WORLD TRADE
ORGANIZATIONWT/DS122/R
28 September 2000
(00-3717)
Original: English
THAILAND – ANTI-DUMPING DUTIES ON ANGLES,
SHAPES AND SECTIONS OF IRON OR NON-ALLOY
STEEL AND H-BEAMS FROM POLAND
Report of the Panel
The report of the Panel on Thailand-Anti-Dumping Duties on Angles, Shapes and Sections of Iron or
Non-Alloy Steel and H-Beams from Poland is being ci rculated to all Members, pursuant to the DSU.
The report is being circulated as an unrestricted document from 28 September 2000 pursuant to theProcedures for the Circulation and Derestricti on of WTO Documents (WT/L/160/Rev.1).  Members
are reminded that in accordance with the DSU only parties to the dispute may appeal a panel report.
An appeal shall be limited to issues of law covered in the Panel report and legal interpretations
developed by the Panel.  There shall be no ex parte  communications with the Panel or Appellate Body
concerning matters under consideration by the Panel or Appellate Body.
Note by the Secretariat:  This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the
date of its circulation unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report .
If the Panel Report is appealed to the Appellate Body, it sha ll not be considered for adoption by the DSB until after the
completion of the appeal.  Information on the current status of the Panel Report is available from the WTO Secretariat.WT/DS122/R
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TABLE OF CONTENTS
Page
I. INTRODUCTION ................................................................................................................. ............... 1
II. FACTUAL ASPECTS............................................................................................................. ............. 1
III. PARTIES' REQUESTS FOR FI NDINGS AND RECO MMENDATIO NS..................................... 3
A. P OLAND ............................................................................................................................... .................... 3
B. THAILAND ............................................................................................................................... ................. 4
IV. ARGUMENTS OF THE PARTIES .................................................................................................... 4
A. MAIN ARGUMENTS OF THE PARTIES ......................................................................................................... 4
B. ARGUMENTS CONCERNING SUBMISSION OF CERTAIN CONFIDENTIAL INFORMATION ................................ 4
V. SUBMISSION OF CERTAIN CONFIDENTIAL INFORMATION BY THAILAND.................. 4
VI. INTERIM REVIEW.............................................................................................................. ............... 6
A. COMMENTS BY POLAND ........................................................................................................................... 6
B. COMMENTS BY THAILAND ........................................................................................................................ 6
VII. REASONING AND FINDINGS..................................................................................................... ..... 7
A. PRELIMINARY ISSUES ............................................................................................................................... 7
1. Alleged insufficiency of the request fo r establishment under Article 6.2 DSU....................................... 7
(a) Requests by Thailand pursuant to Article 6.2 DSU ............................................................................ ............ 7
(b) Arguments of the parties.................................................................................................... ............................. 7
(i) Thailand.................................................................................................................... ................................. 7
(ii) Poland..................................................................................................................... ................................... 8
(c) Text of Poland's Request for Establishment .................................................................................. ................. 9
(d) Evaluation by  the Panel ..................................................................................................... ............................. 9
(i) Introduction ................................................................................................................ ............................... 9
(ii) Alleged insufficiency of the request for establis hment under Article 6.2 DSU with respect to Poland's
claims under Articles 5 and 6 of the AD Agreement .............................................................................. .1 1
Article 5 of the AD Agreement.................................................................................................. ................... 11
Article 6 of the AD Agreement.................................................................................................. ................... 13
(iii) Alleged insufficiency of the request for establis hment under Article 6.2 DSU with respect to Poland's
claims under Articles 2 and 3 of the AD Agr eement and Article VI of the GATT 1994 ......................... 14
Article 2 of the AD Agreement.................................................................................................. ................... 15
Article 3 of the AD Agreement.................................................................................................. ................... 15
Was Thailand's ability to defend itself prejudiced with respect to Poland's claims under Articles 2 and 3 of
the AD Agreement and Artic le VI of the GATT 1994?.............................................................................. .. 16
(iv) Additional arguments of Thailand concerning the alleged insufficiency of the request for
establishment .................................................................................................................. ......................... 17
(e) Conclusion.................................................................................................................. .................................. 19
B. G ENERAL REMARKS .............................................................................................................................. 1 9
1. Burden of Proof .............................................................................................................. ...................... 19
2. Standard of  Review........................................................................................................... .................... 20
3. Confidential In formation submitted by Thailand............................................................................... ... 21
C. E VALUATION OF CLAIMS ....................................................................................................................... 22
1. Article 5 of the AD Agreement:  Initiation................................................................................... ......... 22
(a) Article 5.2 and 5.3: alleged insufficiency of the application and of evidence to justify initiation ................ 22
(i) Arguments of the parties.................................................................................................... ...................... 22
Poland......................................................................................................................... .................................. 22
Thailand....................................................................................................................... ................................. 22
(ii) Evaluation by the Panel .................................................................................................... ....................... 23
Article 5.2.................................................................................................................... ................................. 23
contents of the application with respect to causation and injury.............................................................. 2 4
contents of the applicatio n with respect to dumping............................................................................ .... 25
Article 5.3.................................................................................................................... ................................. 25
(b) Article 5.5: alleged insufficiency of notification .......................................................................... ................ 26
(i) Arguments of the parties.................................................................................................... ...................... 26WT/DS122/R
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Poland......................................................................................................................... .................................. 26
Thailand....................................................................................................................... ................................. 26
(ii) Evaluation by the Panel .................................................................................................... ....................... 27
2. Article 2.2 of the AD Agreem ent:  Amount for profit in constructed norm al value.............................. 30
(a) Factual background.......................................................................................................... ............................. 30
(b) Arguments of the parties.................................................................................................... ........................... 30
(i) Poland...................................................................................................................... ................................ 30
(ii) Thailand................................................................................................................... ................................ 31
(c) Evaluation by  the Panel ..................................................................................................... ........................... 33
(i) Has Thailand incorrectly applied Article 2.2.2 (i) of the AD Agreement by incorrectly defining the
"same general catego ry of products"?........................................................................................... ........... 33
(ii) Has Thailand violated Article 2.2 of the AD Agreement and Article VI:1(b)(ii) GATT 1994 by not
applying a separate reasonability test to the results of its calculation under Article 2.2.2(i)?............................ 35
(iii) Conclusion................................................................................................................ ............................... 37
3. Article 3 of the AD Agreement:   Determination of Injury .................................................................... 38
(a) Article 3.1:  determination based on "positive evidence" and involving an "objective examination"........... 38
(i) Arguments of the parties.................................................................................................... ...................... 38
Poland......................................................................................................................... .................................. 38
Thailand....................................................................................................................... ................................. 38
(ii) Evaluation by the Panel .................................................................................................... ....................... 39
(b) Article 3.2................................................................................................................. .................................... 44
(i) volume of dumped imports .................................................................................................... .................. 44
Arguments of the parties....................................................................................................... ........................ 44
Poland......................................................................................................................... ............................. 44
Thailand....................................................................................................................... ............................ 44
Evaluation by the Panel ........................................................................................................ ........................ 45
Use by Thailand of overlapping time periods in its analysis.................................................................... 45
Is an explicit “finding” of a “significant” increase in dumped imports required?.................................... 46
Did Thailand consider whether there had been a significant increase in dumped imports? ..................... 46
(ii) effect of the dumped imports on prices in the domestic market.............................................................. .4 9
Arguments of the parties....................................................................................................... ........................ 49
Poland......................................................................................................................... ............................. 49
Thailand....................................................................................................................... ............................ 49
Evaluation by the Panel ........................................................................................................ ........................ 49
Did Thailand consider whether the effect of the dumped imports on prices was significant?.................. 50
Did the data support the Thai authorities' findings as to the effects of imports on prices in the Thai
market for H-beams?............................................................................................................ .................... 50
Thailand's findings in the final determination as to the effect of dumped imports on prices ................... 53
        Assessment............................................................................................................. ........................................56
(c) Article 3.4:  examination of the impact of the dumped imports on the domestic industry............................ 58
(i) Arguments of the parties.................................................................................................... ...................... 58
Poland......................................................................................................................... .................................. 58
Thailand....................................................................................................................... ................................. 58
(ii) Evaluation by the Panel .................................................................................................... ....................... 59
Is the list of factors in Article 3.4 mandatory?............................................................................... ............... 59
What are the factors in the list in Article 3.4 to be evaluated?............................................................... ....... 60
evaluation of all "relevant" factors........................................................................................... ..................... 62
Did the Thai authorities consider all relevant factors?........................................................................ .......... 63
Did the Thai authorities adequately evaluate the remaining Article 3.4 factors?.......................................... 65
conclu sion..................................................................................................................... ........................... 67
(d) Article 3.5:  causal relationship ........................................................................................... ......................... 68
(i) Arguments of the parties.................................................................................................... ...................... 68
Poland......................................................................................................................... .................................. 68
Thailand....................................................................................................................... ................................. 68
(ii) Evaluation by the Panel .................................................................................................... ....................... 68
causal relationship between dumped im ports and any possible injury.......................................................... 69
treatment of other possible causal factors ..................................................................................... ................ 69
conclu sion..................................................................................................................... ................................ 73
D. A RTICLE 6 AD ........................................................................................................................... ........... 73
VIII. CONCLUSIONS A ND RECOMMENDAT ION.............................................................................. 73WT/DS122/R
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List of Annexes
Page
ANNEX 1 – SUBMISSIONS OF POLAND
Annex 1-1: First written submission of Poland............................................................................ 75
Annex 1-2: Oral statement of Poland (1st meeting).................................................................... 100
Annex 1-3: Concluding statement of the Republic of Poland during the first substantive
meeting with the Panel ............................................................................................ 113
Annex 1-4: Second written submission of the Republic of Poland............................................ 114
Annex 1-5: Response of the Republic of Poland to the questions from the Panel and
from Thailand.......................................................................................................... 145
Annex 1-6: Second oral statement of the Republic of Poland.................................................... 186
ANNEX 2 – SUBMISSIONS OF THAILAND
Annex 2-1: First written s ubmission of Thailand....................................................................... 209
Annex 2-2: Thailand's opening statement (1st meeting)............................................................. 238
Annex 2-3: First oral statement of Thailand (1st meeting) ......................................................... 240
Annex 2-4. Thailand's cl osing statement ................................................................................... 249
Annex 2-5: Second written submission of Thailand .................................................................. 251Annex 2-6: Responses by Thailand to the Panel's and Poland's questions from the first
meeting.................................................................................................................... 256
Annex 2-7: Responses by Thailand to additional questions from Poland.................................. 308
Annex 2-8: Second oral statement of  Thailand – Opening remarks........................................... 316
Annex 2-9: Second oral statement of  Thailand – Main  statement ............................................. 319
Annex 2-10: Responses from Thailand to oral quest ions of the Panel at the second meeting..... 335
ANNEX 3 – SUBMISSIONS OF THIRD PARTIES
Annex 3-1: Third party submission by the European Communities .......................................... 337
Annex 3-2: Third party submission by Japan............................................................................. 347
Annex 3-3: Third party submissi on by the United States........................................................... 349
Annex 3-4: Oral statement of the European Communities ........................................................ 357
Annex 3-5: Oral statement of Japan........................................................................................... 363
Annex 3-6: Oral statement of the United States......................................................................... 364
Annex 3-7: Response of the European Co mmunities to the Pane l's questions ......................... 368
Annex 3-8: Response of Japan to the Panel' s questions............................................................. 381
Annex 3-9: Response of the United St ates to the Pane l's ques tions........................................... 389
ANNEX 4 – SUBMISSIONS CONCERNING CONFIDENTIAL INFORMATION
Annex 4-1: Letter from the Chair of the Panel to Thailand concerning confidential
information (14 February 2000).............................................................................. 409
Annex 4-2: Letter from Poland to the Panel concerning confidential information
(16 February 2000).................................................................................................. 410
Annex 4-3: Letter from Thailand concerning confidential information  (17 February 2000)..... 412
Annex 4-4: Comments by the European Communities on Thailand's failure to provide
certain confidential exhibits to ot her parties (18 February 2000) ........................... 415
Annex 4-5: Fax from the Secretariat concerning confidential information
(21 February 2000).................................................................................................. 421WT/DS122/R
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Page
Annex 4-6: Letter from Poland to the Panel concerning confidential information
(23 February 2000).................................................................................................. 423
Annex 4-7: Fax from the Secretariat to the parties concerning the outcome
of the 25 February 2000 mee ting (25 February 2000) ............................................ 424
Annex 4-8: Letter from Poland to the Secretariat concerning confidential
information (28 February 2000).............................................................................. 425
Annex 4-9: Letter from Poland to the Panel concerning confidential
information (1 March 2000) ................................................................................... 426
Annex 4-10: Comments by Japan on Thailand's failure to provide certain information to the
other parties and to the thir d parties (1 March 2000).............................................. 427
Annex 4-11: Letter of the European Communities concerning confidential
information (2 March 2000).................................................................................... 429
Annex 4-12: Fax from the Secretariat to the parties concerning confidential
information  (2 March 2000).................................................................................... 430
ANNEX 5 – SUPPLEMENTAL WORKING PROCEDURES OF THE PANEL
CONCERNING CERTAIN CONFIDENTIAL INFORMATION
Annex 5-1: Supplemental working procedures of the panel concerning certain
confidential informa tion (2 March 2000)................................................................ 431
Annex 5-2: Supplemental working procedures of the panel concerning certain
confidential information – Addendum (25 April 2000) .......................................... 432
List of Abbreviations
AD: Anti-dumping
AD Agreement: "Anti-dumping Agreement", or Agreement on Implementation of Article VI
of the General Agreement on Tariffs and Trade 1994
ADP Committee: Committee on Anti-dumping Practices of the WTODSU: "Dispute Settlement Understanding", or Agreement on Rules and
Procedures Governing the Settlement of Disputes
DSB: Dispute Settlement BodySYS: Siam Yamato Steel Co. Ltd.DBE: Department of Business Economics of Thailand's Ministry of Commerce
DFT: Department of Foreign Trade of Thailand's Ministry of CommerceDIT: Department of Internal Trade of Thailand Ministry of Commerce
HK: Huta Katowice SA
JIS: Japanese Institute of StandardsWT/DS122/R
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DIN: Deutsche Industria Normen
CIF: Cost plus insurance and freightCPS Committee: Thailand's Committee to Consider Procedures for the Imposition of Special
Duty on Products which are Imported Into Thailand at Unfair Prices and for
the Imposition of Special Duty on Products
CDS Committee: Thailand's Committee on Dumping and Subsidies
HS: Harmonized System of Tariff Nomenclature
B: Thai BahtPLN: Polish ZlotysX-Conf.: Confidential information redactedWT/DS122/R
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I. INTRODUCTION
1.1 On 6 April 1998, Poland requested consultations with Thailand pursuant to Article 17.3 of the
Agreement on the Implementation of Article VI of GATT 1994 ("the AD Agreement") and Article 4
of the Understanding on Rules and Procedures Gove rning the Settlement of Disputes ("the DSU")
regarding Thailand's imposition of final anti-dumping duties on imports of angles, shapes and sectionsof iron or non-alloy steel: H-beams ("H-beams") originating in Poland
1.  Poland and Thailand held
consultations on 29 May 1998 but failed to reach a mutually satisfactory resolution of the matter.
1.2 On 13 October 1999, pursuant to Articles 4 and 6 of the DSU and Article 17 of the AD
Agreement, Poland requested the establishment of a Panel to examine the matter2.
1.3 At its meeting on 19 November 1999, the Dispute Settlement Body ("the DSB") established a
Panel in accordance with Poland's request3.  At that meeting, the parties to the dispute also agreed that
the Panel should have standard terms of reference.  The terms of reference therefore are the following:
"To examine, in the light of the relevant provisions of the covered agreements cited
by Poland in document WT/DS122/2, the matter referred to the DSB by Poland in
document WT/DS122/2, and to make such findings as will assist the DSB in makingthe recommendations or in giving the rulings provided for in those agreements".
1.4 On 20 December 1999, the parties to the dispute agreed on the following composition of the
Panel:
Chairman: Professor John H. Jackson
Members: Mr. Roberto Azevêdo
Mr. Gilles Gauthier
1.5 The European Communities, Japan and the United St ates reserved their rights to participate in
the panel proceedings as third parties.
1.6 The Panel met with the parties on 7-8 March 2000 and 12 April 2000.  It met with the third
parties on 8 March 2000.
1.7 On 31 May 2000, the Panel provided its interim report to the parties.  On 9 and 13 June 2000,
respectively, Poland and Thailand submitted written requests for review by the Panel of precise
aspects of the interim report.  On 15 June 2000, the parties submitted written comments on one
anothers' requests for interim review.  Section VI, infra , describes the interim review requests and
comments received, and the changes made to the report in response to those comments.
II. FACTUAL ASPECTS
2.1 This dispute concerns the imposition of definitive anti-dumping duties by Thailand on H-
beams from Poland
4.
2.2 On 21 June 1996, Siam Yamato Steel Co. Ltd. ("SYS"), the sole Thai producer of H-beams,
filed an application with Thailand's Ministry of Commerce for the imposition of anti-dumping duties
                                                     
1 WT/DS122/1. The subject merchandise was defined in the notice of initiation as "Angles, shapes and
sections of iron or non-alloy steel:  H sections, classified under the HS. 7216.33.0055".  Exhibit Poland-1.
2 WT/DS122/2.
3 W/DS122/3
4 See supra  note 1 for the definition of the subject merchandise in the notice of initiation.WT/DS122/R
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on, inter alia , H-beams originating in Poland.5  On 17 July 1996, a representative of the Government
of Poland met with officials from the Department of Business Economics ("DBE").
2.3 On 30 August 1996, the DBE published a notice of initiation of an anti-dumping investigation
on H-beams originating in Poland, and forwarded a copy of that notice to the Polish Embassy in
Bangkok and to the Polish firms.6  The Department of Foreign Trade ("DFT") and the Department of
Internal Trade ("DIT") established their respective periods of investigation as 1 July 1995 to 30 June
1996, and the DIT also collected certain information for 1994 to 1996.
2.4 On 18 October 1996, Poland requested consultations with Thailand under Article 17.2 of the
AD Agreement.7  On 14 November 1996, Thailand replied to this request in writing, summarizing
discussions that had taken place between the Governments of Poland and Thailand prior to theinitiation of the investigation.  In this letter, Thailand expressed the view, inter alia , that the 17 July
1996 meeting was a legitimate form of official notification to the Government of Poland
8 pursuant to
Article 5.5 of the AD Agreement.
2.5 The parties in the anti-dumping investigation filed questionnaire responses during October-
December 1996.  On 27 December 1996, Thailand imposed provisional anti-dumping duties onimports of H-beams originating in Poland, and published notices to that effect
9.  On 20 January 1997,
Thailand forwarded to the Polish respondent companies -- Huta Katowice ("HK") and Stalexport10
notifications concerning the preliminary determinations of dumping and injury, as well as the noticeof provisional anti-dumping duties
11.
2.6 On 7 and 13 February 1997, the Polish respondent companies submitted comments on the
preliminary determinations, and requested a hearing and disclosure of information12.  On
19 February 1997, the DFT replied to the Polish companies.13  On 20 and 27 February 1997, the DFT
sent disclosure information concerning dumping and injury to the Polish respondent companies14.  On
13 March, the DFT conducted a hearing for interested parties to present their views.  Verification of
questionnaire responses was conducted in Poland by Thai officials during 16-18 April 1997.
                                                     
5 Three departments of the Ministry of Commerce acted as investigating authorities in the investigation.
The role of the Department of Business Economics ("the DBE") was to evaluate the application and make a
recommendation concerning initiation of the investigation.  The Department of Foreign Trade ("DFT")
conducted the preliminary and final dumping investigations.  The Department of Internal Trade ("DIT")conducted the preliminary and final injury investiga tions.  The Committee to Consider Procedures for the
Imposition of Special Duty on Products which are Imported Into Thailand at Unfair Prices and for theImposition of Special Duty on Products ("the CPS Committee") received the DBE's report and
recommendations and made the decision concerning initiation.  The Committee on Dumping and Subsidies ("the
CDS Committee") received the DFT's and DIT's reports and recommendations, made the preliminary and finaldumping determinations, and made the decisions concerning the application of preliminary and definitive anti-dumping duties.
6 Exhibits Thailand-2, -3, -5; Poland-1.
7 Exhibit Thailand-13.
8 Exhibits Thailand-14; Poland-4.
9 Exhibits Thailand-23, -24; Poland-5.
10 HK is the only Polish producer of H-beams, and is as well an exporter.  Stalexport is a Polish steel
exporter only.  These were the only two Polish respondent companies in the investigation.  Also named asrespondents in the investigation were Duferco and General Steel Export, both of which are steel trading firmsbased in Liechtenstein.
11 Exhibit Thailand-22.
12 Exhibits Thailand-26, -27; Poland-6.
13 Exhibits Thailand-28; Poland-7.
14 Exhibits Thailand-29, -30, -31, -32, -33; Poland-7, -8.WT/DS122/R
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2.7 On 1 May 1997, the DFT sent to the Polish respondent companies and the Government of
Poland copies of proposed final determinations of dumping and injury15.  The DFT also transmitted to
HK confidential disclosure of dumping findings16.  On 13 May 1997, the Polish respondent companies
(through their legal counsel) submitted comments on the proposed final determinations17 and on 19
May 1997, the DFT responded18.
2.8 On 26 May 1997, the DFT published a notice of the application of a definitive anti-dumping
duty on imports of H-beams originating in Poland.  On 4 June 1997, the DFT transmitted this notice
along with its 30 May 1997 notice of the final determination of dumping and injury19 to the
Government of Poland.  On 20 and 23 June 1997, the Polish respondent companies sent letters to the
DFT commenting on the final determination and requesting additional information20.  On 7 July 1997,
the DFT responded to the Polish respondent companies21 indicating its view that the requested
information had already been disclosed to the Polish respondent companies.
III. PARTIES' REQUESTS FOR FINDINGS AND RECOMMENDATIONS
A. POLAND
3.1 Poland requests that the Panel find that by imposing anti-dumping duties on angles, shapes
and sections of iron or non-alloy steel: H-beam s imports from the Republic of Poland, Thailand has
violated:
• AD Agreement Article 3, as read in conjunction with and Article VI of GATT 1994, by
imposing anti-dumping duties where no material injury exists;
• AD Agreement Article 2, as read in conjunction with and Article VI of GATT 1994, by
failing to make a proper determination of dumping and by calculating an unsupportable and
unreasonable alleged dumping margin; and
• AD Agreement Articles 5 and 6, as read in conjunction with and Article VI of GATT 1994
and Article 12 AD Agreement, by unreasonably initiating and conducting its anti-dumpinginvestigation of angles, shapes and sections of iron or non-alloy steel and H-beams imports
from Poland in violation of the procedural and evidentiary requirements set forth in AD
Agreement Articles 5 and 6.
3.2 Poland argues that in so doing, and in particular by applying its illegal conduct to the exports
of angles, shapes and sections of iron or non-alloy steel and H-beams produced by Huta Katowice and
Stalexport in Poland, Thailand has nullified and impaired benefits accruing to Poland under the WTO
Agreements.
3.3 Poland further requests that the Panel recommend that Thailand immediately bring its
measures into conformity with its WTO obligations.
                                                     
15 Exhibits Thailand-37; Poland-10, -11.
16 Exhibits Thailand-38, -39.
17 Exhibit Thailand-40.
18 Exhibits Thailand-41, -42; Poland-12.
19 Exhibits Thailand-45, -46; Poland-13.
20 Exhibits Thailand-47, -48; Poland-14, -15.
21 Exhibits Thailand-49, Poland 16.WT/DS122/R
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B. THAILAND
3.4 In its first submission, Thailand requests that the Panel issue a preliminary ruling dismissing
Poland’s purported claims under Articles 5 and 6 of the AD Agreement based on Poland’s violation of
its obligations under Article 6.2 of the DSU to identify the “claims” in its request for establishment of
a panel with sufficient clarity to present the problem clearly by, in effect, merely listing Articles 5 and6 without adding additional detail.
3.5 In its closing statement at the first substantive meeting of the Panel, Thailand further requests
that the Panel determine whether Poland complied  with Article 6.2 of the DSU with respect to
purported claims under Article VI of GATT 19 94 and Articles 2 and 3 of the Anti-Dumping
Agreement.  Thailand requests that we also dismiss these claims.
3.6 Without prejudice to its requests for rulings to dismiss the entire case, Thailand also requests
that the Panel find that Thailand acted consistent ly with its obligations under Article VI of GATT
1994 and the AD Agreement.
IV. ARGUMENTS OF THE PARTIES
A. 
MAIN ARGUMENTS OF THE PARTIES
4.1 With the agreement of the parties, the Panel has decided that in lieu of the traditional
descriptive part of the Panel report setting forth th e arguments of the parties, the parties' submissions
will be annexed in full to the Panel's report.  Accordingly, the parties' first and second written
submissions and oral statements, along with their written answers to questions, are attached at
Annex 1  (Poland) and Annex 2  (Thailand).  The written submissions, oral statements and answers to
questions of the third parties are attached at Annex 3 .
B. ARGUMENTS CONCERNING SUBMISSION OF CERTAIN CONFIDENTIAL INFORMATION
4.2 As set forth in section V, infra , an issue arose concerning the submission by Thailand of
certain confidential information.  In this context, the Panel sought, and the parties and third parties
submitted, written comments.  These submissions are attached at Annex 4 .
V. SUBMISSION OF CERTAIN CONFIDENTIAL INFORMATION BY THAILAND
5.1 In conjunction with its first submission, Thailand sought to submit to the Panel certain
exhibits containing confidential information22, which Thailand indicated that it did not intend to
provide to Poland or to the third parties23.  Some of the confidential information in these exhibits
pertains to SYS and some pertains to HK and St alexport.  Thailand cited Article 17.7 of the AD
Agreement as the basis for its view that such a submission to the Panel alone was permissible in this
dispute24.  According to Thailand, this approach was necessary to balance its obligation to protect
confidential information submitted during the anti-dumping investigation by both Thai and Polish
companies with its right to defend itself in this dispute.  Thailand also indicated that it would be
willing to discuss the adoption of additional Panel working procedures that would allow parties access
to the confidential exhibits under certain circumstances, provided that such procedures would
                                                     
22 Exhibits Thailand-11, -18, -20, -29, -31, -38, -42, -43, and –44.
23 See Thailand's first written submission, Annex 2-1, at paras. 3-4.
24 Article 17.7 provides that:  "Confidential information provided to the panel shall not be disclosed
without formal authorization from the person, body or authority providing such information.  Where such
information is requested from the panel but release of such information by the panel is not authorized, a non-confidential summary of the information, authorized by the person, body or authority providing the information,shall be provided".WT/DS122/R
Page 5
guarantee the protection of the confidential information in all WTO proceedings, including any before
the Appellate Body.
5.2 The Panel informed the parties that it wished to hear their views, particularly those of Poland,
by 17 February 2000, before deciding whether it could accept the information on the basis suggested
by Thailand.  Third parties also were given an opportunity to comment.  Poland, Thailand and thethird parties submitted written comments (see Annex 4), and the Panel held a meeting with the parties
to discuss possible supplemental procedures concerning confidential information, based on a proposal
made by Thailand in its 17 February 2000 comments.  On 1 March 2000, Poland indicated its
acceptance of the procedures proposed.  On 2 March 2000, on the basis of an agreement between the
parties, the Panel adopted "Supplemental working procedures concerning certain confidentialinformation".  These supplemental working procedures are attached at Annex 5 .  On the basis of the
adopted procedures, on 2 March 2000 Thailand submitted the confidential exhibits to the Panel and
provided copies to Poland and to the third parties.
5.3 At its first and second substantive meetings, and at the third party session, the Panel
emphasized the importance of maintaining the confid entiality of the confidential information.  In
particular, the Panel indicated its awareness of the sensitivity of the information, and reminded the
parties of the supplemental working procedures that the Panel had adopted in connection with the
submission of the information.  These procedures were aimed at ensuring, as required under Article
18.2 of the DSU, that the confidentiality of the information was preserved.  The Panel reminded the
parties and third parties that they were responsible for all members of their delegations, and thus
needed to ensure that all members of their de legations maintained the confidentiality of the
information.
5.4 In a letter dated 1 March 2000, and at the first substantive meeting of the Panel, Poland
requested that the Panel exclude from the scope of that meeting any arguments concerning Poland’s
claims under Articles 2 and 3 of the Anti-dumping Agreement, due to the delay in the submission of
the confidential information by Thailand.  In a letter to the Panel dated 2 March 2000, the European
Communities, as a third party, expressed its concern over not having as of that date yet received theconfidential information, and requested that the Panel either postpone its first substantive meeting
with the parties and third parties or schedule a second meeting at which parties and third parties could
be heard by the Panel on issues pertaining to Articles 2 and 3 of the AD Agreement.  At the first
substantive meeting of the Panel, Thailand indicated its view that Poland's delay in accepting the
procedures on confidential information was the cause of any delay in the submission of thatinformation.
5.5 At its first substantive meeting with the parties, the Panel noted in respect of Poland's request
to limit the scope of the debate that
 the dispute was still in its very early stages, in that the second
round of submissions was not due for three more weeks, that there would be a second meeting of the
Panel with the parties in five weeks time, and that there would be oral and written questions andanswers in connection with both Panel meetings.  Th us, in the Panel's view, there remained at that
point ample time and opportunities for the parties to fully present their views,  including with respect
to the substance of the confidential information, and therefore it was not necessary to narrow the
scope of the discussion at the first meeting.  Poland, as any party, was free to determine the content of
its own statements and submissions.  At the third party session, in respect of the concern raised in theEC's 2 March letter, the Panel noted that the third parties had by then received the confidential
information, and the Panel indicated that third parties could submit any comments on the confidential
information no later than the due date for written answers to questions (29 March 2000).
5.6 On 25 April 2000, the Panel issued an addendum to the supplemental working procedures
concerning confidential information, to extend the coverage of those procedures to seven additionalWT/DS122/R
Page 6
confidential exhibits submitted by Thailand in connection with its second written submission25.  This
addendum is attached at Annex 5 .
VI. INTERIM REVIEW
6.1 On 9 and 13 June 2000, respectively, Poland and Thailand requested the Panel to review, in
accordance with Article 15.2 of the DSU, precise aspects of the interim report issued on 31 May 2000.Neither party requested an additional meeting with the Panel.  On 15 June 2000, the parties submitted
written comments on one anothers' requests for interim review.
A.
COMMENTS BY POLAND
6.2 Poland commented that the report inaccurately described Poland's argument that the Thai
authorities failed to consider "all relevant factors" as required by AD Article 3.4, in particular byincorrectly stating that Poland had "altered" its identification of the factors that it asserted had not
been "considered" by the Thai authorities. While not entirely accepting Poland's comments in this
regard, we have refined the language in our description of Poland's arguments in paragraphs 7.46,
7.216 and 7.239.
6.3 In its written comments on Thailand's request for interim review, Poland objected to
Thailand's request that the Panel add language to paragraph 2.3 concerning the period for which data
were collected by the DIT.
B. 
COMMENTS BY THAILAND
6.4 Thailand requested that, in footnote 5, we correct the full name of Thailand's "CDS
Committee" and insert language to indicate that the CDS Committee made the preliminary and final
dumping and injury determinations.  Thailand also asked us to add language to paragraph 2.3
concerning the period for which data were collected by the DIT.  Thailand asked us to change theword "admits" to "notes" in paragraph 7.201.  On the basis of these comments, we have made certain
amendments to the paragraphs and footnote identified by Thailand, including a slight refinement of
paragraph 2.3 to reflect our view as to the parties' positions on this point.
6.5 In addition, Thailand identified certain typographical and clerical errors in paragraphs 7.92,
7.156 and 7.236, as well as in footnote 141.  We have corrected these errors as well as typographicaland clerical errors elsewhere in the report.
6.6 In its written comments on Poland's request for interim review, Thailand requested that the
Panel reject Poland's comments concerning the Panel's description of Poland's arguments relating to
the consideration of factors under Article 3.4 of the AD Agreement.  Our view on this is mentioned in
paragraph 6.2 above.
                                                     
25 Exhibits Thailand-52, -55, -64, -66, -67, -68, and –69.WT/DS122/R
Page 7
VII. REASONING AND FINDINGS
A. PRELIMINARY ISSUES
1. Alleged insufficiency of the request for establishment under Article 6.2 DSU
(a) Requests by Thailand pursuant to Article 6.2 DSU
7.1 In its first written submission26, Thailand requested that the Panel make a preliminary ruling
dismissing Poland's claims under Articles 5 and 6 of the AD Agreement because Poland's request for
establishment of the Panel, which identified Articles 5 and 6 of the AD Agreement, does not satisfy
the standard of clarity in Article 6.2 DSU.  At the first substantive meeting, we denied Thailand's
request for an immediate preliminary ruling with respect to Articles 5 and 6, and indicated that we
would issue our ruling and supporting reasons in th e Panel Report.  Referring to the Appellate Body
Report in Korea-Dairy Safeguard27, we informed the parties that we would evaluate whether, given
the actual course of the Panel proceedings, Thailand was prejudiced in its ability to defend itself by
the alleged lack of specificity of the panel request.
7.2 In its closing statement at the first Panel meeting28, Thailand requested that the Panel also
determine whether Poland complied with Article 6.2 of the DSU with respect to its claims underArticles 2 and 3 of the AD Agreement and Article VI of the GATT 1994.  Thailand asserted that
Poland's request for establishment, which identified Articles 2 and 3 AD and Article VI of the GATT
1994, does not satisfy Article 6.2 DSU in respect of these provisions.
7.3 Together, these requests by Thailand relate to Poland's entire case.  As we indicate below, we
believe that the relative difference in timing of these two separate requests is relevant to our
examination.
(b) Arguments of the parties
(i) Thailand
7.4 In Thailand’s view, the test as to whether a claim is set forth in the panel request sufficiently
to present the problem clearly under Article 6.2 DSU is whether the complainant has identified: (i) the
precise obligation allegedly violated; and (ii) the facts and circumstances on which the alleged
violation is based.  Thailand asserts that the Articles invoked by Poland each contain a multitude ofobligations relating to the conduct of an anti-dumping investigation and to the determination of
dumping and injury  Thailand argues that by "merely listing" the Articles, without adding any further
detail, Poland has failed to comply with the standa rd set in Article 6.2 DSU.  Thailand further argues
that there are no "attendant circumstances" that would justify finding that the mere listing of Articles
in an AD dispute was sufficient to satisfy the requirements of Article 6.2 DSU.
7.5 Thailand asserts that Poland has intentionally misled Thailand and that, due to the alleged
insufficiency of Poland's panel request, Thailand has been prejudiced in its ability to defend itself.
According to Thailand, prior to Poland’s first written submission, Thailand could not identify and
therefore could not understand the claims against it.  As a result, Thailand asserts, "Thailand could not
take any steps to prepare its defence, such as collecting sufficient factual information, makingsufficient and precise translations given the significant volume of complex documents in the Thai
language, and locating key individuals from the rele vant authorities to assist in explaining decisions
                                                     
26 Annex 2-1, paras. 5-8.
27 Korea-Definitive Safeguard Measure on Imports of Certain Dairy Products , WT/DS98/AB/R,
adopted 12 January 2000 (" Korea-Dairy Safeguard" ), paras. 114-131.
28 Annex 2-4, para. 8.WT/DS122/R
Page 8
and methodologies."29  Thailand suspects third parties and other potential third parties had similar
problems.30  Thailand further submits that, because Poland made vague, sweeping and confusing
allegations and arguments and provided no additional clarification of its precise claims throughout the
Panel proceedings, Thailand had little basis to present its defence, other than in response to questions
from the Panel.  For Thailand, the phrase “given the actual course of the panel proceedings” used bythe Appellate Body in Korea-Dairy Safeguard  "would only authorise a panel to accept the mere
listing of a particular article as sufficient if absolutely no prejudice was possible during the course of
the proceedings."
31  According to Thailand, "this would be the case only where (1) a panel found that
the complainant had failed to present a prima facie  case and thus the adequacy of the defence was
irrelevant or (2) a panel did not reach the claims under the listed articles because it decided the casesolely on claims properly described in the request."
32
7.6 Thailand submits that the timing of its request under Article 6.2 of the DSU relating to
Articles 2 and 3 of the AD Agreement and Article VI of the GATT 1994 -- i.e. at the conclusion of the
first Panel meeting -- is "completely irrelevant to  whether Poland did or did not violate its obligations
under Article 6.2 of the DSU".33
(ii) Poland
7.7 Poland argues that its claims are set forth with sufficient clarity to satisfy Article 6.2 DSU,
particularly in light of the “attendant circumstances” including Thailand’s actual notice of Poland’s
claims.  Poland does not regard its panel request as "merely listing" the provisions with respect to its
claims.  Poland asserts that the claims are expanded upon in the request for consultations, and were
known to Thailand as they had been repeatedly raised over the course of the Thai AD investigation.
Moreover, Poland submits that the Appellate Body in Korea-Dairy Safeguard did not say that a “mere
listing” would necessarily  be insufficient under Article 6.2 DSU.  Poland asserts that any lack of
clarity has been cured by Poland’s later actions and that Poland never intended to mislead Thailand.
7.8 Poland argues that the issue of the sufficiency of a panel request depends on whether the
respondent, in view of "attendant circumstances", has been misled as to what claims were in fact
being asserted against it in a manner actually prejudicing its ability to defend itself.  For Poland, suchprejudice must be determined in light of the totality of the circumstances, “given the actual course of
the panel proceedings”: a respondent must have experienced actual prejudice in its ability to defend its
interests before a mere listing or provisions woul d be insufficient under Article 6.2 DSU.  According
to Poland, Thailand has not demonstrated, based on supporting particulars, that it has sustained any
meaningful prejudice as a result of the alleged imprecision.  In Poland's view, a possibly insufficientpanel request may be "remedied" by subsequent clarification in the course of the proceedings.
7.9 Poland asserts that Thailand's request under Article 6.2 DSU relating to Articles 2 and 3 of the
AD Agreement and Article VI of the GATT 1994 is "untimely" and that the implication that somehow
                                                     
29 Thailand's response to Panel Question 2(b), Annex 2-6.
30 In respect of Thailand's request under Article 6.2 DSU relating to Articles 5 and 6 of the AD
Agreement, third parties the European Communities subm itted that their ability to participate in the proceedings
had been prejudiced by the lack of specificity in the panel request (see EC third party written submission, Annex
3-1, paras.7-8) .  Japan  was of the view that Poland's panel request "fails to fulfil the specificity requirement ofArticle 6.2", and only under exceptional circumstances should any remedy for the lack of specificity be madeavailable to Poland (Response to Panel Question 1, Annex 3-8).  The United States noted Thailand's argumentthat  the lack of specificity in the request for establishment had denied Thailand its right to present an effectivedefence, and took this to suggest that the "attendant circumstances" were not such that a listing of the articles
was sufficient (Response to Panel Question 1, Annex 3-9).
31 Thailand's response to Panel Questions 2(a) and 7(a), Annex 2-6.
32 Id.
33 Thailand's response to Panel Question 5(b), Annex 2-6.WT/DS122/R
Page 9
Poland's claims became objectively less clear to Thailand during the actual course of the Panel
proceedings is without merit.34
(c) Text of Poland's Request for Establishment
7.10 We recall that Poland's request for establishment of the Panel states, inter alia , the following:
"The factual background of the complaint is set forth in the request for
consultations referred to above [WT/DS122/1].  More specifically, Thailand has
imposed definitive antidumping duties on imports of H-beam steel products
originating in Poland in contravention of the basic procedural and substantive
requirements of Article VI of the General Agreement on Tariffs and Trade 1994
(GATT 1994) and of the Antidumping Agreement.  The principal measures towhich Poland objects are:
Thai authorities have made a determination that Polish imports caused
injury to the Thai domestic industry, in the absence of, inter alia,
“positive evidence” to support such a finding and without the required“objective examination” of enumerated factors such as import volume,
price effects, and the consequent impact of such imports on the
domestic industry, in contravention of Article VI of GATT 1994 and
Article 3 of the Antidumping Agreement;
Thai authorities have made a determination of dumping and calculated
an alleged dumping margin in violation of Article VI of GATT 1994and Article 2 of the Antidumping Agreement;
Thai authorities initiated and conducted this investigation in violation
of the procedural and evidentiary requirements of Article VI of GATT
1994 and Articles 5 and 6 of the Antidumping Agreement.
The above summary is designed to describe briefly the legal basis of the complaint
in a manner sufficient to present the problem clearly, but is not to be taken as
restricting the arguments which Poland may develop before the panel."
 35
(d) Evaluation by the Panel
(i) Introduction
7.11 Article 6.2 DSU provides, in relevant part:
"The request for the establishment of a panel shall be made in writing.  It shall indicate
whether consultations were held, identify the specific measures at issue and provide abrief summary of the legal basis of the complaint sufficient to present the problem
clearly…"
7.12 The issue before us is whether Poland's panel request provides "a brief summary of the legal
basis of the complaint sufficient to present the problem clearly" and therefore satisfies the standard set
                                                     
