chart 5  (Exhibit ARG-70) contains the 
ex post facto  rationalizations, and Chart 6  (Exhibit ARG-71)  WT/DS268/R 
 Page D-73 
 
 
contains the unresolved contradicti ons.  If the Panel decides that so me of the  propositions advanced 
by the United States can be considered despite the fact that they are ex post facto  rationalizations, then 
the Panel will confront a new problem:  it will have to pick and choos e between contradictory 
positions (i.e. adequate or inadequate response from Si derca, waiver, and application of facts available 
to Siderca, Argentina, and/or the “non-responding respondents,” etc.).   
 
56. That the United States has been unable to ar ticulate a consistent and coherent story over the 
course of these proceedings and to link that explanation with its discussion in the Issues and Decision 
Memorandum  manifests its failure to reconcile the Department’s likelihood determination with 
Article 11.3.  No matter the argument put forth by the United States, only one conclusion can be drawn:  The Department failed to conduct the suns et review of OCTG from Argentina in a manner 
that is consistent with Article 11.3.  Indeed, as  Argentina has demonstrated previously, even when 
viewed in the light most favourable to the Unite d States, the Department’s likelihood determination 
simply was not grounded on a sufficient factual ba sis to invoke the exceptio n of Article 11.3 and 
continue the anti-dumping measure. 
 C. N
ONE OF THE US ARGUMENTS ARE CREDIBLE IN LIGHT OF THE WTO- INCONSISTENT 
PRESUMPTION IN ALL SUNSET CASES  
57. In Sunset Review of Steel from Japan , the Appellate Body declared that “[p]rovisions that 
create ‘irrebuttable’ presumptions, or  ‘predetermine’ a particular resu lt, run the risk of being found 
inconsistent” with the “obligation of investigati ng authorities, in a sunset review, to determine , on the 
basis of all relevant evidence , whether the expiry of the duty would be likely  to lead to continuation or 
recurrence of dumping.”  (Appellate Body Report, Sunset Review of Steel from Japan , 
para. 191)(emphasis added) 
 
58. Operating together, the statute, the SAA, and the Sunset Policy Bulletin  establish a WTO-
inconsistent presumption of likely dumping in Depa rtment of Commerce sunset reviews.  The statute 
provides the starting point for the Department’s likelihood determination by enumerating the two 
elements that the Department must consider in every sunset review:  (1) historical dumping margins 
and (2) past import volumes.  The SAA further clarifies the likelihood of dumping standard under US 
law by instructing how these two factors should be interpreted.  The SAA provides that any of the 
following three scenarios are “highly probative” of likely dumping:  (1) continued dumping margins, (2) the cessation of imports, and (3) declining import volumes accompanied by the continued existence of dumping margins.  ( See SAA at 889-890 (ARG-5))  Finally, Section II.A.3 of the Sunset 
Policy Bulletin  directs the Department to determine that continuation or recurrence of dumping would 
be likely whenever at least one of the three criteria set forth in the SAA is satisfied.  ( See Sunset 
Policy Bulletin  at 18,872 (ARG-35)) 
 
59. Ultimately, then, the US likelihood standa rd is expressed in Section II.A.3 of the Sunset 
Policy Bulletin .  As the Appellate Body ruled in Sunset Review of Steel from Japan , the Sunset Policy 
Bulletin  is a measure that may be challenged in WTO dispute settlement.  ( See paras. 99-100) 
 
60. The Appellate Body also addressed the very issue raised in this dispute:  whether 
Section II.A.3 of the Sunset Policy Bulletin  is inconsistent as such with Article 11.3.  In examining 
this issue, the Appellate Body determined that, if Section II.A.3 directs the Department to consider 
continued dumping margins and declining import vo lumes (i.e., satisfaction of any of the three 
prescribed criteria) as “determinative or conclusiv e” of the likelihood of future dumping, then the 
measure would be inconsistent with Article  11.3 as such.  (Appellate Body Report, Sunset Review of 
Steel from Japan , DS244, para. 178)  The Appellate Body thus confirmed that the likelihood 
determination required by Article  11.3 must be based on “all relevant evidence,” not on “the 
mechanistic application of presumptions.”  ( Id. at paras. 178, 191) 
 WT/DS268/R 
Page D-74  
 
61. In the end, the Appellate Body did not decide whether Section II.A.3 of the Sunset Policy 
Bulletin  is inconsistent as such with Article 11.3, because it lacked the factual basis to do so (the 
Panel had failed to make factual findings as to the “consistent application” of Section II.A.3). 
 
62. This Panel is not similarly constrained in th e instant case.  Argentina has submitted extensive 
evidence of the Department’s “consistent application” of Section II.A.3 of the Sunset Policy Bulletin  
in all sunset reviews in which the domestic indust ry participates.  Argentina’s Exhibits ARG-63 and 
ARG-64 show that the Department follows the instruct ion of Section II.A.3 in every sunset review in 
which the domestic industry is intere sted, and every time it finds that at least one of the three criteria 
is satisfied, the Department makes an affirmativ e finding of likely dumping without considering 
additional factors.  These facts are beyond disput e and the United States has not attempted to rebut 
these facts.  The Department’s consistent applicati on of Section II.A.3 thus demonstrates its meaning:  
Section II.A.3 of the Sunset Policy Bulletin  directs the Department to attach decisive weight to 
historical dumping margins and declining import volum es (or the cessation of imports altogether) in 
every case .  Therefore, Section II.A.3 is inconsistent wi th the Article 11.3 oblig ation to determine “on 
the basis of all relevant evidence” whether termina tion of the anti-dumping duty would be likely to 
lead to continuation or recurrence of dumping.  ( See Appellate Body Report, Sunset Review of Steel 
from Japan , paras. 178, 191) 
 
63. By directing the Department to give decisi ve weight to the three prescribed criteria as 
conclusive of likely dumping, Section II.A.3 esta blishes a WTO-inconsistent presumption of likely 
dumping and predetermines the outcome of the Article 11.3 review.  Argentina’s extensive evidence of the Department’s consistent application of the Sunset Policy Bulletin  again speaks for itself:  In 100 
per cent of the sunset reviews in which the dome stic industry participated, the Department followed 
the mandate of Section II.A.3, and in each case, the Department rendered an affirmative likelihood 
determination.  ( See US Department of Commerce Sunset Reviews, ARG-63 and ARG-64)  The 
United States cannot dispute these facts.  Therefore, because Section II.A.3 of the Sunset Policy 
Bulletin  directs the Department to apply a WTO-inconsistent presumption of likely dumping, the 
measure is inconsistent with Article 11.3.  ( See Appellate Body Report, Sunset Review of Steel from 
Japan , paras. 178, 191) 
 
64. The role that the sunset regulations play in this overall framework reinforces the mechanics of 
the WTO-inconsistent presumption.  Consistent with the WTO-inconsistent presumption of likelihood 
established by US law, the sunset regulations limit the substantive information that the Department is 
required to solicit to historical dumping margins and past import volumes.  ( See 19 C.F.R. § 
351.218(d)(3)(iii))  Although – as the United States repeatedly highlights – the Department’s regulations provide that respondent interested par ties may include in their substantive responses “any 
other relevant information or argument that the part y would like the [Department] to consider[,]”  (19 
C.F.R. § 351.218(d)(3)(iv)(B)), the provision is holl ow because the US sunset provisions as a whole 
restrict the Department’s “analysis” to the three cr iteria forming the presumption of likely dumping.  
(See 19 USC. § 1675a(c)(2); 19 C.F.R. §§ 351.218( d)(3)(iv)(A) and (e)(2)( iii), § 351.308(f)(2); Sunset 
Policy Bulletin , Section II.C) 
 
65. In this regard, the US reliance on 19 C.F.R. § 351.308(f)(2) for the proposition that the 
Department considers all information provided in the substantive responses in expedited reviews is 
unavailing.  By virtue of the cross reference contai ned in this regulation to section 1675a(c) of the 
statute, the true meaning of section 351.308(f) is that the Department will consider information other 
than historical dumping margins and past import volumes only where “good cause” is shown.  ( See 
also 19 C.F.R. §§ 351.218(d)(3)(iv) an d (e)(2)(iii); Section II.C of the Sunset Policy Bulletin )  As 
demonstrated by Exhibits ARG-63 and ARG-64, th e Department has never considered “good cause” 
information in determining that dumping would not be likely to continue or recur .  
Subsection 351.218(e)(2)(iii) further restricts such consideration to “full reviews.”   
  WT/DS268/R 
 Page D-75 
 
 
66. Instead, the Department has always treated satisfaction of any one of the three criteria 
prescribed by the Sunset Policy Bulletin  as decisive in render ing affirmative likelihood 
determinations.  Indeed, even in the context of a full review, the US sunset provisions limit the 
Department’s analysis to a consideration of the three criteria prescribed by the SAA and Sunset Policy 
Bulletin .  (See 19 USC. § 1675a(c)(2); 19 C.F.R. §§ 351.218(d)(3)(iv)(A) and (e)(2)(iii); Sunset 
Policy Bulletin , Section II.C)  As Mexico, a Third Party Participant in this case, explained in its 
response to a question posed during these proceeding s, the US sunset review of OCTG from Mexico 
was a “full review” and these SAA/ Sunset Policy Bulletin  criteria were applied and served as the basis 
for the Department’s affirma tive likelihood of dumping de termination in that case. 
 67. In sum, regardless of whether the Departme nt conducts an expedited or full review, and 
regardless of the nature of the information prov ided by respondents, the application of the WTO-
inconsistent presumption established by US law lead s to the same outcome in every sunset review in 
which the domestic industry participates:  likel y dumping.  Ultimately, the WTO-inconsistent 
presumption is best summarized by the United Stat es in its own words in its response to a panel 
question during the first meeting of the Panel with the Parties:  It is reasonable to assume that a company that has dumped in the past is likely to dump in the future.  This is not surprising as that is 
what the SAA and Sunset Policy Bulletin  direct the Department to do in every
 case.  ( See US 
Department of Commerce Sunset Reviews, ARG-63 and ARG-64)  Therefore, consistent with the 
Appellate Body’s guidance in Sunset Review of Steel from Japan , the Panel must find that the 
Department’s sunset review of Argentine OCTG was inconsistent with Article 11.3. 
 
