WT/DS605/6  
 
22 September 2023  
(23-6336) Page: 1/9 
  Original: Spanish  
 
DOMINICAN REPUBLIC - ANTI -DUMPING MEASURES ON CORRUGATED  STEEL BARS  
NOTIFICATION OF AN APPEAL BY THE DOMINICAN REPUBLIC UNDER ARTICLE 16.4  
AND ARTICLE 17.1 OF THE UNDERSTANDING ON RULES AND PROCEDURES  
GOVERNING THE  SETTLEMENT OF DISPUTES (DSU), AND UNDER  
RULE 20(1) OF THE  WORKING PROCEDURES FOR  
APPELLATE REVIEW  
The following communication, dated 18 September 2023, from the delegation of the Do minican 
Republic, is being circulated to Members.  
 
_______________  
 
 
1. Pursuant to Articles 16.4 and 17.1 of the Understanding on Rules and Procedures Governing 
the Settlement of Disputes (DSU), the Dominican Republic hereby notifies the Dispute Settlemen t 
Body of its decision to appeal to the Appellate Body certain issues of law and legal interpretations in 
the report of the panel established to hear the case Dominican Republic - Anti-dumping Measures 
on Corrugated Steel Bars (WT/DS605/R) . Pursuant to Rul e 20(1) of the Working Procedures for 
Appellate  Review, the Dominican Republic simultaneously files this Notice of Appeal with the 
Appellate Body Secretariat. The appeal is restricted to errors that the Dominican Republic considers 
to be serious errors of law or legal interpretation that need to be corrected. However, the fact that 
an issue in the Panel Report has not been appealed, does not mean that the Dominican Republic 
agrees with the Panel's specific decision or interpretation.  
2. For reasons that wil l be set out in greater deal in its submissions to the Appellate Body, the 
Dominican Republic appeals and requests the Appellate Body to reverse, amend or declare moot and 
of no legal effect, the following findings, conclusions, rulings and recommendations  of the Panel with 
respect to errors of law or legal interpretation contained in the Panel Report.1 
The Panel's conclusion regarding the violation of Article  2.4 of the Anti -Dumping 
Agreement is in error  
3. The Dominican Republic appeals the findings i n which the Panel states that the Dominican 
Republic violated Article 2.4 of the Anti -Dumping Agreement because it failed to exclude from the 
determination of export sales, two sales invoiced just prior to the start of the period of investigation , 
but whic h entered the country during the period of investigation,  and which were included as such 
by the exporter in its response to the questionnaire for exporters. The Panel thus erred in law in its 
conclusion by stating that "the CDC failed to comply with the r equirement in the second sentence of 
Article 2.4 to make the comparison between the export price and the normal value 'in respect of 
sales made at as nearly as possible the same time', as it considered sales made in different periods, 
one to determine the normal value and another to determine the export price".2  
4. It is important to note that the Regulatory Commission on Unfair Trade Practices and 
Safeguard Measures of the Dominican  Republic (CDC) used the same period of investigation for sales 
 
1 The paragraphs listed in the Notice of Appeal form an "indicative list" only of the relevant parts of the 
Panel Report, pursuant to Rule  20(2)(d)(iii) of the Working Procedures for Appellate Review. Errors in the 
issues of law may also be reflected in or have consequences for other parts of the Panel Report. The 
Dominican  Republic appeals all analyses, finding s and conclusions deriving from or based on appealed errors.  
2 Panel Report, Dominican Republic - AD on Steel Bars (Costa  Rica) (WT/DS605/R) (henceforth "Panel 
Report"), para. 7.70.  WT/DS605/6  
 