34 Poland's response to Panel Question 5(b), Annex 1-5.
35 WT/DS122/2.WT/DS122/R
Page 10
out in Article 6.2 DSU36 with respect to Poland's claims under Articles 2, 3, 5 and 6 of the AD
Agreement and Article VI of the GATT 1994.
7.13 We understand that we must examine the request for the establishment of the panel very
carefully to ensure its compliance with both the letter and the spirit of Article 6.2 of the DSU. 37  It is
important that a panel request be sufficiently precise for two reasons: first, it often forms the basis forthe terms of reference of the panel pursuant to Article 7 of the DSU; and, second, it informs the
defending party and the third parties of the legal basis of the complaint.
7.14 In examining the sufficiency of the panel request under Article 6.2 DSU, we first consider the
text of the panel request itself, in light of the nature of the legal provisions in question and any
attendant circumstances.  Second, we take into account  whether the ability of the respondent to defend
itself was prejudiced, given the actual course of the panel proceedings, by any alleged lack of
specificity in the text of the panel request.  We find support for this approach in the Appellate Body
Report in Korea-Dairy Safeguard .
38  In that case, the Appellate Body stated:
"Identification of the treaty provisions claimed to have been violated by the
respondent is always necessary both for purposes of defining the terms of reference ofa panel and for informing the respondent and the third parties of the claims made by
the complainant; such identification is a minimum prerequisite if the legal basis of the
complaint is to be presented at all.  But it may not always be enough.  There may be
situations where the simple listing of the articles of the agreement involved may, in
the light of attendant circumstances, suffice to meet the standard of clarity  in the
statement of the legal basis of the complaint.  However, there may also be situations
in which the circumstances are such that the mere listing of treaty articles would notsatisfy the standard of Article 6.2.  This may be the case, for instance, where the
articles listed establish not one single, distinct obligation, but rather multiple
obligations.  In such a situation, the listing of articles of an agreement, in and of itself,
may fall short of the standard of Article 6.2."
39
7.15 The Appellate Body also considered that:
"…whether the mere listing of the articles claimed to have been violated meets the
standard of Article 6.2 must be examined on a case-by-case basis.  In resolving that
question, we take into account whether the ability of the respondent to defend itself
was prejudiced, given the actual course of the panel proceedings, by the fact that the
panel request simply listed the provisions claimed to have been violated."40
7.16 We turn to a consideration of whether the panel request is sufficient for the purposes of
Article 6.2 DSU, first, in respect of Articles 5 and 6 of the AD Agreement, and second, in respect of
Articles 2 and 3 of the AD Agreement and Article VI of the GATT 1994.
                                                     
36 We note that Article 6.2 DSU and Article 17.4 of the AD Agreement are complementary and should
be applied together in disputes arising under the AD Agreement.  See Appellate Body Report, Guatemala - Anti-
dumping Investigation Regarding Portland Cement from Mexico ("Guatemala - Cement") , WT/DS60/AB/R,
adopted 25 November 1998, para. 75.  We note that Poland has identified a definitive dumping duty in its panelrequest as part of the matter referred to the DSB pursuant to Article 17.4 and Article 6.2.  We further note thatThailand has made no allegation in this case under Article 17.5 of the AD Agreement with respect to the panelrequest.
37 We find support for this approach in Appellate Body Report, European Communities - Regime for
the Importation, Sale and Distribution of Bananas  ("European Communities - Bananas "), WT/DS27/AB/R,
adopted 25 September 1997, para. 142 .
38 Appellate Body Report, Korea-Dairy Safeguard , supra ., note 27.
39 Id, para. 124.
40 Id, para. 127. (footnote omitted, emphasis in original).WT/DS122/R
Page 11
(ii) Alleged insufficiency of the request for establishment under Article 6.2 DSU with respect to
Poland's claims under Articles 5 and 6 of the AD Agreement
Article 5 of the AD Agreement
7.17 The text of the panel request states: "Thai authorities initiated and conducted this
investigation in violation of the procedural and evidentiary requirements of Article VI of GATT 1994
and Articles 5 and 6 of the Antidumping Agreement".41  In its first written submission, Poland
indicated that its claims of violation of Articl e 5 of the AD Agreement fell under Articles 5.2, 5.3 and
5.5.42
7.18 With respect to Poland's claims under Article 5, we consider that the text of the panel request
performs the functional equivalent of "merely listing" the article.  Furthermore, Article 5, entitled"Initiation and Subsequent Investigation", contains ten paragraphs, which pertain to the content and
standing requirements for an application to initiate an investigation and numerous other obligations
with respect to the decision of the competent authorities on whether or not to initiate or continue an
anti-dumping investigation.  We consider that Artic le 5 establishes multiple obligations with respect
to the initiation and certain subsequent steps in an anti-dumping investigation.  We therefore considerthat this is potentially a situation where the mere listing of the treaty article may fall short of the
standard of Article 6.2.
7.19 However, we recall that a "mere listing" may not necessarily be insufficient for the purposes
of Article 6.2 DSU, and that "[t]here may be situations where the simple listing of the articles of the
agreement or agreements involved may, in the light of attendant circumstances , suffice to meet the
standard of  clarity   in the statement of the legal basis of the complaint".
43 (emphasis added)
7.20 We consider that, in this case, there are several "attendant circumstances", involving facts
known and in the possession of the Thai government, that serve to confirm the sufficiency of Poland's
panel request under Article 6.2 DSU with respect to Article 5 of the AD Agreement.
7.21 First, we note that the totality of the fact s and circumstances underlying the panel request,
including the nature of the underlying AD investigation that led to the imposition of the challenged
measure, make certain paragraphs of Article 5 logically and necessarily inapplicable or irrelevant inthis dispute: for example, because this dispute involves a domestic industry consisting of one
producer, Article 5.4 would not apply; and because the dispute was initiated on the basis of a petition,
Article 5.6 would not apply.
7.22 Second, we note that, as will often be the case in WTO anti-dumping disputes, this dispute
involves several issues that were raised before the Thai investigating authorities in the actual course of
the underlying anti-dumping investigation.  Thailand argues that this consideration is irrelevant in an
examination under Article 6.2 DSU.  We disagree.  We consider that the fact that an issue was raised
during the underlying investigation means that it involves considerations of which the government of
the defending Member would be aware, and would involve evidence in the possession of that
government.  With respect to Article 5, the record before us indicates that the issue of notificationunder Article 5.5 AD had been raised in the course of the Thai AD investigation, both directly with
the Thai investigating authorities
44 and with Thailand at the WTO.45  In addition, although the
                                                     
41 WT/DS122/2, cited supra , para. 7.10.
42 Poland's first written submission, Annex 1-1, paras. 86-90.
43 Appellate Body Report, Korea-Dairy Safeguard , supra , note 27, para. 124.
44 WT/DS122/2.
45 Exhibit Thailand-14/Poland-4 demonstrates that Poland requested consultations provided for in
Article 17.2 of the AD Agreement when it confronted difficulties in the Thai AD investigation (at least withrespect to the notification issue under Article 5.5 AD).WT/DS122/R
Page 12
evidence referred to by Poland to indicate that the issues under Article 5.2 and 5.3 had been raised
with the Thai government during the course of the investigation makes no explicit reference to Article
5.2 and 5.3, it refers to Poland's view that "no evidence of dumping and prospective injury to the Thai
industry has been delivered"46; that it has "no information about the basis of the initiation of the anti-
dumping investigation"47; and that "[t]here has been no data on the basis on which dumping is alleged
in the application…"48  We consider that these circumstances confirm the sufficiency of the panel
request with respect to Article 5 .  In light of this, we do not believe it is necessary to address whether
the bilateral consultations49 between the parties under the DSU and the AD Agreement that preceded
the panel request might also serve as an additional attendant circumstance that would confirm the
sufficiency of the panel request with respect to Article 5.
7.23 We are of the view that a complainant certainly takes a risk by not referring to the specific
sub-paragraphs under which its claims of violation of an Article in a covered agreement fall.  We note
there are examples of more precise and informative panel requests.50  We would certainly have
preferred the panel request in this case to have been more detailed in its treatment of Article 5 by at
the very least identifying the specific sub-paragraphs of that Article that Poland was alleging had beenviolated.  Ideally, there might also have been some narrative summarizing the legal basis of the
complaint.  However, we find that the panel request, in light of attendant circumstances, is sufficient
to meet the standard set in Article 6.2 DSU in respect of Poland's claims under Article 5 of the AD
Agreement.
7.24 In any event, Thailand has failed to demonstrate to us that it was prejudiced in its ability to
defend its interests in the course of the panel proceedings with respect to Poland's claims under
Article 5.  We recognize that a defending party is always entitled to its full measure of due process inthe course of WTO dispute settlement.
51  In the present case, one indication that such due process was
not in any way impaired by the text of Poland's panel request relating to Article 5 of the AD
Agreement was the developed nature of certain of Thailand's submissions and responses to questions
from the Panel and from Poland.52
7.25 Our view that Poland's panel request in respect of Article 5 provided a brief summary of the
legal basis of the complaint sufficient to present the problem clearly was confirmed by our view that
Poland's allegations under Articles 5.2, 5.3 and 5.5 of the AD Agreement, and the arguments made in
support of these allegations, were apparent from the time of Poland's first written submission.
                                                     
46 Exhibit Poland-17 (letter from the Polish government to the Thai government dated September
1996), p. 1.
47 Id, p. 2.
48 Exhibit Poland-18 (talking points of the Polish government in connection with consultations with the
Thai government dated "Geneva, 22 October 1996").
49 We note that Poland's request for consultations (WT/DS122/1) -- which is incorporated by reference
into the panel request -- refers to Article 5.  However, regardless of whether or not this could have supported thesufficiency of the panel request, it provides no further information or clarification with respect to Article 5 inany event.
50 See, for example, United States- Anti-dumping Measures on Stainless Steel Plate  in Coils and
Stainless Steel Sheet and Strip from Korea , WT/DS179/2.  While we certainly make no pronouncement on
whether this specific request would meet the standard of cl arity set out in Article 6.2 DSU, we note that it is far
more precise in identifying the specific sub-paragraphs of the Articles of the AD Agreement that are alleged tobe violated, as well as providing a brief descri ption of the contextual facts and circumstances.
51 See e.g., Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp
Products  ("United States - Shrimp "), WT/DS58/AB/R, adopted 6 November 1998, para. 97, where the Appellate
Body examined the issue of the sufficiency of a notice of appeal.
52 For example, with respect to Article 5.2 and 5.3, Thailand's responses to Panel Question 10, Annex
2-6 and Thailand's oral statement at the second meeting,  Annex 2-9, paras. 72-81; with respect to Article 5.5,
Thailand's responses to Panel Questions 18-20, Annex 2-6.WT/DS122/R
Page 13
Moreover, the legal basis and scope of the allegations fell within the parameters of the cited legal
provisions and also remained generally consistent throughout the Panel proceedings.
Article 6 of the AD Agreement
7.26 The text of the panel request states:  "Thai authorities initiated and conducted this
investigation in violation of the procedural and evidentiary requirements of Article VI of GATT 1994
and Articles 5 and 6 of the Antidumping Agreement".  In its first written submission, Poland indicated
that its claims of violation of Article 6 of the AD Agreement fell under Articles 6.4, 6.5.1 and 6.9.53
7.27 With respect to Article 6, we consider that the text of the panel request performs the
functional equivalent of "merely listing" the article.  Furthermore, Article 6, entitled "Evidence",
contains fourteen paragraphs.  These address a ra nge of issues relating to the informational and
evidentiary aspects of an anti-dumping investigation.  The article contains detailed requirements
including with respect to due process and disclosure to the extent permitted given confidentiality
considerations.  We consider that Article 6 esta blishes multiple obligations with respect to the
procedural and evidentiary requirements in an anti-dumping investigation.
7.28 Moreover, and in contrast to our view of the circumstances surrounding Article 554, we do not
consider that, in this case, there are any "attendant circumstances", involving facts known and in the
possession of the Thai government, that would serve to confirm the sufficiency of Poland's panel
request under Article 6.2 DSU with respect to Article 6 of the AD Agreement.  First, the totality of the
facts and circumstances underlying the panel request, including the nature of the underlying AD
investigation that led to the imposition of the challenged measure, would not necessarily make any  of
the fourteen paragraphs of Article 6 of the AD Agr eement logically inapplicable or irrelevant in this
dispute.  Second, following the final determination,  the Polish firms made requests for disclosure of
the information used in the final determination, and the Thai authorities responded to these requests.
However, the precise nature of the information sought in these requests and the specific legal basis for
such requests remain unclear.  In addition, Poland identified no evidence in the record before us
indicating that the Polish firms made any direct re ference to any sub-paragraphs of Article 6 of the
AD Agreement that Poland invokes before us (i.e. Articles 6.4, 6.5.1 and 6.9) in corresponding withthe Thai authorities in the course of, and following, the underlying AD investigation, nor that Poland
raised these issues with the Thai government in an y other context in relation to the final determination
prior to its panel request.
55  Poland submits to us evidence in the form of a speaking note56, which
Poland argues it read out to Thai government officials in the bilateral consultations between the
parties under the DSU and the AD Agreement precedin g the panel request.  However, this evidence
submitted by Poland contains no reference to Article 6 of the AD Agreement.  Therefore, we do not
believe it is necessary for us to decide here whether what occurs during such consultations could ever
serve as an "attendant circumstance" to support the sufficiency of a claim set out in a panel request.
7.29 Furthermore, we find that Thailand has demonstrated, with respect to Poland's claims under
this Article, that its ability to defend itself was prejudiced in the course of the Panel proceedings.  Theprejudice to Thailand's ability to defend itself was a function of the fact that the precise nature and
scope of the claims under Article 6 remained unclear and confusing to Thailand -- and to us -- even
                                                     
53 Poland's first written submission, Annex 1-1, para. 92.
54 See supra , paras. 7.20-7.22.
55 Exhibits Poland-14, -15 and -16.  Poland's request for consultations (incorporated by reference into
the panel request) refers to Article 6 and to requests made by the Polish producer and exporter for "disclosure of
findings from the Thai Ministry of Commerce".  However, we do not consider that this provides any additionalinformation or clarifies the nature of the claims under Article 6.
56 Exhibit Poland-19.WT/DS122/R
Page 14
following Poland's first written submission.57  Poland's allegations were not clearly tailored to, and did
not clearly fall within, the parameters of the sub-paragraphs of Article 6 cited by Poland in its first
written submission.  For example, with respect to Article 6.4, Poland alleged that interested parties
had been unable to see "relevant information"58, but the precise information sought remained unclear.
With respect to Article 6.5.1, Poland alleged that interested parties "were not provided with a propernon-confidential summary"
59, but it remained unclear whether the non-confidential summary referred
to was furnished by the interested parties in the course of the AD investigation or was provided by the
Thai investigating authorities to interested partie s.  With respect to Article 6.9, Poland alleged that
"parties were not informed of all essential facts forming the basis of the decision to impose duties"60,
but the "essential facts" to which Poland referred were "a specification of all relevant economicfactors used as a basis for the final injury determination" and "a basis for using overlapping 12-month
time periods for comparison in the final determination".
61  In our view, these are not "essential facts"
within the scope of Article 6.9.  Moreover, Poland appeared to seek disclosure of such "essential
facts" following  the final determination, whereas we understand Article 6.9 to relate to disclosure
prior  to the final determination.
7.30 In the light of all of these considerations, we dismiss Poland's claims under Article 6 of the
AD Agreement.
7.31 For these reasons, we deny the request by Thailand under Article 6.2 DSU for us to dismiss
Poland's claim of violation of Article 5 of the AD Agreement.  However, we grant Thailand's request
under Article 6.2 DSU for us to dismiss Poland' s claims under Article 6 of the AD Agreement.
(iii) Alleged insufficiency of the request for establishment under Article 6.2 DSU with respect to
Poland's claims under Articles 2 and 3 of the AD Agreement and Article VI of the GATT 1994
7.32 As already stated, in its closing statement at the first Panel meeting, Thailand requested that
the Panel also determine whether Poland complied wi th Article 6.2 of the DSU with respect to its
claims under Articles 2 and 3 of the AD Agreement and Article VI of the GATT 1994.  Thailand
asserted that Poland's request for establishment, which identified Articles 2 and 3 AD and Article VI
of the GATT 1994, does not satisfy Article 6.2 DSU in respect of these provisions.
7.33 As outlined above62, in addressing this issue, we consider the text of the panel request and
also take into account whether, given the actual course of the panel proceedings, Thailand's ability to
defend itself was prejudiced by the treatment in the text of the panel request of the legal provisions
claimed to have been violated.  In this case, it was apparent to us that Poland's claims of violation
under Article VI of the GATT 1994 were not independent  from Poland's claims of violation of the AD
Agreement.  Rather, we understand that Poland' s claims under Article VI were claims Poland
considered arose from the specific language of the provisions of the AD Agreement.  In the course of
the proceedings, Poland made no arguments concerning  an independent claim of violation of Article
VI of the GATT 1994.  We therefore consider that our examination and findings here with respect to
Articles 2 and 3 of the AD Agreement will also be determinative of this issue with respect to ArticleVI of the GATT 1994.  Accordingly, we do not make a separate examination or finding here with
regard to Article VI of the GATT 1994.
                                                     
57 We refer in this regard to the confusion indicated by Thailand in its response to Panel Question 2(b),
Annex 2-6, with respect to the nature and scope of Poland's claims under Articles 6.4, 6.5.1 and 6.9.
58 Poland's first written submission, para. 92.
59 Id.
60 Id.
61 Id.
62 Supra , para. 7.14.WT/DS122/R
Page 15
Article 2 of the AD Agreement
7.34 With respect to Article 2, Poland's panel request states:  "Thai authorities have made a
determination of dumping and calculated an allege d dumping margin in violation of Article VI of
GATT 1994 and Article 2 of the Antidumping Agreement;…"63  In its first written submission,
Poland indicated that its claim of violation of Article 2 fell under Article 2.2.64
7.35 We consider that the panel request performs the functional equivalent of merely listing the
Article.  Article 2 contains multiple obligations relating to the various components that enter into the
complex process of determining the existence of dumping and calculating the dumping margin.
While this is potentially a situation where the mere listing of the treaty article may fall short of the
standard of Article 6.2, and while the nature of the underlying AD investigation would not necessarilyrender any sub-paragraphs of Article 2 logically inapplicable in this dispute, we note that
documentary evidence before us, which was in Thailand's possession from the time of the underlying
AD investigation, indicates that the Polish firms persistently raised during the course of the
investigation the precise issue which Poland raises in this dispute under Article 2.2
65, i.e. the use of a
"reasonable" amount for profit in the calculation of constructed normal value.  We consider that thisconstitutes an attendant circumstance that confirms the sufficiency of the panel request with respect to
Article 2. In light of this, we do not believe it is necessary to address whether the bilateral
consultations
66 between the parties under the DSU and the AD Agreement that preceded the panel
request might also serve as an additional attendant circumstance that would confirm the sufficiency of
the panel request with respect to Article 2.   In any event, we examine the issue of prejudice below, in
conjunction with our examination of alleged prejudice relating to Article 3.67
Article 3 of the AD Agreement
7.36 With respect to Article 3 of the AD Agreement, we consider that the text of the panel request
goes beyond a "mere listing" of the provisions.  Poland refers explicitly to specific language in the
text of Article 3 and identifies specific factors that, in its view, the Thai authorities failed to consider
in reaching their determination of injury and causation.  The panel request refers to Poland's view that
the determination was made in the absence of "positive evidence" and an "objective examination"(both terms explicitly referred to in Article 3.1) and refers also to certain "enumerated factors" (import
volume, price effects, and the consequent impact of such imports on the domestic industry).  In the
context of a case of material injury
68, this specific language relates to the text of Articles 3.1, 3.2, 3.4
and 3.5.  While it may have been preferable for Poland to have also explicitly listed the specific sub-
paragraphs of paragraph 3 to which it was referring, we consider that the text of the panel request issufficiently clear to meet the minimum requirements of Article 6.2 DSU with respect to Poland's
claim of violation of Article 3.
                                                     
63 WT/DS122/2, also cited supra , para. 7.10.
64 Poland's first written submission, Annex 1.1, para. 78.  Poland also identified Article VI:1(b)(ii) of
the GATT 1994 in this context.
65 Exhibit Thailand-35, pp. 5-8; Exhibit Thailand-40,  p. 5, Exhibit Thailand-36, para. 6.3; Exhibit
Thailand-41, pp- 3-4. See Response by Poland to Panel question 9, Annex 1-5.
66 We note that Poland's request for consultations (WT/DS122/1) -- which is incorporated by reference
into the panel request -- refers to Article 2.  However, regardless of whether or not this could have supported the
sufficiency of the panel request, it provides no further information or clarification with respect to Article 2 inany event.
67 Infra , para. 7.37.
68 We note Poland pointed out that paragraph 2 of the final determination of injury referred to “threat”
(Poland's first written submission, Annex 1-1, footnote 64)  Thailand clarified before us that this was an
incorrect translation of the Thai language version of the determination, and asserted that the term “threat” is not
included in the final determination, as evidenced by th e Thai language version included in Exhibit Thailand-44.
In any event, Thailand, as the Member that conducted the investigation, would be aware that the basis for itsdetermination was "material injury" and not "threat thereof".WT/DS122/R
Page 16
Was Thailand's ability to defend itself prejudiced with respect to Poland's claims under
Articles 2 and 3 of the AD Agreement and Article VI of the GATT 1994?
7.37 In any event, Thailand has failed to demonstrate to us that it experienced prejudice in its
ability to defend itself in the course of the actual Panel proceedings with respect to Poland's claims
under Articles 2 and 3 of the AD Agreement and Article VI of the GATT 1994.  It was apparent to usfrom the capable participation by Thailand in certain parts of the Panel proceedings, including in its
first written submission and in the first Panel meeting
69, that Thailand's ability to defend itself had not
been prejudiced, even prior to  Thailand making this request under Article 6.2 DSU with respect to the
alleged insufficiency of the panel request in respect of Articles 2 and 3 of the AD Agreement and
Article VI of the GATT 1994.
7.38 In this context, we disagree with Thailand's argument that the timing of this request by
Thailand is irrelevant to whether Poland's panel request meets the threshold of Article 6.2 DSU with
respect to Articles 2 and 3 AD and Article VI of the GATT 1994.70  We believe that the timing of this
second request by Thailand is indeed relevant, primarily because it was made a substantial amount of
time after  Thailand's first request under Article 6.2 DSU in respect of Articles 5 and 6 of the AD
Agreement.  We note that in this case, Thailand's a llegation of an insufficiency of the panel request in
respect of Articles 5 and 6 of the AD Agreement was included in its first written submission.
However, Thailand made no contemporaneous allegation concerning any alleged insufficiency of the
panel request with respect to Articles 2 and 3 of the AD Agreement or Article VI of the GATT 1994.
Rather, it was not until the conclusion of the Panel's first substantive meeting with the parties that
Thailand also alleged that the panel request was insufficient under Article 6.2 DSU with respect to
Articles 2 and 3 of the AD Agreement and Article VI of the GATT 1994.  At this point, the parties
had both submitted their first written submissions, made their oral statements and responded orally to
questioning from the other party and from the Panel at the first substantive meeting.  It was apparent
to us that Thailand had been able to participate fu lly and effectively in the proceedings in defence of
its interests up to that point and understood the claims against it under Article 2 and 3.  In our view, in
alleging in its first written submission that the Panel request was insufficient with respect to certainArticles, but not with respect to others, Thailand implicitly indicated that, at the time of its first
written submission , Thailand was of the view that the treatment of Articles 2 and 3 was sufficient.
We do not believe that it was open to Thailand, once it had alleged an insufficiency in the panel
request in respect of certain legal provisions, but not in respect of others, to allege at a later point in
the proceedings that the panel request had subsequently become less clear  in the course of the panel
proceedings with respect to those provisions not initially alleged to be treated insufficiently in the
panel request.
7.39 We are mindful of Thailand's argument that a finding by the Panel that a defending Member
must raise objections under Article 6.2 DSU at the first opportunity "will send the clear message that
defending Members should not take any good faith steps to identify the claims against it beforeimmediately asserting a procedural objection".  In  Thailand's view, such a disincentive to engage in
good faith efforts is inconsistent with the letter and spirit of Article 3 of the DSU.
7.40 We do not believe that our view in this case with respect to the relative timing of Thailand's
Article 6.2 DSU request with respect to Poland' s claims under Articles 2 and 3 AD and Article VI
GATT 1994 (i.e.  in relation to the initial request made under Article 6.2 with respect to Articles 5 and6 of the AD Agreement) sends such a message or creates such a disincentive.  We note that Article
3.10 of the DSU commits Members of the WTO, if a dispute arises, to engage in dispute settlement
procedures "in good faith and in an effort to resolve the dispute".  Thus, Members are obligated  to
                                                     
69 With respect to Article 2.2, Thailand's first written submission, Annex 2-1, paras. 61-74; Thailand's
oral statement at the first Panel meeting, Annex 2-3, paras. 21-28; with respect to Article 3, Thailand's firstwritten submission, paras. 75-115, Thailand's oral statemen t at the first Panel meeting, Annex 2-3, paras. 34-58.
70 Thailand's response to Panel Question 5, Annex 2-6.WT/DS122/R
Page 17
participate in good faith in dispute settlement in order to ensure the prompt, fair and effective
resolution of disputes arising under the covered agreements.
7.41 For these reasons, we deny the request by Thailand under Article 6.2 DSU for us to dismiss
Poland's claims of violation of Articles 2 and 3 of the AD Agreement and Article VI of the GATT
1994.71
(iv) Additional arguments of Thailand concerning the alleged insufficiency of the request for
establishment
7.42 We address two additional arguments made by Thailand, which Thailand links to the concept
of the sufficiency of the panel request.72
7.43 First, Thailand argues that "a panel may only accept the mere listing of a particular article as
sufficient if absolutely no prejudice was possible during the course of the proceedings."  According to
Thailand, "this would be the case only where (1) a panel found that the complainant had failed to
present a prima facie case and thus the adequacy of the defence was irrelevant or (2) a panel did not
reach the claims under the listed articles because it decided the case solely on claims properly
described in the request."73  We are concerned here that Thailand is blurring the distinction between,
on the one hand, the sufficiency of the panel request and, on the other, the issue of whether or not the
complaining party establishes a prima facie  case of violation of an obligation imposed by the covered
agreements.  We recall that "there is a significant difference between the claims  identified in the
request for the establishment of a panel, which establish the panel's terms of reference under Article 7
of the DSU, and the arguments supporting those claims, which are set out and progressively clarified
in the first written submissions, the rebuttal submissions and the first and second panel meetings with
the parties."74  Article 6.2 DSU does not relate directly to the sufficiency of the subsequent written
and oral submissions of the parties in the course of the proceedings, which may develop the
arguments in support of the claims set out in the panel request.  Nor does it determine whether or not
the complaining party will manage to establish a prima facie  case of violation of an obligation under a
covered agreement in the actual course of the panel proceedings.  To the extent that the requests by
Thailand under Article 6.2 DSU relates to whether or not Poland established a prima facie  case of
violation of the relevant provisions, we examine this below.75
7.44 Second, particularly in connection with our examination of the compliance by Thailand with
its obligations under Article 3.4 of the AD Agreement, Thailand argues that the Panel "may be
overstepping its authority by addressing certain issues that are outside the scope of the matter before
it"76 and objects to the Panel's admission of what it argues are "new claims" made by Poland at the
rebuttal stage of the proceedings.77  In our view, Thailand has confused here the concept of a "claim"
with the concept of an "argument" in support of a "claim" of violation of Article 3, specifically of
Article 3.4.  While claims must be specified in the panel request, which establishes a panel's terms of
                                                     
71 As explained above, para. 7.33, we consider that, in this case our findings with respect to Articles 2
and 3 of the AD Agreement will also be determinative of this issue with respect to Article VI of the GATT
1994.  Accordingly, we do not here make a separate examination or finding with regard to Article VI of theGATT 1994.
72 Thailand's response to Panel Questions 2(a) and 7(a), Annex 2-6; Thailand's response to Panel
Question 7(b), Annex 2-6.
73 Thailand's response to Panel Questions 2(a) and 7(a), Annex 2-6.
74 Appellate Body Report, European Communities – Bananas , supra , note 37, para. 141.
75 Infra , Section C.
76 Thailand's second written submission, Annex 2-5, para. 4.
77 Thailand's oral statement at the second Panel meeting, Annex 2-9, paras. 21, 55.WT/DS122/R
Page 18
reference, the arguments supporting those claims may be set out and progressively clarified in the
parties' submissions over the course of the Panel proceedings.78
7.45 Poland's panel request stated, in part:  "Thai authorities have made a determination that Polish
imports caused injury to the Thai domestic industry, in the absence of, inter alia , "positive evidence"
to support such a finding and without the required "objective examination" of enumerated factors such
as import volume, price effects, and the consequent impact of such imports on the domestic industry,
in contravention of Article VI of GATT 1994 and Article 3 of the Antidumping Agreement".79  It is
clear to us that Article 3 of the AD Agreement appears on the face of the panel request.  Therefore,
Poland's allegations under Article 3 clearly fall within the Panel's terms of reference.  It is also clear to
us that Poland's request for establishment alleges th at the Thai investigating authorities had failed to
consider certain enumerated factors under Article 3 in the course of the underlying AD investigation.
Contrary to Thailand's argument, we do not believe that "Poland was obligated in its request for
establishment of a panel to identify, at a minimum, Article 3.4 and identify specific factors that were
not considered".80  We have examined above81 the issue of sufficiency of the panel request with
respect to the claim of violation of Article 3 in terms of clarity under Article 6.2 DSU, and found therethat Poland's treatment of Article 3 satisfied the requirements of Article 6.2 DSU in respect of that
Article.
82
7.46 In its first written submission, in connection with its argument that the Thai authorities had
violated Article 3.4 inter alia  by failing to examine all relevant economic factors, Poland stated that
the Thai authorities "chose not to present evidence" concerning profits, losses, profitability and cash
flow.83  Poland subsequently argued that the Thai investigating authorities had failed to consider
"actual and potential declines in productivity", "the magnitude of the margin of dumping", "actual andpotential negative effects on wages", "actual and potential negative effects on ability to raise capital",
and "actual and potential negative effects on investments", and had failed to evaluate adequately any
of the factors listed in Article 3.4.
84  This apparent development in Poland's argument might have
been prompted by questioning from the Panel.85  We are of the view that the identification of these
factors by Poland in the course of the Panel proceedings constituted additional and more developedarguments  in support of its claim  of violation of Article 3.4.
86  All of these arguments by Poland fell
within the scope of its claim under Article 3.4 and went to the alleged insufficiency of the Thai AD
investigation with respect to the factors enumerated in Article 3.4 concerning the impact of dumped
imports on the domestic industry.
                                                     
78 Appellate Body Report, European-Communities-Bananas , supra , note 37, para. 141.
79 WT/DS122/2.
80 Thailand's response to Panel Question 7(b), Annex 2-6.
81 Supra , paras. 7.36-7.41.
82 Supra , para. 7.41.
83 Poland's first written submission, Annex 1-1, para. 74.
84 Poland's second written submission, Annex 1-4, paras. 67-68; Poland's response to Panel Question
38, Annex 1-5.
85 Panel Question 38.  In Poland's first oral statement, which preceded this question by the Panel,
Poland argued that Article 3.4 "requires an evaluation of all relevant factors and indices having a bearing on thestate of the industry"… and that "as the panel in Mexico- High Fructose Corn Syrup  explained a few weeks ago,
consideration of each of these [Article 3.4] factors must be apparent in the final determination of theinvestigating authority".  Poland's oral statement at the first Panel meeting, Annex 1-2, paras. 41-42.
86 This was a "claim" made concerning the Thai definitive anti-dumping measure challenged by
Poland.  See Appellate Body Report, Guatemala - Cement , supra , note 36, para. 73:  "Taken together, the
"measure" and the "claims" made concerning that measure constitute "the matter referred to the DSB", whichforms the basis for a panel's terms of reference."WT/DS122/R
Page 19
(e) Conclusion
7.47 In light of all the foregoing considerations, we deny Thailand's requests under Article 6.2
DSU to dismiss Poland's claims under Articles 2, 3 a nd 5 of the AD Agreement and Article VI of the
GATT 1994.  However, we grant Thailand's request under Article 6.2 DSU to dismiss Poland's claims
under Article 6 of the AD Agreement.
B.  GENERAL REMARKS
1. Burden of Proof
7.48 In WTO dispute settlement proceedings, the bu rden of proof rests with the party, whether
complaining or defending, that asserts the affirmative of a particular claim or defence.87
7.49 Thus, in the context of the present dispute, which is concerned with the assessment of the
WTO compatibility of a definitive anti-dumping measure imposed by the investigating authorities of
Thailand, we consider that it is for Poland to present a prima facie  case of violation of the relevant
Articles of the AD Agreement and Article VI of the GATT 1994, namely, to demonstrate that
Thailand's definitive anti-dumping measure is not justified by reference to Articles 2, 3, and 5 of the
AD Agreement and Article VI of the GATT 1994.  In this regard,  we recall that "… a prima facie
case is one which, in the absence of effective refutation  by the defending party, requires a panel, as a
matter of law, to rule in favour of  the complaining party presenting the prima facie  case".88  Thus,
where Poland presents a prima facie case in respect of a claim, it is for Thailand to provide an
"effective refutation" of Poland's evidence and arguments, by submitting its own evidence and
arguments in support of its assertions that, in the course of the investigation and at the time of itsdetermination, Thailand complied with the requirements of the AD Agreement and Article VI of the
GATT 1994.
89  It is for the Panel to weigh and assess the evidence and arguments submitted by both
parties in order to determine whether Poland has es tablished that Thailand acted inconsistently with
its obligations under the AD Agreement.
7.50 The burden of proof is "a procedural concept which speaks to the fair and orderly
management and disposition of a dispute".90  We consider that, pursuant to Articles 12 and 13 of the
DSU and in order to conduct an objective assessment of the facts of the matter pursuant to Article 11
DSU and Article 17.6 of the AD Agreement, we as a panel have broad legal authority to control the
process by which we inform ourselves of the relevant facts of the dispute and the legal principles
applicable to such facts. 91  We as a panel have the mandate and the duty to manage the Panel
proceedings and the ability to pose questions to the parties in order to clarify and distil the legal
arguments that are asserted by the parties in support of their claims.  We are conscious that, in our
assessment of the facts of the matter, we may not relieve Poland of its task of establishing the
inconsistency of Thailand's AD investigation and resulting measure with the relevant provisions of the
AD Agreement.  In particular, we are aware that, in our questions posed to the parties, we must not"overstep the bounds of legitimate management or guidance of the proceedings …  in the interest of
                                                     
87 Appellate Body Report, United States – Measure Affecting Imports of Woven Wool Shirts and
Blouses from India ("United States - Shirts and Blouses "), WT/DS33/AB/R, adopted 23 May 1997, p. 14.
88 Appellate Body Report European Communities – Measures Concerning Meat and Meat Products
("EC – Hormones" ), adopted on 13 February 1998, WT/DS26 and 48/AB/R, para. 104.
89 We note that this approach is similar to the one followed by the panel in Korea-Dairy Safeguard ,
The Appellate Body found no error in law in that panel's application of the burden of proof.  Appellate BodyReport, Korea- Dairy Safeguard , supra , note 27, paras 142-150.
90 Appellate Body Report, Canada -  Measures Affecting the Export of Civilian
Aircraft ,WT/DS70/AB/R, adopted 20 August 1999, para. 198.
91 Appellate Body Report, United States - Shrimp , supra , note 51, para. 106, referring to Articles 11, 12
and 13 of the DSU.WT/DS122/R
Page 20
efficiency and dispatch."92  However, the fact that it is for the party asserting the affirmative of a
particular claim or defence to discharge the burden of proof does not mean that a panel is frozen into
inactivity.  We believe that just as the extensive discretionary authority of a panel to request
information from any source (including a Member that is a party to the dispute) is not conditional
upon a party having established, on a prima facie  basis, a claim or defence93, so also a panel's
extensive authority to put questions to the parties in order to inform itself of the relevant facts of the
dispute and the legal considerations applicable to such facts is not conditional in any way upon a party
having established, on a prima facie  basis, a claim or defence.  We view this authority as essential in
order to carry out our mandate and responsibility under the DSU and the AD Agreement.
2. Standard of Review
7.51 Article 17.6 AD sets out a special standard of review for disputes arising under the AD
Agreement.94  Pursuant to Article 17.6(i), our approach in this dispute will be to determine whether
the establishment of the facts by the Thai investigating authorities was proper and whether their
evaluation of those facts was unbiased and objective.  We consider that, where the establishment of
the facts is proper, we must examine whether the ev idence before the Thai investigating authorities in
the course of their investigation and at the time of their determinations was such that an unbiased and
objective investigating authority evaluating that evidence could have determined dumping, injury and
causal relationship.95
7.52 In connection with our assessment of the facts of the matter under Article 17.6(i), we note that
Article 17.5(ii) states that the DSB shall establish a panel to examine the matter based upon:  "the
facts made available in conformity with appropriate domestic procedures to the authorities of the
importing Member."  In our view, this relates to all of the facts made available to the authorities of theimporting Member, including any confidential information that the investigating authority would be
prohibited from disclosing without permission purs uant to Article 6.5 of the AD Agreement (to the
extent that these form part of the record before a panel).  However, Article 17.6 does not expressly
distinguish between the "facts" in th e confidential and non-confidential record of the investigation.  It
does not expressly define which "facts" must be properly established.  Nor does it expressly definewhere (i.e. in the confidential and non-confidential record) these "facts" must be properly established
and evaluated in an unbiased and objective manner by the investigating authorities.  We are therefore
of the view that the "facts" upon which the determination is based must be properly established in
both the confidential and non-confidential record of the investigation.
7.53 We discuss the importance of such considerations below
96, in our examination under
Article 3.
                                                     
92 Appellate Body Report, Korea-Dairy Safeguard , supra , note 27, para. 149.
93 Appellate Body Report, Canada-Aircraft , supra , note 90, para. 185.
94 We find support for our view in  Appellate Body Report,  Argentina-Safeguard Measures on Imports
of Footwear , WT/DS121/AB/R, adopted 12 January 2000, para. 118; Appellate Body Report, United States -
Imposition of Countervailing Duties on Certain Ho t-Rolled Lead and Bismut h Carbon Steel Products
Originating in the United Kingdom , WT/DS138/AB/R, circulated on 10 May 2000, para. 47.
95 We recall that, in examining the decision by Mexico to initiate an anti-dumping investigation under
Article 5.3 of the AD Agreement, the panel in Mexico - Anti-dumping Investigation on High Fructose Corn
Syrup (HFCS) from the United States , stated:  "Our approach in this dispute will … be to examine whether the
evidence before SECOFI at the time it initiated the investigation was such that an unbiased and objective
investigating authority evaluating that evidence, could properly have determined that sufficient evidence of
dumping, injury and causal link existed to justify initiation." WT/DS132/R, adopted 24 February 2000, para.7.95.  We note that this panel report was not appealed to the Appellate Body.
96 Infra , Section VII.C.3.WT/DS122/R
Page 21
7.54 We are also mindful of the standard of review in Article 17.6(ii), which states:
"(ii) the panel shall interpret the relevant provisions of the Agreement in
accordance with customary rules of interpretation of public international law.  Where
the panel finds that a relevant provision of the Agreement admits of more than one
permissible interpretation, the panel shall find the authorities' measure to be inconformity with the Agreement if it rests upon one of those permissible
interpretations."
3. Confidential Information submitted by Thailand
7.55 As we have outlined above
97, in conjunction with its first submission, Thailand sought to
submit to the Panel, on the basis of Article 17.7 of the AD Agreement, certain exhibits containingconfidential information, which Thailand initially indicated that it did not intend to provide to Poland
or to the third parties.  However, Thailand also expressed its willingness to discuss the adoption of
additional Panel working procedures that would allow parties access to the confidential exhibits under
certain circumstances -- provided that such procedures would guarantee the protection of the
confidential information in all WTO proceedings, including any before the Appellate Body.Subsequently, on the basis of an agreement betwee n the parties, we adopted "Supplemental working
procedures concerning certain confidential information".  On the basis of the adopted procedures,
Thailand submitted confidential exhibits to the Panel and provided copies to Poland and to the third
parties.
7.56 We note that the confidential exhibits submitted by Thailand embrace at least two kinds of
"confidential" material.  The first is confidential information submitted by interested parties in the
course of the investigation that would fall under the protection of Article 6.5 of the AD Agreement.The second is internal Thai government reports and working documents.  The latter contain some
information that would be protected under Article 6.5 of the AD Agreement, as well as some analysis
and reasoning that Thailand argues formed part of the government of Thailand's internal
administrative process and that reflect factual evidence and reasoning based on that evidence that its
government took into account in reaching the affirmative final determination of injury.
7.57 We note that the Polish firms (and/or their legal counsel), as interested parties in the Thai AD
investigation, did not have access to the confidential  information pertaining to SYS, nor to the internal
reasoning of the Thai investigating authorities based on the evidence gathered in the investigation,
except to the extent that these were disclosed to them by the Thai investigating authorities in the
course of the investigation and in the final determination.  Consequently, the non-confidentialinformation disclosed by the Thai investigating author ities in the course of the investigation and in the
final determination formed the entire basis for the Polish firms' perception of the Thai AD
investigation.
7.58 We further note that Poland did not have access to the confidential exhibits until just prior to
the first Panel meeting in these proceedings.
7.59 These factors have played an important role in our examination of the matter before us,
especially in the context of Article 3 of the AD Agreement and our examination of the requirements
imposed by Article 3.1.
98
                                                     