IV. THE LIKELIHOOD OF INJURY 
A. ARTICLE 3 OF THE ANTI-DUMPING AGREEMENT APPLIES TO SUNSET REVIEWS CONDUCTED 
UNDER ARTICLE 11.3   
68. The reasoning of Appellate Body’s recent decision in Sunset Review of Steel from Japan  
should silence any lingering debate as to whet her Article 3 applies to sunset reviews under 
Article 11.3. 
 
69. The Appellate Body found that the definition of “dumping” applied for the purpose of the 
entire Agreement, including for sunset reviews, in  light of the specific wording of Article 2.1. 
 70. Similarly, Footnote 9 of the Anti-Dumping Agreement provides that, “[u]nder this 
Agreement , the term ‘injury’ shall, unless otherwise specif ied, be taken to mean material injury to a 
domestic industry, threat of  material injury to a domestic industry or the material retardation of the 
establishment of such an industr y and shall be interpreted in accordance with the provisions of 
[Article 3] .”  (Emphasis added.)  Accordingly, the Appellate Body’s reasoning in Sunset Review of 
Steel from Japan  requires the parallel finding that “injury” for purposes of Article 11.3 is subject to 
the disciplines of Article 3. 
 
71. Ignoring the clear implication of Sunset Review of Steel from Japan , the United States 
continues to assert that Article 3 does not apply to Article 11.3 sunset reviews.  ( See US Second 
Submission, paras. 43-55)  First, the United States asserts that “injury” under Articles 3 and 11.1 does 
not have the same meaning as in Article 11.3.  (US Second Submission, para. 43)  According to the United States, the analysis required by Articles 3 and 11.1, which speak of existing injury, is 
“fundamentally different” from that required by Article 11.3, wh ich speaks of the likelihood of 
continuation or recurrence of injury.  ( Id.) 
 
72. The distinction between the determination of injury in an original investigation and the 
determination of the likelihood of continuation or recurrence of injury in a sunset review, however, 
does not alter the Anti-Dumping Agreement’s clear  instruction that the core focus of each 
determination – “injury” – “shall be  interpreted in accordance with th e provisions of [Article 3].”  WT/DS268/R 
Page D-76  
 
Further, the premise for the US argument – that Articles 3 and 11.1 speak of “existing injury,” rather 
than the likelihood of future injury – is flawed.  Artic le 3 clearly pertains also to the threat of injury, 
i.e., to an analysis of future injury, not just to an analysis of existing injury. 
 
73. Second, the United States argues that, “if Article  11.1 is read as providi ng specific content to 
Members’ obligations under Article 11.3, it would make a nullity of that part of Article 11.3 that 
permits the continuation of a duty when injury is  likely to recur.”  (US Second Submission, para. 44) 
 
74. Argentina does not argue, however, that Article  11.1 sets out the specific obligation contained 
in Article 11.3.  Rather, Article 11.1 is an umbre lla provision that states “a general and overarching 
principle, the modalities of which are set fort h in paragraphs 2 and 3.”  (Panel Report, Pipe Fittings 
from Brazil , DS219, para. 7.113)  In this light, “injury” as used in Article 11.1 cannot be interpreted 
differently in Article 11.3.  In its second submissi on, the United States appears to agree that “injury” 
in Article 11.1 is subject to the provisions of Article 3.  Yet the United States has failed to 
demonstrate that Article 3 does not similarly apply to Article 11.3. 
 75. There is no textual support for the position that the term “injury” as used in Article 11.1 is 
different than the term “injury” as used in Article 11.3 
 
B. T
HE COMMISSION APPLIED THE WRONG STANDARD  – “LIKELY ” MEANS “PROBABLE ” 
76. The Appellate Body in Sunset Review of Steel from Japan  also ended the debate over the 
meaning of likely.  “Likely” means “probable.”  (Para. 111)    
77. Throughout these proceedings, the United States  has consistently argued that “likely” as used 
in Article 11.3 does not mean “probable.”  More  significantly, the Commission expressly stated 
before a NAFTA panel that it did not interpret “likel y” to mean “probable” in the very same sunset 
determination at issue in this dispute .  (See ITC Brief included in ARG-67).  Therefore, there can be 
no doubt that the Commission failed to apply the correct standard in this case.  As we will discuss next, the Commission’s evidentiary findings with respect to the likely volume, price effects, and 
impact in the instant sunset review confirm this conclusion. 
 
C. T
HE COMMISSION FAILED TO RELY ON POSITIVE EVIDENCE THAT INJURY WOULD BE LIKELY  
TO CONTINUE TO OR RECUR IN THE EVENT OF TERMINATION  
78. Article 3.1 and Article 11.3 require positive evid ence that injury is “likely” to continue or 
recur in order for the measure to be continued.   The Commission’s conclusions with respect to 
volume, price, and impact in this case fall short of meeting the substantive and evidentiary standard. 
 
79. First, with respect to volume , the Commission concluded that, “in the absence of the orders, 
the likely volume of cumulated subject im ports . . . would be significant.”  ( Commission's Sunset 
Determination  at 20 (ARG-54))  In making this conclusi on, the Commission recognized that most of 
the subject producers faced capacity constraints ( Id. at 19), and thus, positive evidence that these 
subject producers would not likely increase their shipments of OCTG to the United States.  ( Id. at 19)  
To overcome this positive evidence, the Comm ission found that these subject producers had 
“incentives” to shift “their productive capacity to producing and shipping more [OCTG] to the US 
market.”  ( Id.)  As Argentina has demonstrated in previous submissions, however, each one of these 
findings was based on speculation and conjecture, rather than on positive evidence of likelihood.  
Therefore, the Commission failed to determine, based on positive evidence, that the volume of subject 
imports would likely  be significant upon termination of the orders. 
 
80. The above discussion regarding capacity and the so-called incentives highlights that 
cumulation was wholly inappropriate in the sunset  review of Argentine OCTG because:  (1) it 
undermined Argentina’s individual right to termination of the anti-dumping measure under  WT/DS268/R 
 Page D-77 
 
 
Article 11.3; and (2) the basis for the Commission’s decision to cumulate was inconsistent with the 
“likely” standard of Article 11.3 because the Co mmission simply presumed that since there was 
competition between imports in the original investigation, it was likely  that there would be such 
competition in the event of termination.  Finally, it should be noted that if the positive evidence of 
capacity constraints were not significant, the Commission would not have devoted so much of its 
determination to a discussion of the subject producer s’ “incentives” to shift productive capacity for 
sale to the United States.  Simply put, the Commission’s conclusion that the volume of the subject 
imports would likely be significant relied on its findings of incentives.  
 
81. In its Second Submission, the United States  also attempts to bolster the Commission’s 
findings of incentives, either by citing to additional record facts or by simply restating the Commission’s finding.  ( See id.  at paras. 66-77)  Nevertheless, th e United States fails to show how the 
Commission’s findings were based on positive eviden ce of likelihood, as opposed to conjecture and 
speculation.  Further, the United States is unable to account for th e Commission’s frequent disregard 
of positive evidence that unde rmined its incentive findings. 
 82. For example, the United States points out that , in a previous sunset review of OCTG from 
Canada, counsel for Siderca assured the Commissi on that the predecessor organization to Tenaris 
“had no intention of using the Algoma facilit y to ship OCTG to the United States.”  ( Id.)  Based on 
this evidence, the United States concludes, “Tenaris’ commitment
 not to ship OCTG from Canada 
completely undermines Argentina’s argument that Tenaris could use Algoma to serve this market.”  (Id.)(emphasis added)  As evidence that Tenaris ha d “committed” not to ship OCTG from Canada, the 
United States cites footnote 310 of the Commissi on’s determination in the review of OCTG from 
Canada.  ( See id.  (citing USITC Pub. 3316 (July 2000) at 51. n.310 (US-29))  This footnote, however, 
does not indicate that Tenaris had committed not to ship OCTG to the United States from Canada.  
Rather, it states, “We also note Siderca’s sworn testimony that exports to the United States are not 
part of its business plan  for the Algoma facility .”  (USITC Pub. 3316 (July 2000) at 51. n.310 (US-
29)(emphasis added))  Algoma gave no “commitment,” but rather stated that exports to the United 
States were not part of its business plan, just as Siderca explained that exports to the United States 
were not an important part of its business plan in this sunset review.  Why the explanation of the 
Tenaris business plan was considered credible in the Canadian case, and not credible in the Argentine 
case, remains a mystery.  These facts also expose the speculation in which the Commission engaged 
in this case:  rather than consider Tenaris’ actions  in Canada to be positive evidence that the Tenaris 
Group was not likely to export significant quantitie s to the United States if the measures were 
removed, the Commission ignored the evidence and relied on its “incentive” analysis.  The 
Commission never even acknowledged that a Tenari s company, Algoma, could have shipped to the 
United States but did not. 
 
83. In sum, despite the extensive record asse mbled by the Commission in the instant sunset 
review, the Commission simply failed to determin e, based on positive evidence, that the volume of 
subject imports would likely  be significant in the absence of the orders. 
 
84. With respect to price , the Commission’s finding with respect  to the likely price effects of the 
subject imports was also based on conjecture, rath er than positive evidence of likelihood.  As 
Argentina demonstrated in its Second Submission, in making its price findings, the Commission 
placed great weight on information developed five  years earlier in the original investigation.  ( See 
Argentina’s Second Submission, paras. 172-173)   
 85. The United States makes a similar admission it attempts to refute Argentina’s arguments that 
the United States gave undue weight to the fact that domestic prices were increasing at the end of the 
period examined.   The United States claims that “evidence from the original investigation strongly 
supports a finding that imports can
 drive down domestic prices even during a period of strong 
demand” and that this means therefore that “imports would  drive down or suppress the price of the 
domestic like product if  the orders were revoked.”  (US First Submission, para. 339) WT/DS268/R 
Page D-78  
 
 
86. It is striking that from a find ing in the origin al investigation
 that imports “can ” drive down 
domestic prices, the Commission concludes in the sunset review  that imports “would ” drive down or 
suppress the price of domestic like products if the or der were revoked.  In ot her words, because it is 
possible (as demonstrated five years earlier), the Commission concludes it must be “likely” to occur if 
the orders are revoked.  This is not the standard se t forth by Article 11.3.  Further, this type of 
reasoning demonstrates that the Commission is not applying a “likely” standard, and that the decision 
in this case is not based on positiv e evidence of likely price effects. 
 