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  in the Costa  Rican market as for export sales. Moreover, the CDC used ex actly the same data as the 
exporter included in its response to the questionnaire. The exporter submitted its data on domestic  
market  sales during the period of investigation , taking into account the date of the sales invoice, 
while for export sales, it us ed the date of entry of the product  into the Dominican Republic. The CDC 
accepted these data and criteria (such as the date of entry for export sales) used by the exporter. 
However, this difference in criteria, and in particular the use of the date of entr y of the product  into 
the Dominican Republic for export sales, is the only basis for the Panel's decision.  
5. The Panel's finding of a violation of Article 2.4 of the Anti -Dumping Agreement is affected by 
a series of errors of law.  
6. First, the Panel err oneously considers that Article 2.4 governs the investigating authority's 
determination of the export price (such as the matter  of which export transactions must be included 
in that determination of the export price).3 However, Article 2.4 does not refer to the determination 
of the normal value and the export price, but only to the comparison  between them once both values 
have been established.  
7. In this connection, it is important to note that neither Costa Rica in this case, nor the 
Costa  Rican exporter  in the underlying investigation, argued that an adjustment  was needed to 
reflect an alleged difference between the normal value and the export price in order to ensure a "fair 
comparison". Rather, both argued that certain export transactions should have b een excluded  from 
the analysis when determining the export price. Consequently, their arguments address the 
determination of the export price. The determination of the normal value and export price is 
governed by Articles  2.1, 2.2 and 2.3, not Article 2.4.  Article 2.4 does not refer to the determination 
of the normal value or export price; instead , it refers only to the obligation to ensure a fair 
comparison between them once these two determinants have been established. On that basis alone, 
the Panel shoul d have rejected Costa Rica's claim under Article 2.4 and, thus, its finding of a violation 
is an error of law.  
8. Second, the Panel's finding that the CDC acted inconsistently with Article 2.4 of the 
Anti-Dumping Agreement because it failed to make the co mparison between the normal value and 
the export price "in respect of sales made at as nearly as possible the same time" is wrong.4 It is 
based on an incorrect legal interpretation of Article 2.4 , in the light of Article 2.1. Moreover, the 
Panel's applica tion of the standard to the facts of this case is equally erroneous and constitutes an 
error of law.  
9. Article 2.4 does not require the use of a period of investigation, and certainly does not set 
forth criteria for determining whether sales are made at "as nearly as possible the same time". Thus, 
the Panel's finding of a violation is not supported by the  text of the  Agreement, under which the 
determination of the period of investigation and the criteria used to  determin e whether an export 
sale was made d uring the period of investigation are left to the discretion of the investigating 
authority.  
10. It is customary  to use a period of investigation that is sufficiently recent and to compare the 
prices of domestic and export sales made during this period of investigation. This is what the CDC 
also did. Costa Rica has not disagreed with the CDC's selection of the period of investigation in this 
case. Moreover, nothing in Article 2.4 requires an investigating authority to use a specific criterion 
to identify re levant transactions that fall within this period of investigation, provided that these 
transactions correspond to a properly established period of investigation.  
11. The Panel's finding that the CDC considered export sales and domestic sales "made in diff erent 
periods"5 is incorrect, as the same period of investigation was used for both the normal value and 
for the export price.  
12. The only reason for the Panel's finding of a violation is the fact that the criterion used to 
determine whether export sales  were made during the period of investigation was their date of entry, 
while the criterion for including domestic sales was the date of invoice.6 There is no textual basis for 
 
3 Panel Report, paras.  7.32 and 7.33.  
4 Panel  Report, paras.  7.45, 7.55, 7.61 and 7.64.  
5 Panel Report, para. 7.70.  
6 Panel Report, paras. 7.45, 7.55 and 7.64.  WT/DS605/6  
 