97 Supra , Section V.
98 Infra , Section VII.C.3.a.WT/DS122/R
Page 22
C. EVALUATION OF CLAIMS
1. Article 5 of the AD Agreement:  Initiation
(a) Article 5.2 and 5.3: alleged insufficiency of the application and of evidence to justify
initiation
(i) Arguments of the parties
Poland
7.60 Poland alleges that the Thai authorities did not have sufficient evidence to justify initiation of
the investigation under Articles 5.2 and 5.3 of the AD Agreement.  Poland argues that the application
was insufficient under the chapeau of Article 5.2 as it did not contain data, evidence or analysis
regarding the existence of injury or a causal link between dumped imports and any injury.  Withrespect to the content of the application pertaining to dumping, Poland alleges that the application
contains nothing more than "simple assertion" in the form of raw numerical data, and does not contain
"information on the evolution of the volume of the allegedly dumped imports, the effect of these
imports on prices of the like product in the domestic market and the consequent impact of the imports
on the domestic industry", as required by Article 5.2(iv).  Poland asserts that no investigatingauthority can meet its obligations under Article 5.3 where a petition lacks two of the three basic
requirements for initiation and is wholly deficient with respect to the third.
7.61 In response to a Panel question, Poland asserted that the non-confidential version of the
application was the only document relevant to the Panel's examination of Poland's claims concerning
the contents of the petition and the sufficiency of evidence to justify the initiation of the
investigation.
99
Thailand
7.62 Thailand states that it complied with both Articles 5.2 and 5.3 of the AD Agreement in
initiating the investigation.  According to Thai land, its investigating authorities examined the
application and determined that it contained sufficient evidence of dumping, injury and a causal link
to justify the initiation of the investigation on H-beams .  Thailand asserts that relevant evidence
beyond simple assertion of injury and causal link are provided in the attachments to both theconfidential and non-confidential versions of the application.
100  With respect to the content of the
application pertaining to dumping, Thailand asserts that Poland never identified paragraph (iv) of
Article 5.2 prior to the rebuttal stage of this Panel proceeding, and that, in any event, the required
information relating to dumping is that information reasonably available to the applicant under
paragraph (iii), rather than subparagraph (iv), of Article 5.2.
7.63 In response to a Panel question, Thailand indicates that it considers that the following
documents are relevant to the Panel's examination of Poland's claims concerning the contents of the
petition and the sufficiency of evidence to justify the initiation of the investigation101: the confidential
and non-confidential versions of the application102, the letter from DBE to HK transmitting the public
notice of initiation103, the letter from DFT to HK transmitting the notice of initiation and
                                                     
99 Poland's response to Panel Question 10, Annex 1-5.  This response preceded the submission by
Thailand to the Panel of the confidential version of the application (Exhibit Thailand-52).
100 Exhibits Thailand-1, -52, -53.  See Thailand's oral statement at the second Panel meeting, Annex 2-
9, at para. 73.
101 Thailand's response to Panel Question 10, Annex 2-6.
102 Exhibits Thailand-1, -52, -53.
103 Exhibit Thailand-2.WT/DS122/R
Page 23
questionnaire104, a pre-application letter from SYS to the Thai Minister of Commerce105, an internal
DBE document providing a preliminary assessment of the application and requesting further
information106, and confidential tables submitted to the CPS Committee by DBE regarding pre-
initiation allegations of injury and causation.107
(ii) Evaluation by the Panel
Article 5.2
7.64 In examining Poland's claims under Articles 5.2 and 5.3 of the AD Agreement, we must first
consider the requirements of Article 5.2 concerning the evidence and information that must be
contained in the application for initiation of an AD investigation.
7.65 We turn first to the text of Article 5.2 of the AD Agreement.  It provides, in part:
"An application under paragraph 1 shall include evidence of (a) dumping, (b) injury
within the meaning of Article VI of GATT 1994 as interpreted by this Agreement and
(c) a causal link between the dumped imports and the alleged injury.  Simple assertion,
unsubstantiated by relevant evidence, cannot be considered sufficient to meet the
requirements of this paragraph.  The application shall contain such information as isreasonably available to the applicant on the following:
…
(iv)  information on the evolution of the volume of the allegedly dumped imports, the
effect of these imports on prices of the like product in the domestic market and the
consequent impact of the imports on the domestic industry, as demonstrated by relevant
factors and indices having a bearing on the state of the domestic industry, such as those
listed in paragraphs 2 and 4 of Article 3".
7.66 Article 5.2 governs the contents of an application for initiation of an AD investigation.  The
chapeau of Article 5.2 requires that an application must include "evidence" of dumping, injury and a
causal link.  The subsequent paragraphs of Article 5.2 list certain specific information regarding a
series of factors which must be included in the application.
7.67 In considering the contents of an application for the purposes of Article 5.2, a panel clearly
may refer to the confidential version of the application.  However, in light of the particular arguments
of Poland in support of its allegation under Article 5.2
108, we consider that the non-confidential
version of the application provides a sufficient ba sis for our examination under Article 5.2 of the AD
Agreement in this case.109
                                                     
104 Exhibit Thailand-5.
105 Exhibit Thailand-51.
106 Exhibit Thailand-54.
107 Exhibit Thailand-55.
108 Poland indicated that its argument was initially based on the non-confidential version of the petition
and argued that it was in "no position to evaluate" the contents of the confidential petition unless and untilThailand submitted it to the Panel.  Poland's response to Question 11 by the Panel (Annex 1-5).  Thailand
submitted the confidential version to the Panel in conjunction with its second written submission.  (Exhibit
Thailand-52).
109 Exhibits Thailand-1, -53. Thailand also submitted to the Panel the confidential version of the
application, Exhibit Thailand-52.WT/DS122/R
Page 24
contents of the application with respect to causation and injury
7.68 We turn to Poland's allegation that the application was insufficient under the first sentence of
the chapeau of Article 5.2 AD as it did not contain data, evidence or analysis regarding the existence
of injury or a causal link.
7.69 We note that SYS filled out a standard form "anti-dumping complainant application form"
provided by the Thai investigating authorities.  We observe that the non-confidential version of the
application submitted by SYS on its face contains "evidence" pertaining to the issues of injury and
causal link.  The body of the non-confidential application itself contains a section entitled "injury
determination", which contains information on total production capacity, volume and value of actual
production of the applicant (with some "volume" -- but not "value"-- data provided for "1995" and
"1996 Jan-Apr"); carry-over stock (with some "vol ume" -- but not "value"-- data provided for
"1995"); domestic and export sales (with some data provided for "1995" and "1996 Jan-Apr"); market
share (no data provided in body of application); profits and losses (no data provided in body of
application), number of workers (some data provided for "1994", "1995" and "1996 Apr"); levels of
imports from other sources (no data provided in body of application); and other factors possiblycausing injury (no data provided in body of application).
7.70 In addition, we note that the annexes to the non-confidential application contain, inter alia ,
data (including with respect to H-beams) on total imports from Poland compared with total
consumption in Thailand; import quantity from Poland (1991-1996 (April)), import price from Poland
(1991-1996 (April)), domestic and export sales volume of SYS (1995-1996 (Jan.-May)), domestic
market quantity and market share by supplyin g country (1988-1995), domestic market quantity and
market share by group of products (1994, 1995 and 1996 (Jan.-April)), quantity and import price fromother countries, and total imports 1988-1996 (Jan.-April).  In addition, there is a brief narrative
containing certain information on SYS pertaining, inter alia , to H-beams, including domestic market
conditions, import duties, import prices, average import prices from Poland and SYS inventories.
110
7.71 The non-confidential version of the application submitted to the Panel by Thailand also
contains: supplemental information on import prices and quantities (1991-1996 May) that wassupplied by SYS to the Thai investigating authorities on 15 July 1996; supplemental information on
SYS sales, production and inventory (1995, 1996 Jan.-June) that was supplied by SYS to the Thai
investigating authorities on 17 July 1996; and additional price information (including credit terms
offered on domestic and Polish sales) that was submitted by SYS to the Thai investigating authorities
on 16 August 1996.
111  We note that Poland did not specifically contest before us having also received
this supplemental information.
7.72 Thus, we are of the view that the application contains certain data, evidence and information
that is relevant to the issues of injury and causal link, including with respect to certain of the factors
mentioned in Articles 3.2 and 3.4 of the AD Agreement.
7.73 We therefore cannot agree with Poland's allegation that the application "failed … in violation
of the chapeau  of Article 5.2, to contain data, evidence or analysis of any kind regarding (1) the
existence of injury to SYS or (2) a causal link between alleged dumping by Polish firms and any such
injury to SYS".112  We note that Poland invoked only the first sentence of the chapeau of Article 5.2
                                                     
110 See Exhibits Thailand-1 and Thailand-53 and Thailand's oral statement at the second Panel meeting,
Annex 2-9, para. 73.
111 Although this information relates to other steel products, it is not clear to us that this information
relates to H-beams.
112 Poland's second written submission, Annex 1-4, para. 116.  In response to Panel questioning, Poland
stated that its allegation was that the application "did not contain any information relevant to some of therequired factors listed in Article 5.2, i.e. injury or causation " (Poland's response to Panel Question 11, Annex 1-WT/DS122/R
Page 25
as the basis for its pleadings concerning the contents of the application pertaining to injury and
causation.113  We emphasize that we do not understand Poland to have raised the issue of whether the
application contains such "information as is reasonably available to the applicant" in respect of any
specific sub-paragraph of Article 5.2 as it relates to injury or causation.
contents of the application with respect to dumping
7.74 We next consider Poland's allegation that, with respect to dumping, the application is
insufficient under Article 5.2 as it contains nothing more than "simple assertion" in the form of raw
numerical data, and does not contain "information on the evolution of the volume of the allegedly
dumped imports, the effect of these imports on prices of the like product in the domestic market and
the consequent impact of the imports on the domestic industry", as required by Article 5.2(iv).114
7.75 A review of the non-confidential version of the application indicates that the application
contains, in Section II on "Dumping", information on the price of H-beams in the exporter's domestic
market and the export price of H-beams sold into Thailand, as well as information on estimated
expenses in importing the product into Thailand.  In addition, the annexes to the application contain,
inter alia , data relating to the quantity and price and sources of H-beams imported into Thailand from
1988-1996, as well as certain other data with respect to the price and quantity of H-beams.  While
there does not appear to be any explanation or analysis of much of this data in the application or its
annexes pertaining to dumping, we recall that the panel in Mexico – HFCS  was of the view that:
"…Article 5.2 does not require an application to contain analysis, but rather to contain
information, in the sense of evidence, in support of allegations.  While we recognize
that some analysis linking the information and the allegations would be helpful in
assessing the merits of an application, we cannot read the text of Article 5.2 as requiringsuch an analysis in the application itself."
115
7.76 We agree with this view of the requirements imposed by Article 5.2 with respect to evidence
that must be contained in the application.  In the present case, we would have preferred the application
to have contained more explanation and a more robust analysis of the evidence pertaining to dumping.
However, the fact that the application contains data that is relevant to dumping but does not containexplanation or analysis of much of this data does not, in and of itself, lead to a violation of Article 5.2
AD.
7.77 We note that the chapeau of Article 5.2 AD provides that "simple assertion, unsubstantiated
by relevant evidence, cannot be considered sufficient to meet the requirements of this paragraph".  We
consider that raw numerical data would constitute "relevant evidence" rather than merely a "simpleassertion" within the meaning of this provision. Although Poland's argumentation on this point is
somewhat unclear, we understand Poland also to invoke  paragraph (iv) of Article 5.2 in order to imply
that some sort of analysis of such data is required in the application.
116  While paragraph (iv) of
Article 5.2 requires the application to contain "information", in the sense of evidence, on certain
identified factors, we do not read this provision as imposing any additional requirement  that the
application contain analysis of the data submitted in support of the application.
                                                                                                                                                                    
5) and that it "contains no data, evidence or analysis of any kind regarding injury or causation" (Poland's
response to Panel Question 13, Annex 1-5).
113 See, for example, Poland's second written submission, Annex 1-4, at para. 116;  Poland's response to
Panel Questions 3 and 10-13, Annex 1-5.
114 Poland's second written submission, Annex 1-4, para. 117.
115 Panel Report, Mexico – HFCS,  supra , note 95, para. 7.76.
116 See Poland's second written submission, Annex 1-4, para. 117; and Poland's response to Panel
Question 14, Annex 1-5.WT/DS122/R
Page 26
7.78 For these reasons -- and in particular the narrow basis of Poland's pleadings concerning the
alleged inconsistency of the application with the provisions of Article 5.2 -- we find that Poland has
not established a prima facie  case that the contents of the application were insufficient to meet the
requirements of the first and second sentences of the chapeau of Article 5.2 of the AD Agreement, nor
paragraph (iv) of Article 5.2 of the AD Agreement.  As Poland has made no arguments with respect toan independent violation of Article VI of the GATT 1994 in this context, we also find that Poland has
not established a prima facie  case of inconsistency with that provision.
Article 5.3
7.79 In this case, the sole basis for Poland's allegation that Thailand acted inconsistently with the
requirement in Article 5.3 concerning the sufficiency of evidence to justify initiation of theinvestigation was the alleged insufficiency of the application under Article 5.2 AD.
117  In light of our
finding above concerning Article 5.2 AD, we consider that Poland has not established a prima facie
case of inconsistency with Article 5.3 AD.  As Poland has made no arguments with respect to an
independent violation of Article VI of the GATT 1994 in this context, we also find that Poland has not
established a prima facie  case of inconsistency with that provision.
(b) Article 5.5: alleged insufficiency of notification
(i) Arguments of the parties
Poland
7.80 Poland argues that, in violation of Thailand’s obligations under Article 5.5 AD read in
conjunction with Article 12.1 AD, Thailand did not  provide proper or timely notification to Poland
regarding the filing of the application for initiation of the Thai anti-dumping investigation.  Poland
recognizes that this claim is based on a disagreement with Thailand as to the content of a discussionheld on 17 July 1996 between government officials from Thailand and Poland.  Poland believes that,
due to the difficulty for a panel to rule on something that was communicated orally, Article 5.5 should
be read to require written notice.  Poland submits that no such written notice was provided in this
case.
Thailand7.81 Thailand argues that the meeting on 17 July 1996 between government officials from
Thailand and Poland complied with the requirements of Article 5.5 AD with respect to the timing,
form, and content of the notification.  With respect to timing, Thailand submits that it notified Poland
less than one month after the receipt of the application and six weeks before the decision to initiate the
investigation.  In Thailand's view, this satisfies Article 5.5 AD and falls within the "window"contemplated by the relevant Recommendation adopted by the WTO Anti-Dumping Committee.
118
With respect to form, Thailand submits that the text of Article 5.5 AD does not specify whethernotification should be written or oral.
119  For Thailand, discussions on this issue in the Anti-Dumping
Committee's Ad Hoc Group on Implementation also do not specify whether notice should be written
or oral.120  Thailand argues that its interpretation that notification under Article 5.5 AD may be written
or oral is a permissible interpretation that the Panel should accept in accordance with Article 17.6(ii)
of the AD Agreement.  With respect to content, Thailand considers that the language of Article 5.5
AD is vague and gives no indication of what should be notified.  Referring to the Thai government
note summarizing the 17 July 1996 meeting121, Thailand states that Thailand indicated to Poland
during the meeting that an application had been re ceived and that the authorities were considering
whether it contained sufficient information to justify initiation.  In Thailand's view, the Panel should
                                                     
117 Poland's second written submission, para. 119; Poland's oral statement at the second Panel meeting,
Annex 1-6, at paras. 95-96; Poland's response to Panel Question 10, Annex 1-5.WT/DS122/R
Page 27
ignore Poland's reference to Article 12 of the AD Agreement in this context, as Article 12 is not
within the Panel's terms of reference.
(ii) Evaluation by the Panel
7.82 Article 5.5 AD states:
"The authorities shall avoid, unless a decision has been made to initiate an investigation,
any publicizing of the application for the initiation of an investigation.  However, after
receipt of a properly documented application and before proceeding to initiate an
investigation, the authorities shall notify the government of the exporting Member
concerned."
7.83 In this case, the parties agree that there was a meeting in Bangkok between government
officials of Thailand and Poland on 17 July 1996, and that the issues arising in this dispute under
Article 5.5 AD are due to a difference of views betwee n the parties as to the nature of the obligations
imposed by Article 5.5 AD with respect to the timing, form and content  of the notification.
7.84 Based on evidence on the Panel record submitted by Thailand that Poland has not specifically
contested122, the Panel's understanding of the factual situation underlying this claim is as follows.  On
21 June 1996, Thailand received an anti-dumping application from SYS.  Some time prior to 17 July
1996, the Polish Commercial Counsellor in Bangkok, Mr. Byckowski, telephoned Ms. Chutima
Bunyapraphasara (Director of the Multilateral Trade Division) to seek clarification regarding an
article in a publication called "Metal Bulletin".  The article apparently reported that SYS had
requested the Thai government to investigate dumped steel products from Poland.  A meeting was
scheduled for 17 July 1996 between Mr. Byckowski and officials from DBE.  Thailand submits that
the meeting is summarized in an internal Thai government note written by Ms. Chutima to theDirector-General of DBE dated 18 July 1996.
123  According to this note, DBE officials indicated in
the course of the 17 July 1996 meeting "that the company had filed an application requesting the Thai
Government to investigate the dumped steel products from Poland…" and that "the matter was under
consideration whether the company had enough information for the Committee to initiate the
investigation."124  On 30 August 1996, Thailand initiated the anti-dumping investigation.
7.85 We turn to a consideration of whether this meeting that both parties agree occurred between
their government officials on 17 July 1996 satisfied the notification requirements of Article 5.5 of the
AD Agreement with respect to its timing, form and content.
                                                                                                                                                                    
118 Thailand refers to the "Recommendation concerning the timing of the notification under Article
5.5", adopted by the ADP Committee on 29 October 1998, G/ADP/5, 3 November 1998.
119 In their responses to Panel Question 3 (Annexes 3-7, 3-8 and 3-9), the third parties offered their
views on the form of the notification required under Article 5.5.  The European Communities was of the view
that while the term "notify" "implies some degree of formality", this "did not necessarily exclude that anotification can be made orally in the course of an official meeting…".  Japan noted that although the text of theprovision does not specify that the notification should be in writing, other considerations "suggest that Article5.5 requires written notification".  The United States submitted that Article 5.5 is silent on this issue and that ameeting of government officials could satisfy this requirement, "provided that the objective of the meeting is
specific and sufficiently documented to support a review on the record by a panel".
120 The Ad Hoc Group is a subsidiary body of the ADP Committee established by decision of that
Committee on 29 April 1996 to prepare recommendations on issues where agreement seems possible, and reportto the Committee.  In addition, the Ad Hoc Group could consider other issues regarding implementation onwhich Members believe discussion would be helpful.  See G/ADP/M/7, paras. 53-54.
121 Exhibit Thailand-56.
122 See, inter alia , response by Thailand to Question 18 by the Panel, Annex 2-6.
123 Exhibit Thailand-56.
124 Exhibit Thailand-56.WT/DS122/R
Page 28
7.86 With respect to the timing of the notification required under Article 5.5, the second sentence
of Article 5.5 provides that "after receipt of a properly documented application  and before proceeding
to initiate an investigation, the authorities shall notify the government of the exporting Member
concerned."  Footnote 1 of the AD Agreement defines the term "initiated" as follows:  "The term
"initiated" as used in this Agreement means the procedural action by which a Member formallycommences an investigation as provided in Article 5."  Together, these provisions make it clear that at
a point in time between two specified events, the au thorities of the importing Member must notify the
exporting Member.
7.87 In the present case, the application was filed on 21 June 1996.
125  The investigation was
initiated on 30 August 1996.  Therefore, the 17 July 1996 meeting occurred (approximately onemonth) following receipt of the initial application
126 and (approximately six weeks) prior to the
initiation of the investigation.  We find that the 17 July 1996 meeting fell within the "window" of time
envisaged by Article 5.5 and therefore satisfied the timing requirements imposed by Article 5.5.127
7.88 We next turn to consider whether the 17 July 1996 meeting satisfied the requirements as to
form under Article 5.5 of the AD Agreement.
7.89 Article 5.5 AD does not specify the form that the notification must take.  The Concise Oxford
Dictionary  defines the term "notify" as: "inform or give notice to (a person)"; "make known,
announce or report (a thing)".  We consider that the form of the notification under Article 5.5 must be
sufficient for the importing Member to "inform" or  "make known" to the exporting Member certain
facts.  While a written notification might arguably best serve this goal and the promotion of
transparency and certainty among Members, and might also provide a written record upon which an
importing Member could rely in the event of a subsequent claim of inconsistency with Article 5.5 ofthe AD Agreement, the text of Article 5.5 does not expressly require that the notification be in
writing.
128
7.90 We consider that a formal meeting between government officials could satisfy the notification
requirement of Article 5.5, provided that the meeting is sufficiently documented to support
meaningful review by a panel.  For these reasons, we find that the fact that Thailand notified Polandunder Article 5.5 orally in the course of a meetin g between government officials, rather than in
written form, does not render the notification inconsistent with Article 5.5.
7.91 We turn to a consideration of whether the 17 July 1996 meeting satisfied the requirements of
Article 5.5 with respect to the content of the notification.  The text of Article 5.5 does not specify the
contents of the notification.  It provides:  "after receipt of a properly documented application and
                                                     
125 The Thai investigating authorities subsequently requested, and received, certain additional
information from SYS.  See Exhibits Thailand-1, Thailand-53.
126 Thailand submits that at this meeting, the DBE notified Mr. Byckowski that a properly documented
anti-dumping application had been received.  Thailand's first written submission, Annex 2-1, para. 120.
127 We note that a recommendation adopted by the WTO Committee on Anti-Dumping Practices states:
"…the Committee recommends that the notification required by the second sentence of Article 5.5 should bemade as soon as possible after the receipt by the investigating authorities of a properly documented application,
and as early as possible before the decision is taken regarding the initiation of an investigation on the basis of
that properly documented application".  "Recommendatio n concerning the timing of the notification under
Article 5.5", adopted by the Committee on 29 October 1998, G/ADP/5, 3 November 1998. We consider that thisdecision is a relevant but non-binding indication of the understanding of Members as to appropriateimplementation practice regarding the obligations under Article 5.5 AD with respect to the timing of thenotification.  Moreover, we note that the language of the recommendation ("should…") is hortatory.
128 While there have been discussions in the Ad Hoc Group on the issue of the form of the notification
(See G/ADP/AHG/R/4, para. 19 (Exhibit Thailand-61); G/ADP/AHG/R/5, paras. 18-19 (Exhibit Thailand-59);G/ADP/AHG/R/2, para. 5 (Exhibit Thailand-60)), there has been no recommendation adopted by the ADPCommittee on this issue.WT/DS122/R
Page 29
before proceeding to initiate an investigation, the authorities shall notify the government of the
exporting Member concerned".129  Because the text of the provision specifies that notification
necessarily follows the receipt of a properly documented application, we consider that the fact of the
receipt of a properly documented application would be an essential element of the contents of the
notification.
7.92 We note that any notification provided in this case was provided orally in the course of a
meeting between government officials.  The only wr itten evidence on the Panel record relating to the
content of any such notification is an internal Thai government note130 summarizing the meeting and
several subsequent communications from the Th ai government to the Polish government.131  T h e
internal Thai government note states, inter alia , that the Thai government indicated in the course of
the 17 July 1996 meeting "that the company had filed an application requesting the Thai Government
to investigate the dumped steel products from Poland…" and that "the matter was under consideration
whether the company had enough information for the Committee to initiate the investigation."132
Poland has not explicitly contested in these proceedings that this internal Thai government noteaccurately reflects the content of the oral communication between the parties' government officials atthe meeting.  We therefore consider that the meeting of 17 July 1996 was sufficient with respect to its
content in that it served to inform the Polish go vernment of the fact that the Thai government had
received the SYS application and therefore constitutes sufficient notice under Article 5.5.
7.93 Poland has invoked Article 12 of the AD Agreement as "useful context" in connection with its
Article 5.5 AD claim, but has not made a claim unde r Article 12 of the AD Agreement.  We note that
both Articles 5.5 and 12.1 contain a requirement to notify the government of the exporting Member
concerned of certain events connected with the initiation of an investigation at a certain point in time.However, it is clear that the requirements as to th e timing, form and content of these notifications is
different.  Article 5.5 makes it clear that the notification referred to in that provision must take place
"after receipt of a properly documented application an d before proceeding to initiate an investigation".
By contrast, Article 12.1 of the AD Agreement concerns notification of initiation, as it requires
notification to "the Member or Members the products of which are subject to such investigation…","[w]hen the authorities are satisfied that there is suff icient evidence to justify the initiation of an anti-
dumping investigation pursuant to Article 5 …" and requires "public notice" of initiation. As
Article 12.1 provides that such "public notice" must "contain, or otherwise make available through a
separate report, adequate information….", the notice must presumably be in writing.  Furthermore,
Article 12 involves the notification of a decision to initiate, which a Member may not yet have takenat the time of an Article 5.5 notification.  That Article 12 specifically enumerates certain requirements
with respect to the contents and form of the notice it requires, and Article 5.5 does not, strongly
suggests to us that the requirements of Article 12 do not apply to notification under Article 5.5, and in
no way changes our interpretation of the requirements concerning the timing, form and content of the
notification to be given under Article 5.5.
7.94 For these reasons, we find that Thailand did not act inconsistently with the respect to the
timing, form and content of the notification under Article 5.5 of the AD Agreement in informing
Poland orally in the course of the 17 July 1996 meeting between government officials of Thailand and
Poland that Thailand had received an application from SYS for initiation of an anti-dumping
investigation with respect to imports of H-beams from Poland. As Poland has not made anyarguments concerning an independent violation of Article VI of the GATT 1994 in this context, we
also find that Poland has not established a violation of that provision.
                                                     
129 While there have been discussions in the Ad Hoc Group on the elements that certain Members
consider relevant in this context (G/ADP/AHG/R/4, para. 18 (Exhibit Thailand-61), G/ADP/AHG/R/5, para. 17
(Exhibit Thailand-59)) there has been no recommendation adopted by the ADP Committee on this issue.
130 Exhibit Thailand-56.
131 Exhibit Thailand-14/Poland-4 and Thailand-57.
132 Exhibit Thailand-56.WT/DS122/R
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2. Article 2.2 of the AD Agreement:  Amount for profit in constructed normal value
(a) Factual background
7.95 During the anti-dumping investigation, the Thai authorities found that the Polish respondent
companies produced and/or sold two types of H-beams, those produced to JIS specifications133 ("JIS
H-beams") and those produced to DIN specifications134 ("DIN H-beams").  DIN H-beams accounted
for the large majority of the respondent companies' H-beam sales in Poland, and JIS H-beams
accounted for the large majority of these companies' H-beam sales in Thailand135.  The Polish
respondent companies argued during the investigation that JIS and DIN H-beams were not like
products due to physical and production process differences.  The Thai authorities accepted this
argument and on this basis found that HK's home market sales of the like product (JIS H-beams)accounted for less than five percent of its sales to Thailand.  Thus, the authorities calculated the
preliminary dumping margin for HK on the basis of a constructed normal value. In respect of the
amount for profit, Thailand followed the methodology set forth in AD Article 2.2.2(i), with the "same
general category of products" for which the amount for profit was determined defined as HK's total H-
beam sales (JIS and DIN)
136.
7.96 The Thai authorities found at verification that the physical and production differences
between JIS and DIN H-beams were less than had been argued by the Polish respondents, i.e., that H-
beams were "broadly similar irrespective of standard" as substantiated by independent reports
prepared by specialized engineering institutes, inter alia .137 The authorities also found that there was
no clear indication that the production lines for JIS and DIN H-beams were treated as separate for cost
purposes, as the practice of HK was to average out all costs of H-beams irrespective of the production
lines concerned and that the stock cards did not differentiate between the different product lines.138
The Thai authorities nevertheless continued to use constructed normal value for the final dumping
determination, again using HK's profits on sales of all H-beams (36.3 per cent) as the profit amount
for the "same general category of products" in calculating the constructed normal value.  In this
context, the Thai authorities found that the profit margin for the like product (JIS H-beams) was
almost identical to that for all H-beams as a whole.139
(b) Arguments of the parties
(i) Poland
7.97 Poland claims that Thailand violated Article 2.2 and Article VI:1(b)(ii) of GATT 1994 by
including an unreasonable amount for profit in the constructed normal value calculation.  In Poland's
view, applying the methodologies set forth in Article 2.2.2 (i)-(iii) does not yield results that areipso facto  reasonable.  Rather, while the methodologies  set forth in Article 2.2.2 (i)-(iii) are by
definition reasonable, at most there is a rebuttable presumption that the results  generated by these
methodologies are reasonable.  According to Poland, the result of any calculation using any of these
methodologies thus must be evaluated to determine whether it is "reasonable" in the sense of
Article 2.2, on the basis of other evidence on the record of the investigation.
140  Poland argues that
there were several other much lower profit figures on the record that could and should have been used
                                                     
133 JIS is an abbreviation for Japanese Institute of Standards.
134 DIN is an abbreviation for Deutsche Industria Normen.
135 See Thailand's first written submission, Annex 2-1, at para. 59.
136 See Exhibit Thailand-37 at section 6, "Profitability".
137 Id. at section C, "Like product comparisons".
138 Id. at section 7, "Allowances".
139 Id. at section 6, "Profitability".
140 Third party Japan takes a similar view (See, Japan's answer to Panel question 6, Annex 3-8).  The
EC and the United States disagree (see footnote 145, infra ).WT/DS122/R
Page 31
by Thailand instead of the 36.3 per cent on HK's total H-beam sales.  These were:  7 per cent, an
amount identified by SYS in the petition in the context of injury as the "reasonable profit margin to
maintain the industry"; 5-7 per cent, which Poland states was suggested by SYS in its own
constructed normal value calculation in the petition; and 4.55 per cent, HK's company-wide profit
margin.
7.98 Poland considers that the text of Article 2.2.2 supports its argument that Article 2.2 and
Article 2.2.2 require a separate "reasonability" test.  Poland notes that while the chapeau of the latter
Article states that the methodologies therein are "for  the purpose of paragraph 2" of Article 2 (i.e., the
determination of a "reasonable amount" for, inter alia,  profit), the second sentence of the chapeau
states that the methodologies in subparagraphs (i)-(iii) "may" be used.  If the use of suchmethodologies were required, this sentence, like the first sentence of the chapeau of Article 2.2.2,
would have used the word "shall".   Poland also cites Article 2.2.2 (iii) in support of its argument,
noting that this provision states that "the amount for profit so established shall not exceed the profit
normally realized by other exporters or producers on sales of products of the same general category in
the domestic market of the country of origin", i.e., expressly providing that even reasonablemethodologies may sometimes yield results that are not "fairly usable" or "reasonable".  In Poland's
view, the ceiling imposed by subparagraph (iii) "is arguably stricter than that of the 'reasonableness'
standard which otherwise flows from Article 2.2 to each provision thereunder".
141
7.99 Poland further argues that in applying subparagraph (i) of Article 2.2.2, Thailand violated the
requirement to calculate profit amounts on "the same general category of products".  In particular,
Poland argues that the Thai authorities utilized the wrong sales and production data, that is, HK's data
on H-beams only.  According to Poland, Thailand had an obligation to use HK's production and salesdata not just for H-beams, but more broadly for all products "of the same general category" – of which
the narrowest grouping would be "'Angles, shapes and sections of iron or non-alloy steel under
HS 7216".  Poland argues that, while not like pr oducts, JIS and DIN H-beams are both included in
this "general category" but do not constitute the entirety of that category.  According to Poland,
Article 2.2.2 (i) would not allow for a narrower category  than the "narrowest 'general category'" (i.e.,
HS 7216) because "small" market segments are more likely to be "unrepresentative" than larger ones.
On the other hand, according to Poland, the most general category -- all products of a company --
would satisfy the requirement of Article 2.2.2 (i).  Poland notes that there are no data on the record
pertaining to profits for the category identified by Poland (HS 7216), and submits that in the absence
of such data, the company-wide average profit margin for HK (4.55 per cent) is a "proper(if…imperfect) surrogate"
142.
(ii) Thailand
7.100  Thailand submits that the profit margin used  by the Thai investigating authority was
"reasonable", as required by Article 2.2 AD, and was that actually realised on domestic sales of the
"same general category of products", i.e., all H-beams.
7.101  Concerning the issue of a separate "reasonability" test, Thailand argues that no such test is
required under Articles 2.2 and 2.2.2143.  Rather, if one of the methodologies outlined in 2.2.2(i)-(iii)
is used where the relevant conditions for doing so are met, i.e., when the preferred method of
calculating profit (that in the chapeau of Art. 2.2.2) cannot be used, then the result is reasonable per
se.  Indeed, according to Thailand, when the conditions for using Article 2.2.2(i)-(iii) are met, there is
no permissible  way to measure profit other than  one of these methodologies.  In this connection,
Thailand does not believe that the word "may" in any way links the term "reasonable" in Article 2.2 to
                                                     
141 Second written submission of Poland, Annex 1-4, para. 109.
142 See Poland's response to Panel Question 28, Annex 1-5.
143 Or under GATT Article VI:1(b)(ii).WT/DS122/R
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the calculation methods of Article 2.2.2.  Rather, "may" means "is permitted to", where the preferred
methodology in the chapeau of Art. 2.2.2 (which normally "shall" be used) cannot be used.144,145
7.102  Thailand argues that rather than constraining the level of constructed value and thus the level
of the dumping margin (as Poland argues), the word "reasonable" plays a role in effecting the purpose
of the AD Agreement, i.e., to neutralise the im pact of dumped imports.  Seen in this light,
"reasonable" must mean "'as close as possible to the actual dumping margin'"146.  If under Article
2.2.2(i) an investigating authority used a lower prof it amount than the actual one, this would mask
rather than accurately represent the dumping th at was actually occurring, and thus would be
unreasonable, because it would not be accurate.  Thailand further asserts that Poland has offered no
method for determining whether a particular level of profit is “reasonable”, and notes that HK's actual
profit rate exceeded 35 percent on all H-beams and was virtually the same on JIS H-beams, but that
Poland argues that this actual profit level is unreasonable.147
7.103  Concerning the question of the "same general category of products", Thailand submits that
Article 2.2.2(i) does not provide for any particular breadth of definition of “same general category of
products”, but leaves the decision to use a narrower general category rather than a broader generalcategory to the reasonable discretion of the investigating authorities.  Thailand argues that in a case
where the investigating authority has information on both H-beams and "all products", it would make
more sense to choose the narrower category as the "same general category of products", because
broader and broader categories will encompass products less and less "like" the products for which a
profit is sought to be calculated.  As a result, the broader the general category definition, the greater
the likelihood that the profit calculation will be inaccurate.
7.104  Thailand states that it is entirely consistent  with the requirements of the AD Agreement to
conclude that products are not comparable for purposes of Article 2.1, and also to conclude that the
data for sales and production of such products do provide a proper basis for a profit calculation under
Article 2.2, because such products belong to the “same general category of products” (in this case, all
“iron or non-alloy steel H-sections, classified under the HS code 7216.33.0005”, the product underinvestigation).  For Thailand, all H-beams constitute an obvious, natural category, and the respondentmust have the burden to show why there is a major discrepancy caused by using the methodology in
Article 2.2.2(i), particularly when the respondent is costing all H-beams in a single accounting
database and the investigating authorities find that profits on the like product in the home market are
virtually identical to profits for the same general ca tegory of products, i.e., all H-beams.  According to
Thailand, given this "virtual identity" of profit levels, the profit level from one product within thesame general category was not causing an unreasonably high profit level for the category that was
then attributed to the like product.  Moreover, Thailand argues, if a price-based comparison had been
made using prices for all sales of H-beams, the result would have been essentially the same as the
final dumping margin established on the basis of constructed normal value
148, 149.
                                                     
144 In response to a question from the Panel (Question 35, Annex 2-6), Thailand also argues that the
phrase "sales in the ordinary course of trade" in the chapeau of Article 2.2.2 is not relevant to the question ofwhether there is a reasonability test, as calculations must always be based on sales in the ordinary course oftrade or they will not be accurate .
145 Third parties the EC and the United States also take this view. (See EC and US responses to Panel
Question 7, Annexes 3-7 and 3-9.)  The US also argues that the negotiators focused on methodologies thatwould provide a means for calculating a "reasonable" profit, rather than trying to define the term "reasonable".(See US response to Panel question 6, Annex 3-9.)  Japan disagrees (see footnote 140).
146 Third party the EC makes a similar argument.
147 Thailand notes that in response to a Panel question (question 29, Annex 1-5), Poland admits that the
Thai authorities correctly calculated the amount of profit under the method provided for in subparagraph (i).
148 Thailand's answer to Panel question 32, Annex 2-6 .
149 Thailand also notes that the Thai authorities found that “based on the price information submitted by
Huta Katowice … there is no significant difference betwee n the weighted average price of profitable sales of JISWT/DS122/R
Page 33
(c) Evaluation by the Panel
7.105  In assessing this claim, we are confronted by two issues which are purely matters of legal
interpretation:  first, whether Thailand has incorrectly applied Article 2.2.2 (i) by defining the "same
general category of products" too narrowly, (i.e., as all H-beams), rather than as a broader "general
category"; and second, whether an amount for profit calculated pursuant to Article 2.2.2 (i) is ipso
facto  reasonable (assuming that the methodology is applied correctly) or must be subjected to a
separate reasonability test.
(i) Has Thailand incorrectly applied Article 2.2. 2 (i) of the AD Agreement by incorrectly
defining the "same general category of products"?
7.106  Turning to the first issue, whether Thailand has incorrectly applied Article 2.2.2 (i), namely
by incorrectly defining the "same general category of products", we first consider the text of the
relevant provisions, namely Article 2.2 and Article 2.2.2.
7.107  Article 2.2 provides that:
"2.2 When there are no sales of the like product in the ordinary course of trade in the
domestic market of the exporting country or when, because of the particular marketsituation or the low volume of the sales in the domestic market of the exporting country,
such sales do not permit a proper comparison , the margin of dumping shall be determined
by comparison with a comparable price of the like product when exported to an appropriate
third country, provided that this price is representative, or with the cost of production in the
country of origin plus a reasonable amount for administrative, selling and general costs
and for profits . (emphasis added, footnote deleted).
7.108  Article 2.2.2 provides:
"2.2.2 For the purpose of paragraph 2, the amounts for administrative, selling and
general costs and for profits shall  be based on actual data pertaining to
production and sales in the ordinary course of trade of the like product  by the
exporter or producer under investigation.  When such amounts cannot be
determined on this basis , the amounts may be determined on the basis of:
(i) the actual amounts incurred and realized by the exporter or producer in
question in respect of production and sales in the domestic market of the
country of origin of the same general category of products ;
(ii) the weighted average of the actual amounts incurred and realized by other
exporters or producers subject to investigation in respect of production andsales of the like product in the domestic market of the country of origin;
(iii) any other reasonable method, provided that the amount for profit so
established shall not exceed the profit normally realized by other exporters or
producers on sales of products of the same general category in the domestic
market of the country of origin". (emphasis added)
                                                                                                                                                                    
(989.22 PLN per tonne) and DIN (993.12 PLN per tonne) products sold on the Polish domestic market.”
(Thailand-62 at page 4, and Thailand's second oral statement, Annex 2-9, at para. 40)WT/DS122/R
Page 34
7.109  We note at the outset that there is no dispute between the parties concerning the facts as
established by Thailand.  That is, Poland has confirmed, in answer to a question from the Panel, that
Thailand correctly calculated the actual profit margin (36.3 per cent) on HK's sales of all H-beams150.
7.110  Rather, what Poland objects to is the narrowness of "the same general category of products"
used by Thailand.  In essence, Poland argues that the narrowest "same general category of products"that includes H-beams and thus that could have been used by Thailand is HS 7216, "Angles, shapes
and sections of iron or non-alloy steel".  For Poland, Thailand was obligated under Article 2.2.2 (i) to
have used this category, and in any case not to have used any narrower category, as the "same general
category" in determining the amount for profit to be used in the constructed value calculation.
7.111  In assessing this aspect of Poland's claim unde r Article 2 of the AD Agreement, we note that
the text of Article 2.2.2 (i) simply refers without elaboration to "the same general category of
products" produced by the producer or exporter under investigation.  Thus, the text of this
subparagraph provides no precise guidance as to the required breadth or narrowness of the product
category, and therefore provides no support for Po land's argument that a broader rather than a
narrower definition is required .
7.112  We do find a certain amount of guidance in other provisions of Article 2.2.2, in particular its
chapeau and its overall structure, however.  In particular, we note that, in general, Article 2.2 and
Article 2.2.2 concern the establishment of an appropriate proxy for the price "of the like product in the
ordinary course of trade in the domestic market of the exporting country" when that price cannot be
used.  As such, as the drafting of the provisions makes clear, the preferred methodology which is set
forth in the chapeau is to use actual  data of the exporter or producer under investigation for the like
product .  Where this is not possible, subparagraphs (i) and (ii) respectively provide for the database to
be broadened, either as to the product (i.e., the same general category of products produced by the
producer or exporter in question) or as to the producer (i.e., other producers or exporters subject to
investigation in respect of the like product), but not both.  Again this confirms that the intention of
these provisions is to obtain results that approximate as closely as possible the price of the like
product in the ordinary course of trade in the domestic market of the exporting country.
7.113  This context indicates to us that the use under subparagraph (i) of a narrower  rather than a
broader  "same general category of products" certainly is permitted.  Indeed, the narrower the
category, the fewer products other than the like product will be included in the category, and this
would seem to be fully consistent with the goal of obtaining results that approximate as closely as
possible the price of the like product in the ordinary course of trade in the domestic market of theexporting country.
7.114  Additional contextual support can be found in Article 3.6 (a provision related to data
concerning injury), which provides that when available data on "criteria such as the production
process, producers' sales and profits" do not permit the separate identification of production of the like
product, "the effects of the dumped imports shall be assessed by the examination of the production ofthe narrowest  group or range of products, which includes the like product, for which the necessary
information can be provided" (emphasis supplied).  Although this provision concerns information
relevant to injury rather than dumping, and although we do not mean to suggest that use of the
narrowest possible category including the like product is required under Article 2.2.2(i), in our view
Article 3.6 provides contextual support for the conclusion that use of a narrow rather than a broadercategory is permitted.
7.115  We note Poland's argument that a broader category is more likely than a narrower one to yield
"representative" results (by which we presume Poland to mean representative of the price of the like
product in the ordinary course of trade in the domestic market of the exporting country), but we
                                                     