87. Finally, with regard to impact , the Commission stated, “in the original investigations , 
subject imports captured market share and caused price effects despite a significant increase in 
apparent consumption in 1993 and 1994 as compared to 1992.”  ( Commission's Sunset Determination  
at 22) (ARG-54) (emphasis added)  On this basi s, the Commission concluded that, “despite strong 
demand conditions in the near term[,]” the subject imports would be likely to have a negative impact 
on the domestic industry in absence of the orders.  ( Id.)  Thus, once again, the Commission based its 
conclusion of what is likely to occur on what occurr ed in the original investigation, five years in the 
past.  In other words, the Commission determined  on the basis of possibility (as demonstrated by 
events five years earlier) that an outcome is “lik ely.”  Again, such reasoning is unacceptable under 
Article 11.3 and shows that the Commission did no t apply the “likely” standard in this case. 
 
88. In its defence against Argentina’s argument w ith respect to the impact analysis, the United 
States offers the following sentence:  “The ITC note d that in the original investigation, a significant 
increase in demand had not precluded subject import s from gaining market share and having adverse 
price effects .” (US First Submission, para. 342, emphasis added) 
 
89. Once again, we see that the conclusion of what is likely to occur in the future depends wholly 
on the fact that it occurred in the original investigation, five years in the past.  In this particular 
instance, the problem is compounded because the Co mmission is reduced to saying that increased 
demand in the past had not precluded  subject imports from gaining market share and having adverse 
price effects, and drawing the inference from this observation that likely imports were likely to have 
the same impact.  Argentina wonders how an exporter  could ever meet this standard given that, by 
definition, most anti-dumping measures in place in the United States had some evidence of adverse 
impact supporting the initial decision. 
 
90. For these reasons, the Commission’s sunset determination in this case was inconsistent with 
Articles 3.1 and 11.3.  Additionally, the United States  has failed to rebut Argentina’s claim that the 
Commission’s sunset determinatio n was inconsistent with Article s 3.4 and 11.3, because it cannot 
show on the record that the Commission properly ev aluated the relevant economic factors prescribed 
by that provision.  ( See Panel Report, Egypt – Steel Rebar , DS211, para. 7.42, 7.49)  As noted by 
Argentina, the Commission’s consideration of the WTO-inconsistent margin of 1.36 per cent 
(calculated using the practice of zer oing) that was reported by the Department to the Commission for 
purposes of the Commission’s sunset review was also inconsistent with US WTO obligations.  If the 
Commission relied on this WTO-inconsistent marg in in its determination, the determination was 
“tainted;” if not, then the Commission failed to comply with its obligations under Articles 3.4 and 
11.3.  ( See Argentina’s First Submission, paras. 189-193; Argentina’s Second Submission, paras. 151-
152)  Finally, the Commission’s sunset determinatio n was inconsistent with Article 3.5, because the 
Commission failed to distinguish the potential injurious effects of other causal factors from the 
potential effects of the dumped imports.   WT/DS268/R 
 Page D-79 
 
 
D. THE COMMISSION ’S CUMULATIVE INJURY ANALYSIS IN THE SUNSET REVIEW OF OCTG  FROM 
ARGENTINA VIOLATES THE ANTI-DUMPING AGREEMENT  
1. Contrary to US assertions, Argentina has the individual right to termination of the anti-
dumping measure on OCTG from Argentina pursuant to Article 11.3 of the Anti-
Dumping Agreement 
91. As Argentina has maintained throughout the course of these proceedings, every WTO 
Member has the right to have anti-dumping duties terminated after five years.  The United States, 
however, expressly denies the existence of such a right.  The United States takes the position in 
response to Argentina’s third question that:  “The United States does not consider that Argentina has 
the right to termination under Article 11.3 prem ised on the examination only of whether the 
revocation of the anti-dumping duty order relating to  subject imports from Argentina will lead to a 
continuation or recurrence of injury.” 
 
92. Argentina could not disagree more on this point.  Argentina’s position that it has a right to 
termination is based directly on the text of Article 11.3.  Nowhere in Article 11.3 is Argentina’s right 
to termination conditioned on the export practices of private companies of other WTO Members.  The United States has no textual argument to support its view, but rather relies on its unilateral assertion 
contradicting the common intention of the WT O Members, as reflected in the text.  ( See EC-LAN 
Equipment  at para. 84)  Indeed, no WTO Member can unilaterally deny a right conferred to another 
Member by the WTO Agreements.  Permitting Memb ers to disregard conferred WTO rights would 
undermine the careful balance of rights and oblig ations achieved in multilateral negotiations.  
Argentina respectfully asks the Panel to keep the United States’ extraordinary statement in mind when 
considering whether cumulation is permitted in sunset  reviews.  In this case, without cumulating the 
effect of imports, the Commission could not have  found that Argentine OCTG imports would likely 
injure the US market.    
 
2. Articles 11.3 and 3.3 preclude cumulation in the sunset reviews 
93. Argentina submits that the Comm ission’s cumulative injury anal ysis in the sunset review of 
OCTG was inconsistent with Articles 11.3 and 3.3 of the Anti-Dumping Agreement. 
 
94. First, with respect to the text of Article 11.3 , the United States argues that references to “any 
definitive anti-dumping duty” and “the duty” are not evidence that the drafters intended to prohibit 
cumulation in sunset reviews.  ( See US Second Submission, para. 56)  The US argument, however, is 
inconsistent with the position it took in Sunset Review of Steel from Japan .  In that dispute, the United 
States argued that “duty” as used in Article 11 .3 is defined by Article 9.2 of the Anti-Dumping 
Agreement, “which ‘makes clear that the definitive duty is imposed on a produc t-specific (i.e., order-
wide) basis, not a company-specific basis.”  (Appellate Body Report, Sunset Review of Steel from 
Japan , para. 150)  In other words, the United States re lied on the significance of the word “duty” and 
that it applies to one order (rather  than to one company) to prove its point.  The Appellate Body 
agreed with the United States that Article 9.2 info rms the interpretation of “duty” in Article 11.3.  
(Id.)  The Appellate Body therefore confirmed that the use of “duty” in the singular means that the 
authority must determine whether the termination of a single anti-dumping order – and not multiple 
orders – would be likely to lead to injury.  95. The United States also contends that it is in correct for Argentina to refer to the “object and 
purpose” of Article 11.3.  (US Second Submissi on, para. 57)  According to the United States, 
“Article 11.3 is clear that expiry of such duties is only appropriate where it is not likely
 that this 
would lead to the continuation or recurrence of dumping and injury.”  ( Id.)  The Appellate Body, 
however, has confirmed Argentina’s interpretation of the principal obligation of Article 11.3:  
termination of the anti-dumping duty after five year s is the rule, and maintenance is the exception.  
(Appellate Body Report, Sunset Review of Steel from Japan , DS244, para. 104)  The US interpretation WT/DS268/R 
Page D-80  
 
turns the Article 11.3 obligation on its head, making  continuation of anti-dumping measures the rule 
and termination the exception.  In addition, the US endorsement of a “not likely” standard
 is 
inconsistent with Article 11.3.  In DRAMs from Korea , the Panel clearly stated “that a failure to find 
that an event is ‘not likely’ is not equivalent to a fi nding that the event is ‘lik ely.’”  (DS99, para. 6.45) 
 
96. Second, the United States argues that Argentina’ s alternative argument – that if cumulation is 
permitted in sunset reviews, the limitations on cumulation in Article 3.3 would have prevented 
cumulation in this case – is directly at odds with the Appellate Body’s findings in Steel from 
Germany .  (See US Second Submission, para. 59, citing Appellate Body Report, Steel from Germany , 
paras. 58-97)  In Steel from Germany , the Appellate Body merely held that the de minimis  rule of 
Article 11.9 of the SCM Agreement – the paralle l provision to Article 5.8 of the Anti-Dumping 
Agreement – does not independently apply to Article  21.3 – which is parallel to Article 11.3 of the 
Anti-Dumping Agreement.  The Appellate  Body did not address whether the de minimis  rule of 
Article 11.9 applies to Article 21.3 in the context of applying a cumulative injury analysis by virtue of 
the cross-reference contained in Article 15.3, the pa rallel provision to Article 3.3 of the Anti-Dumping 
Agreement.  (Appellate Body Report, Steel from Germany , para. 92)  To the contrary, the Appellate 
Body’s decision in Steel from Germany  suggests that it understands that the injury analysis in a sunset 
review is not conducted on a cumulated basis.  ( Id. at para. 81) 
 
97. Finally, the United States addressed Arge ntina’s argument that the standards that the 
Commission applies in deciding whether to cumulate  run directly counter to the “likely” standard 
established by Article 11.3.  ( See US Second Submission, para. 60)  According to the United States, 
Argentina confuses the standard for deciding whether cumulation in a sunset review is appropriate 
with the standard for determining whether expiry of the duty would be likely to lead to continuation or 
recurrence of injury.  ( See id.)  Because the “Anti-Dumping Agreement is silent on the former 
question,” the United States argues, “the standard s that the ITC applied in deciding whether to 
cumulate cannot violate Article 11.3.”  ( Id.) 
 
98. Argentina has not confused the two questions.  Rather, Argentina submits that the threshold 
inquiry for cumulating – i.e., whether imports from each subject source had any possible  discernible 
adverse impact – taints the likelihood determination in a sunset review.  ( See Argentina’s First 
Submission, paras. 292-294; Argentina’s Second Submission, paras. 199-200)  For example, in the 
sunset review of Argentine OCTG, it cannot credibly be argued that the Commission could have 
determined that injury would likely continue or re cur without having conducted a cumulated analysis.  
Consequently, the conduct of a cumulated injury analysis is not consistent with Article 11.3. 
 E. T
HE COMMISSION ’S OVERALL APPROACH IN THE SUNSET REVIEW OF ARGENTINE OCTG  IS 
FLAWED  
99. As explained above, the Commission’s likelihood of injury determination is flawed because it 
rests on several possible outcomes.  The flaws with the Commission’s likelihood of injury 
determination are further compounded because of the Commission’s use of a cumulative analysis. 
 