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  demanding complete parallelism in terms of the criteria to be used. In fact, gi ven that, for obvious 
reasons, the "date of entry" in the country cannot be used as a criterion for determining which 
domestic sales are covered, the Panel effectively disregarded this criterion without an adequate legal 
basis.  
13. Moreover, this finding i s based on an incorrect legal interpretation of the term "dumping" in 
Article 2.1 and wrongly imposes an obligation , not reflected in Article 2.4 , to use  the date of invoice 
to determine the date of export sale. In any event, Article 2.1 defines the term " dumping" by making 
reference to sales that are "introduced into the commerce" at less than their normal value, thereby 
confirming that the use of the date of entry is a totally acceptable criterion for determining whether 
export sales were made during the period of investigation (as the CDC did). The date of entry is, in 
effect, the moment at which a product is "introduced" into the commerce and is thus a legitimate 
criterion for determining whether sales were made during the period of investigation. Under 
Article  17.6(ii) of the Anti -Dumping Agreement, the use of the date of entry for determining whether 
export sales were made during the period of investigation is one permissible interpretation of 
Articles  2.1 and 2.4; and, therefore, the Panel had no basis for overturning the use of this criterion.  
14. Third, the Panel erroneously considered that this alleged lack of parallelism failed to ensure a 
"fair" comparison, which would "compromis[e] the fair comparison for the purposes of the margin 
of dumping  calculation". However, the Panel neglected to examine whether this was the case in view 
of the facts in question. Nor did the Panel apply the Agreement correctly to the facts of this case, 
since it failed to  establish that the mere fact that some export s ales were invoiced just a few days 
prior to the start of the period of investigation meant that the authorities had not  consider ed sales 
made at as nearly as possible the same time.  
15. Given that the difference between the date of invoice and the start of  the period of 
investigation of these sales was only one month for the first export sale and three days for the other 
export sale, it was incumbent upon Costa  Rica to demonstrate that this difference affected the 
fairness of the comparison and upon the Pan el to examine that . This was also not the case. In fact, 
and very importantly in terms of what constitutes a "fair" comparison, it was the exporter itself that 
included these two export sales in the response to the questionnaire and that used the criterion  of 
"date of entry into the Dominican Republic" as a decisive criterion.7 Clearly, the exporter did not 
consider the comparison to be problematic or unfair when it responded to the questionnaire. It was 
only after the disclosure of the essential facts tha t the exporter requested the exclusion of these two 
export sales, without, however, providing a convincing explanation to support that request. 
Moreover, in order to find a violation of Article 2.4, it was incumbent upon the Panel to establish 
that the tem poral difference had an impact on the comparability of the prices and that the CDC's 
decision to use the data provided by the export er was not objective. The Panel failed to do so. The 
foregoing constitutes a failure to apply the standard to the facts of t he case and is, therefore, an 
error of law.  
16. Fourth, in making its finding of a violation of Article 2.4, the Panel failed to respect its terms 
of reference  under Article 17.6 of the Anti -Dumping Agreement. Its task was to examine whether 
the Investigat ing Authority's establishment of the facts was proper and whether its evaluation of 
those facts was unbiased and objective. It is not for the panel to assume the role of the investigating 
authority and decide what it would have done or what the authority m ight have done in this position. 
The Panel failed to respect this standard in its review.  
17. An objective assessment of the facts by the Panel would have reflected that certain 
observations made by the exporter under investigation were in response to the  disclosure of the 
essential facts in November 2019,8 at the end of the investigation, and more than one year after the 
verification visit. This also meant that the CDC did not have time to examine the veracity of 
statements regarding the alleged increase  in costs in the months prior to the start of the period of 
investigation. The Panel disregarded the clear warning contained in Article 6.14 of the Anti -Dumping 
Agreement that the procedures are not intended to prevent the authorities from proceeding 
exped itiously, and, pursuant to  the obligation set forth in Article 5.1 0, from normally concluding the 
investigation within one year, and in no case more than 18 months, after its initiation.  
 