150 Poland's answer to Panel Question 29, Annex 1-5.WT/DS122/R
Page 35
believe that as a matter of logic the opposite more often is likely to be true.  The broader the category,
the more products other than the like product will be included, and thus in our view the more potential
there will be for the constructed normal value to be unrepresentative of the price of the like product.
We therefore disagree with Poland that Article 2.2.2(i) requires the use of broader rather than
narrower categories, and believe to the contrary that the use even of the narrowest general categorythat includes the like product is permitted.
7.116  As to the specific category which Poland argues that Thailand was obligated to use (HS
7216), we note that Poland has offered no concrete justification for its identification of this particular
category.  Rather it has simply asserted that this is the narrowest  "general category" to which H-
beams belong.  Given that nothing in the text of  the AD Agreement or anywhere else mandates the
use of HS categories in the context of Article 2.2.2 (i), we do not find that Thailand was "obligated" to
use the HS category proposed by Poland.  Poland's argument that given the absence of data on HS
7216, HK's company-wide profit rate on all pro ducts was a "proper…surrogate" is similarly
unsupported and unpersuasive.  Thailand states, and Poland does not dispute, that HK produces a very
broad range of products other than H-beams.  This certainly suggests that the company-wide datawould not as accurately represent the like product as would data for a narrower category.
7.117  Finally, as to the specific "same general category" used by Thailand – all H-beams – we note
that there was in the investigation and is in this dispute no disagreement between the parties regarding
the treatment of JIS and DIN H-beams as not bein g like products, regarding Thailand's resort to
constructed value, or regarding Thailand's use of the methodology in Article 2.2.2 (i).  Nor was or is
there any disagreement between the parties as to the availability of HK's data in respect of all H-
beams (as distinct from other products) or as to the accuracy of Thailand's calculation based on thosedata.  Given this, we cannot conclude that Thailand committed an error in identifying all H-beams as
"the same general category of products" in the sense of Article 2.2.2 (i).  This appears to be the
narrowest category including the like product for which separate profit data were available, and thus
could be expected to yield results closely approximating those of the like product.  Moreover,
Thailand's finding (undisputed by Poland) that the profit margin on the like product was virtuallyidentical to that for all H-beams confirms that this category yielded results that closely approximated
those for the like product.
7.118  Therefore, we find that Thailand has not incorrectly applied Article 2.2.2 (i) by incorrectly
defining the "same general category of products".
(ii) Has Thailand violated Article 2.2 of the AD Agreement and Article VI:1(b)(ii) GATT 1994 by
not applying a separate reasonability test to the results of its calculation under Article
2.2.2(i)?
7.119  Having found that Thailand has not incorrectly applied Article 2.2.2(i), we turn to the second
element of Poland's claim under Article 2.2/Article VI:1(b)(ii) of GATT 1994, namely whether the
profit amount thus calculated by Thailand was "unreasonable" in violation of Article 2.2.  To resolvethis issue, we must consider the legal question of whether, as Poland argues, Article 2.2 and Article
VI:1(b)(ii) of GATT 1994 impose an obligation to apply a separate reasonability test to the results of a
correct calculation under Article 2.2.2 (i).
7.120  We note as an initial matter that Article VI :1(b)(ii) of GATT 1994 contains the underlying
requirement that any amount for profit used in a constructed normal value be reasonable, and thatArticle 1 of the AD Agreement establishes that the ensuing provisions of the AD Agreement
(including Article 2.2 and 2.2.2) govern the application of Article VI of GATT 1994 as to anti-
dumping action.  Thus, in resolving Poland's claim under Article 2.2 we will at the same time resolve
its claim under Article VI:1(b)(ii) of GATT 1994.  We thus focus in our analysis exclusively on
Article 2.2 of the AD Agreement.WT/DS122/R
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7.121  We recall that the text of Article 2.2 states that where a price comparison cannot be used to
establish the dumping margin, a constructed normal value can be used, consisting of "the cost of
production in the country of origin plus a reasonable amount  for administrative, selling and general
costs and for profits" (emphasis added).  This text thus establishes the basic principle that when
constructed value is used, it shall include, inter alia , a "reasonable amount" for profit.  The text of the
chapeau of Article 2.2.2 cross-references this provision, stating that "for the purpose of paragraph 2,
the amounts for … profits" shall be determined as set forth in that provision.  This text thus
establishes that the methodologies outlined in Article 2.2.2 are to be used "for the purpose of"
determining the "reasonable amount" for profit ( inter alia ) to be used in a constructed normal value,
as required under Article 2.2.
7.122  We note Poland's argument that the methodologies  set forth in Article 2.2.2 are reasonable per
se, but that the results  of applying any of these methodologies are, at best, rebuttably presumed to be
reasonable.  We find no trace in the texts of the relevant provisions of such a rebuttable presumption,
however.  To the contrary, the ordinary meaning of the text seems rather to indicate that, if one of the
methodologies is applied, the result is by definition reasonable.  First, as noted, the phrase "for thepurpose of paragraph 2" is without qualification in the text.  In our view, this phrase is straightforward
and means that Article 2.2.2 gives the specific instructions as to how to fulfil the basic but
unelaborated requirement in Article 2.2 to use no more than a "reasonable" amount for profit.
7.123  Second, we note that the chapeau of Article 2.2.2 provides that where the methodology in the
chapeau "cannot" be used, one of the methodologies in subparagraphs (i), (ii) or (iii) "may" be used.
Poland argues that the word "may" only provides for the possibility of using such methodologies and
implies that any results derived thereby would be su bject to a reasonability test arising under Article
2.2.  We disagree, as in our view the word "may" constitutes authorization to use the methodologies in
the subparagraphs where the methodology in the chapeau, which is the preferred methodology,
"cannot" be used.  We note that the text of Article 2.2.2 establishes no hierarchy among the
subparagraphs and that there is no disagreement between the parties concerning this issue.
7.124  Another textual element confirming this interpretation is subparagraph (iii), which permits the
use of "any other  reasonable method", subject to a defined cap
151.  In our view, if application of the
methodologies in (i) or (ii) by itself were not sufficient to satisfy the reasonability requirement of
Article 2.2, the word "other" in subparagraph (iii) wo uld be redundant.  In this regard, we are not
persuaded by Poland's argument that a reasonable methodology can yield an unreasonable result, and
as noted above, we see nothing in the text to suggest this.  This conclusion is reinforced by thepresence of the cap in subparagraph (iii) and the absence of any cap in subparagraphs (i) and (ii).  If
the methodologies in subparagraphs (i) and (ii) did not yield ipso facto  reasonable results, an explicit
cap or some other constraint could have (and presumably would have) been built in, as was done in
subparagraph (iii).  Subparagraph (iii) makes clear that the drafters knew how to include such a
constraint and were aware that it might be necessary in certain circumstances.  The fact that theychose not to do so in the other subparagraphs of Article 2.2.2 to us demonstrates that no such separate
constraint exists in respect of these subparagraphs.
7.125  We note also the requirement in the chapeau of Article 2.2.2 as well as in subparagraphs (i)
and (ii) that actual data  be used.  In our view, the notion of a separate reasonability test is both
illogical and superfluous where the Agreement requires the use of specific types of actual data.  Thatis, where actual data are used and the other requirements of the relevant provision(s) are fulfilled (e.g.,
that the "same general category of products" is defined in a permissible way where 2.2.2(i) is applied),
a correct  or accurate  result is obtained, and the requirement to use actual data is itself  the mechanism
that ensures reasonability in the sense of Article 2.2 of that (correct) result.  By contrast, under
subparagraph (iii) where no specific methodology or data source is required, and the use of "any other
                                                     
151 The cap is "the profit normally realized by other exporters or producers on sales of products of the
same general category in the domestic market of the country of origin".WT/DS122/R
Page 37
reasonable method" is permitted, the provision itself contains what is in effect a separate reasonability
test, namely the cap on the profit amount based on the actual experience of other exporters or
producers.  Thus, in our view, Article 2.2.2's requirement that actual data be used (and its
establishment of a cap where this is not the case) are intended precisely to avoid the outcome that
Poland seeks, namely subjective judgements by nationa l authorities as to the "reasonability" of given
amounts used in constructed value calculations.
7.126  Furthermore, Poland has offered no rationale, explanation or illustration of how, objectively,
reasonability could be established or tested.  That is, while Poland would have us decide that a
separate reasonability test is required, it has provided no specifics as to what such a test should be or
how it could operate in a way that was transparent and could be applied in all investigations.  Inessence, Poland has argued simply that reasonability should be judged on the basis of other record
evidence; and in respect of this case Poland's argument appears in large part to be based on the
implicit proposition that a lower profit margin is inherently more "reasonable" than a higher one.  We
disagree.  As noted above, we view the requiremen t to use actual data (whatever the absolute figure
that this yields in a particular case) as the mechanism by which the Agreement ensures that areasonable result is obtained in the investigation (assuming the methodology is applied correctly).  No
further screening of that result is required.  If a methodology using actual data yields a figure for
profits the factual accuracy of which is uncontested, we fail to see the basis for a characterization of
those results as "unreasonable".
7.127  Nor (assuming arguendo  that a separate reasonability test were required) has Poland
established that the profit amount used by Thailand in this case was unreasonable.  We note, first, that
in this case Thailand found no evidence of any significant differences between the two types of H-beams (in physical characteristics, production process, cost, profitability or prices), and Thailand's
argument on this basis that all H-beams could have been deemed a single like product
152.   As
Thailand notes, if all H-beams had been treated as a single like product, the margin of dumping based
on price-to-price comparisons for the like product so defined would have been virtually the same as
that based on constructed value, given the Thai authorities' finding that the Polish home market pricesfor JIS and DIN H-beams were very similar.
153  Thus, there is no evidence that Thailand's application
of Article 2.2.2 (i) in any way distorted the outcome of the dumping investigation.  In view of this,
and given, as noted above, that the underlying goal of the constructed normal value rules is to ensure a
result as close as possible to what would be obtained on the basis of a price-to-price comparison, there
is no factual evidence that the profit figure used by Thailand was unreasonable.
7.128  For the foregoing reasons, we find that AD Article 2.2.2 (i), when applied correctly ,
necessarily yields reasonable amounts for profits, and that no separate reasonability test is required in
respect of those amounts.  As there is no requirement of a separate reasonability test, we find that
Thailand has not violated AD Article 2.2 by not having applied such a test to the results that it
obtained under AD Article 2.2.2 (i).  Moreover, even if such a test were required, Poland has not
demonstrated that the profit amount calculated is "unreasonable" nor how a correctly calculated profit
amount could be characterized as unreasonable.
(iii) Conclusion
7.129  On the basis of all of the foregoing considerations, we find that Thailand has not violated
Article 2.2 of the AD Agreement.  Thailand therefore also has not violated Article VI:1(b)(ii) ofGATT 1994.
154
                                                     
152 Thailand's first written submission, Annex 2-1, at footnote 26.
153 See Thailand's response to Panel Question 32, Annex 2-6.
154 See supra , para. 7.120 for our view of the relationship between Poland's claims under Article 2.2 of
the AD Agreement and Article VI:1(b)(ii) of GATT 1994.WT/DS122/R
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3.  Article 3 of the AD Agreement:  Determination of Injury
(a) Article 3.1:  determination based on "positive evidence" and involving an "objective
examination"
(i) Arguments of the parties
Poland7.130  Poland's claims under Article 3 raise multiple issues relating to the interpretation of several
provisions of Article 3 AD – in particular, Articles 3.1, 3.2, 3.4 and 3.5 -- and the interrelationships
between these provisions.  In general, Poland ar gues that Articles 3.1, 3.2 and 3.4 were violated
because the determination was not based on "positive evidence" and did not involve an "objective
examination" of the volume and effects on price of the Polish imports, and the impact of those importson SYS.  Poland argues that Thailand violates Arti cle 3.5 by not demonstrating that the Polish imports
are causing injury.
7.131  With respect to Article 3.1, Poland argues that contradictions in the investigation data show
that the decision was not based on positive evidence and an objective examination of the facts.  First,
Poland questions discrepancies in the factual evidence in the non-confidential record, as well as thecontradictions between this evidence and the evidence contained in the confidential record.  For
Poland, these discrepancies raise both due process concerns and concerns under Article 17.6(i).
Second, Poland argues that the evidence and the consideration of that evidence by the Thai authoritiesdo not support an injury finding.
7.132  According to Poland, the documents that should form the basis for our review are the draft
final determination (Exhibit Thailand-37) and the final determination (Exhibit Thailand-46).  Poland
also suggested that the Panel could consider the confidential Thai government report to the CDS
Committee by the DIT (Exhibit Thailand-44) to the extent that it indicated contradictions orinconsistencies with the public record.  Poland obje cts to investigating authorities claiming "to base
their determinations on documents outside the record that are not shared in any coherent form or
manner with the parties to an investigation"
155  and argues that "the panel should not permit the use in
panel proceedings of secret documents offered post hoc  as evidence of the existence of the legal
prerequisites for an anti-dumping determination."156  For Poland, Exhibit Thailand-44 (and other
similar documents submitted by Thailand to the Panel) recall the situations in  K orea - Anti-Dumping
Duties on Imports of Polyacetal Resins from the United States157 ("Korea-Resins ") and other panel
reports in which "the use of documents outside the record that are not shared with the parties to an
investigation" was condemned.158  According to Poland, in those cases, the panels "refused to take
into account certain alleged "evidence" that authorities claimed was part of their administrativedecision-making, but which was not part of the administrative record of an investigation."
159
Thailand
7.133  Thailand submits that Poland has provided no specific legal or factual basis to support its
purported claim under Article 3.1.  Thailand asserts that the Thai authorities' final determination of
injury involved an objective examination of the impact of dumped imports from Poland on the Thaidomestic industry consistent with Article 3.1 AD.
                                                     
155 Poland's second written submission, Annex 2-5, para. 51.
156 Id.
157 Panel Report, Korea - Anti-Dumping Duties on Imports of Polyacetal Resins from the United States ,
ADP/92 and Corr. 1, adopted by the ADP Committee on 27 April 1993, BISD 40S/205.
158 Poland's second written submission, Annex 1-4, para. 88.
159 Id.WT/DS122/R
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7.134  Thailand submits that Article 17.6 of the AD Agreement pertains to all facts made available
in conformity with domestic AD procedures pursuant to Article 17.5 and that all confidential and non-
confidential documents are pertinent to the Panel's examination.  Thailand argues that because Polandhas made no claim of violation of Article 12, we ma y use any such notices or reports on the record of
the investigation to determine substantive complia nce with Article 3 of the AD Agreement. Thailand
considers that a significant amount of “positive” evidence on which the final injury determination is
based is contained in the record of the investigation and is reported in the respective notices, letters,
and disclosures provided to interested parties.  However, Thailand states that "the confidential factual
record on which the Thai authorities based its dete rmination" "contains positive evidence that the Thai
authorities objectively examined with respect to all of the factors listed in Article 3.1 of the Anti-Dumping Agreement."
160  In particular, Thailand considers that the confidential Thai government
report to the CDS Committee by the DIT, Thailand-44161, "correctly summarises the basis for the Thai
authorities' determination and demonstrates that su ch determination was entirely consistent with the
Anti-Dumping Agreement"162, and that the confidential data in the report "is necessary to support the
affirmative final determination in the underlying anti-dumping investigation".163  Thailand refers to
Thailand-44, and other similar documents, in responding to certain of Poland's allegations of
inconsistency with Article 3.164
7.135  To the extent that Thailand admits that there are errors in data on the record, it identifies most
of them as typographical or translation errors in the English translations, and as, in any case, not
germane to the Panel's examination under Article 3.
(ii) Evaluation by the Panel
7.136  Article 3.1 AD provides:
"3.1 A determination of injury for purposes of Article VI of GATT 1994 shall be
based on positive evidence and involve an objective examination of both  (a) the
volume of the dumped imports and the effect of the dumped imports on prices in thedomestic market for like products, and (b) the consequent impact of these imports on
domestic producers of such products."
7.137  We view Article 3.1 as setting out the general re quirements for a determination of injury, and
the succeeding sections of Article 3 as providing more specific guidance on the determination of
injury.
165  The core of Poland's Article 3 claim in this dispute concerns the more specific provisions in
Articles 3.2, 3.4 and 3.5.  Article 3.2 sets forth factors to be considered with regard to the volume and
price effects of imports which Article 3.1 requires to be examined.  Article 3.4 sets forth factors to be
considered in examining the impact of dumped imports on the domestic industry, as required by
                                                     
160 Thailand's oral statement at the second panel meeting, Annex 2-9, para. 47.
161 Thailand states that Exhibit Thailand-44 "is the text of a report prepared by the DIT for the CDS
Committee.  The report is a summary of confidential and non-confidential evidence supplied by interested, co-operating parties during the course of the investigation, including the information obtained by the Thaiauthorities on their own initiative.  This evidence includes, inter alia , SYS' and the Polish producers'
questionnaire responses, material obtained during the on-site verification, Thai customs statistics, technical
dossiers on specifications, etc.  Moreover, the text of THAILAND-44, was based on multitudes of confidential
working papers such as the table provided in THAILAND-66.  These working papers summarize severalhundred source documents that provided, for example,  transaction-specific price information, production
information, sales information, and other information considered relevant by the CDS Committee". SeeResponse by Thailand to Poland Question 1, Annex 2-7.
162 Thailand's oral statement at the second panel meeting, Annex 2-9, para. 66.
163 See Thailand's response to Question 4 from Poland, Annex 2-6.
164 See, for example, paras. 85, 100 and 113 of Thailand's first written submission, Annex 2-1.
165 We note that this is consistent with the approach of the panel in Mexico-HFCS , supra , note 95,
paras. 7.118- 7.119.WT/DS122/R
Page 40
Article 3.1.  Article 3.5 establishes requirements for the analysis of the causal relationship between
the dumped imports and the injury to the domestic industry.
7.138  The allegations made by Poland variously under Article 3.1, 3.2, 3.4 and 3.5 all raise certain
similar issues, relating to how the Thai investigatin g authorities treated, or allegedly failed to treat,
certain factors in their examination of injury and causation.  In addition, Poland's various allegations
under Article 3.1, 3.2, 3.4 and 3.5 all raise similar issues pertaining to whether the Thai investigatingauthorities based their findings on positive evidence and carried out the objective examination of the
factors required under Article 3 of the AD Agreement.
7.139  We thus commence our examination of Poland's claim under Article 3 of the AD Agreement
by addressing Poland's arguments with respect to the requirements of "positive evidence" and
"objective examination" in Article 3.1 as a basis for the affirmative determination of injury reached bythe Thai investigating authorities.  We consider that these arguments raise issues relating to the
applicable standard of review that are inextricably linked with the question of which documents in the
record of the Thai AD investigation may properly form the basis for our review of consistency of the
Thai AD investigation and determination with the requirements of Article 3 of the AD Agreement.
7.140  The specific legal issue that arises is whether the Panel may properly review the Thai injury
determination with reference to considerations and da ta in the confidential record of the investigation
in, inter alia , Exhibit Thailand-44 that were not discernible in the final determination or the
disclosures (including non-confidential summaries)
166 or communications pertaining to the final
determination to which the Polish firms had access in the course of the investigation.
7.141  As we explain below167, our view as to the documents that may in this case be considered in
our review under Article 3 is based upon the textual elements of "positive evidence" and "objective
examination" in that provision, read in light of the standard of review.
7.142  With respect to the standard of review, Arti cle 17.6(i) makes it clear that in reviewing the
consistency of the Thai AD investigation and determination with Thailand's obligations under the AD
Agreement, our task is to ascertain "whether the au thorities' establishment of the facts was proper and
whether their evaluation of those facts was unbiased and objective".  According to the express terms
of that provision:
"If the establishment of the facts was proper and the evaluation was unbiased and
objective, even though the panel might have reached a different conclusion, the
evaluation shall not be overturned."
7.143  We consider that the textual requirements in Article 3.1 that a determination of injury be
based on "positive evidence" and involve an "objecti ve examination", in light of this standard of
review, places a considerable responsibility upon the investigating authorities to establish an adequate
factual basis for the determination as well as to provide a reasoned explanation for the determination.
We note that the term "positive" is defined in the Concise Oxford Dictionary  as: "formally or
explicitly stated; definite, unquestionable ( positive proof )".  In addition, we note that the term
“objective” is defined as “… concerned with outward things or events; presenting facts uncoloured byfeelings, opinions, or personal bias; disinterested.”
168  We are of the view that the textual reference to
"positive evidence" and the requirement of an "objec tive examination" in Article 3.1 requires that the
reasoning supporting the determination be "formally or explicitly stated" in  documents in the record
of the AD investigation to which interested parties (and/or their legal counsel) have access at least
from the time of the final determination.  Moreover, we consider that the factual basis relied upon by
                                                     
166 See infra, paras. 7.208-7.209.
167 See infra , paras. 7.142-7.151.
168 The New Shorter Oxford English Dictionary (Oxford University Press, 1993).WT/DS122/R
Page 41
the authorities must be discernible from those documents.169  As we discuss below170, without timely
access to relevant information in the course of the in vestigation and to the essential facts prior to the
final determination, interested parties would be denied a meaningful opportunity to defend their
interests during the investigation, and without access to the disclosed factual basis and reasoning
supporting the determination at least from the time of the final determination, interested parties andWTO Members would be unable to assess whether bringing a WTO dispute settlement complaint
relating to the determination would be fruitful.
7.144  We are therefore of the view that in reviewing the final determination
171 of injury, we as a
panel should base our review on the reasoning and analysis reflected in the final determination and in
communications and disclosures to which the Polish firms had access in the course of theinvestigation or at the time of the final determination.  We also consider that we may take into account
-- to the extent that it can be discerned from the foregoing documents whether and how it was relied
upon by the Thai investigating authorities in reachin g their determination -- all of the factual evidence
submitted to the Thai investigating authorities in th e course of the Thai AD investigation to the extent
that it forms part of the Panel record.  This includes information that was treated as confidential by theThai investigating authorities pursuant to Article 6.5 of the AD Agreement.  In our view, such
information falls within "the facts made available in conformity with appropriate domestic procedures
to the authorities of the importing Member" referred to in Article 17.5 of the AD Agreement.  Amongother things, we consider that we may refer to actual confidential data in order to verify the accuracy
of the non-confidential data disclosed to the interested parties in the course of the investigation and at
the time of the final determination.
7.145  In our view, our examination of whether the establishment of the facts is proper under Article
17.6(i) would include ascertaining whether the factual basis of the determination is discernible from
the documents that were available to the interested parties and/or their legal counsel in the course of
the investigation and at the time of the final determination, and whether those documents reflect the
actual underlying data.  In addition, in order to ascertain  whether the evaluation of the facts was
unbiased and objective we must examine the analysis and reasoning in those documents to ascertain
the connection between the disclosed  factual basis and the findings.  We must examine whether the
determination was reached on the basis of an unbiased and objective evaluation, and an objective
examination, of the disclosed factual basis of the determination.
7.146  In the particular circumstances of this dispute
172, and in light of the particular arguments of
the parties, we will therefore consider in our review of the Thai AD investigation under Article 3 of
the AD Agreement the final determination (Exhibit Thailand-46), as well as the draft final
determination (Exhibit Thailand-37), which Thailand states includes the non-confidential "essential
                                                     
169 We note that the panels in Korea-Resins  and United States - Salmon  also considered the meaning of
these requirements of an "objective examination" and "positive evidence".  Although these panels bothexamined the provisions of Article 3 of the Tokyo Round AD Code, and that Code did not contain a provisionanalogous to Article 17.6 of the current Agreement (which sets out the standard of review applicable in thiscase), we nevertheless consider these panel reports help ful with respect to the factual basis and the reasoning
and analysis susceptible to panel review with respect to Article 3 of the AD Agreement.  See Korea-Resins ,
supra , note 157, in particular, paras. 208-213, 225-228; United States - Imports of Anti-Dumping Duties on
Imports of fresh and Chilled Atlantic Salmon from Norway , adopted by the ADP Committee on 27 April 1994,
BISD 41S/229, in particular, paras. 492-494.
170 See infra , paras. 7.149-7.151.
171 We do not take into account the preliminary determination nor disclosures pertaining to that
determination in our examination of the definitive measure imposed.  Here, Poland is challenging the final
measure, as identified in its panel request.
172 We note that Poland has made no claim of violation of Article 12 of the AD Agreement relating to
the contents of the final determination in this case.WT/DS122/R
Page 42
facts" that form the basis for the final determination.173  Moreover, we note that there was an
exchange of correspondence between the Thai author ities and the Polish respondents and/or their legal
counsel in which the Polish firms commented on the draft final determination and the Thai authorities
responded, providing some explanation of the reasoning that had formed the basis for the draft final
determination.  As all of this correspondence was fully known to both Thailand and to the Polishfirms, we believe that we may also take it into account in our examination.  Thus, we will also
consider the disclosures and communications between the Thai investigating authorities and the
Polish firms and/or their legal counsel which o ccurred in the period between the draft final
determination and the final determination (Exhibits Thailand-40,-41).
7.147  However, we find compelling Poland's view that we should not permit the use by the
defending party in panel proceedings of considerations that were not made available to the interested
parties, or facts the existence of which was not discernible from the documents available to the
interested parties.  Therefore, we decline to base our review on confidential reasoning or analysis that
may have formed part of the record of the Thai AD investigation, but to which the Polish firms
(and/or their legal counsel) did not have access at the time of the final determination.  This wouldinclude any reasoning or analysis contai ned exclusively in Exhibit Thailand-44.
174
7.148  We note Thailand's argument that Thailand-44 "correctly summarises the basis for the Thai
authorities' determination and demonstrates that su ch determination was entirely consistent with the
Anti-Dumping Agreement".175  Although Poland has raised some concerns before us with respect to
the factual accuracy of the confidential report, we have no reason to doubt the veracity of the report,
nor to doubt that the CDS Committee took the considerations contained in the report into account in
making its affirmative determination.  Nevertheless, because the Polish firms (and/or their legalcounsel) did not have access to the reasoning or analysis contained in this confidential document (and
other such documents) in the course of the Thai AD investigation or at least from the time of the final
determination, and because Poland did not have access to the reasoning in these documents prior to
these WTO Panel proceedings, we do not consider that such the reasoning contained exclusively in
these documents can be considered to constitute "p ositive evidence" or an indication of an "objective
examination" within the meaning of Article 3.1 AD that can be taken into account by us as an
additional statement of the reasoning supporting the Thai affirmative determination.
176
7.149  As we have already indicated, our view as to the documents that will form the basis for our
review is thus fundamentally affected by the fact that, pursuant to the DSU and Article 17 of the AD
Agreement, compliance by a Member with the obligations in Article 3 of the AD Agreement issubject to review by a panel and the Appellate Body.  Article 3.2 of the DSU recognizes that:
"The dispute settlement system of the WTO is a central element in providing security and
predictability to the multilateral trading syst em.  The Members recognize that it serves to
preserve the rights and obligations of Members under the covered agreements, and to
                                                     
173Thailand submits that Exhibit Thailand-37 contains the Proposed Definitive Determination, and
provides "(1) the essential facts under consideration wh ich form the basis for the decision whether to apply
definitive measures and (2) a small quantum of proposed analysis of such facts".  According to Thailand, "[t]heFinal Determination was based on the same essential facts as disclosed to interested parties in the Proposed
Definitive Determination".  According to Thailand, the proposed analysis in the Proposed Definitive
Determination, however, was "finalised for the final determination, after considering comments from interestedparties".  See Response by Thailand to Question 9 from Poland, Annex 2-6.
174 We note that the panel in Korea-Resins  declined to take in to account a confidential transcript of the
investigating authority's voting session in reaching the affirmative AD determination as a further explanation ofthe reasons upon which the final determination was based.  See Korea-Resins , supra , note 157, paras. 208-213.
175 Thailand's oral statement at the second panel meeting, Annex 2-9, para. 66.
176 As above, note 174, see Korea-Resins , paras. 208-213.WT/DS122/R
Page 43
clarify the existing provisions of those agreements in accordance with customary rules of
interpretation of public international law…."
In our view, access of interested parties to relevant  information in the course of the investigation, in
addition to access to the disclosed factual basis and reasoning supporting an affirmative determination
at least from the time of the determination enables an interested WTO Member to "exercise itsjudgment as to whether action under [the DSU] procedures would be fruitful" under Article 3.7 DSU.
This is of particular significance given the considerable costs associated with mounting a WTO
dispute settlement challenge (and preparing a defence to such a challenge), particularly for developing
country Members.   Such disclosed  factual basis and reasoning may also serve as the basis for panel
review in the context of WTO dispute settlement.  We view this as an essential aspect of therequirements concerning dispute settlement and meaningful panel review under the DSU and the AD
Agreement.
7.150  Furthermore, we find contextual support for our views concerning the documents that will
form the basis for our review in the provisions of Article 6 of the AD Agreement.  In particular,
Article 6.2 of the AD Agreement requires that, "[ t]hroughout the anti-dumping investigation all
interested parties shall have a full opportunity for th e defence of their interests." As indicated in other
provisions of Article 6, this right is predicated on having timely access to relevant information.
Article 6.9 requires that the authorities shall, "before a final determination is made", inform all
interested parties of the essential facts under consideration which form the basis for the decision
whether to apply definitive measures".  Such disclosure should take place "in sufficient time for the
parties to defend their interests".  Article 6.5 imposes an obligation on the investigating authorities not
to disclose confidential information, and this obligation informs other provisions of Article 6.  Forexample, Article 6.4 of the AD Agreement provides:
"The authorities shall whenever practicable provide timely opportunities for all
interested parties to see all information that is relevant to the presentation of their cases,
that is not confidential as defined in paragraph 5, and that is used by the authorities in an
anti-dumping investigation, and to prepare presentations on the basis of thisinformation."
7.151  Finally, Article 12 of the AD Agreement, entitled "Public Notice and Explanation of
Determinations" governs the content of public notice of any preliminary or final determination, and
requires that each such notice "shall set forth, or otherwise make available through a separate report,
in sufficient detail the findings and conclusions reached on all issues of fact and law consideredmaterial by the investigating authorities."  Moreover , "all such notices and reports shall be forwarded
to the Member or Members the products of which are subject to such determination …and to other
interested parties known to have an interest therein."  Article 12.2.2 contains specific requirements for
notices of final determinations.  In particular, this provision requires the public notice to contain, or to
otherwise make available in a separate report, "all relevant information on the matters of fact and lawand reasons which have led to the imposition of final measures", as well as "the reasons for
acceptance or rejection of relevant arguments or claims made by the exporters and importers…".
While Poland has made no specific claim of violation of Article 12 of the AD Agreement in this case,
we nevertheless believe that Article 12 provides important context for Article 3 in indicating the
significance attached by Members to allowing intere sted parties access to information on fact and law
relevant to the final determination.  Among other things, such access allows them (through interested
Members) to assess the fruitfulness of bringing a WTO dispute settlement complaint.WT/DS122/R
Page 44
7.152  On this basis, we proceed to an examination of  the consistency with the relevant provisions of
Article 3 of the AD Agreement of Thailand's AD investigation and determination that resulted in the
imposition of the definitive anti-dumping duties identified in Poland's panel request.177
(b) Article 3.2
(i) volume of dumped imports
Arguments of the parties
Poland
7.153  Poland submits that the first sentence of Article 3.2 requires that an investigating authority
must "find" a "significant" increase in the volume of dumped imports.  Poland argues that there was
no statement or evidence that the Thai authorities "considered" whether there had been a significantincrease in imports, and no finding that the increase in the volume of dumped imports was
"significant".  Poland asserts that the Thai law at the time of the AD investigation was inconsistent
with the AD Agreement as it did not require any "finding" of "significance".  Poland submits that the
finding in the final determination that imports "continuously increased" was wrong.  According to
Poland, in fact, imports from Poland moved up and down through the period of investigation, andPoland had raised questions about the import statistics during the investigation. In Poland's view, the
data in the record of the investigation pertaining to imports and market share are contradictory as are
the statements in the final determination and other record documents about those data.  According to
Poland, Thailand's findings concerning import volume thus cannot be considered to be based on
"positive evidence" that was objectively examined by the Thai authorities.
7.154  Thus, Poland argues, the Thai authorities' determination was not made on the basis of
“positive evidence” and an “objective examination” of, inter alia,  the increase in the subject imports.
Thailand
7.155  Thailand submits that it acted consistently with its obligation under the first sentence of
Article 3.2 AD:  the record of th e investigation shows that the Thai investigating authorities
considered whether there had been a significant increase in dumped imports in absolute terms.
Concerning the statement in the final determination that the import volumes from Poland "increasedcontinuously", Thailand cites to record evidence of annual import volumes from 1994 through the
investigation period.  Concerning inconsistent figures for domestic demand and the market share of
Polish imports in the confidential record and in the non-confidential record, Thailand indicates that
these are typographical errors in Thailand-37 and in the English translation of Thailand-44.  Thailand
indicates that correct figures for both total SYS domestic sales and total imports were provided inconfidential documents to the CDS Committee.
                                                     
177 In this case, Poland has made a claim of violation of Article VI of the GATT 1994 in conjunction
with its Article 3 claims, but has made no arguments concerning an independent violation of GATT Article VIin this context.WT/DS122/R
Page 45
Evaluation by the Panel
7.156  Article 3.2 provides in pertinent part:
"With regard to the volume of the dumped imports, the investigating authorities shall
consider whether there has been a significant increase in dumped imports, either in
absolute terms or relative to production or consumption in the importing Member…No one or several of these factors can necessarily give decisive guidance."
7.157  Pursuant to the first sentence of Article 3.2, read in conjunction with Article 3.1, we must
examine whether, with respect to the volume of dumped imports, the Thai investigating authorities
considered whether there had been a significant increase in dumped imports, either in absolute terms
or relative to production or consumption in Thailand.  In accordance with the standard of review, ourtask is to examine whether the Thai authorities properly established the facts concerning the existence
of an increase in dumped imports and evaluated those facts in an unbiased and objective manner.  In
accordance with the approach to Article 3 of the AD Agreement that we have outlined above
178, we
conduct this examination on the basis of the final determination and the other documents forming the
basis for our review.179
Use by Thailand of overlapping time periods in its analysis
7.158  Before turning to Thailand's assessment of imports, we consider Poland's general argument in
the context of its Article 3 claims that the use by Thailand of overlapping time periods in its analysis
of the data concerning injury introduced a flaw into that analysis.  We note in this regard that the
investigation period used by the Thai authorities was 1 July 1995-30 June 1996, and that the
authorities used figures for January-December 1995 as a basis for comparison with the data for the
investigation period.  Before us, Poland objects to the overlapping 6-month period of July-December1995 in these two periods.  According to Poland, an analysis under Article 3 concerns, inter alia,
changes ("increases" and "decreases") in various indicia over time.  In order for such movements to be
meaningful, they require a meaningful baseline from which measurement may be made, which
according to Poland is of particular importance given that SYS at that time had been in existence for
only a few months.  According to Poland, this me thodology obscured the situation faced by SYS at
the beginning of the investigation period.
180  Thailand responds that the use of such overlapping time
periods may confirm the persistence of trends over time.
7.159  We consider that it is for the investigating auth orities in the first instance to determine the
analytical methodologies that will be applied in the course of an investigation, as Article 3 contains no
requirements concerning the methodology to be used.  While it could possibly be shown in a givencase that a particular methodology has introduced a fl aw in an authority's analysis, in this case Poland
has not demonstrated any specific flaw that has resulted from the application of Thailand's
methodology.  Thus, we do not consider this issue further.
                                                     
178 Supra , paras. 7.139-7.151.
179 Supra , para. 7.146.
180 See Response of Poland to Question 22 by the Panel, Annex 1-5.WT/DS122/R
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Is an explicit “finding” of a “significant” increase in dumped imports required?
7.160  We first turn to Poland's argument that the Thai  determination is inconsistent with the first
sentence of Article 3.2 as it contains no statements, evidence or "finding" that the Thai investigating
authorities considered whether the increase in dumped imports was "significant".
7.161  We examine the nature of the obligation in Article 3.2.  We note that the text of Article 3.2
requires that the investigating authorities "conside r whether there has been a significant increase in
dumped imports".  The Concise Oxford Dictionary  defines "consider" as, inter alia : "contemplate
mentally, especially in order to reach a conclusion"; "give attention to"; and "reckon with; take into
account".  We therefore do not read the textual term "consider" in Article 3.2 to require an explicit
"finding" or "determination" by the investigating authorities as to whether the increase in dumpedimports is "significant".  While it would certainly be preferable for a Member explicitly to
characterize whether any increase in imports as "significant", and to give a reasoned explanation of
that characterization, we believe that the word "significant" does not necessarily need to appear in the
text of the relevant document in order for the requirements of this provision to be fulfilled.
Nevertheless, we consider that it must be apparent in the relevant documents in the record that the
investigating authorities have given attention to and taken into account whether there has been a
significant increase in dumped imports, in absolute or relative terms.
181
7.162  For this reason, we do not consider that the absence of an explicit "finding" by the Thai
authorities that the increase in dumped imports was "significant" is inconsistent with the requirements
of the first sentence of Article 3.2.
Did Thailand consider whether there had been a significant increase in dumped imports?
7.163  We next examine whether the Thai authorities considered whether there has been a significant
increase in dumped imports in absolute terms within the meaning of the first sentence of Article 3.2.
In this context, we note that the Concise Oxford Dictionary  defines "significant" as, inter alia ,
"noteworthy, important, consequential".
7.164  With respect to the increase in dumped imports, the final determination182 states:
"2.1  The import volume of the subject merchandise from Poland  has continuously
increased when the total imports declined.  When compared Polish imports with all
other imports, Polish imports had increased from 31 per cent in 1994 to 48 per cent in
1995, to 57 per cent during the POI.  Moreover, the market share of Polish imports had
increased from 1994.  It averages 24 per cent in 1995 and and [ sic] 26 per cent during
the POI." (emphasis added)
                                                     
181 We take note of Poland's argument that the Thai law at the time of the investigation was inconsistent
with the AD Agreement as it did not require any "finding" of "significance".  Pursuant to our terms of reference,
the measure before us is the definitive AD measure imposed by the Thai authorities, rather than the Thai AD
legislation itself.
182 Exhibit Thailand-46.WT/DS122/R
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In addition, the draft final183 determination states:
"4. During the period of investigation, Tota l H-beams imported to Thailand decreased at
8% from 1995 while imports from Poland increased by 10%.  As a result, market share of H-
beam from Poland increased by 1.1%; on the other hand, the market share of the total import
decreased at 7%."
7.165  We note that Poland, in objecting to the substance of Thailand’s consideration of the increase
in the volume of imports from Poland, focuses excl usively on the statement in the final determination
that the import volume from Poland had "continuously increased".  Poland challenges the factual
accuracy of this statement, arguing that in fact the data show that imports from Poland moved up and
down through the period of investigation.  As indicated by the above quotes, the relevant documentscontain a number of statements and characterizations concerning the volume of imports.  We believe
that we must take all of these statements and ch aracterizations into account in examining whether the
Thai authorities “considered” whether there was a significant increase in the volume of the dumped
imports from Poland.
7.166  We consider first whether the record evidence supports the Thai authorities’ characterization
that imports from Poland “increased continuously”.  We note that Thailand responded to this
argument of Poland by citing to annual data for the period 1994 through the investigation period,
which show an increase in each of these periods.  We note that the final determination, in describing
the trend in import volumes, confirms the use of 1994 as the base year used by the Thai authorities in
arriving at this conclusion.  In addition, the indexed data in the non-confidential disclosure tables also
show a 10 per cent increase in volume (from an inde x of "48" to an index of "53") from 1995 to the
investigation period.
 184 Thus, we find that there is factual support on the record for the Thai
authorities' statement that the subject imports “increased continuously”.  The import data as presented
in the final determination and the draft final determination are further confirmed in the confidential
"information for final determination" (Exhibit Thailand-44).185
7.167  Indeed, only on the basis of quarterly import data186 for one of the twelve-month periods
considered by the authorities (the investigation period, second quarter 1995-second quarter 1996) doesPoland argue that the import volume “moved up and down” during the period considered. These
quarterly data indicate that imports from Poland dropped during the third and fourth quarters of 1995
and the first quarter of 1996 (from an index of 159 to 102 to 80) and then rose (to an index of 227) in
the second quarter of 1996.  We note that in spite of the fluctuation within this period, the quarterly
import volume at the end of the period was considerably higher than at the beginning.
7.168  In our view, it is clear on the face of Article 3.2 that a quarterly analysis of the trend in import
volume is not required, and indeed that no particular analytical approach is required or even alluded to
in Article 3.2.  Given that on an annual basis over a multi-year period, imports from Poland increased
in every period examined, we do not believe that quarter-to-quarter fluctuation in import volumes
during one of the twelve-month periods examined inva lidates the Thai authorities’ finding that the
import volume of the subject imports “increased continuously”.
                                                     