100. First, in reaching its decision to cumulate in this case, the Commission initially considered 
whether imports from each subject source would have any possible  discernible adverse impact on the 
domestic industry.  The Commission cumulated the imports because it did not  find that the imports 
would have no  discernible adverse impact on the domestic industry.  ( See 19 USC. § 1675a(a)(7))  
The language applied by the Commission (written with two negative clauses) meant that the 
Commission could cumulate imports that, considered  individually, have any possible adverse impact 
on the domestic industry.  ( See 19 USC. § 1675a(a)(7))  This standard is directly counter to the 
“likely” standard established by Article 11.3. ( See Appellate Body Report, Sunset Review of Steel 
from Japan , para. 110; Panel Report, DRAMS from Korea  at paras. 6.48, 6.52-6.58)  With respect to 
the second part of the Commission’s analysis as to whether to cumulate, the Commission considered 
whether the “imports would be likely to compete with each other.” ( See 19 USC. § 1675a(a)(7))   WT/DS268/R 
 Page D-81 
 
 
Again, just as the Commission failed to apply the “likely” or “probable” standard throughout its 
analysis ( see, e.g., Argentina’s Second Submission, para. 159), it failed to apply that standard to the 
threshold question of whether to cumulate for purp oses of the conduct of the  Article 11.3 review. 
 
101. Second, as Argentina demonstrated in it s written submissions, the Commission’s finding of 
likelihood of injury hinges on su pposed future occurrences – whic h while possible, do not constitute 
positive evidence of likelihood.  Indeed, for many of its findings, the Commission simply presumed 
such events would occur simply because they were noted in the original investigation  ( See, e.g., 
Argentina’s Second Submission, paras. 172-177).  Thus, the flaws with the individual pieces of 
information relied on by the Commission are evident.  Basic logic dictates that one cannot simply take 
the sum of purported possible scenarios to reach a “likely” outcome.  In fact, when more future “variables” are relied upon to support the likelihood of  a particular occurrence happening (in this case 
injury), this actually leads one to the conc lusion that such an occurrence is less likely
 to happen.  Yet, 
this same reasoning underpins the Commission’s analysis. 
 
V. THE UNITED STATES HAS FAILED TO DISCHARGE ITS BURDEN UNDER 
ARTICLE 6.2 OF THE DSU:  THE US PRELIMINARY OBJECTIONS MUST FAIL 
102. Finally, Argentina will now take a moment to  offer some brief observations with respect to 
the terms of reference.  Such observations may not be necessary, as the United States seems to have 
all but abandoned its DSU Article 6.2 claim.  Inde ed, the US Second Submission makes no reference 
whatsoever to DSU Article 6.2.  103. Argentina reiterates that from the text of the panel request, it is clear that the so-called “Page 
Four” claims and  the “B1/B2 and B3” claims all co mplied fully with DSU Article 6.2   Moreover, the 
five “certain matters” were all set forth in Argent ina’s panel request and also complied fully with 
DSU Article 6.2.  The United States has not rebutted any
 of Argentina’s textual arguments on these 
points.  The United States has thus demonstrably  failed to discharge its burden to prove that 
Argentina’s Panel request did not comply with Article 6.2.  
104. Moreover, the Appellate Body has made clear that prejudice must be demonstrated for an 
Article 6.2 claim to succeed.  The Appellate Body has also made clear ( Wool Shirts ) that “the burden 
of proof rests upon the party. . . who asserts the affi rmative of a particular claim.”  The United States 
has asserted prejudice, but has failed to discharge its burden to demonstrate it. 
 
105. The Panel asked the United States to expl ain how it was “prejudiced with respect to each
 
alleged inconsistency that the United States is ra ising in its request for preliminary rulings.”  The 
United States failed to reply to the Panel’s dire ct question about “each alleged inconsistency,” 
presumably because it could not muster any credible  arguments to this effect.  The United States 
contented itself instead with a general complaint that  “the United States has not been afforded the full 
measure of due process required under the DSU, co mpromising its ability to research the issues at 
hand, assign personnel, etc.” 
 
106. As Argentina has stressed before, vague assertions about having to wait for the complainant’s 
First Submission have been rejected by previous panels as insufficient to rise to the level of violation 
of due process rights.  The Panel should follo w this sound precedent in the present case. 
 
107. In summary, the United States has failed to re but Argentina’s textual arguments that all of the 
disputed claims are properly set forth in Argentina’s panel request consistent with the requirements of 
Article 6.2.  In addition, the United States ha s simply asserted, but has not demonstrated, any 
prejudice.  Its Article 6.2 claims must therefore fail.  Although Argentina has an exceptionally strong 
case on prejudice (or lack thereof), its Article 6.2 de fence by no means is limited to the “no prejudice” 
point alone.  Argentina affirms its earlier detailed stat ements that – on a purely textual analysis – the WT/DS268/R 
Page D-82  
 
US Article 6.2 claims are groundless.  Argentina th erefore respectfully reque sts the Panel to dismiss 
the US Article 6.2 requests in their entirety. 
 VI. BASED ON THE PERVASIVE AND FUNDAMENTAL US VIOLATIONS, THE 
PANEL SHOULD SUGGEST THAT THE MEASURE BE TERMINATED 
108. In concluding today, Argentina refers the Panel to the specific requests it made of the Panel in 
paragraphs 314-323 of Argentina’ s First Submission, and paragraphs  269-276 of Argentina’s Second 
Submission.  Argentina incorporates those requests in  full.  In sum, Argentina respectfully requests 
the Panel: 
 • to find that in this case the US measures identified by Argentina, as such and as applied, 
violate US WTO obligations; 
 
• to recommend that the United States brings its measures found to be inconsistent with the 
covered agreements into conform ity with its WTO obligations; and 
 • to suggest, pursuant to DSU Article 19.1, that the only way for the United States to comply 
with these recommendations is th rough the immediate termination of the anti-dumping measure on 
OCTG from Argentina. 
 
109. Argentina would like to take this opportunity to revisit the implications of DSU Article 3.2.  
(See Argentina’s First Submission, para. 8; Argentina’s Second Submission, para. 276)  In its closing 
statement at the First Substantive Meeting, the United States warned of the dangers of creating 
additional obligations through disp ute settlement.  Such an approach, the United States admonished, 
would violate the rule in DSU Article 3.2 that pane l rulings cannot add to the Members’ obligations. 
 
110. Argentina agrees that Panels should not – indeed cannot – add to the obligations of Members 
under the WTO Agreements.  Yet, Argentina is by no means seeking to “add to” the obligations of the United States under the Anti-Dumping Agreement.  To  the contrary, Argentina is simply asking that 
the United States abide by the binding commitments that it accepted at the end of the Uruguay Round 
– nothing more, nothing less.   
 111. Moreover, the United States focuses on only half of the story.  The very same sentence also states the proposition that “rulings of the DSB cannot . . . diminish the rights . . . provided in the 
covered agreements.”  Such “rights provided in th e covered agreements” include Argentina’s rights 
under the Anti-Dumping Agreement, including Argentina’s rights under Article 11.3.  The Appellate 
Body has contributed importantly to clarifying the meaning of the rights and obligations comprised in 
Article 11.3.  Argentina had a right to terminatio n of the anti-dumping order on OCTG after five 
years.  The United States could continue the measure only by making findings consistent with 
Articles 11.3, 2, 3, 6, and 12 of the Anti-Dumping Agreement.  As Argentina has amply 
demonstrated, the United States failed to comply with  these critical obligations.  As a result, the DSB 
must restore the right conferred to Argentina under Article 11.3, which is termination of the measure. 
 
112. Argentina respectfully urges the Panel to make the necessary suggestion that the measure be 
terminated in this case.  Not to do so would invite  the United States to extend the measure beyond the 
expressly prescribed period in Article 11.3.  ( See Appellate Body Report, Sunset Review of Steel from 
Japan , para. 113)  The suggestion in this case is neces sary to give meaning to the rights of Argentina 
in this case.  
113. Argentina thanks you for your time and atten tion today, and would be pleased to respond to 
any questions the Panel may have. 
  WT/DS268/R 
 Page D-83 
 
 
 
Closing Statement – 3 February 2004  
 
 
1. Mr. Chairman, members of the Panel:  Argentina will not repeat all of its arguments here.  At 
this point, we will limit ourselves to three broad points.  
 
2. First, it is critically important that all WT O Members, including the United States, respect the 
careful balance of rights and obligations embodied in the Anti-Dumping Agreement. 
 3. Participants in the Uruguay Round reached ag reement on a package of disciplines applicable 
to anti-dumping measures.  The Agreement recognizes the rights of importing countries to use anti-
dumping measures to counteract injurious dumping.  However, the right to invoke such measures is 
predicated upon the strict compliance with the substantive obligations of the Agreement.   
 
4. Among the most important obligations in th e Agreement are those applicable to sunset 
reviews.  Article 11.1 makes clear  that anti-dumping measures are limited in duration (“only as long 
as necessary”), magnitude (“only to the extent necessary”), and purpose (“to counteract dumping 
which is causing injury”).  Article 11.3 gives sp ecific content to these overarching principles by 
requiring termination of anti-dumping orders after five years. 
 5. These obligations were a critical element of the overall, carefully calibrated equilibrium of 
rights and obligations accepted by Argentina, the United States, and other Members at the end of the 
Round.  It is essential that this Panel give  the full, substantive content to these rights. 
 
6. In accepting the Uruguay Round package, participants thus agreed to meaningful disciplines 
on the use of anti-dumping measures.  We did not agree to the mechanical application of 
presumptions.  We did not agree to immutable practices  that stack the deck against importers.  We did 
not agree to rules that lead inflexibly to a pre-or dained result as soon as the US industry shows the 
slightest interest in maintaining the order.  We did not agree to 223 to 0. 
 