7 Panel Report, para. 7.49.  
8 Panel Report, para. 7.49.  WT/DS605/6  
 
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  18. Similarly, the Panel's apparent acceptance of the unsubstantiated  assertion that costs 
increased in the months prior to the start of the period of investigation, is equally not consistent 
with the Panel's obligation to make an objective assessment of the facts as stipulated in Article 11 
of the DSU.9 The Panel complete ly neglected to explain why it would have been biased and 
unobjective of the Investigating Authority to reject the incomplete table of costs provided by the 
exporter without supporting evidence and subsequent to the disclosure of the essential facts.  
19. Equally, this table of costs did not provide any information for March 2017 and certainly did 
not support the assertion that costs  had increased between February and March 2017, when the first 
of the contested export sales was invoiced, and in May 2017, wh en the period of investigation began. 
In fact, the table provided by the exporter at that late stage of the investigation, did not contain any 
information for March 2017 and the information corresponding to February 2017 showed that the 
costs of inputs rem ained exactly the same when compared with May 2017, the date the period of 
investigation began.  
20. The Panel failed to respect the standard of review under Article 17.6(i) and Article 11 of the 
DSU, which is another clear error of law that undermines its finding of a violation of Article 2.4 of 
the Anti -Dumping Agreement.  
21. Consequently, the Dominican Republic respectfully requests the Appellate Body to reverse the 
Panel's finding with respect to the violation of Article 2.4 of the Anti -Dumping Agreement , as set out 
in paragraph 8.1 .a.i. of the Panel Report and in the aforementioned paragraphs.  
The Panel's conclusion regarding the violation of Article 2.2.1 of the Anti -Dumping 
Agreement is in error  
22. The Panel erred in law in its legal interpretation of Article 2.2.1 of the Anti -Dumping Agreement 
and also committed an error of law in its application of the provision to the facts in this case, by 
concluding that the CDC acted inconsistently with Article  2.2.1. The Dominican Republic appeals the 
Panel's finding that the CDC violated Article 2.2.1 by using the annual cost data provided by the 
exporter in the questionnaire response, to assess whether domestic sales were below cost.  
23. In particular, first, the Panel's finding "that the Dominican Republic acted inconsistently with 
Article 2.2.1 of the Anti -Dumping Agreement when the CDC performed its cost test analysis using 
an annual weighted average cost"10 is based on an incorrect interp retation of Article 2.2.1, since 
Article 2.2.1 is silent on whether daily, weekly, monthly or annual cost data should be used when 
examining whether sales were below per unit cost at the time of sale. Thus, to the extent that the 
costs relate to the period  during which the sales at issue occurred, Article 2.2.1 does not require an 
authority to use daily, weekly, monthly or annual cost data and gives the investigating authority 
discretion over the cost data to be used for examining below -cost sales. The CDC correctly assessed 
prices in the light of the weighted costs for the period of investigation.  
24. There is no textual legal basis for the Panel's finding that Article 2.2.1 does not establish 
discretion to use annual cost data11 and that it would be "reas onable to use a methodology that 
takes into account the costs at the time of sale determined on a basis other than the annual weighted 
average per unit cost".12 Therefore, nor is there any legal basis in Article 2.2.1 for the Panel's finding 
that the use o f annual cost data by the CDC violated Article 2.2.1.13 The use of annual cost data is 
clearly a permissible interpretation of Article 2.2.1, and the Panel's finding to the contrary constitutes 
an error of law. The Panel acted inconsistently with its terms  of reference under Article 17.6(ii) of 
the Anti -Dumping Agreement.  
25. Second, the Panel erred in law when it developed certain criteria for the mandatory use of 
monthly cost data, as there is no legal basis for any such criteria in the Anti -Dumping Agree ment. 
The Panel's finding that the use of annual cost data may be permissible in a situation where prices 
and costs are "relatively stable" compared to a situation where costs "increase significantly" during 
 
9 Panel Report, paras. 7.54 -7.55. 
10 Panel Report, para. 7.106.  
11 Panel Report, para. 7.97.  
12 Panel Report, para. 7.99.  
13 Panel Report, para. 7.105.  WT/DS605/6  
 