183 Exhibit Thailand-37 at para. 4.
184 Exhibit Thailand-37, Table "Import Data of H-Beam from Poland".
185 Exhibit Thailand-44, para. 1.8.2.  Thailand indicates, in its response describing the basis for its
finding that the subject imports "continuously increased" that the data on these annual import volumes are foundin Exhibit Thailand-44.  In this regard, we note that the import data are public, and that monthly data on Thai
imports of H-beams by country of origin for the period 1988-April 1996 are contained in annexes to the non-
confidential version of the petition (Exhibit Thailand-1).  Thus, it is clear that Poland had full access to theimport data before the Thai authorities.
186 Exhibit Thailand-37, Table 2.WT/DS122/R
Page 48
7.169  Having found no factual inaccuracy in the Thai authorities’ statement that the volume of the
subject imports "increased continuously", we now examine more generally, and on the basis of the
authorities’ various statements in the relevant documents concerning the import volume, whether the
Thai authorities “considered” whether there had been a “significant” increase in those imports.
7.170  In our view, these statements indicate that the authorities did consider the “significance” of
the increase in imports.  We note in particular in this regard that the authorities went beyond a mere
recitation of trends in the abstract and put the impor t figures into context.  For example, the statement
that "imports from Poland increased continuously" in dicates that the increase had persisted over some
period.  In addition, the statements that the imports from Poland increased at a time when all other
imports were decreasing, and that Poland’s share of total Thai imports had therefore increased, alsospeak to the “significance” or importance of the increase.  Thus, we find that Thailand did "consider”
whether there had been a “significant” increase in the dumped imports.  While we need not refer to
confidential information to reach this finding, we nevertheless note that the confidential "information
for final determination"
187 further confirms that Thailand considered whether there had been a
“significant” increase in the volume of the dumped imports.  In particular, the Thai authorities statedthat the volume of imports "skyrocketed" during the investigation period
188, and that the Polish
imports had risen "substantially".189
7.171  We note that the first sentence of Article 3.2 requires that, with regard to the volume of the
dumped imports, the investigating authorities shall consider whether there has been a significant
increase in dumped imports, either in absolute terms or relative to production or consumption in the
importing Member.  Thailand submits190 that the Thai authorities considered whether there had been a
significant increase in absolute terms.  We consider  that it is sufficient for the purposes of this
provision for the investigating authorities to consider whether there has been a significant absolute
increase, and that in this case it is clear from Thaila nd's analysis as set forth in the relevant documents
that its consideration of the significance of the increase in imports focused on the absolute, rather than
the relative, increase.  We note as a matter of fact that Thailand also found that there had been an
increase (albeit a small one) in Poland’s share of the Thai H-beam market191.  As Thailand has not
argued that this relative increase was “significant”, and in light of our findings above, we do not
consider it necessary to examine whether the Thai investigating authorities also considered whether
there was a significant increase in dumped imports relative to domestic production or consumption.
7.172  As Poland has made no arguments concerning an  independent claim of violation of Article VI
of the GATT 1994 in this context, we find that Poland has also not established that Thailand actedinconsistently with its obligations under that provision.
                                                     
187 Exhibit Thailand-44.
188 Exhibit Thailand-44 at para. 1.8.2.
189 Exhibit Thailand-44 at para. 4.2.
190 Thailand's first written submission, Annex 2-1, at para. 87.
191 Poland alleged that there was a discrepancy concerning the magnitude of the increase in Poland's
market share between the draft information used for the final determination (Exhibit Thailand-37) and the final
determination (Exhibit Thailand-44), the former indicatin g a 2 percentage point increase, and the latter a 1.1
percentage point increase.  Thailand concedes that an incorrect figure from the preliminary determination was
inadvertently used in the final determination and that the correct figure is a 1.7 percentage point increase.WT/DS122/R
Page 49
(ii) effect of the dumped imports on  prices in the domestic market
Arguments of the parties
Poland
7.173  Poland takes issue with Thailand's findings concerning the effect of the dumped imports on
prices in the Thai market on two basic grounds:  First, Poland argues (as it does under Article 3.1, firstsentence) that Article 3.2, second sentence requires a finding  of "significant" effects of the dumped
imports on prices.  According to Poland, the Thai authorities made no such finding and the Thai law
at the time of the AD investigation was inconsistent with the AD Agreement as it did not require any
"finding" of "significance".  Second, Poland argues that the record data do not support Thailand's
findings that Thai and Polish prices "move[d] in the same direction", that SYS reduced its prices to
"match" the Polish prices, or that the influence of the Polish prices was confirmed by SYS's higher
prices in its export markets compared to the Thai market.
7.174  In connection with this latter set of arguments, Poland argues that the confidential data that it
received in connection with this dispute make clear that the non-confidential summaries of the price-
related data disclosed to the Polish respondents during the investigation contained errors which weremisleading as to the basis for Thailand's determination regarding the price effects of imports.
7.175  Thus, Poland argues, the Thai authorities' determination was not made on the basis of
“positive evidence” and an “objective examination” of, inter alia,  the price effects of the subject
imports.
Thailand
7.176  Thailand submits that it acted consistently with its obligation under the second sentence of
Article 3.2:  Thailand argues that the Thai authorities did consider, based on confidential informationon the record, whether the dumped Polish imports were significantly underselling the Thai products
and/or whether the effect of dumped Polish imports was to cause price suppression or depression to a
significant degree.  Thailand in effect acknowledges that there were some discrepancies in certain
price data and attributes these to incorrect references to the time periods involved (calendar year
versus investigation period
192) or to inadvertent typographical errors in THAILAND-37 (the non-
confidential disclosure document – the "Proposed Final Determination" – provided to Poland during
the investigation).
Evaluation by the Panel
7.177  Article 3.2 provides, in pertinent part:
"… With regard to the effect of the dumped imports on prices, the investigating
authorities shall consider whether there has been a significant price undercutting by the
dumped imports as compared with the price of a like product of the importing Member,
or whether the effect of such imports is otherwise to depress prices to a significant
degree or prevent price increases, which otherwise would have occurred, to a significant
degree.  No one or several of these factors can necessarily give decisive guidance."
                                                     
192 The investigation period was defined as July 1995-June 1996.WT/DS122/R
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Did Thailand consider whether the effect of the dumped imports on prices was significant?
7.178  Concerning the first issue raised by Poland, we examine whether the second sentence of
Article 3.2 requires a "finding" of a "significant" effect of dumped imports on prices as set forth in
that provision193.
7.179  We recall in this context our discussion and finding above  concerning the requirement in
Article 3.2, first sentence, that the authorities "consider" whether there has been a "significant"
increase in imports.194  The same reasoning applies equally to the parallel requirement in the second
sentence in Article 3.2.  Thus, we do not read the textual term "consider" in Article 3.2, second
sentence to require an explicit "finding" or "deter mination" by the investigating authorities that the
price undercutting, price depression or price suppression is, in so many words, "significant".Nevertheless, we consider that it must be apparent from the documents forming the basis for our
review that the investigating authorities have give n attention to and taken into account whether there
has been significant price undercutting by the dumped imports, or whether the effect of such imports
is otherwise to depress prices to a significant degree or prevent price increases, which otherwise
would have occurred, to a significant degree.
7.180  For these reasons, we do not consider that the absence of an explicit "finding" in the final
determination by the Thai authorities that the price undercutting, price suppression or price depression
was "significant" would be inconsistent with the requirements of this provision.  In any event, we note
that the Thai authorities do describe the price undercutting involved as "significant" in their
communications with the Polish firms and their legal counsel
195, and we recall that we consider these
communications to form part of the basis of our review.
Did the data support the Thai authorities' findings as to the effects of imports on prices in the
Thai market for H-beams?
7.181  Concerning Poland's arguments that the data do not support the Thai authorities' findings
regarding the effects of imports on prices in the Thai market for H-beams, we consider first the
alleged discrepancies and errors in the data as disclosed to the Polish respondent companies by
Thailand.  We turn thereafter to the specific findings made by Thailand, namely that Thai and Polishprices "moved in the same direction", that SYS had to lower its prices to "match" those of the Polish
H-beams, and that the influence of the Polish prices was confirmed by SYS's higher prices in its
export markets compared to the Thai market.
Alleged data discrepancies
7.182  We note that the proposed final determination
196 in Thailand-37 contains a table (Table 1) of
non-confidential quarterly price data that the Thai authorities provided to the Polish firms in
conjunction with the proposed definitive determination.  This table purports to set out, in indexed
form, non-confidential data with respect to import prices from Poland and domestic prices for the four
quarters of 1995 and the first two quarters of 1996, as follows:
                                                     
193 I.e., significant price undercutting, significant price depression or prevention of price increases to a
significant degree.
194 Supra , paras. 7.160-7.162.
195 Exhibit Thailand-41, p. 2.
196 Exhibit Thailand 37, Table 1.WT/DS122/R
Page 51
Table 1
Average Quarterly Price
Item QTR. 1/95 QTR.2/95 QTR.3/95 QTR.4/95 QTR.1/96 QTR.2/96
Import Price from Poland 100 99 108 125 111 98
Complainant Price 100 113 123 121 111 118
7.183  Following the submission by Thailand of the confidential record, Poland submits that the
confidential data contain internally inconsistent price data, and contradict the non-confidential pricing
data in the draft final determination.
7.184  Thailand responds in the course of these Panel proceedings that this table contains a
"typographical error".  According to Thailand, the final figure for "complainant price" in QTR 2/96should read 108 instead of 118.  Thailand argues that in making its allegations with respect to price
comparisons, Poland has confused the non-confidential version of Table 1 in Exhibit Thailand–37
with the actual confidential pricing data examined  and taken into account by the Thai authorities
during their investigation and in making their final determination concerning price effects.  According
to Thailand, the clarity of the public summary of confidential information and indeed the factualaccuracy of data used in an investigation
197 is irrelevant to the viability  of the injury determination
made by the Thai investigating authority based on its examination of all relevant factors based on
confidential information."
7.185  To us it seems reasonable to accept that the error in the above table was indeed inadvertent, as
it is against Thailand's interest.  In particular, the incorrect figure runs counter to the Thai authorities'finding concerning price movements (discussed in detail in paras. 7.193-7.214, below), as it shows a
sizeable increase  in SYS's price coinciding with a substantial decrease  in Poland's price.  Had the
correct figure appeared in the table, the basis for Thailand's finding would have been much more
apparent, as the correct figure would have shown both SYS's and Poland's prices declining during the
second quarter of 1996, and prices of SYS declining consistently throughout the investigation period.
7.186  We consider that this error was material, in the context both of the anti-dumping investigation
and of this dispute.  In particular, this error called into question the factual basis for the Thai
authorities' findings concerning price trends, which led Poland to believe that those authorities had
erred in making those findings.  As such, it may well have played a part in Poland's decision to bring
this dispute.
7.187  In this regard, we note that it was not until the submission by Thailand in these proceedings of
the confidential average quarterly prices in comparison with the non-confidential indexed price data
198
and Thailand's response to certain questions from Poland199, that Poland was made aware of the
typographical error.  This error skewed the non-confidential price data, and thus fundamentally misled
the Polish firms and Poland with respect to the actual underlying price data trends of SYS's products,
and thus the basis for Thailand's finding in respect of price movements/price depression.  We also
note that in its comments concerning the draft final determination, Poland relied upon the erroneousfigure for the second quarter of 1996 in support of one of its arguments, and that Thailand did not
avail itself of this opportunity to correct Poland's misapprehension, to us suggesting that Thailand
itself may not have been aware of and did not take note of this error at that time.
200
                                                     
197 Thailand argues:  "If the establishment of the facts is proper, it is irrelevant whether, in the end, the
facts turn out to be different than established".  See response by Thailand to Panel Question 50, Annex 2-6.
198 Exhibit Thailand-67
199 See Thailand's responses to additional questions of Poland, Annex 2-7.
200 We note that in their comments on the draft final determination with respect to the impact of Polish
imports on price, the Polish firms indicated to the Thai authorities that they were under the impression that SYSprices had risen in the last quarter of the IP. Exhibit Tha iland 40:  "Average H-Beam prices at the end of the POIWT/DS122/R
Page 52
7.188  We disagree with Thailand that the clarity and accuracy of the information disclosed publicly
concerning an investigation are irrelevant to the viability of that investigation.  We do consider that
there is an important difference between the subs tance of an investigation, i.e., what was actually
done, and its more formal aspect, i.e., how this substance is disclosed in relevant documents
summarizing the investigation.  Nevertheless, in our view the information made public, and referredto as the basis for the published determination, must accurately reflect the underlying data of record,
as it is the published information and analysis th at constitute an authority's communication of its
findings and the factual basis thereof to the general public, including to interested parties.  As
discussed above
201, we are led to this conclusion by the requirements of Article 3 read in light of the
standard of review, which does not allow us to come to our own conclusions based on the underlyingdata of record, but rather limits us to considering whether the authority's establishment of the facts
was proper and its evaluation of those facts was objective and unbiased.  In our view, the disclosed
facts cannot be considered to be "properly established" if they are inaccurate.
7.189  These considerations are particularly important in a case such as this one, where virtually all
of the data of record are confidential and must not be disclosed by the administering authority, andtherefore are not capable of independent verification by interested parties.  In such a case, the
responsibility of an authority to ensure the accuracy and clarity of the public summaries of data and
statements of reasoning made available to the inte rested parties in the investigation is particularly
significant.  In Table 1, the error admitted by Thailand, while inadvertent, was clearly material – it
significantly mischaracterized the price depression effect and the trends that the table purported to
illustrate and introduced considerable uncertainty as to the factual basis for the conclusions based
thereon contained in the final determination.
7.190  Poland alleges a further inaccuracy in the data as compiled by Thailand.  In particular, Poland
submits that there is a discrepancy between the data in the table entitled "Price Data of H-Beam" in
Exhibit Thailand-37, set forth below, and other record evidence, notably Table 1, above.  Poland
argues that the two tables are contradictory in that Table 1 shows that Poland's price increased  during
the investigation period compared with 1995 as a whole, while the table below shows that Poland'sprice decreased  between these periods.  Poland also notes that on the basis of the table below, the
Thai authorities made a finding that the Polish import prices during the investigation period were
below their 1995 level.
Price Data of H-Beam
Unit: baht/ton
Items 1994 1995 IP
Import Price (Average c.i.f.)
-  All countries
-  Poland8,951.84
7,792.459,936.11
8,408.828,754.43
7,975.00
Sale Price of Siam Yamato - [  ] [  ]
7.191  In these Panel proceedings, Thailand explains that the "IP" column in the above table was
mislabelled, as it reflects data for calendar 1996, rather than for the investigation period. Thailand
                                                                                                                                                                    
(i.e. second quarter 1996) were at or above those at the beginning of the investigation period…" ;  "In each of
those 2 quarters [i.e. 3rd quarter 1995 and 2nd quarter 1996] SYS sharply raised its prices from previous levels,
and not surprisingly, faced market resistance."  However, there is no indication that the Thai authorities took
steps to remedy any misperception that existed on the part of the Polish exporter on the basis of the non-
confidential information made available to them.
201 See supra , paras 7.139-7.151.WT/DS122/R
Page 53
argues that this error is not material in that it "has no effect on the ability of interested parties to
compare CIF prices from all countries and from Poland and to comment accordingly".202
7.192  We find significant that here again, it was not until this dispute that Thailand clarified this
error.  While the import data from which the average c.i.f. prices were derived are public data, and
thus were susceptible of independent verification by Poland, in our view the discrepancy between theabove table and Table 1 may have contributed to Poland's confusion as to the factual basis for
Thailand's findings.  In this regard, we note that Po land's letter to the Thai authorities commenting on
the draft final determination relied on the data in the above table, "Price data of H-beam", in its
characterization of the trend in Polish import prices.
203
Thailand's findings in the final determination as to the effect of dumped imports on prices
7.193  Poland takes issue with Thailand's findings that Thai and Polish prices "moved in the same
direction", that SYS had to lower its prices to "match" those of the Polish H-beams, and that the
influence of the Polish prices was confirmed by SYS's higher prices in its export markets compared to
the Thai market.  In particular, Poland argues that the data in the record of the investigation do not
support these conclusions.
7.194  With respect to the effect of dumped imports on prices, the final determination (Exhibit
Thailand-46) states:
"2.2 Average CIF import price from Poland and the average price of Siam Yamato
move in the same direction .  Price of Polish imports has always been lower than that of
Siam Yamato and lower than the average import price from all other countries.
2.3 The situation as described in 2.1 and 2.2 demonstrates the influence of Polish
imports upon the Thai domestic market, therefore, the domestic industry has no choicebut to decrease its price to the level of Polish imports .  This has resulted in price
undercutting and price suppression including the fact that the Thai domestic industry is
unable to increase its price to recover its costs in a reasonable period of time.  This, in
turn, has effected its cash flow." (emphasis added)
7.195  The final determination also states that, in order to preserve and expand market share, SYS
decreased its prices to "match" those of the Polish imports, resulting in the fact that the "price then
became lower than it should have been".
204
7.196  In the draft final determination, Exhibit Thailand-37, the DIT referred to Table 1 (discussed
above) in support of its finding of price unde rcutting, price depression and price suppression.205
Objecting to this finding on price undercutting, price suppression and price depression in the draft
final determination, legal counsel for the Polish firms stated in written comments on the draft
determination that "the DFT has presented no evidence that Polish imports have caused a decline in
Thai prices or the Respondents have undersold SYS.  To the contrary, Table 1 shows that SYS was
the price leader."206  In their response to these comments, the Thai authorities referred to the draft
final determination and stated:  "In summary, the Th ai investigating Authorities re-iterate that imports
                                                     
202 See response of Thailand to Question 6 from Poland, Annex 2-6.
203 Exhibit Thailand-40 at footnote 1.  (The Polish respondents commented, on the basis of this table,
that Polish import prices and overall import prices followe d the general trend in H-beam prices, i.e., "returned to
pre-existing levels" by mid-1996, following the Kobe earthquake.)
204 Exhibit Thailand-46, para. 2.5.
205 Exhibit Thailand-37, para. 7.
206 Exhibit Thailand-40, p. 3.WT/DS122/R
Page 54
from Poland increased during the IP, significant price undercutting was established resulting in price
depression and price suppression during the period of investigation…."207
7.197  In these Panel proceedings, Poland argues that neither the non-confidential data in Table 1
(discussed above) nor the confidential data support the statement in the final determination that prices
of Polish imports and of SYS products "move in the same direction".  Poland argues that these dataindicate that prices move in the same direction less than half the time (in 3
rd Quarter 1995 and 1st
Quarter 1996).  Poland also submits that neither the non-confidential nor the confidential data supportthe statement in the final determination that SYS decreased its prices to "match" those of the Polish
imports
208, or that SYS "has no choice but to decrease its price to the level of Polish imports".209  In
particular Poland states that Table 1 does not support any finding by the Thai authorities of priceleadership by Polish firms, as it indicates that SYS precipitated the first price decline during the IP.
7.198  Thailand responds that the statement in the final determination that the relevant prices "move
in the same direction" is based on the fact that the Polish respondent offered a price further in advance
of delivery, than did SYS.
210  Thailand explained to us that as a result, in for example Quarter 1, SYS
was competing with prices that were reflected in Polish price data for Quarter 2.  Thailand thenpresented us with a comparison of quarterly price movements in which the data for SYS were lagged
by one quarter
211 based on confidential price data from the investigation that Thailand had submitted
to the Panel.212
7.199  We do not find any indication in the documents forming the basis of our review of such a
lagged analysis of relative prices, nor do we see any reference in these documents even to the fact that
there was such a difference in the timing of price offers by SYS and the Polish respondents.  We do
not doubt that as a factual matter such a difference existed, as we note the reference in the confidential"information for final determination" to the existenc e of such a lag and the conclusion that "[t]hus, it
is likely that the Polish imports are indeed the price leader in the Thai market".
213 However, in the
documents forming the basis of our review, there is no hint even of the existence of a difference in the
timing of price offers, let alone an indication that the prices of Polish and SYS prices should be
compared on a lagged basis for an accurate picture of the coincidence of price trends. To the contrary,the only evidence made available to the Polish re spondents in support of the finding that the Polish
and SYS prices moved in the same direction, i.e., the price information in Table 1, is presented on a
non-lagged basis, and is not accompanied by any statement referring to the need to look at the data on
a lagged basis.
7.200  Concerning the finding of price undercutting, Poland argues that, as there is no evidence of
the relative starting point of the "100" for indexing Polish and Thai prices, one could only speculate as
to how or if Polish prices may have affected Thai prices.  Poland also questions whether the Thai
investigating authorities made necessary adjustments to the CIF import prices and the average SYS
prices included in this table and referred to in the final determination.
214
                                                     
207 Exhibit Thailand-41, p.2.
208 Thailand submits that a more accurate translation of this would be "by reducing its selling price to
the level close to the Poland import price".  See Thailand's response to question 10 from Poland, Annex 2-6.
209 Thailand submits that a more accurate translation of this would be "the company has no other way
but to reduce its price following that of import from Poland".  Id.
210 Responses by Thailand to Question 10 from Poland and Question 48 from the Panel, Annex 2-6.
211 Id
212 Exhibit Thailand-67.
213 Exhibit Thailand-44 at para. 4.3.
214 Poland refers to para. 2.2 of the final determination.  Poland's argument on this point is found
predominantly in its first written submission, Annex 1-1, at para. 27, and second written submission, Annex 1-4,at para. 81.  Poland also posed Question 13 to Thailand relating to this issue (See Annex 2-6).WT/DS122/R
Page 55
7.201  Thailand notes in response to the criticism of Table 1 that "one cannot determine from the
public version of [Table 1] alone which products were undersold", but that "when read in light of
other statements appearing elsewhere in the record … a reader can readily grasp the pattern of
underselling by the dumped Polish imports".215  Thailand responds concerning price adjustments that
the Thai investigating authorities considered "all relevant information regarding the level of price
undercutting" and that for the purpose of disclosure to Poland, "price undercutting was illustrated as a
comparison between CIF import prices and SYS factory prices, i.e., "landed prices".216  Referring to
an invoice it submitted to the Panel217, Thailand further states "the Thai authorities were made aware
that quantities of Polish H-beams were being offered at CIF prices with credit terms of [X-Conf.]
days."  According to Thailand, "Poland, and even the Polish respondent, may not be aware of this
because Polish sales were on an FOB basis, and it was the traders that offered these terms.  However,
this affected the level of price undercutting, given that offering such terms is the equivalent of
unloading product on the market at any price."218
7.202  Here again, there is no evidence in the documents forming the basis for our review whether
and if such adjustments were made to the prices in Thailand's analysis and finding of priceundercutting.  Nor, as Thailand admits, can even the existence (let alone the magnitude) of price
undercutting, or the nature of the data used as the basis for the finding that there was price
undercutting, be discerned from the indexed data contained in Table 1.  Rather, there is the simple
statement that there was "consistent price undercutting".
7.203  Poland itself admits in this dispute (as part of its argument that SYS did not "match" Poland's
prices) that "Thai prices during the IP were thousands of Baht more per metric ton than Polish prices"
(emphasis in original), thus appearing to concede the existence of consistent underselling.
219 Poland
was able to make this statement only because it had access in this dispute to the confidential data on
SYS prices, to which it did not have access during the investigation.  This concession before us by
Poland cannot cure the inadequacy of the Thai authorities' explanation, at the time of the
determination, of the finding that there was "consistent underselling".
7.204  Poland also argues that Thailand purported to demonstrate the influence of Polish imports by
comparison of the Thai market with SYS export markets220 because, as stated in the draft final
determination "SYS can sell [its] exports at the price higher than in the domestic market".221
According to Poland, this finding is contradicted by a statement in the confidential record (Exhibit
Thailand-44).
7.205  Thailand responds that there is no contradiction in the non-confidential information or
between the confidential and non-confidential inform ation referred to by Poland, in the sense that
SYS was able to  sell its exports at higher prices abroad than on the domestic market, and did on
occasion sell on export markets above domestic prices on a transaction basis, especially in the fourth
quarter of the IP.222
7.206  While Thailand's drafting on this point could have been clearer, in our view the first statement
does appear to relate to the ability  of SYS to export at prices higher than in the domestic market,
rather than to the fact that this had occurred during a particular time-period within the investigation
period.  This is confirmed by a statement in Thailand-41, in which the Thai investigating authorities
                                                     
215 Thailand's first written submission, Annex 2-1, para. 95.
216 Response of Thailand to Question 13 by Poland, Annex 2-6.
217 Exhibit Thailand-69.
218 Response of Thailand to Question 13 by Poland, Annex 2-6.
219 Second written submission of Poland, Annex 1-4, at para. 79.
220 Poland refers to Exhibit Thailand-46, para. 2.4.
221 Exhibit Thailand 37, para. 10.
222 Response by Thailand to additional question 8 of Poland, Annex 2-7.WT/DS122/R
Page 56
explained to the legal counsel for the Polish firms th at:  "…the increase in these industry indicators is
also attributable to export markets, which accounted for more than [X-Conf] % of sales.  Furthermore,
it is to be noted that the complainant was able  to command higher prices on the export markets as a
result of the dumping practices of Poland on the Thai domestic market." (emphasis supplied.)
Assessment
7.207  Pursuant to the first sentence of Article 3.2, read in conjunction with Article 3.1, and in
accordance with the standard of review, our task under Article 3.2, second sentence is to examine
whether the Thai authorities properly established the facts pertaining to the price effects of the
dumped imports and evaluated those facts in an unbiased and objective manner in reaching its
conclusions concerning the effects of the dumped imports on price.  As discussed above223, we make
this assessment taking into account only the final determination and the other documents forming the
basis for our review.224
7.208  Turning first to the proper establishment of the fa cts, we note as an initial matter the pervasive
effect of the confidentiality of most of the data pertaining to SYS, and the difficulties that this posed
for the Thai authorities.  While we acknowledge that this significantly constrained the authorities inwhat data they could publish, in our view it also imposed a particular requirement of accuracy on
them concerning the non-confidential summaries and characterizations of the data.  That is, because
the interested parties had no ability to refer to the data themselves to verify those characterizations, it
was particularly critical that the information provided  to interested parties be completely accurate.  As
discussed above this was not the case, and errors in the data as disclosed to Poland clearly caused
Poland confusion.
7.209  Moreover, as also discussed, the analysis supporting certain factual determinations (e.g., that
the prices moved in the same direction on the basis of a one-quarter lag, that there was consistent
underselling and that the undercutting analysis took into account certain price adjustments and
differences in credit terms) is not discernible in the documents forming the basis for our review.  Here
again, while we recognize the difficulties imposed by the need to protect confidential information, in
our view where this is the case there is a particular need for the investigating authority to providecomplete and informative qualitative and descriptive information on the analysis of the data used in
evaluating a fact in a particular context, as well as concerning trends and comparisons, sufficient to
give a reasonable understanding of the data without revealing the confidential particulars
225.  Only in
this way can a judgement can be rendered on the basis of the information as disclosed as to whether
the facts have been properly established, and evaluated in an unbiased and objective manner.
7.210  In this context, we underscore that our review is limited to the documents concerning the final
determination that were available to interested parties, including the public notices, and we must
conclude that those documents do not demonstrate that the facts concerning the effects of dumped
imports on prices were properly established on the basis of positive evidence.  The combination of the
materially misleading errors in the data as set forth in those documents and the lack of sufficientexplanation as to the price effects of the dumped imports, lead us to this conclusion.  In particular, the
conclusory findings of price suppression or price depression were not supported by the facts as
disclosed.  Due to these factual flaws, it cannot be  discerned from the relevant documents that the
                                                     
223 Supra , paras. 7.139-7.151.
224 Supra , para. 7.146.
225 As an example, in the context of price undercutting, an authority might state that monthly or
quarterly import prices on a CIF basis obtained from a particular source such as the importers' questionnaires
were compared with domestic prices on an ex-factory ba sis, that certain adjustments had had to be made (or
were unnecessary) and why, and that undercutting was found in a certain number of the quarters compared andranged from x to y percent.WT/DS122/R
Page 57
authorities relied on positive evidence or that they could have reached these conclusions through an
objective examination of those facts.
7.211  Notwithstanding our finding on the basis of the documents available to Poland, we take note
of the fact that the confidential documents, particularly Exhibit Thailand-44, do contain a considerable
amount of further detail concerning the analysis and evaluation of the facts.  There is no evidence ofmaterial errors in the confidential documents
226, and it was those documents, rather than the non-
confidential summaries disclosed to Poland, that fo rmed the basis for the Thai authorities' analysis
and determination.  Moreover, the explanations and analysis in the confidential documents are more
detailed, and provide more informative statements as to the authorities' reasoning and the factual basis
therefor, than the conclusory statements found in  the documents forming the basis of our review.
Thus, we cannot say what our findings on this point would have been if we had been able to base our
review also on the reasoning in the confidential documents.
7.212  We recall that Article 3.2 AD, read in conjunction with Article 3.1 AD, requires that an injury
determination shall involve an "objective examin ation" on the basis of "positive evidence" of inter
alia the effect of the dumped imports on prices in the domestic market, i.e., whether there has been a
significant price undercutting by the dumped imports as compared with the price of a like product of
the importing Member, or whether the effect of such imports is otherwise to depress prices to a
significant degree or prevent price increases, which otherwise would have occurred, to a significant
degree.  We further recall that Article 17.6(i) AD requires us to limit our consideration of factual
questions to whether the facts have been "properly established".
7.213  As the foregoing discussion indicates, we consider that the issues that Poland has raised
concerning the Thai authorities' findings of price undercutting and price depression are in the firstinstance factual issues.  As discussed, we consider that due to certain errors in the data as disclosed to
Poland, as well as the conclusory nature of the statements in the documents disclosed to Poland
concerning the existence of underselling and the coincidence in the trends of the Polish and Thai
companies' prices for H-beams (i.e., price depression), those documents do not demonstrate that the
facts were properly established on the basis of positive evidence or that the authorities could havereached their conclusions through an objective examination of those facts.
7.214  For these reasons, we find that Thailand has acted inconsistently with its obligation in the
second sentence of Article 3.2 and Article 3.1 to consider, on the basis of positive evidence, whether
there has been a significant price undercutting by the dumped imports as compared with the price of a
like product of the importing Member, or whether the effect of such imports is otherwise to depressprices to a significant degree or prevent price increases, which otherwise would have occurred, to a
significant degree.
7.215  In light of this finding, we do not consider that it is necessary to examine whether Thailand
has also acted inconsistently with its obligations under Article VI of the GATT 1994.
                                                     
226 As indicated in its responses to additional questions from Poland (Annex 2-7), Thailand admits that
the English translation of Exhibit Thailand-44 contains se veral errors, but states that these are not found in the
original Thai language version.  Thailand indicates in this context (in its answer to question 4) that one data
error that did appear in the Thai language version of  Thailand-44 was corrected via a separate table (Exhibit
Thailand-66) provided to the CDS Committee.WT/DS122/R
Page 58
(c) Article 3.4:  examination of the impact of the dumped imports on the domestic industry
(i) Arguments of the parties
Poland
7.216  Poland argues that all of the factors in Article 3.4 must be considered in all cases, and that
consideration of them must be apparent in the final determination of the investigating authority.227
Poland argues that Thailand fails to even mention several factors that it was obligated to evaluate
under Article 3.4.  In its first submission, Poland argues that all of the factors examined by Thailand
unambiguously support a finding of no injury, that the Thai authorities chose not to present evidence
regarding profits, losses, profitability or cash fl ow, and that the "'imperative'" of preserving and
expanding SYS's market share and total sales is not among the factors specified in Article 3.228  In its
second submission and in response to a question from the Panel as to which factors Poland asserts that
Thailand failed to "consider", Poland argues that Thailand failed to consider several factors mandated
by Article 3.4, including "actual and potential declines in productivity", "the magnitude of the margin
of dumping", "actual and potential negative effects on wages", "actual and potential negative effects
on ability to raise capital", and "actual and potential negative effects on investments", whileacknowledging that profits and losses, profitability and cash flow were  considered (but not adequately
or appropriately evaluated)
229.
7.217   Poland also argues that those factors that are mentioned are only addressed in a conclusory
way without supporting evidence.  Poland further argues that those facts that Thailand did consider
point "inescapably" to the lack of injury, as SYS's production, capacity, capacity utilization,
employment, domestic sales volume, overseas sales volume, and market share all increased during the
investigation period.  For Poland, the Thai government’s reliance on the “imperative” of preservingand expanding SYS’s market share and total sales is not among the factors specified in Article 3 AD
as a basis for a legal finding of injury.
7.218  Poland argues that the Thai authorities' determination was not made on the basis of “positive
evidence” and an “objective examination”.  Poland asserts that, in many cases the confidential data on
the investigation record contradict the public data disclosed to and relied upon by the parties in theinvestigation. For Poland, these factual discrepancies raise both due process concerns and concerns
under Article 17.6(i) with respect to the proper establishment of the facts.  According to Poland,
Thailand failed to establish the material facts (as some contradict one another), failed to evaluate the
facts in an unbiased and objective manner (as several factors were ignored) and failed to meet the
legal standard of Article 3.4 requiring evaluation of all relevant economic factors and indices.
Thailand
7.219  According to Thailand, the record of the investig ation demonstrates that the Thai authorities
complied with Article 3.4 by evaluating all relevant factors, including profits, losses, profitability and
cash flow.  Thailand objects to the Panel's approach of requesting a table concerning the evaluation of
all Article 3.4 factors by the Thai investigating authorities
230, and asserts that the Panel's review of the
consistency of Thailand's investigation should be limited to those factors originally identified by
Poland in its first written submission – i.e. including profits, losses, profitability and cash flow.231
                                                     
227Poland cites the panel report in  Mexico – HFCS , supra , note 95, para. 7.128 for this proposition.  See
Poland's oral statement at the first Panel meeting, Annex 1-2, paras. 41-42.
228 First written submission of Poland, Annex 1-1, para. 74.
229 Second written submission of Poland, Annex 1-4, para. 67-68; Poland's response to Panel Question
38, Annex 1-5.
230 Panel Questions 38 and 39, Annex 1-5 and 2-6.
231 See Thailand's response to Panel Questions 7(b) and 39, Annex 2-6.WT/DS122/R
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Moreover, Thailand submits that Poland has failed to satisfy its burden of proof to present prima facie
evidence that the Thai authorities were biased or subjective in their evaluation of all relevant factors.
7.220  Thailand states that Poland simply disputes the weight accorded by the Thai authorities to
each of the factors that it evaluated during the investigation.  To Thailand, in concentrating on the
factors that the Thai authorities accorded less weight in the balance of their investigation, Polandseems to argue that all factors would have to indi cate injury in order for an injury finding to be
sustainable.  Thailand submits that this is fals e, as the AD Agreement only requires investigating
authorities to consider  all relevant factors.  According to  Thailand, when significant volumes of
dumped imports are introduced into a market, an authority could reasonably find that such imports
were causing material injury to the domestic industry because of price undercutting and consequentprice suppression and depression.
7.221  For Thailand, it is all relevant  factors, rather than all factors listed, that must be considered
under Article 3.4.  Furthermore, Thailand argues that, in the absence of a claim by Poland under
Article 12 concerning Thailand's public notices and/or reports, an assessment of whether Thailand
complied with Article 3.4 must be based on the facts made available to the authority (as specified inArticle 17.5(ii)) and the analysis of the facts in the record.
(ii) Evaluation by the Panel
7.222  Article 3.4 provides:
"The examination of the impact of the dumped imports on the domestic industry
concerned shall include an evaluation of all relevant economic factors and indices
having a bearing on the state of the industry, including actual and potential decline in
sales, profits, output, market share, productivity, return on investments, or utilizationof capacity;  factors affecting domestic prices;  the magnitude of the margin of
dumping;  actual and potential negative effects on cash flow, inventories,
employment, wages, growth, ability to raise capital or investments.  This list is not
exhaustive, nor can one or several of these factors necessarily give decisive
guidance."
7.223  The views of the parties and third parties diverge on the nature of the obligation imposed by
Article 3.4.  We therefore turn first to consider the nature and scope of the obligation imposed by
Article 3.4.  In particular, we must consider:  whether the list of factors in that provision is illustrative
or mandatory; if it is mandatory, whether there are only four groups of "factors" represented by the
subgroups separated by semi-colons that must be ev aluated, or whether each individual factor listed
must be evaluated; and the extent to which the final determination (or other documents forming the
basis for our review) must reflect the required evaluation of all "relevant" factors.  Following this
consideration of the nature and scope of the obligation imposed by Article 3.4, we examine whether
the Thai investigating authorities complied with the obligations imposed by Article 3.4.
Is the list of factors in Article 3.4 mandatory?
7.224  We are of the view that the text of Article 3.4 is mandatory.  The text of Article 3.4 explicitly
mandates that:
"The examination of the impact of the dumped imports on the domestic industry
concerned shall include  an evaluation of all relevant economic factors  and indices
having a bearing on the state of the industry , including …" (emphasis added)
7.225  We note Thailand's argument that the list of factors in Article 3.4 is illustrative only, and that
no change in meaning was intended in the change in drafting from the "such as" that appeared in theWT/DS122/R
Page 60
corresponding provision in the Tokyo Round Antidumpi ng Code to the "including" that now appears
in Article 3.4 of the AD Agreement.232  The term "such as" is defined as "[o]f the kind, degree,
category being or about to be specified" … "for example".233  By contrast, the verb "include" is
defined to mean "enclose"; "contain as part of a whole or as a subordinate element; contain by
implication, involve"; or "place in a class or category; treat or regard as part of a whole".234  We thus
read the Article 3.4 phrase "shall include an evaluation of all relevant factors and indices having a
bearing on the state of the industry, including…" as introducing a mandatory list of relevant factors
which must be evaluated in every case.  We are of the view that the change that occurred in the
wording of the relevant provision during the Uruguay Round (from "such as" to "including") was
made for a reason and that it supports an interpretation of the current text of Article 3.4 as settingforth a list that is not merely indicative or illustrative, but, rather, mandatory.
235  Furthermore, we
recall that the second sentence of Article 3.4 states:  "This list is not exhaustive, nor can one or several
of these factors necessarily give decisive guidance."  Thus, in a given case, certain factors may be
more relevant than others, and the weight to be attributed to any given factor may vary from case to
case.  Moreover, there may be other relevant economic factors in the circumstances of a particular case,
consideration of which would also be required.
What are the factors in the list in Article 3.4 to be evaluated?
7.226  Having established on the basis of the text of Article 3.4 that the list of factors in Article 3.4 is
mandatory in nature, we next consider whether there are only four "factors" represented by the
subgroups separated by semi-colons that must be eval uated, or whether each individual factor listed in
Article 3.4 must be evaluated.  This part of our examination of the text of Article 3.4 focuses upon the
semi-colons which separate certain groups of factors, as well as on the two "ors" which appear in thefirst and fourth "groups" of factors listed in the provision.
7.227  Poland argues in answer to a Panel question
236 that the use of the word "or" in two instances
in Article 3.4 must be viewed in light of the term "including" that precedes the list.  For Poland the
use of the word "or" in two places in the list of factors in Article 3.4 is "perplexing" as it makes less
than ideal sense in the context in which it is used.  Poland believes that it is a remnant from the Tokyo
Round Code, and that the fact that it only appears within and not between subgroups of factors which
are separated by semi-colons eliminates the possibility that the different subgroups are merely
illustrative.
7.228  Thailand argues that Article 3.4 contains four basic factors, represented by the four groups
within semi-colons, and that it is sufficient for an in vestigating authority to consider at least one of the
                                                     
232 As a third party, the European Communities was also of the view that the list in Article 3.4 was
illustrative despite the change in language from "such as" in the relevant Tokyo Round Code provision to
"including" in current Article 3.4 .  See EC third party submission, Annex 3-1, para. 41 and EC Response to
Panel Question 13, Annex 3-7.  Japan submitted that the change in terminology indicated that each factor listedin Article 3.4 must be evaluated.  See Response of Japan to Panel Question 13, Annex 3-8.  The United Stateswas of the view that the change in terminology "clarified the need for the authority to evaluate each and everylisted factor that is relevant to the state of the industry". See US Response to Panel Question 13, Annex 3-9.
233 The New Shorter Oxford English Dictionary  (Oxford University Press, 1993).
234 Id.
235 Article 3.2 DSU directs panels to clarify the pr ovisions of the covered agreements "in accordance
with customary rules of interpretation of public international law", which are set out in Articles 31 and 32 of theVienna Convention on the Law of Treaties.  See e.g. Japan-Taxes on Alcoholic Beverages , WT/DS8/AB/R,
WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, pp.10-12.   Here, we look to negotiating historypursuant to Article 32 of the Vienna Convention  in order to confirm the meaning resulting from the application
of the general rule of interpretation in Article 31 of the Vienna Convention .
236 See response of Poland to Panel Question 43, Annex 1-5.  Third party the United States supported
the view that the use of the word "or" within the semi-colons did not detract from the requirement that "allrelevant factors" be evaluated.  See US Response to Question 13 of the Panel, Annex 3-9.WT/DS122/R
Page 61
listed indices in each group.  Moreover, for Thailand, only the first and fourth groups, which deal with
"declines" or "negative effects" in respect of the listed indices, involve an evaluation of such actual
and potential declines or negative effects.  Thailand characterizes the second and third groups (margin
of dumping and factors affecting domestic prices) as "somewhat vague" and posits that the authority
"has wide discretion regarding how to evaluate them".237
7.229  We are of the view that the language in Article 3.4 makes it clear that all of the listed factors in
Article 3.4 must be considered in all cases.  The provision is specific and mandatory in this regard.  We
do not consider that the presence of semi-colons separating certain groups of factors in the text of
Article 3.4, nor the presence of the word "or" within the first and fourth of these groups serve to
render the mandatory list in Article 3.4 a list of only four "factors".  We note that the two "ors" appearwithin -- rather than between -- the groups of factors separated by semi-colons.  The first "or" in
Article 3.4 appears at the end of a group of factors that may indicate declines in the domestic industry
(i.e. "actual and potential decline in sales, profits, output, market share, productivity, return on
investments, or utilization of capacity" (emphasis added)).  In our view, the use of the word "or" here
is textually linked to the phrase "actual and potential decline", and may indicate that such "declines"need not occur in respect of each and every one of the factors listed in this group in order to support a
finding of injury.  Thus, we do not consider that the use of the term “or” here detracts from the textual
requirement that “all relevant economic factors” be evaluated.  Moreover, we note that this first group
of factors in Article 3.4 contains factors that all relate to, and are indicative of, the state of the
industry.
238
7.230  With respect to the second “or,” we note that it appears in the phrase "ability to raise capital
or investments".  In our view, this "or" indicates that the factor that an investigating authority mustexamine is "ability to raise capital" or "ability to raise investments", or both.
7.231  On the basis of this textual analysis of Article 3.4, we are therefore of the view that each of
the fifteen  individual factors listed in the mandatory list of factors in Article 3.4 must be evaluated by
the investigating authorities.  We note that our view concerning the mandatory nature of the list in
Article 3.4 contrasts with our view of Article 3.5 of the AD Agreement, where the word "may" isused.  As we discuss below, the list of factors in that provision is preceded by the phrase "Factors
which may be relevant in this respect include…" (emphasis added), and we therefore view that the
text of that provision indicates that the list of factors in that provision is illustrative.
239
                                                     