7. Argentina notes that the Panel asked the United States questions today regarding the 
automatic application of the waiver provisions and the resulting automatic judgment.  The United 
States tries to give the impression that these provisions do not result in automatic judgments.  
Argentina respectfully reminds the panel that Argentin a has challenged the waiver provisions as such.  
The statute requires that the Department “shall” ma ke an affirmative determination of likelihood of 
dumping with respect to the company that is waived. 
 
8. We therefore ask this Panel to ensure that the United States respects and implements fully the 
obligations that it accepted when it accepted the Anti-Dumping Agreement – nothing more, nothing 
less. 
 
9. Second, in a related point, we would ask this Panel to be guided by the authoritative and 
unambiguous guidance it has received from the Appellate Body, most notably in the Sunset Review of 
Steel from Japan  case.  As Argentina has emphasized, the rulings of the Appellate Body provide a 
definitive disposition of many of the issues facing th e Panel, including the obli gation on investigating 
authorities to play an active role in the investigation. 
 10. At the beginning of this proceeding, the Unite d States argued that Article 11.3 was essentially 
an empty shell.  According to the United States, Artic le 11.3 provided few, if  any, restraints on US 
authorities as they raced to placate the wishes of their domestic industry. 
 
11. The Appellate Body decision has completely undermined the US position, and has confirmed 
what Argentina has maintained from the beginning – that the US measure against OCTG from WT/DS268/R 
Page D-84  
 
Argentina was without legal basis under the Anti- Dumping Agreement.  As the Appellate Body 
emphasized, Article 11.3 is no empty shell – it is replete with significant and highly substantive 
obligations.  The Appellate Body could not have been any clearer on the key point that 
“presumptions” and “passivity” have no role in suns et reviews.  As the Appellate Body explained, 
“[p]rovisions that create ‘irrebuttable’ presumptions, or ‘predetermine’ a particular result, run the risk 
of being found inconsistent with  this type of obligation.” 
 
12. We would also emphasize that although the Appellate Body lacked the certain factual data 
upon which it could draw the necessary conclusions, the present Panel is not similarly constrained.  
Argentina has placed before this Panel all
 the factual basis it requires. 
 13. Argentina is thus confident that this Panel w ill render a decision that is consistent with the 
explicit direction of the Appellate Body.  The Ap pellate Body has told Members that the sunset 
review is an “exacting” process that requir es a “forward-looking analysis” and a “rigorous 
examination.”  We also know that “likely dumping” means “probable” dumping, and that “likely 
injury” means “probable injury.”   
14. In Argentina’s view, it is necessary for this Pa nel to apply these clear standards to the facts of 
this case.  This will be a straightforward exercise .  Argentina is also confident that once the Panel 
applies the Appellate Body’s gu idance, there can be no other outcome than a finding of WTO-
inconsistency.  15. Third, we would ask the Panel, during its de liberations, to give special attention to the 
particularly egregious facts of this case.  For ex ample, the Department’s determination that dumping 
was likely relied on nothing more than a 1.36 marg in from the original investigation, calculated 
through the use of zeroing, and a decline in im port volume.  As Argentina has emphasized, the 
Appellate Body in the Sunset Review of Steel from Japan  case found that neither factor, either 
independently or together, could support a determin ation under Article 11.3 th at dumping is likely to 
continue.  If this is the basis on which the Depart ment could uphold a determination that dumping was 
“probable”, then the disciplines of Article 11.3  would be rendered essentially meaningless.  
 
16. Thus, the Panel’s task in the present case is  significantly simplified by the untenable factual 
basis upon which the United States seeks to justify its actions.   
 
17. With respect to the preliminary issues raised by the United States, Argentina would make 
three comments.  First, as Argentina has stressed repeatedly, and as the Appellate Body has made clear, a Panel request must be read as a whole .  The Panel must reject the US attempt to narrowly 
interpret different portions of the document in isolat ion.  Second, the United States said this morning 
that “nothing in the WTO agreements explicitly states that a lack of prejudice cures a violation of 
DSU Article 6.2.”  However, this is not, and ne ver has been, Argentina’s position.  Rather, the 
Appellate Body has stated repeatedly that a violation of Article 6.2 never arises at all unless prejudice 
has been established .  Moreover, prejudice must rise to the level of a violation of due process rights.  
However, even at this very late stage in the procee dings, the United States merely asserts, but has not 
established, actual prejudice.  Third, Argentina wo uld respectfully remind the Panel that the United 
States has never rebutted the textual arguments advanced by Argentina demonstrating that all
 of 
Argentina’s claims are in fact set forth in Argentina’s panel request and are therefore properly before 
the panel. 
 18. Finally, with respect to Argentina’s re quest for a suggestion by the Panel under DSU 
Article 19.1, Argentina does not agree that GATT and WTO practice has been exclusively for Panels 
simply to recommend that the measure be brought into conformity, without making any suggestions 
on how to do so.  There are many examples where Pa nels have made such suggestions.  Moreover, 
given the facts of this dispute, such a suggestion would be particularly appropriate.  
  WT/DS268/R 
 Page D-85 
 
 
19. The Panel has all of the legal and factua l elements it needs to draw the inescapable 
conclusions about the WTO-inconsistency of the US  measures.  Your decision will be of vital 
importance not just for Argentina, but for th e integrity of the multilateral trading system. 
 
20. We thank you again for the time and attention that you have given to this dispute. 
 
 
 WT/DS268/R 
Page D-86  
 
ANNEX D-8 
 
OPENING AND CLOSING ORAL  STATEMENTS OF THE 
UNITED STATES – SECOND MEETING 
 
Opening Statement – 3 February 2004  
 
 
Mr. Chairman, members of the Panel: 
 
1. The United States appreciates this opportun ity to comment on the issues raised in this 
proceeding.  
 
2. This dispute is not complicated.  It involves  three overarching questions, some of which the 
Appellate Body has already explored at length.  First, what does the Anti-Dumping Agreement require with regard to sunset reviews?  Second, ha s Argentina demonstrated that US law fails to meet 
those requirements?  Third, has Argentina demonstrated  that the US application of its law also fails to 
meet those requirements? 
 
3. Consistent with principles of treaty in terpretation reflected in Article 31 of the Vienna 
Convention , an analysis of rights and obligations must begin with the text of the agreement being 
interpreted.  Article 11.3 of th e Anti-Dumping Agreement provides that an anti-dumping duty must be 
terminated unless a Member makes a finding of like lihood of continuation or recurrence of dumping 
and injury.  Article 11.4 makes clear that the rule s of Article 6 regarding ev idence and procedure are 
applicable in these sunset reviews.  Therefore, a Member must make a determination of likelihood 
with regard to dumping and injury and must afford interested parties the oppo rtunity to participate and 
present evidence.  In addition, Ar ticle 17.6(i) of the Anti-Dumping Agreement provides that a panel’s 
examination of the facts is limited to whether those facts were properly established before and 
examined by the domestic investigating authority in a manner that is unbiased and objective, not 
whether the facts established at the time – or ne w ones impermissibly introduced here – might have 
led to a different conclusion.  
 4. We will first address issues concerning the Department of Commerce’s determination regarding the likelihood of dumping, followed by the US International Trade Commission’s 
determination regarding the likelihoo d of injury.  In doing so, the United States will again confirm 
that US law – as such and as applied – is not inco nsistent with the obligations contained in the Anti-
Dumping Agreement.  We will then conclude with some remarks on the procedural issues in this 
dispute. 
 Issues Concerning the Likelihood of Continuation or Recurrence of Dumping 
 
5. Mr. Chairman, Argentina’s claims in this dispute fail because they rely on obligations not 
found in Article 11.3 or anywhere el se in the Anti-Dumping Agreement.  
 
6. Consistent with DSU Article 3.2 and previous  panel and Appellate Body findings, the United 
States has argued that the Panel should interpret the text of the Anti-Dumping Agreement, and in 
particular Articles 11.3 and 6, in accordance with the ordinary meaning of the terms of the Agreement 
in their context and in light of th e Agreement’s object and purpose. 
 
7. Simply put, Article 11.3 provides that a de finitive anti-dumping duty must be terminated 
unless the requisite finding – likelihood of continuation or recurrence of dumping and injury – is 
made.   As the Appellate Body in United States - Corrosion-Resistant Carbon Steel Flat Products  WT/DS268/R 
 Page D-87 
 
 
from Japan  recently upheld, the Anti-Dumping Agreement does not prescribe the means a Member 
must employ in determining whether dumping and injury are likely to continue or recur in a sunset 
review.1 
 
8. There is also no requirement in Article 11.3  or elsewhere in the Anti-Dumping Agreement to 
calculate or consider the magnitude of current du mping in making the likelihood of continuation or 
recurrence of dumping  determination.  Nor is there a requir ement to calculate or consider past, 
present, or future dumping margins in making the likelihood of continuation or recurrence of injury  
determination.  Furthermore, there is no requir ement in Article 11.3 or elsewhere in the Anti-
Dumping Agreement to make likelihood of dumping determinations on a company-specific basis.  
The Appellate Body in Japan Sunset  has confirmed these points as well, recognizing that (1) 
"Article 11.3 neither explicitly requires authorities in a sunset review to calculate fresh dumping 
margins, nor explicitly prohibits them from rely ing on dumping margins calculated in the past"2 and 
(2) that "dumping margins may well be relevant to, but they will not necessarily be conclusive of, 
whether the expiry of the duty would be likely to lead to continuation or recurrence of dumping".3 
 9. Argentina claims that Commerce’s expedite d sunset procedures preclude Commerce from 
making a "determination" or conducting a "review."  We have demonstrated, however, that US sunset 
procedures provide for participat ion by interested parties, incl uding the submission of factual 
information and argument, as well  as rebuttal to such information and argument.  We have also 
demonstrated that Commerce makes its likelihood determination based on a ll the evidence on the 
administrative record, including the evidence submitted by the interested parties during the sunset review.  Commerce thus arrives at, in the words of the Appellate Body, a "reasoned conclusion on the 
basis of information gathered as part of a process of reconsideration and examination."
4  Commerce’s 
procedures therefore are not inconsistent w ith the limited obligations of Article 11.3. 
 