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  the period of investigation14, is in no way base d on any provision of the text of the Anti -Dumping 
Agreement and remains completely vague and undefined. On the basis of these newly invented 
criteria, the Panel reached its conclusion that the CDC was in violation of Article 2.2.1 of the 
Anti-Dumping Agre ement.15 This finding is therefore based on a clear error of law, as there is no 
legal basis requiring an authority to examine those criteria in accordance with Article 2.2.1.  
26. Third, the Panel failed to respect its terms of reference under Article 17.6 (i) of the 
Anti-Dumping Agreement and Article 11 of the DSU. The Panel based its finding of violation on 
assertions regarding the increase in costs and prices of billets during the period of investigation that 
were not supported by any evidence, as they we re, in addition, submitted too late in the investigation 
for consideration by the CDC.  
27. In particular, the Panel referred to arguments that the cost of the main feedstock (billets) 
increased during the period of investigation and that this would have ha d a direct effect on the 
outcome of the examination of below -cost sales.16  
28. However, these assertions were never made, let alone substantiated by means of factual data 
during the investigation, until after the disclosure of the essential facts. The Pan el once again 
disregards the important temporal progression of an investigation, contrary to the provisions of 
Articles  5.10 and 6.14 of the Anti -Dumping Agreement. The exporter did not provide monthly cost 
data until after the disclosure of the essential facts and did not provide any data or information 
supporting the "mandatory" use of such monthly data.  
29. It should be noted that the information was provided very late in the investigation, including 
many months after the verification visit. And when it  was, it was checked taking into account that 
there was no clear difference regarding costs, which would have required an objective investigating 
authority to change the parameters of its below -cost examination, despite there being no legal 
obligation for such a requirement. Thus, since the Anti -Dumping Agreement does not set out any 
obligation to use monthly costs, it was a reasonable decision for the CDC to not change, at that late 
stage, its determinations on the basis of information that the exporter co uld have provided before 
the verification visit. The Panel's conclusion that the CDC "fail[ed] to take into account a significant 
number of sales made in the first few months of the POI that were not in fact below cost "17 is entirely 
without merit, and is not based on the facts on the record, since these monthly costs were never 
verified. This " de novo " conclusion of the Panel demonstrates that the Panel violated its terms of 
reference under Article 17.6 of the Anti -Dumping Agreement since it is not an "obj ective" assessment 
as required by Article 11 of the DSU.  
30. The Dominican Republic notes that the Panel also asserts that the CDC should have been 
aware of the alleged increasing costs even before the communication submitted by the exporter at 
the end of the investigation, because this fact was raised by the applicant in September 2018.18 
However, the Panel's conclusion fails to establish that this isolated comment was made by the 
applicant in an entirely different context, that of comments regarding injur y, without providing any 
supporting evidence. Furthermore, the information did not indicate any increase in costs so 
exceptional and large as to require the CDC not to use an annual average. The Panel completely fails 
to establish that this comment was suc h that the use of annual cost data (provided by the exporter 
itself in its questionnaire response) could not be "objective" or unbiased. Once again, the Panel 
appears to be acting in disregard of the terms of reference of Article 17.6(i), which make it ver y 
clear that it is possible to overturn an authority's evaluation simply because the Panel in its position 
would have done things differently.  
31. Lastly, it appears that the Panel considered that the fact that the majority of below -cost sales 
are concentr ated in the first months of the investigation period "indicates to an investigating 
authority that there may be possible bias in the below -cost sales analysis".19 However, there is no 
legal basis for this assumption. It would be a different scenario if cos ts had increased during the 
period of investigation and almost all sales had been concentrated at the beginning of the 
 
14 Panel Report, paras. 7.99 and 7.100.  
15 Panel Report, para. 7.105.  
16 Panel Report, paras. 7.92 and 7.100 -7.104.  
17 Panel Report, para. 7.105.  
18 Panel Report, para. 7.101.  
19 Panel Report, para. 7.104.  WT/DS605/6  
 