237 See response of Thailand to Panel Question 39, Annex 2-6.  According to Thailand, Poland has only
claimed that Thailand failed to "consider" the first and fourth factors, and not that Thailand failed to "evaluate"
them.  On the basis of this characterization of the Article 3.4 factors, Thailand presents a table demonstrating
that it considered factors 1 and 4 (the only ones, according to Thailand, that Poland includes in its "claim" under
Article 3.4) by virtue of having considered profits/losses and profitability (included in factor 1) and cash flow(included in factor 4).
238 We note that Article 4.2(a) of the Agreement on Safeguards, which contains a requirement that the
investigating authorities "shall evaluate all relevant factors…having a bearing on the situation of that industry,
in particular, … changes in the level of sales, produc tion, productivity, capacity utilization, profits and losses,
and employment" has been interpreted to require an ev aluation of each of these listed factors having a bearing
on the state of the industry.  See Appellate Body Report, Argentina-Safeguard Measures on Imports of
Footwear , WT/DS121/AB/R, adopted 12 January 2000, para. 136 and Panel Report, Argentina-Safeguard
Measures on Imports of Footwear , WT/DS121/R, adopted 12 January 2000, para. 8.123.  While the standard for
injury in safeguards cases ("serious injury") is different from that applied to injury determinations in the anti-
dumping context ("material injury"), the same type of analysis is provided for in the respective covered
agreements, i.e. evaluation or examination of a listed series of factors in order to determine whether the requisiteinjury exists.
239 See infra , para. 7.274.WT/DS122/R
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7.232  We further note that the panel in Mexico-HFCS  reached a conclusion similar to ours with
respect to the mandatory nature of the list of factors in Article 3.4.  That panel stated240:
       "The text of Article 3.4 is mandatory:
"The examination of the impact of the dumped imports on the
domestic industry concerned shall include  an evaluation of all
relevant economic factors  and indices having a bearing on the
state of the industry , including …" (emphasis added).
In our view, this language makes it clear that the listed factors in Article 3.4 must
be considered in all cases.  There may be other relevant economic factors in the
circumstances of a particular case, consid eration of which would also be required.
In a threat of injury case, for instan ce, the AD Agreement itself establishes that
consideration of the Article 3.7 factors is also required.  But consideration of the
Article 3.4 factors is required in every case, even though such consideration may
lead the investigating authority to conclude  that a particular factor is not probative
in the circumstances of a particular indus try or a particular case, and therefore is
not relevant to the actual determination. Moreover, the consideration of each of
the Article 3.4 factors must be apparent in the final determination of theinvestigating authority.
60 "
60 In this regard, we note the text of Article 12.2.2, which provides:
"A public notice of conclusion or suspension of an investigation in the case of an
affirmative determination providing for the imposition of a definitive duty or theacceptance of a price undertaking shall contain, or otherwise make available through a
separate report, all relevant information on the matters of fact and law and reasons which
have led to the imposition of final measures…".
evaluation of all "relevant" factors
7.233  We next turn to examine the requirements of Article 3.4 with respect to the extent to which
the required evaluation of all "relevant" factors must be reflected in the text of the final determinationand other documents forming the basis for our review.
241
7.234  For Poland, an evaluation of all relevant factors must be apparent in the final determination.
only when all factors listed in Article 3.4 are considered, weighed and discussed would facts be
"properly established" and "objectively" evaluated.  Poland argues that a factor is "relevant" whether
or not it supports an affirmative finding of injury.  Factors are relevant when "they have a bearing on
the state of the industry" and that "authorities may not simply disregard such factors, but must explain
their conclusion as to the lack of relevance or significance of such factors".  For Poland, the omissionor disregard of factors listed in Article 3.4 (because they are required to be considered) is a prima
facie  case of bias in an evaluation.  If a factor is not considered, there is no "objective" means by
which to judge its relevance.  All listed factors are presumed relevant, meaning that if a given factor is
deemed not relevant in a particular case, the authorities have an obligation to explain why.
7.235  Thailand submits that under the applicable standard of review, the Panel should first consider
whether there was an "evaluation" of all relevant factors, and if so whether the evaluation supports an
                                                     
240 Panel Report, Mexico-HFCS, supra , note 95, para. 7.128.  While that panel was examining a case
involving "threat of material injury", we consider that its views on Article 3.4 are also relevant in this case,
dealing with material injury.
241 With respect to the documents forming the basis of our review, see supra , paras 7.139-7.151, in
particular, para. 7.146.WT/DS122/R
Page 63
affirmative injury determination.  In any case, Thailand argues that the interpretation of Article 3.4 is
not relevant to this dispute as Poland had the obligation to present and prove its claim that a particular
factor was or was not evaluated, and Poland has failed to do so.  Thailand considers that the relevance
of a given factor is for the administering authorit y to determine and that such consideration is not
subject to a panel's review.  For Thailand, it is all re levant factors, rather than all factors listed, that
must be considered in an investigation.242
7.236  We are of the view that the "evaluation of all relevant factors" required under Article 3.4 must
be read in conjunction with the overarching requirements imposed by Article 3.1 of "positive
evidence" and "objective examination" in determ ining the existence of injury.  Therefore, in
determining that Article 3.4 contains a mandatory list of fifteen factors to be looked at, we do notmean to establish a mere "checklist approach" that would consist of a mechanical exercise of merely
ensuring that each listed factor is in some way re ferred to by the investigating authority.  It may well
be in the circumstances of a particular case that certain factors enumerated in Article 3.4 are not
relevant, that their relative importance or weight can vary significantly from case to case, or that some
other non-listed factors could be deemed relevant.  Rather, we are of the view that Article 3.4 requiresthe authorities properly to establish whether a factual basis exists to support a well-reasoned and
meaningful analysis of the state of the industry and a finding of injury.  This analysis does not derive
from a mere characterization of the degree of "relevance or irrelevance" of each and every individual
factor, but rather must be based on a thorough evalua tion of the state of the industry and, in light of
the last sentence of Article 3.4
243, must contain a persuasive explanation as to how the evaluation of
relevant factors led to the determination of injury.
7.237  Consistent with our approach outlined above244, we are of the view that the evaluation of the
mandatory factors must be apparent in the documents forming the basis of our review.  Furthermore,
as more fully discussed below245, the substance of the analysis of the state of the industry presented in
the relevant documents in support of the finding of injury, both in terms of the criteria of "objective
examination" and "positive evidence", is also determinative of the consistency of this determination
with Article 3.4.
Did the Thai authorities consider all relevant factors?
7.238  We now turn to examine whether the determ ination of material injury by the Thai
investigating authorities involved "an evaluation of all relevant factors and indices having a bearing
on the state of the industry" as provided for in Article 3.4.  We first examine whether the Thai
investigating authorities have failed to consider the factors listed in Article 3.4 identified by Poland.
7.239  We observe that, in the context of its claim with respect to the failure by the Thai authorities
to consider or evaluate certain "enumerated factors" in Article 3.4, Poland initially argued that the
Thai authorities had "chose[n] not to present evidence" on profits, losses, profitability and cash flow.
                                                     
242 We note that the third parties had helpful submissions and responses on this issue.  See Third party
submissions of the EC and US, Annexes 3-1 and 3-2 and Responses by EC, the United States and Japan to PanelQuestions 10-13, Annexes 3-7, 3-8 and 3-9.
243 This sentence reads:  "This list is not exhaustive, nor can one or several of these factors necessarily
give decisive guidance."
244 With respect to the documents forming the basis of our review, see supra , paras 7.139-7.151, in
particular, para. 7.146.  We note Poland's argument, on the basis of the panel report in Mexico-HFCS, that the
consideration of each of the Article 3.4 factors must be apparent in the final determination of the investigatingauthority  (see e.g. Poland's oral statement at the first Panel meeting, Annex 1-2, paras. 41-42).  However, inlight of the particular circumstances of this case, including the fact that Poland has made no claim of violation of
Article 12 of the AD Agreement, we do not consider the text of Thailand's final determination as alone
determinative of Thailand's compliance with Article 3.4, nor do we see a need to make a specific finding as tothe adequacy of the text of Thailand's final determination.
245 Infra , paras. 7.245-7.256.WT/DS122/R
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Poland subsequently acknowledged that profits, losses, profitability and cash flow had been
considered, although in Poland's view not adequately evaluated, and identified as factors that had not
been considered "actual and potential declines in productivity", "the magnitude of the margin of
dumping", "actual and potential negative effects on wages", "actual and potential negative effects on
the ability to raise capital", and "actual and potential negative effects on investments".  We note thatthis apparent development in Poland's argument might have been prompted by questioning from the
Panel seeking clarification of an argument introduced by Poland
246 and that Thailand expressed
concern that the Panel was overstepping its authority.247  We have discussed above Thailand's
arguments made in this context with respect to the alleged insufficiency of the panel request248 and the
burden of proof.249  We have given due consideration to Thailand's objections to having to identify
where in the record it has considered and evaluated each factor listed in Article 3.4.  However, we
believe that we must examine whether and how the Thai investigating authorities evaluated all the
relevant factors having a bearing on the state of the industry under Article 3.4.  In our view, such an
examination is necessitated by Poland's arguments in this case concerning the nature of the obligation
imposed upon the Thai investigating authorities under Article 3.4, in light of the requirements of"positive evidence" and an "objective examination" in Article 3.1, and in conjunction with our duty to
conduct an assessment of the facts of the matter, pursuant to Article 17.6(i).  We believe that
questioning from a panel may prompt development of the parties' arguments in order to distil the
parties' positions.  In this context, we recall our earlier statement that the fact that the complaining
party bears the burden of establishing a violati on of a provision of a covered agreement does not
"freeze" a panel into inaction.
250
7.240  We therefore examine whether the Thai investigating authorities considered productivity, the
magnitude of the margin of dumping; actual and potential negative effects on wages; and actual and
potential negative effects on the ability to raise capital or investments.
7.241  We turn first to examine whether the Thai inve stigating authorities considered “productivity”.
We note the statement in the final determination that "it is possible that economy of scale is yet to be
reached".251  While we would certainly have preferred a more robust evaluation of productivity, we
believe this statement in the final determination makes the consideration of “productivity” by the Thai
investigating authorities apparent in the documents forming the basis of our review. Other information
on the Panel record252 further confirms our view that the Thai investigating authorities used “economy
of scale” as a proxy for considering productivity in the particular circumstances of this case.  We
therefore find that the Thai investigating authorities did not fail to consider "productivity".
7.242  We next examine whether the Thai investigating authorities considered the "magnitude of the
margin of dumping".  Before us, Thailand submits that, "the Thai authorities obviously did not know
the magnitude of the final margin until after the final dumping determination.  Thus, its evaluation of
the magnitude of the margin was based on the significantly lower price that Poland was able to offer
to take sales in Thailand as a result of its dumping and the impact that such low prices have on thedomestic industry."
253  Thailand argues that the evaluation of this factor is reflected in, among other
places, confidential Exhibit Thailand-44.254  Thailand has not indicated to us where in the text of the
final determination or in the other documents forming the basis for our review, and we see no
                                                     
246 Poland's response to Question 38, Annex 1-5.  See also Poland's oral statement at the first Panel
meeting, Annex 1-2, paras. 41-42, which preceded this Question by the Panel.
247 Thailand's second written submission, Annex 2-5, para. 4.
248 Supra , paras. 7.44-7.46.
249 Supra , para. 7.50.
250 Id.
251 Exhibit Thailand-46, para. 2.5.
252 Exhibit Thailand-44, para. 4.8.
253 Thailand's second oral statement, Annex 2-9, para. 61.
254 Id.WT/DS122/R
Page 65
indication in these documents, the Thai authorities considered the magnitude of the margin of
dumping.  For this reason, we find that the Thai investigating authorities failed to consider the
magnitude of the margin of dumping.
7.243  We next examine whether the Thai investigating authorities considered actual and potential
negative effects on wages and actual and potential negative effects on the ability to raise capital orinvestments.  Before us, Thailand refers to confidential Exhibit Thailand-67 in support of its argument
that the Thai authorities evaluated actual and potential negative effects on wages.
255  Thailand points
out that in respect of this factor, it relied on cost information that SYS had not authorized Thailand to
disclose, and submits that Exhibit Thailand-67 shows that SYS submitted labour cost information to
the Thai investigating authorities.  In addition, before us, Thailand refers to confidential ExhibitThailand-44 in support of its argument that the Thai authorities evaluated actual and potential
negative effects on the ability to raise capital or investments.
256   Thailand has not indicated to us
where in the text of the final determination or in the other documents forming the basis for our review,
and we see no indication in these documents, the Thai authorities considered this factor.  For this
reason, we find that the Thai investigating authorities failed to consider actual and potential negativeeffects on wages and actual and potential negative effects on the ability to raise capital or investments.
7.244  We therefore find that Thailand has failed to consider the magnitude of the margin of
dumping, actual and potential negative effects on wages, and actual and potential negative effects on
the ability to raise capital or investments as requ ired by Article 3.4 of the AD Agreement.  Although
consideration of certain of these Article 3.4 factors may be apparent in certain of the confidential
documents submitted by Thailand to the Panel, consistent with our approach outlined above
257, we
decline to base our review of the consistency of the determination with Article 3.4 on suchdocuments.
Did the Thai authorities adequately evaluate the remaining Article 3.4 factors?
7.245  We next consider Poland's allegations that the factors that the Thai authorities considered
were not evaluated adequately for the purposes of Article 3.4.  Poland argues that virtually all factors
that were considered by the Thai investigating authorities unequivocally point to no material injury,and that SYS simply had unrealistic market e xpectations given its recent market entry.
7.246  Thailand responds that factors other than those focused on by Poland show injury, that Poland
merely disputes the weight given to those factors by the Thai investigating authorities and that
Thailand's evaluation was unbiased and objective.
7.247  We examine the factual basis and the reasoning relied upon by the Thai investigating
authorities to support its affirmative determination of injury.  We recall that the final determination
contains the following statements pertaining to injury:
"2.5 The mere fact that the production and sales of the domestic industry has
increased cannot be the sole indicators that the domestic industry has suffered no injury
from Polish imports.  In this early stage, it is possible that economy of scale is yet to bereached.  Therefore, it is imperative that the domestic industry's market share be preserved
and expanded to attain the sale level in keeping with its production at a level that it can
continue to be in business.  This was done by decreasing its prices to match that of Polish
                                                     
255 Id, para. 64.
256 Id, para. 59.
257 With respect to the documents forming the basis of our review, see supra , paras 7.139-7.151, in
particular, para. 7.146.WT/DS122/R
Page 66
imports, resluting [sic] in the fact that the price level then became lower than it should
have been.  As a result, timely cost recovery has not been attained."258
7.248  Moreover, Exhibit Thailand-37 contains or refers to non-confidential data in indexed form
pertaining to SYS, including: capacity; production capacity; capacity utilization; sale quantity
(including domestic and export sales); market share; inventory, net profit/loss, return on investmentand employment.  This factual evidence before the Thai investigating authorities indicated that from
1995 to the IP, SYS' capacity remained constant while numerous factors indicative of the state of the
industry moved positively, including production, capacity utilization, sales (both domestic and export
sales), market share, inventories and employment.
259
7.249  While we do not consider that such positive trends in a number of factors during the IP would
necessarily preclude the investigating authorities fr om making an affirmative determination of injury,
we are of the view that that such positive movements in a number of factors would require a
compelling explanation of why and how, in light of such apparent positive trends, the domestic
industry was, or remained, injured within the meaning of the Agreement.  In particular, we consider
that such a situation would require a thorough and persuasive explanation as to whether and how suchpositive movements were outweighed by any other factors and indices which might be moving in a
negative direction during the IP.
7.250  The Thai investigating authorities acknowledge that  there are positive trends in several factors
(including listed factors of sales and capacity utilization, and the additional factor, "production").
260
In their view, however, such positive trends "cannot provide decisive guidance" for injury
purposes"261 and "cannot be the sole indicators that the domestic industry has suffered no injury from
Polish imports".262  The Thai investigating authorities then invoke three factors that they apparently
perceived as relevant "counterpoint" to certain positive injury trends and to which they apparently
attributed considerable weight in reaching their dete rmination of injury:  (i) in ability to attain "timely
cost recovery"; (ii) "economy of scale"; and (iii) the "preservation and expansion of SYS' "market
share".
7.251  In examining the evaluation by the Thai authorities of these three "factors", we first observe
that the statements made with respect to these factors are somewhat conclusory.  However, our
concern with these statements is not limited to this.
7.252  First, with respect to SYS's stated inability to a ttain "timely cost recovery", we note that in the
view of the Thai authorities263 this finding is interlinked with and predicated upon their findings
concerning the price effects of imports (that is, that SYS's cash flow problems stem from SYS having
decreased its prices to "match" those of imports from Poland).  We recall, however, that we have
found264 that the disclosed facts do not provide positive evidence in support of those latter findings,
and that the authorities could not have reached their conclusions through an objective examination of
those facts.  Thus, to the extent that the Thai authorities' finding concerning cost recovery depends on
their findings concerning price effects, it also is not properly supported on the basis of positiveevidence by the disclosed facts.  Nor do we find in the relevant documents any other analytical or
                                                     
258 Exhibit Thailand-46, para. 2.5.
259 We also observe that some additional explanation of the reasoning of the Thai investigating
authorities is reflected in Exhibit Thailand-41, including their view that improvement in the state of the domesticindustry, as reflected in positive trends in certain injury indicators, was also attributable to export markets.
260 Exhibit Thailand-46, Exhibit Thailand-37.
261 Exhibit Thailand-37.
262 Exhibit Thailand-46.
263 Exhibit Thailand-46, para. 2.5.
264 Supra , para. 7.214.WT/DS122/R
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factual support for the Thai authorities' finding concer ning SYS's stated inability to attain "timely cost
recovery".
7.253  Second, we turn to "economy of scale".  According to the final determination, " it is possible
that economy of scale is yet to be reached".265  In making this statement, the Thai investigating
authorities appear uncertain as to whether or not "economy of scale" has indeed been achieved.  Wedo not believe that, in the light of positive trends in so many factors, an explanation of injury is
adequate when there is no definitive position taken by the authorities as to one of the few factors
deemed by the investigating authorities to  be relevant in establishing injury.
7.254  The third "counterpoint" relied upon by the Thai investigating authorities to support the
affirmative injury determination was the perceived "imperative that that the domestic industry'smarket share be preserved and expanded to attain the sale level in keeping with its production at a
level that it can continue to be in business."
266  We note that Article 3.4 lists "market share" as a
relevant factor having a bearing on the state of the industry that we have found must be evaluated by
the investigating authorities.  Where, as here, the domestic industry consists of one producer, the
market share of imports relative to the domestic industry will necessarily be inversely proportional tothe market share of that one producer.  Thus, we do not find that an evaluation of the market share of
a domestic producer, in and of itself, indicates a biased or unobjective evaluation, particularly if this is
but one of the factors duly evaluated and weighed among the totality of factors by the investigating
authorities under Article 3.4.  However, we do not find the explanation here that "it is imperative that
the domestic industry's market share be preserved and expanded…" to be adequate. Particularly in
light of the fact that the factual evidence before the Thai investigating authorities showed that SYS's
market share increased  from approximately 50% in 1995 to 56% in the IP
267, the documents forming
the basis for our review do not provide us with a sufficiently compelling explanation of why, in the
face of positive trends in so many injury factors, it was imperative that the domestic industry's market
share be preserved and expanded.
7.255  In the absence of even a minimally satisfactory explanation of how the factors relied upon by
the Thai authorities support their affirmative injury determination, we find that the documentsforming the basis for our review do not provide us with a sufficiently thorough or compelling
explanation of why, in the face of positive trends in so many injury factors, the Thai investigating
authorities nonetheless concluded that the domestic industry was injured.  Although a more
comprehensive factual basis and a more robust evaluation of certain Article 3.4 factors may be
apparent in the confidential documents submitted by Thailand to the Panel, consistent with ourapproach outlined above
268, we decline to base our review of the consistency of the determination
with Article 3.4 on those documents.
conclusion
7.256  Thus, based on the documents forming the basis for our review, we find first, that the Thai
investigating authorities failed to  consider certain listed factors269, and, second, that the Thai
investigating authorities failed adequately to evaluate the factors they did consider under Article 3.4 in
that they did not provide an adequate explanation, in terms of the factors that were  evaluated, of how
and why, in light of the positive trends in so many  injury factors, they nonetheless concluded that the
                                                     
265 Thailand-46.
266 Exhibit Thailand-46.
267 Thailand has identified the error concerning SYS market share in Exhibit Thailand-37 as a
transcription error in the English translation of the document.  See Thailand's response to Question 5 by Poland,
Annex 2-6.
268 With respect to the documents forming the basis of our review, see supra , paras 7.139-7.151, in
particular, para. 7.146.
269 Supra , para. 7.244.WT/DS122/R
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domestic industry was injured.270  In particular, we do not believe that the determination of injury
could be reached on the basis of an "unbiased or objective evaluation" or an "objective examination"
of the disclosed factual basis.  Therefore, the Thai investigating authorities' determination of injury is
inconsistent with Thailand's obligations under Article 3.4 and 3.1 of the AD Agreement.
7.257  In light of this finding, we do not consider that it is necessary to examine whether Thailand
has also acted inconsistently with its obligations under Article VI of the GATT 1994.
(d) Article 3.5:  causal relationship
(i) Arguments of the parties
Poland
7.258  Poland challenges Thailand's determination of causation in two main respects.  First, Poland
alleges that the evidence relied upon by Thailand fails to establish any causal connection between
Polish imports and any alleged injury to the Thai domestic industry.  Second, Poland asserts that
Thailand failed to consider other factors besides Polish imports that may have contributed to the
condition of the Thai industry.  For Poland, the determination was thus not based on "positive
evidence" or an "objective examination" of th e causal relationship between dumped imports and
injury.
Thailand
7.259  Thailand questions the lack of legal and factual basis for Poland's claim and states that Poland
has failed to establish a prima facie  case of violation of Article 3.5.  In any case, Thailand asserts, the
record of the investigation complies with Article 3.5 by demonstrating the causal link between
dumped Polish imports and injury.  Thailand argues that Poland disagrees with the weight attributed
to various factors by the Thai authorities.  A ccording to Thailand, its investigating authorities
complied with Article 3.5 AD by examining known factors other than dumped imports that may have
caused injury to the domestic industry and found, in each case, that they were not causing injury to the
domestic industry.
(ii) Evaluation by the Panel
7.260  We have already found that the Thai injury determination is inconsistent with Article 3.2 and
3.4.271  We also have concerns with respect to the consistency of the determination with Article 3.5.
Article 3.5 AD provides:
"It must be demonstrated that the dumped imports are, through the effects of
dumping, as set forth in paragraphs 2 and 4, causing injury within the meaning of this
Agreement.  The demonstration of a causal relationship between the dumped importsand the injury to the domestic industry shall be based on an examination of all
relevant evidence before the authorities.  The authorities shall also examine any
known factors other than the dumped imports which at the same time are injuring the
domestic industry, and the injuries caused by these other factors must not be
attributed to the dumped imports.  Factors which may be relevant in this respectinclude,  inter alia , the volume and prices of imports not sold at dumping prices,
contraction in demand or changes in the patterns of consumption, trade restrictive
practices of and competition between the foreign and domestic producers,
                                                     
270 Supra , para. 7.255.
271 Supra , paras. 7.214, 7.256.WT/DS122/R
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developments in technology and the export performance and productivity of the
domestic industry."
7.261  The general issue before us is whether the Thai authorities "demonstrated that the dumped
imports are, through the effects of dumping, as set forth in paragraphs 2 and 4, causing injury", as
required by Article 3.5 AD.272
7.262  This issue can be separated into two principal sub-issues: (i) the determination that a causal
relationship exists between dumped imports and any injury; and, (ii) the treatment of other possible
causal factors.  We examine each of these in turn.
causal relationship between dumped imports and any possible injury
7.263  We turn first to Poland's allegation that the Thai determination of a causal relationship
between dumped imports and injury is inconsistent with the requirements of Article 3.5, as the
evidence relied upon by the Thai authorities does not support such a determination.
7.264  We recall that in the final determination, the Thai investigating authorities found that dumped
imports increased (para. 2.1) and that there was sustained underselling (para. 2.2), and that these
factors "demonstrate[] the influence of Polish imports upon the Thai domestic market" and resulted inprice undercutting and price suppression (para. 2.3).  We note that this finding pertaining to the
influence of Polish imports on the Thai market was fundamental to the determination by the Thai
investigating authorities of the causal relationship between the dumped imports and the state of its
domestic industry (para. 2.5).  Indeed, it is the only discernable basis for the finding by the Thai
authorities of the causal relationship between dumped imports and any possible injury.  We refer to
our examination above with respect to Poland's allegations concerning the inconsistency of the Thai
investigating authorities' determination pertaining to the influence of prices of Polish imports on SYSprices with Article 3.2, second sentence.
273  We consider that, in the absence of supported findings on
price effects in this case, there is no basis for th is finding by the Thai investigating authorities with
respect to the causal relationship.
7.265  Furthermore, we recall our finding above274 with respect to the inconsistency of the Thai
determination with Article 3.4 of the AD Agreement.
7.266  We consider that due to these inconsistencies we have found with Articles 3.2 , second
sentence, 3.4 and 3.1 the determination of the causal relationship between dumped imports and any
injury is also inconsistent with Article 3.5.
treatment of other possible causal factors
7.267  We turn to examine Poland's allegation that the Thai investigating authorities' treatment of
factors other than the allegedly dumped imports from Poland as possible causes of injury was
inconsistent with Article 3.5 of the AD Agreement.
                                                     
272 We note that Poland has alleged that the Final Injury Determination is "inadequate on its face"
(Poland's second written submission, Annex 1-4, para. 95) as it showed no examination of certain other causalfactors and no examination of why these factors were outweighed by other factors elsewhere in the record.
However, as we have already stated, Poland has not made a claim of violation under Article 12 of the ADAgreement.  In the absence of such a claim, we do not consider that the final injury determination alone is
determinative of the consistency of Thailand's finding of a causal relationship between the injury and the
dumped imports with Article 3.5 AD.
273 See supra . para. 7.214.
274 Supra , para. 7.256.WT/DS122/R
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7.268  Poland argues that Thailand failed to consider whether any injury to the Thai industry was
caused by factors other than Polish imports.  Specifically, Poland alleges that there was no
examination in the final determination of the influence of non-Polish imports, the level of demand of
the local construction industry, the highly aggressive nature of SYS' entry into the H-beam market,
domestic industry productivity and cost structure, technology developments, market realities in SYSexport markets, or the Kobe earthquake, and no explanation of why these factors were outweighed by
any other factors elsewhere in the record.  Poland asserts that the final injury determination was thus
inadequate on its face.  Poland also alleges
275 both that factors other than Polish imports were not
examined and that the evaluation of these factors was not adequate, particularly in light of certain
confidential evidence concerning inter alia  prices in export markets.
7.269  Thailand submits that it complied with Article 3.5 AD by examining known factors other than
dumped imports that may have caused injury to the domestic industry and found in each case that they
were not causing injury to the domestic industry.
7.270  We note that the parties (and third parties)276 presented us with diverging views as to the
nature of the legal obligation imposed by Article 3.5 with respect to the examination of other possiblecauses of injury.
7.271  In examining this issue, we turn to the text of Article 3.5.  It reads, in pertinent part:
"…The demonstration of a causal relationship between the dumped imports and the
injury to the domestic industry shall be based on an examination of all relevant
evidence before the authorities.  The author ities shall also examine any known factors
other than the dumped imports which at the same time are injuring the domestic
industry, and the injuries caused by these other factors must not be attributed to thedumped imports.  Factors which may be relevant in this respect include,  inter alia ,
the volume and prices of imports not sold at dumping prices, contraction in demand
or changes in the patterns of consumption, trade restrictive practices of and
competition between the foreign and domestic producers, developments in
technology and the export performance and productivity of the domestic industry."
7.272  We note Poland's argument that in order for an evaluation to be objective and based upon
positive evidence, an investigating authority has th e affirmative responsibility to seek all available
information concerning the potential effects of "known" factors other than dumped imports that might
be causing injury.  In Poland's view, this obligation extends beyond those factors raised by the
responding party in an investigation.
277  Poland therefore alleges that, in violation of Article 3.5,
"Thailand failed to consider numerous other factors other than Polish imports in reaching its causation
determination"278 of which Thailand "was aware".
7.273  The text of Article 3.5 refers to "known" fact ors other than the dumped imports which at the
same time are injuring the domestic industry but does not make clear how factors are "known" or are
to become "known" to the investigating authorities.  We consider that other "known" factors wouldinclude those causal factors that are clearly raised before the investigating authorities by interested
parties in the course of an AD investigation.  We ar e of the view that there is no express requirement
in Article 3.5 AD that investigating author ities seek out and examine in each case on their own
initiative  the effects of all possible factors other than imports that may be causing injury to the
                                                     
275 Poland's first written submission, Annex 1-1, para. 75.
276 See responses by the third parties to Question 14 by the Panel, Annexes 3-7, 3-8 and 3-9.
277 Poland second oral submission, Annex 1-6, para. 77 and response to Panel Question 49, Annex 1-5.
278 Poland second oral submission, Annex 1-6, para. 77.WT/DS122/R
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domestic industry under investigation.279  Of course, they would ce rtainly not be precluded from
doing so if they chose to.  We note that there may be cases where, at the time of the investigation, a
certain factor may be "known" to the investigating authorities without being known to the interested
parties.  In such a case, an issue might arise as to whether the authorities would be compelled to
examine such a known factor that is affecting the state of the domestic industry.  However, it has notbeen argued that such factors are present in this case.
7.274  We note Poland's argument that the final determination shows "no examination of all relevant
evidence before the authorities, including no examination of why the factors enumerated in Article 3.5
Anti-Dumping Agreement were or were not themselves relevant".
280  We do not agree with the
apparent view of Poland that the factors enumerated in Article 3.5 AD constitute a mandatory list offactors that must necessarily be examined by  the investigating authorities in every case.
Consequently, we do not view it as necessary for the relevant documents to reflect that each and every
factor enumerated in Article 3.5 was examined.  In  our view, the language of the text of Article 3.5
("factors which may be relevant… include…") is in stark contrast to the specific and mandatory
language we have addressed above in the context of Article 3.4.
281  The text of Article 3.5 indicates
that the list of other possible causal factors enumerated in that provision is illustrative.  Thus, while
the listed factors in Article 3.5 might be relevant in many cases, and the list contains useful guidance
as to the kinds of factors other than imports that  might cause injury to the domestic industry, the
specific list in Article 3.5 is not itself mandatory.
7.275  Article 3.5 therefore mandates the investigating authorities to examine other known factors
and gives an illustrative list of such factors.  In addition, it mandates the authority not to attribute to
dumped imports injury caused by such other factors.  In accordance with our approach outlinedabove
282, we consider that the examination of such other factors must be apparent in the documents
forming the basis for our review.
7.276  We turn to Poland's allegation that there was no examination in the final determination of the
influence of non-Polish imports, the level of demand of the local construction industry, the nature of
SYS' entry into the H-beam market, domestic industry productivity and cost structure, technologydevelopments or market realities in SYS export mark ets.  Poland has not indicated to us on what basis
these factors were "known" to the Thai investigatin g authorities, and has not directed us to where in
the record of the Thai AD investigation it raised these factors and made them "known" to the Thai
investigating authorities.
7.277  Nevertheless, in light of the disclosed factual basis and the analysis contained in the relevant
documents
283, we find that Thailand has not "failed to examine" certain possible causes of injury other
than Polish imports identified by Poland, including: world-wide demand for H-beams (including
export markets)284, consumption patterns (including the general economic environment and local
                                                     
279 The panel in United States – Salmon, supra, note 169, para. 550 stated:  "there is no express
requirement that investigating authorities examine in each case on their own initiative the effects of all other
possible factors other than imports under investigation." That panel was examining Article 3.4 of the TokyoRound Anti-Dumping Code, which contained different language than Article 3.5 of the WTO AD Agreement.
280 Poland second written submission, Annex 1-4, para. 95.
281 See our discussion of the mandatory nature of the factors listed in Article 3.4 supra , paras. 7.224-
7.231.
282 Supra , paras 7.139-7.151.
283 The confidential record in Exhibit Thailand-44 may also indicate that the Thai authorities
considered certain other causal factors  (see, e.g., the re ference to this in paras. 78-79 of Poland's second oral
statement, Annex 1-6).  However, in accordance with our approach outlined above, we do not take this into
account in assessing the consistency of the Thai determination with the obligations of Thailand under the ADAgreement.
284 Exhibit Thailand-46, para. 2.4.WT/DS122/R
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demand)285, potential trade restrictive practices of and competition between domestic and foreign
producers286, the influence of non-Polish imports287, the nature of SYS' entry into the H-beam
market288 and technology developments.289  Furthermore, we refer to our finding above that the Thai
investigating authorities did not fail to consider "productivity"290, and are of the view that this finding
is also valid in the context of Article 3.5.  The Thai authorities examined these factors and concludedthat they were not causing injury to the domestic market.  We therefore find no support for Poland's
argument that the Thai authorities attributed to Polish imports any injury allegedly caused by such
other possible factors.
7.278  Poland argues that, even if the Thai authorities are only obligated to consider those factors
that are clearly brought to their attention by interested parties, the Thai authorities failed to considercertain such factors.  In this context, Poland specifically identifies the Kobe earthquake and the
resulting effect on world prices.
291  Poland states that it raised the "Kobe earthquake" and the resulting
effect on world prices in the course of the investigation.292  Poland also seems to be of the view that
"Thailand's "secret data" indicates that its authorities were clearly aware of the impact of changes in
the global steel market on its domestic industry"293, and remarks that "given this obvious awareness of
the impact of global market conditions, it is not clear why Thai authorities failed to consider this issue
in the final determination".294
7.279  Before us, Thailand submits that the Thai authorities were aware at the time of the
investigation of global market conditions and their effect on prices.  Thailand considers that, to the
extent relevant to conditions in the global market for H-beams, the Kobe earthquake contributed to
these conditions and was therefore addressed by the authorities during the investigation.  Thailand
submits that the final determination295 discusses the examination of the Thai investigating authorities
of global demand (on which the Kobe earthquake would have an effect).296
7.280  We consider that the "Kobe earthquake" and the resulting effect on world prices constitutes a
factor relating to global prices and demand that was raised before the Thai authorities during the
investigation.  We have found above that Article 3.5 requires that the investigating authorities
examine all other "known" factors, including those raised before them, and that such examination be
apparent in the text of the relevant documents.  We therefore examine whether the Thai investigating
authorities examined this factor and whether this examination is apparent in the relevant documents.
7.281  We note that the final determination contains the following statement with respect to other
possible causes of material injury:
"2.4  Siam Yamato Steel has entered the market when the global and domestic demand
were high.  Later, the global demand had contracted but domestic demand still expanded.
Together with the fact that during the POI, over 40 per cent of sales were from export,
                                                     
285 See Exhibit Thailand-41.
286 Id
287 Id
288 Id
289 Id
290 See supra , para. 7.241.
291 See Poland's response to Panel Question 49, Annex 1-5.
292 See Poland's second written submission, Annex 1-4, para. 95.
293 Poland's second oral statement, Annex 1-6. para. 79.  Poland refers in this context to Exhibit
Thailand-44.
294 Id
295 Thailand refers to Exhibit Thailand-46, para. 2.4, cited infra , para. 7.281.
296 Thailand's first written submission, Annex 2-1, para. 114.WT/DS122/R
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therefore, the global demand for H-beams cannot be a cause of injury to the company
during the POI."297
7.282  While we would certainly have preferred a more robust examination of global demand in the
documents forming the basis for our review, includin g an explicit evaluation of the Kobe earthquake
and its effect on world prices and demand as a possible other causal factor of injury, we do notconsider that Article 3.5 requires that the documents forming the basis for our review expressly use
the precise  terminology  with which a given factor was raised during the investigation, nor an express
indication that the investigating authorities have examined all underlying or contributory causal
elements which may comprise or influence a given causal factor (in this case, global demand).  We
therefore find that this statement in the final determination relating to global demand makes the
consideration of global demand (on which the Kobe earthquake would have an effect) by the Thai
authorities of this factor under Article 3.5 apparent in the text of the final determination.  We find
further confirmation for our view in confidential Exhibit Thailand-44.
298
7.283  For these reasons, we find that the Thai investigating authorities did not act inconsistently
with Article 3.5 in their treatment of factors other than dumped imports as possible causes of injuryunder Article 3.5.
conclusion
7.284  Because the finding by the Thai authorities of the causal relationship between dumped
imports and any possible injury was based upon (i) their findings concerning the price effects of
dumped imports which we have already found are inconsistent with Article 3.2, second sentence and
Article 3.1299; and (ii) their findings concerning injury, which we have already found to be
inconsistent with Articles 3.4 and 3.1300, we find that the determination of the causal relationship
between dumped imports and injury is inconsistent with Thailand's obligations under Article 3.5 and
3.1.   
7.285  In light of this finding, we do not consider that it is necessary to examine whether Thailand
has also acted inconsistently with its obligations under Article VI of the GATT 1994.
D. ARTICLE 6 AD
7.286  In accordance with our finding above that Poland's panel request did not identify Poland's
claims under Article 6 with sufficient clarity301, we do not examine Poland's claims under Article 6.
VIII.  CONCLUSIONS AND RECOMMENDATION
8.1 In light of the findings above, we conclude that Poland failed to establish that Thailand's
initiation of the anti-dumping investigation on imports of H-beams from Poland was inconsistent withthe requirements of Articles 5.2, 5.3 and 5.5 of the AD Agreement or Article VI of the GATT 1994.
8.2 In light of the findings above, we conclude that Poland failed to establish that Thailand has
acted inconsistently with its obligations under Article 2 of the AD Agreement or Article VI of the
GATT 1994 in the calculation of the amount for profit in constructing normal value.
                                                     
297 Exhibit Thailand-46, para. 2-4.
298 Exhibit Thailand-44.
299 Supra , para. 7.214.
300 Supra , para. 7.256.
301 Supra , paras. 7.27-7.31, 7.47.WT/DS122/R
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8.3 In light of the findings above, and based on the documents forming the basis for our review302,
we conclude that Thailand's imposition of the definitive anti-dumping measure on imports of H-
beams from Poland is inconsistent with the requirements of Article 3 AD Agreement in that:
(a) inconsistently with the second sentence of Article 3.2 and Article 3.1, the Thai
authorities did not consider, on the basis of an "objective examination" of "positiveevidence" in the disclosed factual basis, the price effects of dumped imports;
(b) inconsistently with Articles 3.4 and 3.1, th e Thai investigating authorities failed to
consider certain factors listed in Article 3.4, and failed to provide an adequate
explanation of how the determination of injury could be reached on the basis of an
"unbiased or objective evaluation" or an "objective examination" of "positiveevidence" in the disclosed factual basis; and
(c) inconsistently with Articles 3.5 and 3.1, the Thai authorities made a determination of
a causal relationship between dumped imports and any possible injury on the basis of
(i) their findings concerning the price effects of dumped imports, which we had
already found to be inconsistent with the second sentence of Article 3.2 and Article3.1; and (ii) their findings concerning injury, which we had already found to be
inconsistent with Article 3.4 and 3.1.
8.4 Under Article 3.8 of the DSU, in cases where there is infringement of the obligations assumed
under a covered agreement, the action is considered prima facie  to constitute a case of nullification or
impairment of benefits under that agreement.  Acco rdingly, we conclude that to the extent Thailand
has acted inconsistently with the provisions of the AD Agreement, it has nullified or impaired benefits
accruing to Poland under that Agreement.
8.5 We recommend that the Dispute Settlement Body request Thailand to bring its measure into
conformity with its obligations under the AD Agreement.
                                                     