10. Argentina’s statistics, which purportedly dem onstrate an alleged lack of impartiality on the 
part of the United States, are irrelevant in light of these procedures.  Argentina argues that Commerce 
relies solely on the participation of the domestic i ndustry to determine whether dumping is likely to 
continue or recur, but here again Argentina miss es the point:  Where the domestic industry has, 
selectively, chosen to participate, it has placed ev idence on the record that respondents have failed to 
rebut persuasively.  The fact that the United States does not make affirmative determinations where 
the domestic industry fails to participat e demonstrates that the United States does not simply continue 
every order without regard to the factual circumstan ces of each case.  Thus, Argentina has failed to 
prove its claim regarding GATT Article X:3(a) a nd Article 11.3 of the Anti-Dumping Agreement. 
 11. In addition to these general legal issues, Argentina has made case-specific claims regarding 
Commerce’s sunset determination involving oil c ountry tubular goods from Argentina.  Commerce’s 
determination, however – that the expiry of the anti -dumping duty order would be likely to lead to the 
continuation or recurrence of dumping – is based on evidence regarding the existence of dumping and 
the depressed import volumes ov er the life of the order.   
 
12. After providing all interested  parties with ample opportunity to submit for the record their 
views, including any information they deemed rele vant, Commerce reasonably concluded that, in the 
event of revocation, dumping is likely to continue or recur.  Notably, respondent interested parties 
failed to provide evidence, either through the substantive responses to the notice of initiation or in 
rebuttal to the substantive response of the domestic industry, to persuade Commerce to find otherwise.  
This, in spite of the fact that, according to the Appellate Body, the Anti-Dumping Agreement assigns 
a "prominent role to interested parties . . . and contemplates that they will be a primary source of 
                                                     
 
1 WT/DS244/AB/R, AB-20003-5, 15 December 2003, para. 123. 
2 Id., para. 123. 
3 Id., para. 124. 
4 Id., para. 111. WT/DS268/R 
Page D-88  
 
information in all proceedings conducted under that  agreement," especially with regard to company-
specific data.
5 
 
13. Indeed, the only respondent interested party to  file a substantive response, Siderca, filed no 
rebuttal at all in response to the evidence placed on the record by the domestic industry.  Argentina 
claims that Siderca was simply discouraged from filing responses because of the arguable perception 
that participation is "futile";6 if so, why did Siderca file a substantive response at all?  Why participate 
half-way?  Contrary to Argentina’s complaints, Commerce did conduct a review and made a 
determination based on record eviden ce; if Argentina wishes to assign blame for the contents of the 
record, it need only look as far as its own producers.  
 14. Argentina also claims that the expedited sunset procedures denied respondent interested 
parties an opportunity to defend their interests and to submit evidence, in violation of the obligations 
in Articles 6.1 and 6.2.  As we have demonstr ated at length in our written submissions, Commerce 
provides parties with ample opportunity to submit f acts and arguments.  Argentina has failed to show 
one instance where Siderca was denied an opportunity to defend its interests in this case.  Instead, the 
record shows that Siderca, Argentina, and any othe r respondent interested party simply did not take 
advantage of the opportunities afforded them.   
 
15. Finally, Argentina attempts to make much of the dumping margin calculated for Siderca in 
the original investigation.  Argentina’s only claim in this regard is that Commerce reported  a dumping 
margin likely to prevail to the ITC that Argentin a believes was based on a calculation methodology 
not in accordance with the Anti-Dumping Agreemen t.  First, neither the ITC nor Commerce relied on 
the reported dumping margins in making their re spective determinations. In addition, the only 
calculation methodology found not to be in acco rdance with the Anti-Dumping Agreement is the 
methodology in EC – Bed Linens .  The methodology used by Commerce is not the same as the 
methodology in EC – Bed Linens .  
 Issues Concerning the Likelihood of Continuation or Recurrence of Injury 
 16. Argentina’s grievances with the ITC’s lik elihood determination ge nerally fall into two 
categories:  Issues concerning the applicability of  certain articles of the Anti-Dumping Agreement 
with respect to sunset reviews and issues concerning the ITC’s analysis in this review.  
 
17. The United States would first like to address two of the larger interpretati ve issues with regard 
to the Anti-Dumping Agreement and sunset reviews:  The relevance of Article  3 and the availability 
of cumulation.  
 
18. We explained in our submissions that original  injury investigations and sunset reviews are 
fundamentally different inquiries with different purposes.  We also pointed to very specific and 
fundamental obligations in Articles 3.1, 3.4 and 3.5 that just do not make sense in the context of 
sunset reviews.   
 
19. Argentina’s response on these points is telling.   Essentially, Argentina sidesteps the issues.  
For example, we explained that the instruction in  Article 3.1 to examine the volume of dumped 
imports and their effect on prices will often not be appropriate in a sunset review because imports may 
not be present in significant volumes, and they may not be sold at dumped prices.
7  In response, 
Argentina does not explain how the volume and price effects analysis mandated by Article 3.1 will be 
relevant in a sunset review.  Instead, Argentina es sentially says that Article 3.1 applies to sunset 
                                                      
5 Id., para. 199. 
6 Second Submission of Argentina, para. 119. 
7 First Submission of the United States, para. 305.  WT/DS268/R 
 Page D-89 
 
 
reviews because all of Article 3 applies to these reviews.8  Argentina is answering the question by 
merely asserting the answer, without argumentation.  
 
20. Another example of specific obligations in Artic le 3 that make no sense in sunset reviews can 
be found in Article 3.5.  We explained that the obl igation to demonstrate that "dumped imports are . . . 
causing injury" often cannot be complied with in the context of a sunset review (again, because 
imports may not be present in significant volumes, may not be sold at dumped prices, and may not be 
causing present injury).9  Argentina responds by characterizing this as some sort of an attempt by the 
United States "to demonstrate that each and every word of Article 3.5 cannot practicably apply to 
sunset reviews."10  But, we are not talking about a few stray words here; we are talking about the core 
of the obligation in Article 3.5 – to demonstrate "that the dumped imports are . . . causing injury."  
21. Argentina’s discussion of the requirements of Article 3.5 is a good example of how Argentina 
is attempting to improperly expand the obligations  on Members in sunset reviews.  Article 3.5 
instructs investigating authorities to examine "any known  factors other than the dumped imports 
which at the same time are injuring the domestic industry."  (The word "known" was added to this 
provision in the Uruguay Round and can only be construed as having narrowed the obligation under 
the Tokyo Round Anti-Dumping Agreement, which wa s not confined to an examination of "known" 
factors.)  Yet, Argentina asserts that Article 3.5 required that the ITC "distinguish the potential 
injurious effects  of other causal factors from the effects of the dumped imports," despite Article 3.5's 
limitation of the obligation to "known factors" causing injury.
11   
 22. Argentina argues that the logic behind the Appellate Body’s finding in Japan Sunset  
regarding the applicability of Article 2 to sunset re views "requires the parallel finding that "injury" for 
purposes of Article 11.3 is subject  to the disciplines of Article 3."
12  In fact, the Appellate Body’s 
report stands for just the opposite conclusion.  
 
23. In Japan Sunset , the Appellate Body reiterated its earlie r finding that "original investigations 
and sunset reviews are distinct processes with different purposes."13  The Appellate Body then found 
that investigating authorities are under no obligation to calculate or rely on dumping margins when 
they make their likelihood of dumping determination in a sunset review.14  (The Appellate Body 
explained that "it is consistent with the different nature and purpose of original investigations, on the 
one hand, and sunset reviews, on the other ha nd, to interpret the An ti-Dumping Agreement as 
requiring investigating authorities to calculate dumping margins in an original investigation, but not in 
a sunset review.")15  The Appellate Body then concluded that if – and only if – investigating 
authorities choose to rely on dumping margins in  making their likelihood determination, they are 
required to observe the disciplines of Article 2.4.  In this case, neither Commerce nor the ITC relied 
on any particular dumping margins in making their likelihood determinations. 
 
24. So what does Japan Sunset  teach us?  The parallel finding with respect to the likelihood of 
continuation or recurrence of in jury determination is that investigating authorities are under no 
obligation in a sunset review to make a new "injury" determination, as defined in Article 3, but that if 
they do, they should observe the disciplines of Artic le 3.  In this case, the ITC did not make a new 
"injury" determination as part of its sunset review; it assessed whether injury was likely to continue or 
recur, and the obligations of Article 3 do not apply. 
                                                      
8 Second Submission of Argentina, para. 164. 
9 First Submission of the United States, para. 351. 
10 Second Submission of Argentina, para. 183. 
11 Second Submission of Argentina, para. 185. 
12 Second Submission of Argentina, para. 28. 
13 Japan Sunset , para. 106 (quoting from US-Carbon Steel , AB Report, para. 87). 
14 Japan Sunset , para. 123 and 126. 
15 Japan Sunset , para. 124. WT/DS268/R 
Page D-90  
 
 
25. Argentina also argues that the Anti-Dumping Agreement prohibits use of cumulation in 
sunset reviews.  It should be noted first that neither Article 11.3 nor any other provision in the Anti-
Dumping Agreement prohibits cumulation.  Arge ntina’s argument that Article 11.3 expressly 
prohibits cumulation because it speaks of "duty" in the singular is unconvincing.  One of the two 
supposed uses of the singular – the reference to "any definitive anti-dumping duty" – could just as 
well state the plural.  And the reference to "the du ty" is merely descriptive.   If the drafters of 
Article 11.3 had intended to prohibit cumulation in sunset reviews, they surely would have found a 
more explicit way of doing so. 
 26. Argentina also relies on the Appellate Body’s finding in Japan Sunset  that Articles 11.3 and 
9.2 do not require authorities to make their lik elihood determinations on a company-specific basis.
16  
We fail to see how this has any relevance to the question of whether cumulation is permitted.  If 
anything, Article 9.2 suggests that "an anti-dumping duty" is not limited to a single country because 
that article envisions that "an anti-dumping" duty might be applied to "all the supplying countries 
involved."  
27. With regard to the ITC’s analysis in the su nset review of OCTG from Argentina, two of 
Argentina’s arguments merit special attention here:  The ITC’s pricing analysis and the application of 
the "likely" standard. 
 28. At the outset of this discussion, it bears re peating:  Article 17.6(i) makes clear that the 
availability of an alternative interpretation of ev idence on the record is not sufficient to find a 
determination inconsistent with the Anti-Dumping Ag reement.  Argentina must prove that the ITC’s 
examination of facts was not unbiased and objective.  Argentina’s arguments, which are based on a 
misapprehension of the ITC’s analysis, do not indica te that the ITC’s examination was biased and 
unobjective.   
 