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  investigation; in such a scenario, there may be a risk of bias. But here, this was not the case. As 
reflected in the Panel Report, "the s ales volume was relatively constant and sales were not negligible 
in any month during the POI".20  
32. For all these reasons, the Dominican Republic respectfully requests the Appellate Body to 
reverse the Panel's finding concerning the violation of Article  2.2.1, as set out in paragraph  8.1.a.iii 
of the Panel Report and in the aforementioned paragraphs.  
The Panel's conclusion that the CDC acted inconsistently with Articles 3.1 and 3.2 of 
the Anti -Dumping Agreement in relation to price depression is in error  
33. The Panel erred in law by finding that the CDC acted inconsistently with Articles 3.1 and 3.2 
of the Anti -Dumping Agreement with respect to the price depression analysis. Contrary to the Panel's 
conclusion, the CDC complied with the obligation se t out in Articles 3.1 and 3.2 to "examine" 
objectively and on the basis of positive evidence, the effect of the dumped imports on prices, 
including whether the effect of these imports was to depress prices to a significant degree. The CDC 
obtained a series  of correct intermediate results that reflected proper consideration of the price 
effects, recognizing also that prices increased during the most recent period of the period of 
investigation, as clearly shown in table 24 of the CDC's Final Technical Report  and as expressed also 
in the price suppression analysis.  
34. The Panel's finding that "[i]n order to conduct an objective examination, the Investigating 
Authority should have explained that there was a price decrease from 2015 to 2016" and that "the 
price rose during the subsequent periods"21 and that "the CDC did not explain the price's upward 
trend throughout the period 2016 -2018 or the fact that the average price at the end of the POI was 
almost the same as in 2015"22, establishes an obligation wit h respect to Article 3.2 that does not 
exist in that Article. The Panel's finding that "[t]he absence of such explanations" leads the Panel to 
conclude that the price depression analysis was not objective is in error.23 The Panel confuses the 
substantive obligation to objectively examine the price effects with the non -existent obligation to 
make a "determination" regarding price depression and to provide a detailed explanation of this in 
the authorities' report. Article 3.2 does not require a "determination", let alone that such a 
determination be accompanied by a descriptive and written explanation.  
35. Furthermore, the Panel's conclusions fail to confirm the lack of "objective" assessment by the 
CDC. The Panel's asserti on that the CDC's failure to explain that prices actually increased from 2016 
contradicts its own finding that the CDC properly considered there to be price suppression24, which 
inherently reflects a recognition that prices increased, but not to the extent  anticipated. The Panel 
denies that the CDC's examination of price trends clearly and expressly included a table 24 showing 
that prices in fact increased in 2016 -2017, but less than costs, and that the increase did not offset 
the fall in prices in the firs t period. The price analysis was objective and unbiased. It is an error of 
law for the Panel to conclude otherwise solely on the basis that this explanation has not been 
repeated in a part of the CDC's Final Technical Report.  
36. The Dominican Republic the refore respectfully requests the Appellate Body to reverse the 
Panel's finding with respect to the violation of Articles 3.1 and 3.2, as set out in paragraph  8.1.b.iii. 
of the Panel Report and in the aforementioned paragraphs.  
The Panel's conclusion re garding the violation of Articles 3.1 and 3.4 of the 
Anti-Dumping Agreement is in error  
37. The Panel erred in law by finding that the CDC acted inconsistently with Articles 3.1 and 3.4 
of the Anti -Dumping Agreement in relation to certain aspects of the an alysis of the impact of the 
injury factors that supported its threat of injury determination.  
 
20 Panel Report, para. 7.103.  
21 Panel Report, para. 7.163.  
22 Panel Report, para. 7.162.  
23 Panel Report, paras. 7.163 and 7.167.  
24 Panel Report, paras. 7.178 and 7.179.  WT/DS605/6  
 