302 With respect to the documents forming the basis of our review, see supra , paras 7.139-7.151, in
particular, para. 7.146.WT/DS122/R
Page 75
ANNEX 1-1
FIRST WRITTEN SUBMISSION OF POLAND
(24 January 2000)
TABLE OF CONTENTS
Page
INTRODUCTION ................................................................................................................... ......................... 76
I. FACTUAL BACKGROUND.......................................................................................................... ... 77
II. PROCEDURES................................................................................................................. .................. 84
III. LEGAL AR GUMENT ............................................................................................................. .......... 85
A. A RTICLE 3 DSU AND ARTICLE 17.6 OF THE ANTI-DUMPING AGREEMENT PROVIDE THE PROPER
STANDARD OF REVIEW FOR THIS DISPUTE ...................................................................................................... 86
B. A NTI-DUMPING MEASURES AND DUTIES MAY ONLY BE IMPOSED IN LIMITED CIRCUMSTANCES
WHICH ARE CONSISTENT WITH ARTICLE VI OF GATT 1994 AND THE ANTI-DUMPING
AGREEMENT ............................................................................................................................... ........... 87
C. I N VIOLATION OF ARTICLE VI GATT 1994 AND ARTICLE 3 ANTI-DUMPING AGREEMENT , THAI 
AUTHORITIES IMPOSED ANTI-DUMPING DUTIES ON POLISH IMPORTS WHILE MAKING ABSOLUTELY
NO PROPER SHOWING OF MATERIAL INJURY ........................................................................................ 88
1. Article VI GATT 1994 and Article 3 Anti-Dumping Agreement Set Forth Several Required
Principles For Properly Determining Injury, Including the Fundamental Principle That An Injury Determination Shall Include An Evaluation Of All Factors................................................................. 88
2. The Thai Determinati on of Injury Was Not Based On Any Rational Reading of Positive Evidence,
Did Not Involve An Objective Evaluation and Was Flatly Inconsistent With the Standards Set
Forth in Article VI GATT 1994 and Articles 3.1, 3.2, 3.4 and 3.5 Anti-Dumping Agreement.............. 92
D. I
N VIOLATION OF ARTICLE VI GATT 1994 AND ARTICLE 2 ANTI-DUMPING AGREEMENT , THAI 
AUTHORITIES FAILED MAKE A PROPER DUMPING DETERMINATION OR CORRECTLY CALCULATE
AN ALLEGED DUMPING MARGIN THEREBY IMPERMISSIBLY FINDING DUMPING WHERE NONE
EXISTED ............................................................................................................................... ................. 95
1. Thai Authorities Imperm issibly Used An Unreasonable Amount Of Profit In Their Calculation
and Determination of Normal Value, Thereby Finding Dumping Where None Existed....................... 95
E. T HAI AUTHORITIES INITIATED AND CONDUCTED THEIR INVESTIGATION OF H-B EAMS FROM
POLAND IN VIOLATION OF SEVERAL FUNDAMENTAL PROCEDURAL AND EVIDENTIARY
REQUIREMENTS IN ARTICLE VI GATT 1994 AND ARTICLES 5 AND 6 OF THE ANTI-DUMPING 
AGREEMENT ............................................................................................................................... ........... 97
1. Thai Authorities Did Not Have Sufficient Evidence To Justify Initiation Of The Investigation
Under Article 5 of the Anti-Dumping Agreement.................................................................................. ..... 97
2. The Thai Authorities Subseque nt Conduct Violated The Procedural And Evidentiary
Requirements of Articles 6 Of The Anti-Dumping Agreement.............................................................. 97
IV. CONCLUSION .................................................................................................................. ................. 99WT/DS122/R
Page 76
INTRODUCTION
1. This dispute arises under Article VI of the General Agreement on Tariffs and Trade 1994
(“GATT 1994”) and Articles 2, 3, 5, and 6 of the WTO Agreement on the Implementation of
Article VI of the General Agreement on Tariffs and Trade (the “Anti-Dumping Agreement”). Thedispute concerns Thailand’s imposition of definitive anti-dumping duties on imports of angles,
shapes, and sections of iron or non-alloy steel and H-Beams (collectively “H-Beam steel products”)
originating from the Republic of Poland (“Poland”).  Such anti-dumping duties have been imposed by
the authorities of the Kingdom of Thailand (“Thailand”) in contravention of the basic procedural and
substantive requirements of Article VI GATT 1994 and of the Anti-Dumping Agreement.
2. Under the Anti-Dumping Agreement, WTO Members have agreed that anti-dumping
measures may be applied “only under the circumstan ces provided for in Article VI of the GATT 1994
and pursuant to investigations initiated and conducted in accordance with the provisions of [the Anti-
Dumping] Agreement.
1   Anti-dumping duties may be imposed only “where all requirements for the
imposition have been fulfilled.2   Such duties may not be imposed simply to assure economies of scale
to domestic producers or to punish foreign producers or exporters for their efforts to supply domestic
purchasers.  In this instance, however, Thailand has taken such steps to nurture Siam Yamato Steel
Co., Ltd. (“SYS”), the sole Thai domestic produce r of H-Beam steel products.  SYS began domestic
production of such products in March 1995, only three months before the start of the investigation
period (“IP”) herein at issue.  As will be detailed further below, the actions of the Thai authorities, in
Poland’s view, were transparent efforts to protect this new producer so as to guarantee, as the Thaiauthorities repeatedly stated in the investigation, the ability of SYS to “recover costs” and achieve
“suitable level of production” from the moment it began production.
3  In furtherance of this desire,
Poland submits, the Thai authorities found a dumping margin where none exists and determined the
existence of material injury when, as stated in the final injury notice, “most evidence[] of domestic
injury indicate a positive performance of the   company.4  Poland respectfully asserts, in fact, that there
is no evidence of injury and that the alleged ‘data’ upon which Thailand claimed to rely are factually
inaccurate and internally inconsistent.  Moreover, Thailand relied on some unusual forms of data thatwere simply invalid on their face:  First, Thailand relied not on actual data, but rather on relative
trends over time which were restricted to preclude accurate comparisons between Polish and Thai
producer prices.  Second, Thailand claimed to draw its conclusions by comparisons of trends between(i) the 1995 calendar year and (ii) an overlapping 12-month period that included either three or six
months of 1995 in every circumstance.
3. Beginning in March 1995, SYS aggressively – and quite successfully – entered the Thai steel
market. It is undisputed that, during the investigation period, SYS tripled  its share of the Thai
domestic market to over 55 per cent of the entire market, its production and sales increased strongly,
its inventories fell to cover this surge in demand, and its capacity utilization and employment surged.
It is further undisputed that average prices at the end of the investigation period were at or above
prices at the beginning of that period.
5 By imposing anti-dumping duties in the face of such
undisputed “positive evidence”, Thailand has chosen an approach that is fundamentally at odds with
                                                     
1 Article 1, Anti-Dumping Agreement.
2 Article 9.1, Anti-Dumping Agreement.
3 Draft Information Used for the Final Injury Determination by the Department of Internal Trade on
Angles, Shapes and Sections of Iron or Non-Alloy Steel: H-Sections from The Republic of Poland, 1 May 1997,at page 3, paragraph 16. Exhibits POL-10, 11.  Unofficial Translation .[“Final Injury Information Notice”]; Final
Injury Determination Made By the Department of Internal Trade On Siam Yamato Steel Co., Ltd.’s Anti-Dumping Petition Against Angles, Shapes and Sections of Iron or Non-Alloy Steel: H-Sections from The
Republic of Poland, 4 June 1997, Exhibit POL-13;  Unofficial Translation , [“Final Injury Determination”]. All
“unofficial translations” cited herein were supplied by the Government of Thailand.
4 Final Injury Information Notice, at page 3, paragraph 16. Exhibits POL-10, 11.
5 See Paragraph 25, below.WT/DS122/R
Page 77
the rules-based trading system of the WTO.6  Instead, Thailand has imposed anti-dumping duties to
shield a new market entrant, the nation’s sole domestic producer in a key  “target industry” of the Thai
Government.  The Anti-Dumping Agreement allows for no such trade-foreclosing measures.
4. This submission is divided into four secti ons.  Section I sets forth the factual background to
Thailand’s 26 May 1997 imposition of final anti-dumpi ng duties on H-Beam steel products of Polish
origin.  Section II details the procedures between Poland and Thailand with respect to this dispute.
Section III sets forth the legal arguments as to why the challenged determinations violate Thailand’s
obligations to Poland pursuant to the Anti-Dumping Agreement and GATT 1994.  Section IV contains
Poland’s conclusion.
I. FACTUAL BACKGROUND
5. On 30 August 1996, the Thai Department of Business Economics, Ministry of Commerce
initiated an anti-dumping investigation regarding the imports of Angles, Shapes and Sections of Ironor Non-Alloy Steel: H-Beams under Customs C ode 7216.33.0005 originating in the Republic of
Poland.
7 This notice of initiation is attached as Exhibit POL-1. The request to initiate this anti-
dumping investigation was filed by SYS, the sole manufacturer of subject merchandise in Thailand.
6. By letter dated 12 September 1996, the Polish Ministry of Foreign Economic Relations
informed the Thai Ministry of Commerce that it had not been notified of Thailand’s intent to initiate
the investigation prior to the publication of the initiation notice of 30 August 1996 and that, in anyevent, the petition filed by SYS lacked sufficient evidence regarding the existence of injurious
dumping by Polish producers.
8  By letter dated 17 September 1996, the Department of Foreign Trade
(“DFT”) of the Thai Ministry of Commerce informed the Republic of Poland about the initiation of
the investigation. The letter is attached as Exhibit POL-3.
7. The Department of Foreign Trade of the Thai Ministry of Commerce is responsible for
investigating allegations of dumping, while the Department of Internal Trade of the Thai Ministry of
Commerce (“DIT”) investigates allegations that dumping has caused injury to a Thai domestic
industry. The period of investigation was established as running from 1 July 1995 to 30 June 1996.
The subject merchandise was defined in the notice of initiation as “Angles, shapes, and sections ofiron or non-alloy steel: H sections, classified under the HS. 7216.33.0005”.
9
8. Upon opening of the investigations, questionnaires were transmitted, on 17 September 1996,
to the following companies: Huta Katowice S.A. (“Huta Katowice”), the only producer of subject
merchandise in Poland; Stalexport S.A. (“Stalexport”), a Polish steel exporter; and Duferco andGeneral Steel Export, which are steel trading firms based in Liechtenstein.  Huta Katowice and
Stalexport (collectively referred to as the “Polish respondents”) voluntarily responded to the Thai
authorities.
9. Stalexport submitted its questionnaire response to Thai authorities on 21 October 1996.
Stalexport was issued a supplemental questionnaire, which it submitted on 8 November 1996.  Huta
Katowice submitted its questionnaire response on 8 November 1996. Verification of questionnaire
responses was conducted in Poland by Thai government officials during 16-18 April 1997.
                                                     
6 Article 3.1, Anti-Dumping Agreement.  Pursuant to this same provision, Thailand's actions fail to
constitute an "objective examination" of the relevant facts.
7 The investigation was initiated by the “Committee to consider procedures for the imposition of
special duty on products which are imported into Thailand at unfair prices and for the imposition of special duty
on products which are subsidised and imported into Thailand”.
8 Thailand's response thereto is submitted as Exhibit POL-4.
9 Exhibit POL-1.WT/DS122/R
Page 78
Provisional Dumping and Injury Determinations
10. On 27 December 1996, the Thai Ministry of Commerce issued a series of notices stating that
Thai authorities had preliminarily determined that H-Beam steel from Poland had been dumped on the
Thai market during the investigation period and that such dumped merchandise had caused materialinjury to SYS.
10  By virtue of these notices, Thailand thus imposed provisional anti-dumping duties of
25.90 per cent of the c.i.f. value for merchandise “produced/exported ” by Huta Katowice; 29.81 per
cent of the c.i.f. value for merchandise “produced/exported” by Stalexport; and 51.99 per cent of the
c.i.f. value for merchandise “produced/exported” by other firms.11   These provisional anti-dumping
duties were imposed for a period of four months.  Without explanation, such duties were imposed onall items classified under HS tariff category 7216.33, a different category of products than was
specified by the anti-dumping notice of initiation regarding H-beam steel products (HS.
7216.33.0005).
12
11. Certain details of these decisions were provided in preliminary dumping and injury notifications from Thailand dated 20 January 1997.  As regards dumping, the Thai DFT explained
that it had utilized a constructed value formula to determine “normal value” and that it had done so
because the H-Beam steel product lines sold in Poland (DIN specifications) were not properly
comparable to those sold in Thailand (JIS specifica tions), leading DFT to conclude that Polish prices
could not be meaningfully compared to Thai domestic prices.
13   
12. On 20 January 1997, the DIT also issued its preliminary injury notification.14   T h e  D I T
preliminary determined that Thai producers had been materially injured by reason of Polish imports.
The DIT explained that Polish imports had increased during the IP as a result of “price tactics”, of
which two were identified -- “the continuously decreased” c.i.f. price of Polish imports vis-à-vis SYS’
domestic prices and “extended credit” of up to 360 days.  According to DIT, the result of such
“tactics” was that “the market share of the Polish product had clearly increased in 1995 whichcorresponds to the period when Siam Yamato Stee l Co. Ltd. (SYS) started the production.”  (As will
be shown below, neither of these claims of harm is valid.  Indeed, even later evidence relied on by the
Thai authorities expressly demonstrates that Polish import prices were not “continuously decreasing”
and that Polish market share rose only a bit more than one per cent.  Further, Polish respondents
simply did not offer such  “extended credit” to potential Thai customers, and there was absolutely noevidence on the record to support such an determination.  Finally, it is misleading to compare c.i.f.
import prices with prices for products already available on the domestic market, as discussed below.)
13. In this preliminary injury determination, DIT explained that SYS, as a “new producer”, was
entitled to “increase its price to enable it to recove r [its] costs in a reasonable period of time.”  The
Thai authorities further explained, “because of the fact that SYS is a new producer, its survival
                                                     
10 The Ministry of Commerce Notification Regarding Imports (No. 118) B.E. 2539 of
27 December 1996.  [ Unofficial Translation .]  Exhibit POL-5.
11 Ministry of Commerce Notification Regarding Anti-Dumping Duty Levied On Angles, Shapes and
Sections of Iron or Non-Alloy Steel: H-Sections Originating in or Exported from The Republic of Poland B.E.2539 of 27 December 1996. Unofficial Translation .  Exhibit POL-5.
12 As a general matter, HS 7216.33 includes angles, shapes, sections, and beams, arguably the same
general category of product.  HS 7216.33.0005 includes the subset of H-Beams only.  It is 7216.33.0005 thatwas covered by the notice of initiation provided to the Polish respondents.  Exhibit POL-1.
13 The Department of Foreign Trade Notification Regarding the Preliminary Dumping Determination
on Angles, Shapes and Sections of Iron or Non-Alloy Steel: H-Beams Originating in or Exported from theRepublic of Poland (No. 1) B.E. 2540 (1997) of 20 January 1997. Unofficial Translation [“Preliminary Dumping
Determination”].  Exhibit POL-5.
14 The Department of Internal Trade’s Preliminary Injury Determination on Angles, Shapes and
Sections of Iron or Non-Alloy Steel: H-Sections From the Republic of Poland, Unofficial
Translation [“Preliminary Injury Determination”].  Exhibit POL-5.WT/DS122/R
Page 79
depends on a suitable level for production to maintain economy of scale[] and thus [SYS] had to
maintain its market share.”
Preliminary Dumping Calculations and Injury Determination: Disclosure
14. On 13 February 1997, the Polish respondents requested disclosure with respect to the factual
information on which the Thai preliminary determ inations imposing substantial anti-dumping duties
on their products were based.  Disclosure documents as regards the preliminary dumping calculations
were issued by the DFT on 19 February 1997.15   Disclosure documents as regards the injury
determination were issued by the DIT on 27 February 1997.16  
15. The preliminary disclosure documents revealed that, in its constructed value calculation,  the
DFT had assumed a 37.7 per cent profit margin for Huta Katowice.17  This assumption was more than
five times the maximum “reasonable”  amount of profit (7 per cent) that had been alleged  by SYS in
its anti-dumping petition and was more than eight times the profit margin (4.55 per cent) for Huta
Katowice shown  in the company’s most recent annual income statement that was before the DFT.18  
Both of these figures were ignored by the DFT.  Using either of those figures, Huta Katowice’s
normal value would have been below  its weighted average export price and thus the company would
not have been found to engage in dumping.  The use of this clearly exorbitant figure is especially
untenable given that it allegedly was derived by analysis of questionnaire response data on Polish and
Thai domestic sales which, for price comparison purposes, the DFT admitted were not properly
comparable and not within the ‘same general category of products’.
16. The disclosure documents showed a number of other items of note.  For example, as regards
Stalexport, the DFT made a number of adverse inferences and resorted to use of “best information
available”, based on the false assumption that Stalexport was a producer (as opposed to an exporter)
of subject goods and that Stalexport was somehow related to or otherwise exercised control over anon-cooperating firm, General Steel Export of Liechtenstein.  Transportation cost calculations were
based on an improper estimate further inflating the preliminary margin calculation.  The calculations
of the preliminary margins also contained a number of ministerial errors.  Polish respondents noted
each of the above errors in writing to the Thai aut horities and respectfully requested at the time that
they be corrected.
17. On 27 February 1997, the DIT supplied the data underlying its injury determination.  Those
data are reproduced herein. Inexplicably, the data utilized an investigation period ( i.e., 1 October 1995
– 30 September 1996) that is different from that established in the notice of initiation ( i.e., 1 July 1995
– 30 June 1996), and the DIT relied upon trends comparing two overlapping 12-month periods ( i.e.,
the 1995 calendar year and 1 October 1995 – 30 September 1996).  Even leaving those irregularities
aside, the data painted a uniform picture of SYS as an aggressive and vibrant new entrant into the
Thai domestic steel market.  The SYS data officially reported by the Thai authorities were as follows:
                                                     
15 The documents are attached as Exhibit POL-7.
16 The documents are attached as Exhibit POL-8.
17 The documents are attached as Exhibit POL-7.
18 In its application for relief (at page 12, point 27), SYS informed the DFT that the “reasonable profit
rate” in the steel industry was between five and seven per cent.  SYS then used a six per cent profit figure whencalculating normal value in its application.  Huta Katowice’s 1995 income statement, which was also properlybefore the DFT, shows that the company’s 1995 profit margin was 4.55 per cent.WT/DS122/R
Page 80
Marketing Information "H-Beam"  of Siam Yamato Co., Ltd.
1994 1995 IP
(1 Oct.'95-30 Sept.'96)
1. Capacity  - 100 100
2. Production - 100 113
3. Percentage of production (%) - 64.6 72.9
4. Volume of Sales
     -  Domestic
     -  Export-
-
-100
59
41133
69
64
5. Market Share - 19.81955.8
6. Inventory - 100 81
7. Net Profit (Loss) - [  ] [  ]
8. Return on Investment - (18-41) (18-26)
9. Labour - 100 110
18. The DIT data presented a clear picture.  SYS’s production volume, percentage of production
(capacity utilization), sales volumes (both domestic and foreign), market share, and employment all
strongly rose during the IP.  SYS’s share of the Thai domestic market rose, in fact, three-fold, a
staggering achievement for a new and untested market entrant.  SYS’ inventory fell, as domestic
demand more than absorbed the company’s increasing production.  And, not surprisingly, the
company’s declared return on investment continued to show improvement.20
19. At the same time that SYS was aggressively establishing itself as the dominant force on the
expanding Thai market, Polish imports were, according to the DIT’s data, relatively stable.  Polish
market share was up 1.1 per cent overall, a tiny fraction of the 36 per cent market share increase of
SYS in the same time period.  Polish import volume was reportedly up somewhat.  Once again, actual
figures were not given, and, as a result, parties were offered no basis for verifying or contesting the
DIT’s conclusions.  By letter dated 13 February 1997, Polish respondents specifically requested thatthe Thai authorities provide actual data to allow a fa ir and unbiased analysis of all results, but this
request was not granted.
21 Any conclusions based on the supplied trend data were, in any event,
simply unreliable.  First, the DIT was seeking to  compare price trends in overlapping time periods.
More fundamentally, as with the prior chart, because so many items were set to 100 for 1995,
respondents were left simply guessing as to the relationships between such items as production, sales,demand, and imports. There was further no necessary relation between numbers on one row and
numbers elsewhere in the “disclosure”.  And 1995 market share data would, in any event, be a
dubious basis for evaluation, given that SYS sold H-Beams during less than ten months of the
calendar year.
                                                     
19 The DFT issued different market sh are figures at different stages of the proceeding.  For purposes of
clarity, we employ the final figure issued by the DFT.  Initially, DFT claimed that SYS' Thai market share was
49.8 per cent in 1995.  But this figure was apparently simply an inadvertent typographical error.
20 Although the company’s return on investment remained negative during this period, such results are
hardly surprising for a start-up venture in a capital-intensive industry like steel production.
21 Exhibit POL-6.WT/DS122/R
Page 81
Marketing Information "H-Beam" Imported from Poland
1994 1995 IP
(1Oct.'95-30 Sept. 96)
1. Demand of Thailand - 100 104
2. VOLUME OF IMPORT
-  Poland
-  Others-
-
-100
48
5292
53
39
3. Market Share
-  Poland
-  Others-
-24.2
25.925.3
18.9
20. On 13 March 1997, the Polish respondents and SYS participated in a public hearing to discuss
these anomalies.  The Polish respondents forcefully raised these points with the Thai authorities, both
in a detailed written submission and in oral argument.  The arguments put forward by the Polish
respondents and SYS are partly reproduced in a hear ing summary, which is attached as Exhibit POL-
9.
Determination of Final Anti-Dumping Duties
21. On 1 May 1997, the DFT issued a proposed definitive (final) determination regarding
dumping22, and the DIT issued a proposed definitive (final) determination regarding the existence of
material injury.23  The final determination regarding dumping covered products imported under HS
7216.33.  Concerning the dumping margin calculation, the DFT maintained its earlier position inregards to the vital issue of profitability, this time using the profit figure of 36.3 per cent.  DFT then
chose to disallow or reduce a number of allowances affecting cost of manufacturing and discounts for
volume and freight that had been granted to the Polish respondents in the preliminary determination.
The DFT chose also to apply a single dumping rate to all Polish exports and, based on the above-
mentioned and other changes, determined that the single dumping margin for Polish H-Beam steel
products was 27.78 per cent.
22. The DIT proposed final injury determination repeated much of the data set forth in the
preliminary injury determination.  DIT concluded on the basis of such data that  “most evidence[] of
domestic injury indicate a positive performance of the company.
24   More precisely, the proposed final
injury determination again evidenced that production, capacity utilization, sales, employment, market
share all rose strikingly for SYS during the IP. These data also showed that SYS’s inventory was
down and the company’s return on investment improved during the IP. While these data wereunchanged from the preliminary determination, the DI T now reported that they actually covered the
period 1 July 1995 through 30 June 1996 rather than 1 October 1995 through 30 September 1996.
Thus, trends were now to be determined comparing 12-month periods in which six of those months
(July through December 1995) overlapped , rendering the comparison, if anything, even lessmeaningful.  Again, no explanation was provided.
                                                     
22 Proposed Final Determination for H-Beams from Poland, 1 May 1997. Unofficial Translation
[“Proposed Final Dumping Determination”]. Exhibits POL-10, 11.
23 Final Injury Information Notice. Exhibits POL-10, 11.  Unofficial Translation
24 Final Injury Information Notice, at page 3, paragraph 16. Exhibits POL-10, 11.  Unofficial
Translation .  The fact that SYS had a 19.8 Thai market share in 1995 was clear in this document.WT/DS122/R
Page 82
23. The proposed final determinations included additional tables with ‘data’ on pricing,
consumption, production, sales and imports from Poland.  These data again obscured more than they
clarified.
24. First, the proposed final determination contained the following “average quarterly price”
table, which the DIT claimed demonstrated price undercutting and price suppression.
Average Quarterly Price
Item QTR. 1/95 QTR.2/95 QTR.3/95 QTR.4/95 QTR.1/96 QTR.2/96
Import Price from Poland 100 99 108 125 111 98
Complaninmant [sic]Price 100 113 123 121 111 118
But the table did not show actual prices or compare Polish and Thai products on the domestic market.
Rather, the table purported to show price trends of each nation’s product in relation to itself.  That is
to say, there was no evidence of the relative starting point of the “100” for each nation’s prices.  Itwas thus a matter of mere speculation unsupported by any record evidence concerning how or ifPolish prices may have affected Thai prices, let alone whether such an effect might have caused any
material injury to the Thai producer.  Moreover, Thai authorities provided no explanation of how
using first quarter 1995 prices as a baseline for SYS was appropriate or reasonable given that the
company only began operation in March of 1995; first quarter 1995 data therefore covered less than
one month.
25. Rather than demonstrating any “price undercutting” these ‘data’ provided by Thailandshowed that, for every reported quarter, SYS’s prices remained well above the price at which thecompany entered the market in March 1995.  The data further demonstrated that it was SYS that
precipitated the first decline in average prices during the IP (fourth quarter 1995), when Polish prices
were still rising.  They seem to show that average H-Beam prices at the end of the IP ( i.e. second
quarter of 1996 )  were at or above those at the beginning of the period of investigation ( i.e.
second/third quarter of 1995 ).
25
26. The huge gap between the record data and the conclusions drawn from that data by Thai
authorities was not cured by the second chart provided by the Thai authorities.  The second table
purported to show actual H-Beam prices of imports over time, again as evidence of price undercutting
or price suppression.
Price Data of H-Beam
Unit: baht/ton
Items 1994 1995 IP
Import Price (Average c.i.f.)
-  All countries
-  Poland8,951.84
7,792.459,936.11
8,408.828,754.43
7,975.00
Sale Price of Siam Yamato - [  ] [  ]
27. The chart, however, provided no information on SYS’ prices during 1995 or the overlappingIP.  (In this instance, IP was not specified.)  Second, the statistics provided did not attempt to account
for the many cost factors (port fees, regular duty, commissions to local agents, inland transportation
costs) that must be included for a proper comparison of domestic prices with c.i.f. import prices.More fundamentally, the data appeared directly inconsistent with the average price data set forth
                                                     
25 The Thai data indicate that SYS’ prices were “113” in the second quarter of 1995, rising to “123”  in
the following quarter.  Consistent with this trend line, the price would logically have been approximately “118”on 1 July 1995.  “118” is the exact average price for SYS for the second quarter of 1996, according to the DIT.No data is provided by DIT on the third quarter of 1996.WT/DS122/R
Page 83
previously in the investigation by Thai authorities.   According to their prior chart, Polish average
import prices in the IP were above  those in 1995.26   According to this alleged “actual price” chart,
however, Thai authorities claimed Polish import prices in the IP were below  Polish import prices for
1995 as a whole.  Finally, of course, this chart continues to require a comparison of “1995” versus the
“IP”, when for six months they were the same overlapping period.
28. Completely absent from the record was any consideration of the important external market
factors affecting steel prices across Asia during this time period.  Polish respondents had supplied
such information to the Thai authorities in writing during the course of the investigation.    Of
particular relevance, the Kobe earthquake had severely disrupted traditional supplies of steel products
throughout Asia, and Asian steel prices generally rose during the latter half of 1995 as a result.  Priceshad generally returned to previous levels by mid-1996, consistent with global pricing trends.  Thai
market prices followed this same pattern.
29. Thai authorities provided a third and final new table in the draft final injury determination.
The table concerned domestic consumption, domestic production, domestic sales, and imports from
Poland.  Once again, this table did not use any actual figures, but rather used relative proportionalfigures over time for each category, thus precluding any proper comparison between or among
categories.  (For example, domestic sales plus Polish imports appear to “exceed” total consumption,
even without accepting for imports from other sources.)  Unlike every other prior instance, certain
figures (consumption and imports) are set equal to “100” beginning earlier than the first quarter of
1995, further precluding any comparisons or verification of the simple consistency of the alleged data.
(No explanation of use of 1994 data has ever been provided by the DIT.)  And again, first quarter
figures for SYS’ production and sales were used as a baseline for showing relative trends, when thecompany was operating during less than one month in that calendar quarter.
Table 2
Item July-Sept.
1994Oct.-Dec.
1994Jan.-Mar.
1995Apr.-June
1995July-Sept.
1995Oct.-Dec.
1995Jan.-March
1996Apr.-June
1996
Consumption
in Thailand100 133 182 191 184 167 189 245
Domestic
Production- - 100 159 167 208 203 157
Domestic
Sales- - 100 112 63 89 124 151
Import From
Poland100 172 141 89 159 102 80 227
30. In purporting to evaluate these data, the DIT concluded that “the increase in Polish imports
during July-September 1995 led to a decrease in sale s of the complainant and the increase in imports
during April – June 1996 resulted [in] the decline in output of the complainant.27  T h e r e  w a s ,
however, no explanation of how either of these “increases” (the existence of which was, in any event,
disputed by Poland) “caused” either of those events at issue or how such imports would affect sales in
one circumstance and output in another, for example.28  (We would note that in the calendar quarter in
                                                     
26 A straight-line average of SYS’ “average quarterly prices” shows that SYS’ 1995 “average quarterly
prices”  in the IP were above those of SYS for 1995.  This differential would surely be accentuated by a weight-averaging of such prices, since, according to the Thai authorities, SYS’ quarterly sales were much higher in theIP than in 1995.
27 Final Injury Information Notice, at page 2, paragraph 8 (citations omitted). Exhibits POL-10, 11..
Unofficial Translation.
28 Moreover, Poland explained that, even for the limited purposes for which this table may in fact be
valid, the chart would need to set all first quarter 1995 figures equal to 100 to present a more accurate portrait.WT/DS122/R
Page 84
which sales were “affected” output in fact rose, and in the calendar quarter in which output was
“affected”, sales in fact rose.)  More generally, we respectfully note once again that there exists no
necessary relationship between the numbers in one row and those in another row, although the chart
falsely gives the surface appearance of some such relationship.
31. Polish respondents raised the above-stated points in a detailed brief to the DFT on 13 May
1997.  On 19 May 1997, the DFT stated that there were “no new elements introduced in the [13 May]
statement that would require modification of the proposed final determination.”  This statement is
attached as Exhibit POL-12.
32. On 26 May 1997, the Thai Minister of Commerce issued final anti-dumping and final injury
notifications on all products covered by HS 7216.33, imposing a final country-wide anti-dumping rateof 27.78 per cent.
29   These notifications were transmitted to affected parties on 4 June 1997.  While
the final anti-dumping determination did not contain significant new information, the final injury
determination contained a number of important new statements.  While explaining that the steel sector
was a “target industry” for the Royal Thai Government, the DIT articulated its view that “injury”
could be equated with “timely cost recovery”.  As the DIT explained (at paragraph 2.5):  “In this earlystage, it is possible that economy of scale is yet to be reached.  Therefore, it is imperative that the
domestic industry’s market share be preserved and expanded to attain the sale level in keeping with its
production at a level that it can continue to be in business.”
33. On 20 June 1997 and 23 June 1997, the Polish respondents requested the disclosure of all
findings from the Thai Ministry of Commerce, given what the Polish respondents viewed as serious
and substantial factual irregularities in the ‘disclosure documents ’ previously supplied by the Thai
authorities.  These requests are supplied as E xhibit POL-14 and Exhibit POL-15.  On 7 July 1997, the
Thai Ministry of Commerce stated that no further disclosure would follow.
30  Thus, the Polish
respondents were denied essential facts, including any final actual data underlying the injury and
causation analyses of the DIT.
II. PROCEDURES34. As a result of the continuing application by Thailand of anti-dumping measures in
contravention of the obligations of the WTO Anti-Dumping Agreement, on 6 April 1998, Poland
requested consultations with Thailand. This request was circulated in WTO document WT/DS122/1
of 15 April 1998.
35. The Consultations were held on 29 May 1998 in Geneva, but did not lead to a satisfactory
resolution of the matter.  Accordingly, Poland requested the establishment of a Panel on 13 October
1999 in a letter to the Chairman of the Dispute Settlement Body.  This request was circulated in WTO
Document WT/DS122/2 of 15 October 1999.
                                                                                                                                                                    
Table 2 (Data revised by Poland)
Item Jan.-
March 1995Apr.-
Jun. 1995Jul.-
Sep. 1995Oct.-
Dec. 1995Jan.-
Mar. 1996Apr.-
Jun. 1996
Consumption in Thailand 100 105 101 92 104 135
Domestic Production 100 159 167 206 203 157
Domestic Sales 100 112 63 89 124 151
Import from Poland 100 63 113 72 57 161
29 Ministry of Commerce Notification Regarding Anti-Dumping Duty Levied on Angles, Shapes and
Section of Iron or Non-Alloy Steel: H-Beams Originating in the Republic of Poland (No. 4), B.E. 2540, 26 May1997. Unofficial Translation [“Final Anti-Dumping Determination”].  Exhibit POL-13.
30 Exhibit POL-16.WT/DS122/R
Page 85
36. At its meeting on 19 November 1999, the Dispute Settlement Body established the present
Panel.  The terms of reference, which were circulated in WTO Document WT/DS122/3 of 23
December 1999, are the following:
To examine, in light of the relevant provisions of the covered agreements cited by
Poland in document WT/DS122/2, the matter referred to the DSB by Poland indocument WT/DS122/2, and to make such findings as will assist the DSB in making
the recommendations or in giving the rulings provided for by those agreements.
31
37. The European Communities, Japan, and the United States have reserved their rights as third
parties to the dispute.
III. LEGAL ARGUMENT
38. After briefly discussing the applicable standard of review, below Poland establishes several
distinct violations of Article VI of GATT 1994 and the Anti-Dumping  Agreement by Thailand.  First,the determination of the Thai authorities that Po lish imports caused injury to the Thai domestic
industry, in the complete absence of, inter alia, positive evidence to support such a finding and
without the required “objective examination” of the factors enumerated for purposes of such an
examination was in direct contravention of Article VI of GATT 1994 and Articles 3.1, 3.2, 3.4 and 3.5
of the Anti-Dumping Agreement.  Thailand violated these provisions of Article 3 by making an injury
determination contrary to any permissible interpretation of such criteria.
39. Second, the Thai authorities’ determination of alleged dumping by the Polish respondents, as
well as the calculation and application of an a lleged dumping  margin, violate any permissible
interpretation of Article VI of GATT 1994 and Article 2 of the Anti-Dumping Agreement.  In order to
impose substantial dumping duties and to preclude lawful and legitimate competition for Thailand’s
newly established producer of the like product, Thai authorities regrettably ignored the Article 2
requirements for a fair comparison of normal value and export price, failing to include only a“reasonable amount” of profit in their normal value calculation.  The result was to create “dumping”
where it did not otherwise exist.
40. Lastly, both the initiation and subsequent conduct of the Thai investigation of Polish H-Beam
steel imports was pursued by the Thai authorities with an unfortunate unwillingness to obey even the
most basic procedural and evidentiary requirements set forth in Article VI of GATT 1994 and Articles5 and 6 of the Anti-Dumping Agreement.  These requirements are designed to ensure transparency
and fairness to all Members in the conduct of anti-dumping investigations.  Yet, the Thai
determinations were unambiguously and directly contradicted by record evidence, and essential
reports and facts requested by respondents were not provided by Thai authorities.  Remarkably, Thai
authorities refused to provide to Polish respondents the actual data underlying the alleged final injuryanalysis or to confirm the accuracy of the final dumping calculations.  While such Thai actions were
effective in precluding Polish sales in Thailand of the merchandise under investigation, they were not
consistent with the obligations of a WTO Member.  In sum, while anti-dumping measures are allowed
in circumstances set forth in the Anti-Dumping Agreement, they are not permissible under the facts
and in the circumstances before this Panel.
41. In the next section, the Republic of Poland examines the standard of review applicable to this
dispute.
                                                     
31 Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-
Beams from Poland, Constitution of the Panel Established at the Request of Poland, Note by the Secretariat,WT/DS122/3, 23 December 1999.WT/DS122/R
Page 86
A. ARTICLE 3 DSU AND ARTICLE 17.6 OF THE ANTI-DUMPING AGREEMENT
PROVIDE THE PROPER STANDARD OF REVIEW FOR THIS DISPUTE
42. The standard of review applicable to this dispute may be found in Article 3 of the Dispute
Settlement Understanding (DSU) and Article 17.6 of  the Anti-Dumping Agreement.  Under the terms
of Article 3 of the DSU, the Panel must determine “whether there is an infringement of obligations
assumed under a covered agreement32,  “in accordance with customary rules of interpretation of public
international law.33   The rules of treaty interpretation set forth in Articles 31 and 32 of the Vienna
Convention on the Law of Treaties (the “Vienna C onvention”) have achieved the status of a rule of
customary international law and are therefore applicable to this dispute.34
43. Article 17.6 of the Anti-Dumping Agreement further provides that obligations under the Anti-
Dumping Agreement will be interpreted as follows:
In examining the matter referred to in paragraph 5:
(i)  in its assessment of the facts of the matter, the panel shall determine
whether the authorities' establishment of the facts was proper and
whether their evaluation of those facts was unbiased and objective.  If
the establishment of the facts was proper and the evaluation was
unbiased and objective, even though the panel might have reached a
different conclusion, the evaluation shall not be overturned;
(ii)  the panel shall interpret the relevant provisions of the Agreement in
accordance with customary rules of interpretation of public
international law.  Where the panel finds that a relevant provision of
the Agreement admits of more than one permissible interpretation,
the panel shall find the authorities' measure to be in conformity with
the Agreement if it rests upon one of those permissibleinterpretations.
44. Under this standard, with respect to factual questions, the Panel must determine whether Thai
authorities properly established the material facts.
35  The Panel must then determine, in light of all
available evidence, whether the Thai authorities’ evaluation of the facts at issue was unbiased and
objective.  With respect to interpreting the extent of a Member’s obligations under the Anti-Dumping
Agreement and the consistency of a practice being challenged with those obligations, the Panel shouldturn to the customary rules of interpretation of  public international law, including the Vienna
Convention.  The Panel must determine whether, consis tent with those interpretive rules, a provision
of the Anti-Dumping Agreement is properly susceptible to more than one correct interpretation.  Ifnot, the Panel should base its ruling on the consistency of the Thai practice being challenged with the
sole proper interpretation.  If an Anti-Dumping Agreement provision has multiple “permissible”
interpretations, the Panel is instructed to defer to permissible interpretations consistent with the text of
the Anti-Dumping Agreement.
                                                     
32 Article 3.8 DSU.
33 Article 3.2 DSU.
34 See, e.g. United States – Anti-Dumping Duty on Dynamic Random Access Memory Semiconductors
(DRAMs) of One Megabit or Above from Korea, WT/DS99/R, 29 January 1999, at paragraph 6.21 ("UnitedStates – DRAMs from Korea").
35 See Guatemala – Anti-Dumping Investigation Regarding Portland Cement from Mexico,
WT/DS60/R, 19 June 1998, at paragraphs 7.54 – 7.57, for a persuasive explanation of the proper standard forassessing factual matters.  The Panel’s findings that led it to conclude that the dispute was properly before itwere later reversed by the Appellate Body.  WT/DS60/AB/R, 2 November 1998.WT/DS122/R
Page 87
45. Article 17.6 (ii) does not entitle a Member to an unwarranted measure of deference for actions
that the Member may deem “permissible”, but which in fact, violate the obligations of a Member
under the Agreement.36   In particular, Article 17.6 (ii) should afford no deference to the practices of
the Thai authorities in this dispute.  Some measure of deference would be appropriate only if Articles
2, 3, 5 and 6 of the Anti-Dumping Agreement, once interpreted in accordance with the customaryrules of interpretation of public international law, admit “of more than one permissible interpretation”
on the issues in dispute.  This is not the case.  The Anti-Dumping Agreement does not allow a
Member to find that another Member’s imports caused material injury to the first nation’s domestic
industry in the absence of any positive evidence to s upport such a finding and in contradiction to the
actual facts on the record regarding import volumes, market shares, price effects, and the consequentimpact of imports on the domestic industry.  Nor is it permissible for a Member to ignore the
fundamental standards set forth regarding making accurate dumping calculations, as well as the
evidentiary and procedural requirements of the Anti-Dumping Agreement designed to provide
fairness and due process for companies involved in investigations and/or reviews.
46. In sum, the Panel should apply the DSU and Article 17.6 Anti-Dumping Agreement,
including the customary rules of interpretation of public international law.
B. ANTI-DUMPING MEASURES AND DUTIES MAY ONLY BE IMPOSED IN LIMITED
CIRCUMSTANCES WHICH ARE CONSISTENT WITH ARTICLE VI OF GATT 1994
AND THE ANTI-DUMPING AGREEMENT
47. The general rules for interpretation of international treaty obligations are set forth in
Article 31 of the Vienna Convention.  Article 31.1 thereof provides, in relevant part, that “[a] treaty
shall be interpreted in good faith in accordance with  the ordinary meaning to be given the terms of the
treaty in their context and in the light of its object and purpose.”
48. Under the WTO Anti-Dumping Agreement, Members have agreed that anti-dumping
measures may be applied “only under the circumstan ces provided for in Article VI of the GATT 1994
and pursuant to investigations initiated and conducted in accordance with the provisions of [the Anti-
Dumping] Agreement.37   Anti-dumping duties may be imposed only “where all requirements for the
imposition have been fulfilled,” including a proper determination of both dumping and injury.38  Anti-
dumping duties further “shall remain in force only as long as and to the extent necessary to counteractdumping which is causing injury.”
39 In sum, anti-dumping duties are an exception to the otherwise
applicable freedom to trade between WTO Members.  They may be levied only “in order to offset or
prevent dumping.”40.
49. By the ordinary meaning of the above provis ions, anti-dumping measures and duties, while
appropriate in defined circumstances, are not otherwise permissible.  In particular, no where does
                                                     