29. With regard to pricing, Argentina focuses on the evidence of underselling, and asserts that 
authorities should not be permitted to rely on prici ng information from the original investigation to the 
exclusion of more current data.
17  However, the ITC did not rely exclusively on the evidence of 
underselling from the original investigation.  There was evidence of more recent underselling, but the 
scope of this underselling was limited because subject imports had a limited presence in the US 
market in the period of review.18  Moreover, current pricing data may be limited in a sunset review if 
imports have declined as a result of the imposition of the order.  Argentina’s suggestion that a finding 
of likely underselling must be based exclusively on current pricing data should be rejected.  
30. With regard to the ITC’s overall determinati on, Argentina repeatedly claims that the ITC 
construed "likely" to mean "possible" in the underlying review.  This is untrue, and there is no 
evidence to support it.  Argentina also makes mu ch of the question of whether "likely" means 
"probable."  But Article 11.3 does not use the word "probable."  As we have already stated, moreover, 
a debate about synonyms for "likely" does not advance this inquiry.  The word "probable" itself has a 
variety of meanings and does not connote a specific  degree of probability.  For example, some would 
interpret the word to mean "more likely than not." 
 
31. Rather than debating synonyms, the United States believes it is more useful to examine the 
details of the ITC’s analysis, as explained fully in our submissions.
19  It is also worth noting that the 
                                                      
16 Second Submission of Argentina, para. 190. 
17 Second Submission of Argentina, paras. 172-173. 
18 ITC Report, p. 21. 
19 First Submission of the United States, paras. 313-43; Second Submission of the United States, 
paras. 61-78.  WT/DS268/R 
 Page D-91 
 
 
ITC, using the "likely" standard, has made negative likelihood of injury determinations, leading to the 
revocation of anti-dumping measures, in over one-third of the first set of sunset reviews it conducted.  
 
32. Argentina attempts to portray the ITC’s determination as speculative and not based on record 
evidence.  It generally does this by focusing on sele cted individual factors that the ITC considered and 
claiming that the ITC’s conclusion was not based on em pirical certainty.  We urge the Panel to reject 
this piecemeal analysis and to look at all of the evidence that the ITC considered and the entirety of its 
determination. 
 
33. Finally, contrary to Argentina’s suggestion,20 the ITC did not use a double-negative "no 
discernible adverse impact" standard in lieu of the "likely" standard of Article 11.3.  The question of whether imports from each subject country have a di scernible adverse impact is part of the ITC’s 
cumulation analysis under US domestic law.  It has nothing to do with the application of the "likely" 
standard in sunset reviews.  
 
Procedural Issues  
34. Finally, we turn to the procedural issues briefl y.  First, with regard to Argentina’s requests for 
specific remedies in section XI of its First Su bmission, the United States notes that GATT and WTO 
practice with respect to remedies has been to urge the respondent, where the panel rules against it, to 
bring the inconsistent measure into conformity wi th that Member’s WTO obligations.  Therefore, 
should this Panel agree with Argentina on the me rits, it should nonetheless reject Argentina’s 
requested specific remedy. 
 
35. As for the other issues the United States described in its request for preliminary rulings, it 
remains perplexing that Argentina has chosen to de vote resources to vigorously debate issues that 
would not exist had Argentina simply withdrawn its or iginal panel request and drafted a proper one.  
Nevertheless, the United States has proven its clai ms.  Nothing in Argentina’s submissions refutes the 
arguments the United States has advanced.  To the contrary, these arguments confirm that Argentina’s 
panel request was inconsistent with Article 6.2 of the DSU. 
 
36. More specifically, confusion persists with rega rd to the relevance of the "claims" on Page 
Four of Argentina’s Panel Request.  Argentina seems to believe that the placement of the word "also" 
in the first sentence of its Page  Four "claims" and that quoting the dictionary meaning of "also" 
resolve the ambiguity as to whether these claims duplicate those in Sections A and B or are in 
addition to them.
21  With all due respect, simply defining "also" does not clarify the meaning of the 
sentence with respect to the rest of the panel request.  In addition, Argentina’s insistence that the panel 
request be read "as a whole" provides no clarification on this point.  The fact that this issue continues 
to be debated is itself evidence that the request was not clear.  
 
37. It should also be noted that Page Four – in stark contrast to the other portions of the request – 
does not provide a "brief summary" of the legal basis of the claim, as required by Article 6.2 of the 
DSU, regardless of Argentina’s assertions to the c ontrary.  In Sections A a nd B, Argentina provided a 
description of the measures being challenged.  On Page Four, Argentina did not.  There is no 
discussion between the relationship of the articles alleged to have been violated and the legal 
references on Page Four.  There is no summary of the legal basis of the claims – whatever they may 
be. 
 38. Argentina’s argument that third parties found th e claim to be "clear" is, frankly, not relevant; 
the third parties are not defending their laws, an d what may be "clear" enough for purposes of 
                                                     
 
20 Second Submission of Argentina, para. 199-200. 
21 Submission of Argentina on US Preliminary Request, para. 42. WT/DS268/R 
Page D-92  
 
determining third-party participation in a dispute is  not necessarily clear enough for the party forced 
to respond with precision to the claims being made.
22   
 
39. Argentina makes an even more striking argu ment in connection with the US' concerns that 
Argentina’s First Submission contains claims that are outside the terms of reference of the panel 
request.  According to Argentina, the United States must show that it suffered prejudice in order for 
the Panel to find these matters outside the terms of reference.23  There is no such requirement, and, not 
surprisingly, Argentina cites no support for this argument. 
 
40. Argentina’s prejudice argument implies that pa nel requests need only be drafted clearly if 
failure to do so would prejudice the respondent, and that these panel requests only form the terms of 
reference if failure to do so would prejudice the re spondent.  In other words, panel requests and the 
due process considerations of the DSU are mean ingless unless the respondent loses the case.  
Needless to say, such a results-oriented approach to  due process vitiates the procedural protections of 
the DSU. 
 41. Nonetheless, while nothing in the WTO agreem ents states that lack of prejudice cures a 
violation of DSU Article 6.2, the United States was in fact prejudiced by Argentina’s deficient panel 
request in this dispute.  As we noted at the first substantive meeting of the Panel, Argentina’s vague 
panel request resulted in the United States being un able to prepare its defence from the start.  One 
consequence of this is that we were rushed to complete our Firs t Submission, which caused us to 
neglect to address until the first Panel meeting Argentina’s improper request for a specific remedy 
from the Panel, as noted above. 
 
42. Finally, Argentina’s argument that the United States has not ma de its case with respect to its 
preliminary ruling request, and thus the Panel should simply disregard some of the US claims now,
24 
is without merit.  The United States has in fact ma de its case; Argentina has not rebutted these claims.  
 
* * * * * 
 
43. In closing, the United States urges the Panel to be mindful of two things in evaluating 
Argentina’s claims:  First, the obligations under Ar ticle 11.3 of the Anti-Dumping Agreement extend 
primarily to due process considerat ions.  Article 11.3 does not estab lish substantive requirements with 
regard to the methodology a Member employs in conducting a sunset review.  Second, with regard to 
the analysis underpinning the Commerce and ITC dete rminations, Article 17.6(i) provides that a panel 
may not overturn these determinations simply because another conclusion could have been drawn; if the Member establishes facts in a proper manner and examines those facts in a manner that is 
unbiased and objective, then the Member has met its obligations. 
 
44. In this case, the United States afforded resp ondent interested parties the opportunity to place 
facts and arguments on the record.  The United States evaluated those facts and arguments in an 
unbiased and objective manner.  Argentina’ s claims must therefore be rejected. 
 
45. Mr. Chairman, that concludes the opening statement of the United States for this second 
meeting of the Panel.  The US delegation looks forward to your questions. 
                                                     
 
22 Second Submission of Argentina, para. 257. 
23 Submission of Argentina on US Preliminary Request, para. 88. 
24 Second Submission of Argentina, para. 239.  WT/DS268/R 
 Page D-93 
 
 
 
Closing Statement – 3 February 2004  
 
 
1. Thank you very much.  We have a few points to make in closing, touching on a few key 
issues. 
 Issues Concerning the Likelihood of Continuation or Recurrence of Dumping 
 2. The United States is still of the view that the Sunset Policy Bulletin  is not a mandatory 
measure that can be challenged in WTO dispute settlement.  Although the Appellate Body reversed 
the panel on this issue in Japan Sunset  because it believed that the panel had not fully considered the 
relevant arguments, we are confident that this Panel,  in properly considering all the relevant factors, 
would reach the same conclusion as the Japan Sunset  panel.  Under US law, the Sunset Policy 
Bulletin  has no independent legal status; it is not a measure challengeable under WTO dispute 
settlement.  Nor does the Bulletin mandate any behaviour whatsoever.  This is true as a matter of fact, 
and any conclusion to the contrary would simply mischaracterize US law. 
 
3. Also, contrary to Argentina’s arguments, the statute, SAA, and the Sunset Policy Bulletin  – 
whether considered individually or on their own – do not presume an affirmative likelihood 
determination in every sunset review.  As explaine d in significant detail in the US First Submission, 
paras. 173-186, as the party asserting this fact, Argentina bears the burden of proving it; Argentina has 
failed to do so. 
 