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  38. First, the Panel erred by considering that the CDC was violating Article 3.425, since the CDC 
did not make a determination of injury under Article 3.4. While the Dominican Republic recognizes 
that a threat of injury analysis under Article 3.7 is based on an analysis of the injury factors listed 
in Article 3.4, any claim of violation may only be made under Article 3.7 when no finding of material 
injury is made u nder Article 3.4, as was the case here.  
39. Second, the Panel erred in considering that the CDC did not objectively assess certain injury 
factors, such as profits, cash flow, employment and loss of market share, and failed to adequately 
explain the positiv e development of other injury factors.26 The Panel imposes a requirement for a 
detailed explanation of the impact of dumped imports on each individual factor and at each point 
during the investigation period, which is not provided for in Articles 3.1 and 3 .4. Pursuant to 
Article  17.6(i) of the Anti -Dumping Agreement, the Panel's task was to examine whether the 
evaluation of these factors was biased or unobjective, and not to examine whether the explanation 
provided was sufficiently detailed. The Panel faile d to do so and imposed a detailed explanation 
standard with respect to the evolution of each of the factors that is not found in the text of Article  3.4. 
40. Third, the Panel's finding that Article 3.4 requires an evaluation of the effects of the dumped 
imports on the domestic industry is based on an incorrect interpretation of Article 3.4. The Panel 
requires an investigating authority not only to evaluate the state of the domestic industry, but also 
to provide a reasoned and proper analysis of the causal l ink between these developments and the 
dumped imports, on the one hand, and between the trends in each factor, on the other, in order to 
determine the "relative weight" of each factor. This interpretation of what Article 3.4 requires is in 
error and is not  based on the text of Article 3.4.27 The Panel failed to identify any improper evaluation 
of the facts or any biased evaluation of those facts by the CDC, and its conclusion that Article 3.4 
has been violated is therefore erroneous.  
41. The Dominican Repub lic therefore respectfully requests the Appellate Body to reverse the 
Panel's findings in paragraph 8.1.b.v. of the Panel Report and in the aforementioned paragraphs.  
The Panel's conclusion regarding the violation of Articles  3.1 and 3.7 of the 
Anti-Dum ping Agreement is in error  
42. The Panel erred in law by finding that the CDC acted inconsistently with Articles  3.1 and 3.7 
of the Anti -Dumping Agreement in relation to the finding of a threat of injury to the domestic 
industry.  
43. First, Article  3.7 req uires an investigating authority to consider four factors. It is undisputed 
that the CDC examined these four factors in their entirety. In particular, Article  3.7 requires 
authorities to consider whether there has been a significant increase in dumped impo rts, as this 
would indicate the likelihood of substantially increased importation in the future. However, the Panel 
interprets this as two obligations: to examine whether there has been a significant rate of increase 
and to explain why there would be a lik elihood of substantially increased importation in the future.28 
This is incorrect. The existence of a significant rate of increase of dumped imports is the indication 
of the  likelihood of substantially increased importation. In this connection, as there is  no doubt that 
imports increased significantly during the period of investigation, even in the last four months, the 
Panel had no grounds for finding that the CDC had failed to properly consider this factor.29 
44. Similarly, in Article  3.7(iii), when consi dering whether imports "are entering" at prices that 
will have a significant depressing or suppressing effect on domestic prices, and would likely increase 
demand for further imports, the focus is on the current situation rather than the future. However, 
again, the Panel imposes an obligation to conduct a "prospective" analysis30, which is not supported 
 
25 Panel Report, para. 7.231.  
26 Panel Report, para. 7.231.  
27 See, for example, Panel Report, paras. 7.195, 7.199, 7.200, 7.204, 7.206, 7.213, 7.217, 7.227, 
7.229, 7.230 and 7.231.  
28 Panel Report, paras.  7.257 and 7.286.  
29 Panel Report, paras.  7.257 and 7.298.  
30 Panel Report, para.  7.274.  WT/DS605/6  
 