4. With respect to the Sunset Policy Bulletin  and Section III.A.3, in particular, Argentina has 
failed to demonstrate that Commerce’s consideration of dumping and import volumes is determinative 
– as opposed to probative – with respect to likelihood.  In Japan Sunset , the Appellate Body itself 
recognized that Section III.A.3 does not necessarily instruct Commerce to treat these two factors as 
conclusive in every case (para. 181).  Nor do Argentina’s Exhibits 63 or 64 shed any light on the 
nature of the Policy Bulletin.  These charts contain no information concerning WHAT evidence was 
on the record in the sunset review and how Commer ce considered that evidence.  In Japan Sunset, the 
Appellate Body stated that the "probative value of the two factors for a likelihood determination in a 
sunset review will necessarily vary from case to case."   (Para. 176.)   Argentina’s Exhibits 63 and 64 
provide no insights into the facts of those cases with respect to informatio n on dumping and import 
volumes; nor do they indicate whether interested parties – domestic or respondent – provided any 
other information for Commerce’s consideration.  These charts, therefore, are meaningless.  
5. In contrast, the facts in this case are enligh tening.  Siderca knew a bout the initiation of the 
sunset review and the required content of the subs tantive response, but did not take advantage of its 
opportunities to submit explanatory information on its likely dumping beha viour or its import 
volumes.  As the Appellate Body stated in Japan Sunset , "The Anti-Dumping Agreement assigns a 
prominent role to interested parties ... and cont emplates that they will be a primary source of 
information . . . .  Company-specific data relevant to a likelihood determination under Article 11.3 can 
often be provided only by the companies themselves. . . .  [I]t is the exporters or producers themselves 
who often possess the best evidence  of their likely future pricing behaviour –  a key element in the 
likelihood of future dumping."  (Para. 199)  Neither Siderca, nor any other Argentine exporter or 
producer, provided such data.  The evidence that was provided led to Commerce’s affirmative 
likelihood determination, not any  "irrefutab le presumption" allegedly contained in the Sunset Policy 
Bulletin . 
 
6. In presenting questions on the dumping methodology, Argentina characterized the Japan 
Sunset report as interpreting the AD Agreement to require administering authorities to ensure that any 
margin on which they rely was calculated consistent  with Article 2.  We note again that Commerce 
did not rely on the magnitude of the dumping margin, but rather just the existence of continued WT/DS268/R 
Page D-94  
 
dumping throughout the existe nce of the order.  We also note that nothing in the Japan Sunset  report 
shifts the burden of proof for making a prima facie  case of a claim from the complainant to the 
respondent, as suggested by Argentina.   
 
7. We further note that Japan Sunset  found that there was no obligation to calculate a dumping 
margin in a sunset review and, in this case, th e United States did not calculate a dumping margin.  
While Japan Sunset  did allow that claims under Article 2 could be reached in a sunset review, that 
finding does not alter the application of Article 17  of the AD Agreement – that a panel examine a 
matter based upon the facts made av ailable in conformity with appr opriate domestic procedures and 
whether the establishment of the facts was proper an d whether the evaluation of the facts was proper, 
unbiased, and objective.    
8. While Argentina is not barred from raising its Article 2 claims before this Panel, the factual 
basis for that claim must be the Commerce record and here, Argentina has failed to establish that the 
record facts provide a basis for its claims.  As we noted in response to questions, and as Argentina 
agreed in paragraph 21 of its statement this morning, the Panel must limit its review to the record that 
was before the administering authority.  The Commerce record does not contain any calculation 
methodology – rather, it contains the final determ ination of Commerce from  the investigation.  
Argentina’s Exhibits 52 and 66A and B were not part of the record before Commerce and are not 
properly before this Panel.  In addition, even if the Panel were to consider Argentina’s exhibits, those 
exhibits, if anything, only confirm that the United States used a calculation methodology distinct from 
that considered in EC – Bed Linen .  Argentina has advanced no independent legal theory to support its 
Article 2 claim.  Thus, even if the principles of EC – Bed Linen  were applicable as stare decisis , 
which they are not, Argentina’s claim would fail. 
 
9. Argentina also argues that Commerce does not  seek out relevant information in sunset 
reviews or evaluate information in an objective manner.  Even a cursory review of the facts of this 
case belies Argentina’s view.  Commerce takes an ac tive role in every sunset review, whether full or 
expedited.  Commerce informs the foreign government  of an impending initiation of a sunset review 
and encourages that government’s participation in the sunset review.  Commerce publishes a notice of 
initiation of the sunset review.  Commerce has published its Sunset Regulations  containing the 
questionnaire.  These same regulations invite intere sted parties to submit any factual information or 
argument they wish Commerce to consider in the sunset review.  Far from being passive, Commerce 
actively seeks factual information and argument re levant to the likelihood dumping determination. 
 
10. As we noted earlier, Argentina fails to fully acknowledge the prominent role the AD 
Agreement assigns to interested parties.  In this case, neither Siderca nor any other foreign interested 
party provided any additional factual information in  the sunset review of OCTG from Argentina. 
 
11. For those foreign interested pa rties who failed to respond to the notice of initiation, they were 
deemed to have waived their rights to participat ion.  Argentina faults Commerce for not identifying 
the recalcitrant interested parties, rather than thes e parties themselves, despite the observation in Japan 
Sunset that company-specific data relevant to a li kelihood determination can often be provided only 
by the companies themselves.  Nothing in Article 11.3 or the AD Agreement requires the 
investigating authority to extract or divine inform ation that an interested party does not wish to 
submit.  Thus, any fault for the absence of informat ion on the administrative record of the sunset 
review of OCTG from Argentina can only be assign ed to Siderca and the non-responding respondents 
themselves.  WT/DS268/R 
 Page D-95 
 
 
Issues Concerning the Likelihood of Continuation or Recurrence of Injury 
 
12. We would also like to respond to just two points that Argentina made this morning 
concerning the injury part of this case.   
 
13. Our first point relates to Argentina’s statemen t that "when more future ‘variables’ are relied 
upon to support the likelihood of a particular occurrence happening . . . this actually leads one to the 
conclusion that such an occurrence is less likely  to happen."  (Argentina oral statement, para. 101.)  
What is Argentina suggesting?  That the United States should simplify its sunset review analysis, and 
consider fewer "future variables"?  Surely, this woul d run counter to the Appellate Body’s finding that 
authorities should conduct a "rigorous examination" in sunset reviews.  
14. Second, Argentina questions how an exporter ca n ever meet the ITC’s standard, given that the 
ITC will consider evidence of adverse impact from th e original injury investigation.  (Argentina oral 
statement, para. 89.)  The answer to this question lies close at hand – in the same ITC report that we 
are considering, the ITC made a negative likelih ood-of-injury determination for drill pipe from 
Argentina and Mexico, leading to the revocation of  those anti-dumping measures.  The answer also 
lies in the more than one third of the reviews in which the ITC made negative likelihood of injury 
determinations.  We ask the Panel to reject Argentina’s suggestion that the ITC imposes a standard 
that cannot be met. 
 
Procedural Issues 
 
15. With respect to Argentina’s request that th e Panel suggest "that the only way for the United 
States to comply with" any adverse "recommendations is through the immediate termination of the 
anti-dumping measure on OCTG from Argentina," in  addition to our statements at the first Panel 
meeting and in our opening statement this morning, the United States notes that Article 19.1 of the 
DSU provides first and foremost that, "[w]here a panel or the Appellate Body concludes that a 
measure is inconsistent with a covered agreement, it shall recommend that the Member concerned 
bring the measure into conformity with that agr eement."  This facilitates the goal of encouraging 
parties to reach mutually satisfactory solutions.  It also recognizes that a Member generally has many 
options available to it to bring a measure into co mpliance.  And although Article 19.1 also provides 
that, "[i]n addition to its recommendations, the pane l or Appellate Body may suggest ways in which 
the Member concerned could implement the recommend ations," most panels appropriately exercise 
their discretion to not provide such suggestions.  We believe that, since the US measures at issue 
already conform to the WTO agreements, there is no need for either a recommendation or a suggestion.  Nonetheless, should the Panel determin e otherwise, we believe that the Panel in this 
dispute should also decline to make any suggestions in this regard.  
 
16. With respect to prejudice, the United States has already responded to this issue in our First 
Submission (paras. 96-99) and our answers to the Pane l’s first set of questions (paras. 93-94).  While 
Argentina may not agree with our responses, we neve rtheless believe that our showing of prejudice is 
sufficient and valid.  Indeed, previous panels such as the panel in the Canada Wheat Board  dispute 
have relied on these very reasons, and we belie ve that this Panel should also follow suit.   
 
17. Further, the United States has not abandoned its claims concerning the preliminary rulings by 
failing to address them in its second substantive resp onse.  For the record, parties only abandon claims 
by doing so affirmatively.  In this instance, havi ng made its case, and having reviewed Argentina's 
detailed but unconvincing response to the US' clai ms, the United States made the decision to devote 
its resources to answering the panel's questions an d rebutting erroneous and mi sleading assertions in 
Argentina's oral presentation to the Panel in the fi rst substantive meeting.  Had Argentina's claims not 
been continually evolving and had Argentina presen ted the problem clearly at the beginning of this 
process, the United States could have afforded to de vote the time and energy to rebutting each line of 
Argentina's response.  If Argentina believes the Unit ed States has "abandoned" its due process claims WT/DS268/R 
Page D-96  
 
as a result of this supposed omission, then Argentin a has itself provided evidence of the prejudice the 
United States has suffered in these proceedings. 
 
18. Regardless, Argentina's argument that it may rely on the headings in the panel request to 
establish the claims in its panel request only confuses  the issues further.  There are two headings in 
the panel request.  There are apparently three sets of claims (including Page Four, if those are claims).  
The two headings refer to " the" determination.  Neither refers to the "as such" claims.  Therefore, the 
headings do not clarify the claims within them. 
 
19. In some cases, Argentina refers to the factua l background portion of the request to expand the 
claims contained therein.  Yet the last se ntence of that section states that the " specific claims " are set 
forth below. 
 
20. This concludes our closing statement.  We w ould of course be happy to elaborate further on 
any of the issues raised today, should the Panel wish to ask additional questions.  Thank you again for 
your time and attention.