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  by the text of Article  3.7. Its related finding of a violation of Article  3.7, because the projections 
made by the CDC lacked a factual basis, is therefore equally erroneous.31 
45. Second, the Panel erred in considering that the totality of the factors considered, all of which 
supported a conclusion that dumped imports would increase in the future and cause additional price 
or volume effects, was not sufficient, and that the CDC was further obligated to explain the market 
dynamics that would lead to future dumped imports and prices.32 There is no such obligation in the 
text of Article  3.7 of the Anti -Dumping  Agreement.   
46. Third, the Panel recalled the CDC's numerous findings supporting the threat of injury analysis, 
including a forward -looking set of projections based on the facts on the record. These projections 
may not have been perfect and involved some element of unavoidable speculation , but they did 
confirm the conclusions drawn on the basis of the facts. Despite the absence of evidence 
contradicting these findings, the Panel criticized the CDC for allegedly not having provided further 
explanations and evidence to support its projection s.33 In so doing, the Panel was again in breach 
of its narrower terms of reference under Article  17.6(i) of the Anti -Dumping Agreement. It was not 
for the Panel to decide what it would have done if it had been the investigating authority, rather its 
role is to examine whether what the CDC did was unbiased and objective. However, the Panel did 
not do so. It is not because further explanations could have been offered that an evaluation is biased. 
The Panel's subsequent finding that the CDC's conclusion "could  not form the basis for its threat of 
injury determination"34 is also erroneous.  
47. For all these reasons, the Dominican  Republic respectfully requests the Appellate  Body to 
reverse the Panel's findings in paragraph 8.1.b.vii. of the Panel Report and the aforementioned 
paragraphs.  
The Panel's conclusion regarding the violation of Articles  3.1 and 3.5 of the 
Anti-Dumping Agreement is in error  
48. The Panel erred in law in its legal interpretation of Articles  3.1 and 3.5 of the Anti -Dumping 
Agreement and  thus committed an error in law when applying this legal standard to the facts of this 
case, by concluding that the CDC acted inconsistently with Articles  3.1 and 3.5 in relation to the 
determination of causation.  
49. The Panel's legal interpretation of Ar ticles 3.1 and 3.5 in the context of a determination of a 
threat of injury, which requires a demonstration of "future" causation by future imports, is based on 
a clear error of law and is not supported by the text of these provisions. The Panel faulted the  CDC 
for not making reference to how future injury  would be caused by further and future dumped  
imports .35 However, this interpretation is not consistent with the text of the relevant provisions, and 
thus constitutes an error of law. The obligation under A rticle 3.5 is to demonstrate that the dumped 
imports are causing  injury, not that they will cause  injury. Article  3.5 does not set a different test 
for threat of injury situations and does not require an analysis of how further, future dumped imports 
would  cause injury in the future.  
50. The term "injury" used in Article  3.5 includes "threat of injury" in accordance with footnote 9. 
Therefore, the proper test under Article  3.5 is whether current dumped imports are a cause of threat 
of injury at the time of  the investigation. The Panel's contrary interpretation is erroneous, and so is 
its conclusion on the facts of this case based on this erroneous legal interpretation.  
51. Therefore, the Dominican  Republic respectfully requests the Appellate  Body to reverse  the 
Panel's findings in paragraph 8.1.b.viii. of the Panel Report and in the aforementioned paragraphs.  
Conclusion  
52. For all of the foregoing reasons, the Dominican  Republic respectfully requests the 
Appellate  Body to reverse the interpretations an d findings of the Panel identified in this Notification 
 
31 Panel Report, para.  7.278.  
32 Panel Report, paras.  7.289 and 7.294.  
33 Panel Report, paras.  7.286 -7.296.  
34 Panel Report, para.  7.298.  
35 Panel Report, paras.  7.317, 7.320, 7.321 and 7.327.  WT/DS605/6  
 
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  of Appeal. The aforementioned grounds for appeal are without prejudice to the more detailed 
arguments to be set forth in the Dominican  Republic's appellate submission during the appeal.  
53. In the eve nt of a cross -appeal by Costa  Rica, the Dominican  Republic reserves the right, in 
addressing any such cross -appeal, to disagree with any statement by or finding of the Panel made 
in the context of a matter on which the Dominican  Republic prevailed.  
54. In initiating this appeal, pursuant to Article 16.4 of the DSU and Rule 20(1) of the Working 
Procedures for Appellate Review, the Dominican  Republic is aware that, as a matter of fact, the 
Appellate Body is, temporarily, unable to function, given that there a re currently no Appellate Body 
Members to constitute a division to hear the Dominican  Republic's appeal.  
55. In these exceptional circumstances, and in the interests of fairness and orderly procedure in 
the conduct of the appeal, in accordance with Rules 16(1) and 16(2) of the Working Procedures for 
Appellate Review, the Dominican  Republic will await further instructions from the division, when it 
may eventually be composed, or the Appellate Body, regarding any further steps to be taken by the 
Dominican  Republic in this appeal. The Dominican  Republic thus reserves the right to submit an 
appellant submission when it will be so instructed.36 
 
__________  
 
36 In the absence of such instructions, this notification is deemed also to be the Dominican  Republic's 
appellant submission.