36 See United States – DRAMs from Korea, at footnote 499; see also Steven P. Croley & John H.
Jackson, WTO Dispute Procedures, Standard of Review, and Deference to National Governments, 90 Am. J.Int’l L. 193 (1996).  Based on a detailed review of Article 17 AD Agreement and the Vienna Convention,Professors Croley and Jackson note that one purpose of the Vienna Convention is to help resolve anyambiguities in the text.  The range of “permissible” interpretations advanced by a Member will often not be
relevant because there usually will not be “more than one permissible interpretation” under Article 17.6. None
of the rationales for deference to administrative agencies  that apply in legal proceedings on a national level carry
the same degree of relevance in the context of WTO pane l reviews.  No WTO Member has any greater expertise
relative to other WTO Members regarding the interpretation and application of provisions of the Agreement –they are “interested parties whose own interests may not always sustain a necessary fidelity to the terms ofinternational agreements.”  Id. at 209.
37 Article 1, Anti-Dumping Agreement (emphasis added).
38 Articles 2, 3, 9.1, Anti-Dumping Agreement (emphasis added);  Article VI:1, VI:6 GATT 1994.
39 Article 11.1, Anti-Dumping Agreement.
40 Article VI:2 GATT 1994WT/DS122/R
Page 88
Article VI GATT 1994 or the Anti-Dumping Agreement authorize the imposition of an anti-dumping
duty simply as a means to assure market share or higher prices to a domestic producer, to guarantee
“timely cost recovery” to a domestic firm, or to punish foreign producers or exporters for their efforts
to supply domestic purchasers.  Yet, as the positive evidence set forth below demonstrates, in the
present case anti-dumping duties have been imposed on Polish producers for such express reasons and
in the absence of either any dumping or any material injury to the Thai producer caused by dumping.
Thailand openly conceded that it imposed anti-dumping duties because “it is imperative that the
domestic industry’s market share be preserved and expanded ”.41 Thai authorities apparently view the
assignment of dumping duties as an appropriate means to ensure increased market share and protect a
new entrant to the market from foreign competition in a key “target industry”.  The Anti-DumpingAgreement allows for no such trade-foreclosing measures.
C. I
N VIOLATION OF ARTICLE VI GATT 1994 AND ARTICLE 3 A NTI-DUMPING AGREEMENT ,
THAI AUTHORITIES IMPOSED ANTI-DUMPING DUTIES ON POLISH IMPORTS WHILE MAKING
ABSOLUTELY NO PROPER SHOWING OF MATERIAL INJURY
1. Article VI GATT 1994 and Article 3 Anti-Dumping Agreement Set Forth Several
Required Principles For Properly Determining Injury, Including the Fundamental
Principle That An Injury Determination Sha ll Include An Evaluation Of All Factors
50. Under Article VI GATT 1994 and the Anti-Dumping Agreement, WTO Members may
impose anti-dumping measures, if, after an investigation in accordance with the Agreement, a
determination is made that the domestic industry producing the like product in the importing country
is suffering material injury.  GATT Article VI:6 (a), in part, sets forth:
No contracting party shall levy any anti-dumping or countervailing duty on the
importation of any product of the territory of another contracting party unless it
determines that the effect of the dumping or subsidisation, as the case may be, is such
as to cause or threaten material injury to an established domestic industry, or is such
as to retard materially the establishment of a domestic industry.42
51. The question of how a Member may properly determine the existence or absence of injury, aswell as which factors must be taken into account is set forth in greater detail by provisions in Article 3
of the Anti-Dumping Agreement.  Arti cle 3.1 Anti-Dumping Agreement provides:
A determination of injury for purposes of Article VI of GATT 1994 shall be based on
positive evidence and involve an objective examination  of both (a) the volume of the
dumped imports and the effect of the dumped imports on prices in the domestic
market for like products, and (b) the consequent impact of these imports on domestic
producers of such products.43
According to the plain meaning of the text, Article 3.1 therefore requires that proper injurydeterminations must be based on positive evidence and an objective examination of the facts,
including both the volume of dumped imports and their effect on prices for the domestic like product,
as well as the impact of the imports on the domestic industry.
52. Article 3.2 Anti-Dumping Agreement provides guidance with regard to a national authority’s
consideration of the volume of (allegedly) dumped imports and their effect on prices, noting that they
                                                     
41 Final Injury Determination, at page 2, paragraph 2.5.  Likewise, in the Final Injury Information
Notice (at page 3, paragraph 16), the Thai authorities wrote that SYS “must maintain and increase its market
share.” (emphasis added).
42 Emphasis added.
43 Emphasis added.WT/DS122/R
Page 89
“shall consider whether there has been a significant  increase in dumped imports …” and whether price
depression or other factors have occurred “to a significant degree."44
53. Article 3.4 provides guidance with regard to the proper determination of how “significant” an
impact imports have on domestic industry, stating, in part, that the evaluation by the investigating
authorities: “shall  include an evaluation of all relevant economic factors and indices  having a bearing
on the state of the industry, including actual and potential decline in sales, profits, output, market
share, productivity, return on investments, or utilization of capacity;  factors affecting domestic
prices;  the magnitude of the margin of dumping;  actual and potential negative effects on cash flow,
inventories, employment, wages, growth, ab ility to raise capital or investments."45
54. Article 3.5 Anti-Dumping Agreement sets forth a causation requirement, providing, in
relevant part, that in determining injury:
It must be demonstrated that the dumped imports are, through the effects of dumping,
as set forth in paragraphs 2 and 4, causing injury within the meaning of this
Agreement.  The demonstration of a causal relationship between the dumped imports
and the injury to the domestic industry shall be based on an examination of all
relevant evidence before the authorities.  The authorities shall also examine any
known factors other than the dumped imports which at the same time are injuring the
domestic industry, and the injuries caused by these other factors must not be
attributed to the dumped imports. (Emphasis added).
55. Article 3.7 Anti-Dumping Agreement provides additional contextual support for the
fundamental Article 3 requirement that injury and causation be demonstrated  rather than assumed,
providing that determinations regarding threat of material injury “shall be based on facts and notmerely on allegation, conjecture or remote possibility.
46  
56. In addition to the ordinary meaning of the terms set forth in the above-referenced provisions
of Article 3 Anti-Dumping Agreement, several adopted GATT Panel decisions provide additional
insight into the parameters of a Member’s obligations concerning a proper injury determination under
Article VI GATT 1994 and Article 3 Anti-Dumping Agreement.  These decisions are relevant to thework of the Panel in this dispute, as the text of Article XVI:1 of the Agreement Establishing the
World Trade Organization provides:
Except as otherwise provided under this Agreement or the Multilateral Trade
Agreements, the WTO shall be guided by the decisions, procedures and customary
practices followed by the CONTRACTING PARTIES to GATT 1947 and the bodiesestablished in the frame-work of GATT 1947.
                                                     
44 Emphasis added.    In apparent contradiction to Article 3.2 of the Anti-Dumping Agreement,
Article 7.2 of the Thai anti-dumping law in effect for the Thai investigation of Polish H-Beam steel products didnot require the Thai national authority to consider whet her any increases in volume of the imported products
were "significant," whether any price undercutting was "significant," whether prices were depressed to a
"significant" degree, or whether imports prevented pri ce increases to a "significant" degree.  Notification of
Laws and Regulations Under Articles 18.5 and 32.6 of the Agreements, Thailand, Notification of the Ministry ofCommerce on the Imposition of Anti-Dumping and Countervailing Duties B.E. 2539, WTO documentG/ADP/N/1/THA/3, 13 January 1997.
45 Emphasis added.
46 Paragraph 2 of the Final Injury Determination by the Thai DIT refers explicitly to a “threat of
material injury” to the domestic Thai industry.  The reference is confusing, as the next sentence speaks of“material injury” being “found.”  See Exhibit POL-13.  No investigation was initiated regarding threat of
material injury, and there was absolutely no legal (or factual) basis for this apparent threat finding.WT/DS122/R
Page 90
57. Consistent, therefore, with the text of the Agreement and previous GATT panel rulings, it is
appropriate for the Panel hearing this dispute to review whether the Thai government authorities
correctly identified the appropriate facts in thei r injury determination regarding Polish imports, as
well as whether the stated Thai DIT factual basis reasonably supported the DIT’s findings.  In New
Zealand – Imports of Electrical Transformers from Finland  (“New Zealand Transformers”), the panel
made clear that a party is under the obligation to establish the relevant facts leading to the injury
determination when its findings are in dispute.47  Those findings are further subject to a close review
by the applicable panel.  Explaining what constitutes proper review of an “injury determination,” the
Panel concluded:
[T]he Panel could not share the view that such a [injury] determination could not be
scrutinized if it were challenged by anothe r contracting party.  On the contrary, the
Panel believed that if a contracting party affected by the determination could make a
case that the importation could not in itself have the effect of causing material injury
to the industry in question, that contracting party was entitled, under the relevant
GATT provisions, in particular Article XXIII, that its representations be givensympathetic consideration and that eventually, if no satisfactory adjustment was
effected, it might refer the matter to the CONTRACTING PARTIES, as had been
done by Finland in the present case .  To conclude otherwise would give governments
complete freedom and unrestricted discretion in deciding anti-dumping cases without
any possibility to review the action taken in the GATT.  This would lead to an
unacceptable situation under the aspect of law and order in international trade
relations as governed by the GATT.   The Panel in this connection noted that a similar
point had been raised, and rejected, in the report of the Panel on Complaints relating
to Swedish anti-dumping duties (BISD 3S /81).  The Panel fully shared the view
expressed by that panel when it stated that “it was clear from the wording of
Article VI that no anti-dumping duties should be levied until certain facts had been
established.  As this represented an obligation on the part of the contracting partyimposing such duties, it would be reasonable to expect that that contracting party
should establish the existence of these facts when its action is challenged."48
58. Given the Art. 3.1 requirement for a proper injury determination to be based on “positive
evidence” and an “objective evaluation,” as well as the Article 3.4 requirement that the national
authority examine “all relevant” factors, the Panel should further consider whether the Thaiinvestigating authorities examined all relevant facts before them (including the facts which may
preclude or detract from an affirmative injury determination) and whether a “reasonable” explanation
has been provided of how the facts as a whole support the determination made by the Thai
investigating authority.
49   As the US-Atlantic Salmon from Norway Panel explained:
Article 3:3 required the investigating authorities to include in their examination of the
impact of the imports on the domestic industry "an evaluation of all relevant
economic factors and indices having a bearing on the state of the industry" and
contained an illustrative list of those "factors and indices".  The Panel noted that
Article 3:4, which required a demonstration of a causal relationship between the
allegedly dumped imports and material injury to a domestic industry, explicitlyreferred to the factors set forth in Articles 3:2 and 3:3 Note: equivalent to Article 3:4
                                                     
47 New Zealand – Imports of Electrical Transformers from Finland, Report by the Panel adopted on
18 July 1985 (L/5814 - 32S/55),  at paragraph 4.4 ( citing   Swedish Anti-dumping Duties,  Report by the Panel
adopted on 26 February 1955 (L/328 - 3S/81), at paragraph 15.).
48 Id. (emphasis added).
49 See United States – Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic
Salmon From Norway, Report of the Panel adopted by the Committee on Anti-Dumping Practices on27 April 1994 (ADP/87), at paragraph 492  (“US-Atlantic Salmon from Norway”)WT/DS122/R
Page 91
of the current Anti-Dumping Agreement.  Therefore an essential element of a review
of whether a determination of material injury was in conformity with Article 3 was an
examination of whether the factors set forth in Articles 3:2 and 3:3 had been properly
considered by the investigating authorities.50
[T]he Panel observed that Article 3:1 requir ed that determinations of material injury
be based on "positive evidence".  A review of whether in a given case this
requirement was met involved an examination of the stated factual basis of the
findings made by the investigating authorities in order to determine whether the
authorities had correctly identified the appropriate facts, and whether the stated
factual basis reasonably supported the findings of the authorities.51
59. A proper finding of injury must not be based on incorrect facts, as such a finding does not
constitute a sufficient basis to satisfy the “positive evidence” requirement:
The Panel considered that if a finding of injury was based on incorrect facts it would
not be based on “positive evidence”.  The phrase "positive evidence" required at least
that the evidence upon which a finding of injury was based must not be incorrect..52
60. Rather, when evaluating whether all relevant Article 3.4 factors were properly considered,
panels should closely examine the specified relevant factors and the support in the record for rational
consideration of those factors.  As the panel in Korea – Anti-Dumping Duties on Imports of
Polyacetal Resins From the United States53  explained:
While the relative weight to be accorded to each of these factors depended upon the
circumstances of each particular case, the overall context of an analysis of the
specific factors mentioned in Article 3:3 Note: the equivalent of Article 3:4 of thecurrent Antidumping Agreement was that of "an evaluation of all relevant economic
factors and indices having a bearing on the state of the industry".  The wording of
Article 3:3 did not support the view that  factors which were beyond the industry's
control were, by definition, not "relevant economic factors and indices having a
bearing on the state of the industry".  The Panel therefore considered that insofar asthe [investigating authority] decision not to take account of factors such as declining
costs of materials was based on the ground that such factors were beyond the
domestic industry's control, the [investigating authority] had failed to evaluate
relevant economic factors and indices having a bearing on the state of the industry.
In this respect, the [investigating auth ority’s] examination of the "projected
performance" of the domestic industry was inconsistent with Korea's obligations
under Article 3:3 of the Agreement..
54
61. Notably, the Panel in Korea - Resins from the US  carefully examined a claim of material
injury based on an inadequate and unclear public record, finding that Korea's determination of
material injury to its domestic industry was (1) not based on positive evidence as required byArticle 3.1 insofar as its finding was based on the industry's sales revenue and net profits, because the
Panel could not ascertain from the text of the determination on what factual basis Korea had found
lost sales revenues or that the level of net profit wa s insufficient to enable the industry to maintain
                                                     
50 Id. at paragraph 493 (emphasis added).
51 Id. at paragraph 494.
52 EC – Imposition of Anti-Dumping Duties on Imports of Cotton Yarn From Brazil, Report adopted
4 July 1995, at paragraph 512
53 Korea – Anti-Dumping Duties on Imports of Polyacetal Resins From the United States, Report of the
Panel (ADP/92, and Corr.1*), Report 2 April 1993 (the “Korea - Resins from the US Panel”).
54 Id. at paragraph 276.WT/DS122/R
Page 92
normal operations and development; and (2) inconsistent with Article 3.4 insofar as it was based on
the industry's inventories, because, again, Korea's determination failed to explain the role of the
imports under investigation as a cause for the accumulation of inventory.55  
62. In sum, the clear position expressed by panels that have considered the injury issue and
meaning of the Article 3 provisions is that the government investigating authority must produce allfacts that reasonably support its determination and those facts must reasonably and rationally support
a finding of material injury.  The evaluation must not be based on one factor only.  Rather, the
determination of injury must take into account all relevant economic factors at the time of the
investigation.  Prior panels have enforced this principle by scrutinizing the facts claimed to be
established and relied upon by the relevant investigating authority.
63. The meaning of these Article 3 provisions in the context of the present dispute and the task of
the current panel is also clear.  Under Article VI GATT 1994 and the Anti-Dumping Agreement,
Thailand was required to demonstrate that its domestic industry had suffered the requisite injury that
must be established under Article 3, and that any material harm shown to be suffered by that industry
was the result of (or “caused” by) the Polish imports of merchandise subject to the Thai investigation.In any other circumstances, the imposition of anti-dumping duties by Thai authorities on Polish H-
beam steel products entering Thailand is improper, serving only to nullify and impair benefits
otherwise accruing to Poland under the WTO Agreements.  As demonstrated in the next section, these
relevant Article 3 standards were not properly addressed by Thailand in this case.
2. The Thai Determination of Injury Was Not Based On Any Rational Reading of Positive
Evidence, Did Not Involve An Objective Eval uation and Was Flatly Inconsistent With
the Standards Set Forth in Article VI GATT 1994 and Articles 3.1, 3.2, 3.4 and 3.5 Anti-Dumping Agreement
64. The Republic of Poland recognizes that dumping injury determinations by national authorities
may involve complex facts and a multitude of factors whose impact may be read in conflicting ways.
We respectfully submit, however, no such situation faced the Thai authorities in the present case.
There was no close call, no administrative record filled with complex or contradictory data, and nocontrary indications provided by conflicting data.  Indeed, as the Thai authorities acknowledge in the
final determination, “most evidence[] of domestic injury indicate a positive performance of the   [sole
Thai]  company.
56  Poland respectfully submits that even this acknowledgement was an
understatement.  It should be plain to any objective observer from all the data on the record of the
Thai investigation that SYS did not experience any material injury during the period of investigation.
Undisputed evidence on the record demonstrat es that SYS’s production, capacity utilization,
employment, sales (both domestic and overseas), and market share all increased in the IP.  Indeed,
SYS was so healthy that its Thai market share tripled during the investigation period and the companyclaimed over 55 per cent of the domestic market within less than 16 months of selling its first H-
Beam.
57   SYS inventories fell even as production was rising.  Furthermore, the Thai DFT’s price
information speaks for itself.  Average H-Beam prices at the end of the IP ( i.e. second quarter 1996)
were at or above those at the beginning of the investigation ( i.e. the second quarter of 1995).58
                                                     
55 Id. at paragraphs 242, 254, 261, 262.
56 Final Injury Information Notice, at page 3, paragraph 16. Exhibits POL-10, 11.  Unofficial
Translation
57 As reported previously, SYS had a 55.8 per cent share of the Thai market for the year ending
30 June 1996.  See, e.g., paragraph 17, above.
58 As the Polish respondents explained to the Thai authorities during the investigation, prices generally
rose in Asian markets during the latter half of 1995 due to the massive earthquake in Kobe, Japan.  Asian steelprices then generally returned to pre-existing levels by mid-1996, consistent with global pricing trends.  It isclear from the DFT’ s own data that both Polish import prices and overall import prices followed that sameWT/DS122/R
Page 93
65. In the face of this overwhelming and uncontested evidence, the Thai DFT nonetheless
claimed to find injury on the basis of two alleged factors: (i) a decline in Thai domestic prices,
including price undercutting and price suppression, allegedly caused by Polish prices and
accompanying “credit terms”, and (ii) a 1.1 per cent increase in the market share allegedly held by
Polish imports.  These allegations of harm have no merit and, contrary to its obligations under Article3, Thailand has never provided any objective support for them on the record of its investigation.
66. Thai authorities cite Table 1 attached to thei r draft final injury determination as the support
for their claim that Polish imports caused a decline in Thai prices and that Polish respondents in the
investigation undersold SYS.  Yet, Table 1 establishes nothing even remotely comparable to these
assertions.  First, the price levels provided are only relative  levels ( e.g. between Quarter 1 1995 and
Quarter 1 1996 both Thai and Polish producer prices rose 11 per cent).  They are also relative only for
the producer listed in a particular row.  Thus, one cannot even compare any actual prices, and therelative figures provided are not even comparable between the Polish respondents and the Thai
producer.  The DFT thus presented no evidence that Polish imports caused a decline in Thai prices or
that Respondents undersold SYS.
67. To the degree that Table 1 of the Draft Thai  Injury Determination establishes any fact, it
shows that the Thai SYS was the price leader.  As Poland has stated above at paragraph 25, SYS
precipitated the first decline in average prices during the IP ( i.e. fourth quarter of 1995), while Polish
import prices were still rising.  This decline, as the DFT admits, was a strategic decision by the
company with the aim of “maintaining and expanding th e market share, so that the volume of sale will
be efficient for the factory production and to achieve economy of scale.
59   As a result, it is plain from
the Thai data provided that any alleged injury to SYS caused by a drop in Thai prices was self-inflicted.
68. The DFT also attempts to claim that injury to SYS may be shown by the quantity of imports
from Poland.  The DFT inexplicably bases its conclusion (at paragraph 8 of the Final Injury
Information Notice) on examination of only two quar ters of the IP, during which Thailand claims that
Polish imports led to either decreased sales or decreased output by SYS.  There are several obviousproblems with this conclusion.  First, Thai authorities fail to explain their own record evidence
directly contradicting their conclusion regarding decreased sales or output.  At the same time that one
of their charts purports to show decreased sale s and output, Thai authorities also acknowledge that
SYS market share tripled and that production quantity rose
 over 10 per cent (while inventories
decreased). In addition, the other two quarters not referenced by Thailand -- and the IP as a whole --
tell a very different story.  But even the two quarters examined do not support this claim: In each of
those two quarters, SYS sharply raised its prices from previous levels, and not surprisingly, faced
market resistance.60
69. It is the Republic of Poland’s view that the Thai DFT’s determinations  regarding injury are
regrettably best understood from the record evidence as an attempt to protect Thai industry from faircompetitive forces.  SYS was a new entrant in the steel market in 1995 and Thai authorities candidly
confessed their intent that “the company must maintain and increase its market share"
61 and that “it is
imperative that the domestic industry’s market share be preserved and expanded.62   But even as a new
firm and the sole Thai producer of subject goods, SYS was not and is not currently entitled to
                                                                                                                                                                    
general trend.  See, e.g.,  the table entitled “Price Data for H-Beam” attached to Draft Injury Determination.  See
paragraph 26, above.  It is self-evident that Polish respondents bore no responsibility for either this price
increase nor the normal re-settling of pr ices from artificially high levels.
59 Final Injury Information Notice, Exhibits POL-10, 11, at paragraph 7.
60 See table entitled "Average Quarterly Price" attached to Final Injury Information Notice, Exhibits
POL-10, 11.
61 Final Injury Information Notice, Exhibits POL-10,  11, at page 3, paragraph 16 (emphasis added).
62 Final Injury Determination, Exhibit POL-13, at page 2, paragraph 2.5.WT/DS122/R
Page 94
immunity from fair competition.  It has no guaranteed right to recover expenses in a given period of
time, no right to “maintain and increase its market share”, and no right to a closed domestic market to
ensure its profitability.  Thai authorities violate their WTO obligations by finding injury in such
circumstances.
70. In sum, Thailand’s determination of material injury by reason of Polish imports was in
violation of Articles 3.1, 3.2, 3.4 a nd 3.5 Anti-Dumping Agreement.
71. Articles 3.1, 3.2 and 3.4 were violated because the determination was not based on positive
evidence and did not involve an objective examination of the volume and effects on price of the
Polish imports, and the impact of those imports on SYS, which by all objective measures presented,
was thriving.  Indeed, the data on which DIT claimed to rely contradict its own conclusions.Inconsistent with Article 3.1, there was no positive evidence presented that imports from Poland in
any manner affected prices on the Thai domestic market.  There was further no positive evidence
presented or objective examination of the impact of Polish imports on SYS.
72. Inconsistent with Article 3.2, the Thai authorities gave no consideration to whether there was
a “significant” increase in imports, or “significant” price undercutting, or a depression of prices (orrestraint of a price increase) to a “significant” degree.  Indeed, the Thai authorities provided no actual
comparison data between Polish and Thai produced goods at all, preferring instead to merely allege
that Poland’s Thai market share had increased about one per cent.
73. In violation of Articles 3.1, 3.2, 3.4 and 3.5, and just as in Korea - Resins from the US,  one
cannot ascertain from the text of the Thai determination or supporting documentation provided by
Thailand, on what factual basis the Thai injury determination was made.  As such, there was no
adequate basis under the Anti-Dumping Agreement for such a finding.
74. In violation of Article 3.4, all relevant economic factors and indices were not examined and
injury was, with certainty, not proved.  Every Article 3.4 factor examined by Thailand and on which
the Thai authorities claimed to rely unambiguously supports a finding of no injury.  The Thai
authorities chose not to present evidence regarding profits, losses, profitability or cash flow. The Thai
government’s reliance on the “imperative” of preserving and expanding SYS’s market share and totalsales is not among the factors specified in Article 3 Anti-Dumping Agreement as a basis for a legal
finding of injury.
75. Thailand violates Article 3.5 by not demonstrating  that the Polish imports are causing injury.
Factors other than Polish imports were not examined, in particular, the pricing conduct of SYS,
technology developments, export performance, domestic industry productivity  – or the Kobeearthquake.  Claimed factors regarding Polish imports were not established on the basis of positive
evidence – indeed, they were flatly contradicted by record evidence.
76. Most unfortunately, Thai authorities fail to live up to their plain obligations under Article 3 of
the Anti-Dumping Agreement when they claim that despite the undeniable health of the new Thai
producer, this “cannot” be the indicator that “the domestic industry has suffered no injury from Polish
imports.
63   This impermissibly reverses the standard of causation set forth in Article 3.5, as well as
the positive evidence requirement in Article 3.64   
                                                     
63 Final Injury Determination, Exhibit POL-13, at page 2, paragraph 2.5 (emphasis added).
64 The DIT’s Final Injury Determination includes an apparent finding of threat of material injury by
reason of Polish imports.  Exhibit POL-13, at paragraph 2.  This was the sole indication to Polish respondentsthat they were facing a “threat” case.  If the Thai authorities did in fact make such a finding, it would violateArticle 3.7 of the Anti-Dumping Agreement as being based solely on “allegation, conjecture, or mereWT/DS122/R
Page 95
D. I N VIOLATION OF ARTICLE VI GATT 1994 AND ARTICLE 2 A NTI-DUMPING AGREEMENT ,
THAI AUTHORITIES FAILED MAKE A PROPER DUMPING DETERMINATION OR CORRECTLY
CALCULATE AN ALLEGED DUMPING MARGIN THEREBY IMPERMISSIBLY FINDING DUMPING
WHERE NONE EXISTED
77. As a threshold matter, Poland respectfully notes that it is unfairly limited in its ability to detail
Polish claims relating to the final determination of the Thai authorities in this matter. This limitation is
a result of the incomplete data furnished by the Thai authorities. As noted above in paragraph 33,
Thailand has refused Polish requests to provide underlying data on which Thai authorities apparently
relied.  While this refusal itself constitutes a violation of the Anti-Dumping Agreement (see below), it
further serves to limit the ability of Poland to addr ess the case record and applicable evidence relevant
to a proper determination.
1. Thai Authorities Impermissibly Used An Unreasonable Amount Of Profit In Their
Calculation and Determination of Normal Value, Thereby Finding Dumping Where
None Existed
78. Article VI GATT 1994 and Article 2 Anti-Dumping Agreement set forth several essential
criteria for lawful consideration of whether dumping exists, and, if so, the correct calculation of a
dumping margin.  First, in the absence of domestic sales and prices of a suitable like product for
dumping price comparisons, investigating authorities may permissibly use for price comparison
purposes “the cost of production of the product in the country of origin plus a reasonable addition for
selling cost and profit.65   Similarly, Article 2.2 Anti-Dumping Agreement provides:
When there are no sales of the like product in the ordinary course of trade in the
domestic market of the exporting country or when, because of the particular market
situation or the low volume of the sales in the domestic market of the exporting
country, such sales do not permit a proper comparison, the margin of dumping shall
be determined by comparison with a comparable price of the like product whenexported to an appropriate third country, provided that this price is representative, or
with the cost of production in the country of origin plus a reasonable amount for
administrative, selling and general costs and for profits.66
79 The ordinary meaning of the above provisions is clear: using a constructed value calculationfor normal value is the exception to the otherwise applicable rule: a comparison of domestic and
export prices for the like product.  It is to be utilized only when there are “ no sales” of the like
product in the ordinary course of trade or when “such sales do not permit a proper comparison."
67
When normal value is calculated based on the cost of production and other expenses, only a
“reasonable” amount may be added for profit in the calculation.  Adding an unreasonable amount of
profit in any such calculation necessarily violat es a Member’s obligations under Article VI GATT
1994 and the Anti-Dumping Agreement.
80. Article 2.2.2 (iii) further provides that in calculating profit reasonably, “the amount for profit
so established shall not exceed the profit normally realized by other exporters or producers on sales of
products of the same general category in the domestic market of the country of origin the profit.”
Calculation of reasonable profits should thus involve fair and similar comparisons.
                                                                                                                                                                    
speculation”.  There is no evidence on the record of such  a threat and no such evidence was ever requested from
any party, to the best of our information.
65 Article VI:1(b)(ii) GATT 1994 (emphasis added).
66 Emphasis added and footnote omitted.
67 Article 2.2 Anti-Dumping Agreement.WT/DS122/R
Page 96
81. The Thai investigating authorities properly determined that DIN specification Polish sales
were not comparable to Thai sales of JIS standard products.  The differences were so great that Thai
authorities did not consider that a proper comparison of prices between like products could take placebetween the DIN and JIS materials.  Thus, foregoing the otherwise applicable normal value
calculation, Thai authorities proceeded to calculate pricing comparisons to be made by using aconstructed value calculation.  When this decision was made, Thailand incurred an obligation,
consistent with Article VI GATT 1994 and Article 2 Anti-Dumping Agreement, to calculate profit
reasonably.
82. Thailand did not fulfill its obligation to calculate profit reasonably.  Polish respondents
respectfully presented Thai authorities with three reasonable options regarding profit: the typical JISproduct profit claimed in the Thai petition, the actual verified Huta Katowice company profit rate, or
the profit rates from Huta Katowice sales of truly like products in third countries.
68  It is undisputed
that, using any of three reasonable and accurate profit rates, Polish respondent’s normal value wouldhave been below  its weighted average export price and thus the company would not have been found
to engage in dumping.  All three were summarily rejected by the DFT.
83. Instead, a profit rate of 36.3  per cent was used in the final calculations.  This assumption was
more than five times the maximum “reasonable” amount of profit (7 per cent) that had been alleged
by SYS in its anti-dumping petition and was more than eight times the profit margin (4.55 per cent)
for Huta Katowice shown  in the company’s most recent annual income statement that was before the
DFT.69   In arriving at a profit rate of 36.3 per cent, Thai authorities claimed to be using the alleged
profits from the sales in Poland of DIN products – the very sales that Thai authorities had
conclusively rejected for purposes of a normal value comparison of like products.  Thus, calculations
were made on the basis of constructed value because these sales were rejected, at the same time that
the alleged profit margin from these very sales was used to create dumping where none otherwise
existed.  By earlier rejecting the sales in favor of  constructed value, DFT admitted that the products
were not properly comparable.  Yet DFT utilized an exorbitant profit figure that DFT arrived at by
comparing two non-comparable product lines with di fferent manufacturing costs and uses (DIN vs.
JIS specifications).  There is no basis for considering items as outside or within “the same general
category of products”  only when it yields a result sought by national authorities.70   S u c h  T h a i
conduct is unreasonable and violates both Article VI GATT 1994 and Article 2.
84. By failing to comply with its Anti-Dumping Ag reement obligations in the foregoing respects,
Thailand has done precisely what a WTO Member may not -- it has imposed duties on the basis of apatently unreasonable calculation of profits, resultin g in an unfair and inaccurate comparison between
export price and normal value.  The result has been to penalize the Polish firms impermissibly and
distort international trade unfairly, while insulating Thai domestic industry from fair competition.
                                                     
68 See Proposed Final Determination, Exhibits POL-10, 11, at paragraph 1.3.
69 In its application for relief (at page 12, point 27), SYS informed the DFT that the “reasonable profit
rate” in the steel industry was between five and seven per cent.  SYS then used a six per cent profit figure whencalculating normal value in its application.  Huta Katowice’s 1995 income statement, which was also properlybefore the DFT, shows that the company’s 1995 profit margin was 4.55 per cent.
70  SYS had earlier informed DFT that “general acc ounting principles dictate that cost should be
averaged out at the company level,” (Proposed Final Dete rmination at paragraph B.4.2).  If the DFT agreed with
SYS, then it would seem clear to any reasonable observe r that profits should be averaged out at the company
level (4.55 per cent) as well.WT/DS122/R
Page 97
E. T HAI AUTHORITIES INITIATED AND CONDUCTED THEIR INVESTIGATION OF H-B EAMS FROM
POLAND IN VIOLATION OF SEVERAL FUNDAMENTAL PROCEDURAL AND EVIDENTIARY
REQUIREMENTS IN ARTICLE VI GATT 1994 AND ARTICLES 5 AND 6 OF THE ANTI-DUMPING
AGREEMENT
85. In both the initiation and subsequent conduct of their investigation of Polish H-Beam steel
imports, Thai authorities ignored the most basic and fundamental requirements of procedural and
evidentiary fairness.  These requirements are designed to ensure transparency and fairness to all
Members in the conduct of anti-dumping investigations and are essential in ensuring that anti-
dumping duties are not imposed in the absence of dumping and material injury.  By initiating an
investigation on an inadequate petition, making determinations unsupported by fact and contradictedby record evidence, refusing to supply respondents with supporting data or to disclose essential facts,
Thailand has prevented Polish respondents from fairly defending their interests, and Thailand has
violated its obligations to Poland under the Anti-Dumping Agreement and Article VI GATT 1994.
1. Thai Authorities Did Not Have Sufficient Evidence To Justify Initiation Of The
Investigation Under Article 5 of the Anti-Dumping Agreement
86. Article 5.2 Anti-Dumping Agreement provides, in part, that:
An application under paragraph 1 shall include evidence of (a) dumping,
(b) injury within the meaning of Article VI of GATT 1994 as interpreted by
this Agreement and (c) a causal link between the dumped imports and the
alleged injury.  Simple assertion, unsubstantiated by relevant evidence,
cannot be considered sufficient to meet the requirements of this paragraph.
87. Article 5.3 Anti-Dumping Agreement further requires:
The authorities shall examine the accuracy and adequacy of the evidence provided in
the application to determine whether there is sufficient evidence to justify the
initiation of an investigation.
88. Therefore, by the ordinary meaning of Articles 5.2 and 5.3 there must exist sufficient
evidence to properly initiate an anti-dumping investigation. Simple assertion, without evidence is,according to the plain text of the Agreement, not sufficient for initiation.
89. The record of the Thai investigation demonstrates that the initiation application of the
petitioner, Siam Yamato Steel Co, Ltd., did not contain sufficient evidence to justify initiation.  First,
contrary to Articles 5.2 and 5.3, the application contained no evidence   of injury.  Second, the
application completely failed to offer any reasonabl e factors explaining how the condition of SYS, the
domestic producer, had worsened.  Lastly, no causal link between allegedly dumped imports and
alleged injury was provided.
90. Thailand had a further responsibility under Article 5.5 of the Anti-Dumping Agreement, as
read in conjunction with Article 12.1 thereof, to no tify Poland regarding filing of the petition in this
investigation.   In violation of Thailand’s obligations, such notice was not properly or timelyprovided.
2. The Thai Authorities Subsequent Conduct Vi olated The Procedural And Evidentiary
Requirements of Articles 6 Of The Anti-Dumping Agreement.
91. The concern of the Republic of Poland regarding the existence and fair review of evidence is
fundamental.  A party has no opportunity to properly defend itself if it does not have access to theproof and evidence by which a foreign government proposes to foreclose future sales in its territory.WT/DS122/R
Page 98
Transparency is lost, and respondents appropriately believe that conclusions were pre-ordained,
regardless of actual evidence.  Such was the situa tion in the investigation before the Panel, as Thai
authorities refused requests for the independently veri fiable actual data that formed the alleged basis
for their conclusions, as well as many essential facts.
92. The Thai investigating body’s reluctance to disclose information used for its final
determination, in particular the data underpinning the final injury analysis, was unfortunate.  These
actions were inconsistent with: (1) Article 6.4, as interested parties could not see the relevant
information, (2)  Article 6.5.1, as parties were not provided with a proper non-confidential summary,
and (3) Article 6.9, as parties were not informed of all essential facts forming the basis of the decision
to impose duties.  At no point during the investigation did the Thai authorities provide therespondents, inter alia , a specification of all relevant economic factors used as the basis for the final
injury determination by the Thai Department of International Trade or a basis for using overlapping
12-month periods for comparison in the final determination.  In fact, after the Thai Ministry of
Commerce imposed a final anti-dumping duty, the respondents requested the disclosure of essential
facts and actual data findings from the Thai Ministry of Commerce on 20 and 23 June 20 1997.  On7 July 1997, the Ministry of Commerce simply informed the respondents that no further disclosure
would follow.
71  This information was not confidential by any rational definition, and the Thai
authority never classified the information as such.  Basic procedural fairness requires that the
respondents should have been given access to these data, so they could present their defence or
request correction of any errors by the investigating authority.
93. The provisions of Articles 5 and 6 should be read in conjunction with the provisions of
Article 12.  Article 12.2 of the Anti-Dumping Agreement provides:
Public notice shall be given of any preliminary or final determination, whether
affirmative or negative, of any decision to accept an undertaking pursuant to
Article 8, of the termination of such an undertaking, and of the termination of a
definitive anti-dumping duty.   Each such notice shall set forth, or otherwise make
available through a separate report, in sufficient detail the findings and conclusions
reached on all issues of fact and law considered material by the investigatingauthorities.  All such notices and reports shall be forwarded to the Member or
Members the products of which are subject to such determination or undertaking and
to other interested parties known to have an interest therein. (emphasis added)
94. Article 12.2.2 of the Anti-Dumping Agreement further provides that a public notice shall be
provided in the case of the imposition of a definitive duty, including “all relevant information on the
matters of fact and law and reasons which have led to the imposition of final measures . . . . the
information described in subparagraph 2.1, as well as the reasons for the acceptance or rejection of
relevant arguments or claims made by the exporters and importers.”
95. In violation of Article 6 read in conjuncti on with the Article 12 “notice and explanation of
determination ” requirements, this information was not made available to the respondents in
“sufficient time”.  The information that was made available, as detailed above, did not support the
decision.  As a result, the Polish respondents were unable to counter-evidence regarding the essential
facts before or after the final determination, severely  undermining their ability to defend their interests
in the investigation.  As a matter of fundamental fairness, such procedures should not be allowed tostand.
                                                     
71 Exhibits POL-14, 15, and 16.WT/DS122/R
Page 99
IV. CONCLUSION
96. For the foregoing reasons, the Republic of Poland respectfully requests that the Panel find that
by imposing anti-dumping duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-
Beams imports from the Republic of Poland, the Kingdom of Thailand has violated:
• Anti-Dumping Agreement Article 3, as read in conjunction with and Article VI of GATT 1994,
by imposing anti-dumping duties where no material injury exists;
• Anti-Dumping Agreement Article 2, as read in conjunction with and Article VI of GATT 1994,
by failing to make a proper determination of dumping and by calculating an unsupportable and
unreasonable alleged dumping margin; and
• Anti-Dumping Agreement Articles 5 and 6, as read in conjunction with and Article VI of GATT
1994 and Article 12 Anti-Dumping Agreement, by unreasonably initiating and conducting its
anti-dumping investigation of Angles, Shapes and Sections of Iron or Non-Alloy Steel and H-
Beams imports from Poland in violation of the procedural and evidentiary requirements set forth
in Anti-Dumping Agreement Articles 5 and 6.
97. In so doing, and in particular by applying its illegal conduct to the exports of Angles, Shapes
and Sections of Iron or Non-Alloy Steel and H-B eams produced by Huta Katowice and Stalexport in
Poland, the Kingdom of Thailand has nullified and impaired benefits accruing to the Poland under the
WTO Agreements.
98. The Republic of Poland further requests that the Panel recommend that the Kingdom of
Thailand immediately bring its measures into conformity with its WTO obligations.WT/DS122/R
Page 100
ANNEX 1-2
ORAL STATEMENT OF POLAND (1ST MEETING)
(7 March 2000)
INTRODUCTION
1. Mr. Chairman, distinguished Members of the Panel.  The Republic of Poland wishes to thank
you for taking on this task.  It also wishes to thank the WTO Secretariat Staff.
2. Poland’s statement will briefly highlight the main points that were made in our First Written
Submission.  However, Poland would also like to take this opportunity to offer some preliminary
remarks regarding Thailand’s First Written Submission and those of the third parties, while reserving
the right to provide more detailed comments in Poland’s Second Written Submission.
3. Poland will not repeat in detail the arguments which it has already made in writing.  If the
Panel has questions on the content of these arguments, Poland would be pleased to respond to those
questions either orally today, or otherwise -- as soon as possible -- in writing.
4. Poland’s presentation today will be structured as follows:
5. First, Poland will discuss the issues raised by the quite recent submission by Thailand of
“confidential information”.  We are deeply concerned that our ability to participate fully in this
hearing has been prejudiced by the submission of that data only three working days ago.  We have hadno opportunity to properly evaluate and structure the arguments we had planned to make today in
light of the new information just supplied to us -- 17 days after the filing of Thailand’s First WrittenSubmission.  Without corrective measures, this would appear to give Poland one fewer opportunity
than Thailand to discuss in full the issues of dumping and injury with the Panel.
6. Second, Poland will discuss Thailand’s request for a preliminary ruling on the inadmissibility
of Poland’s claims under Articles 5 and 6 of the Anti-Dumping Agreement.  We believe that our
claims are properly admissible and that Thailand has, in any event, experienced no prejudice in this
regard.
7. Then -- turning to Thailand’s legal argumentation – Poland had wished to address in full five
selected serious flaws in Thailand’s First Written Submission.  Because of the untimely filing of thenew Thai data, we shall address only three of those items in full today.  We shall address in a
restricted way the issues of dumping and injury and reserve all rights in this regard.  Our presentationwill therefore proceed as follows:
8. First, the relevant standard of review for this dispute.  We do not believe that Article 17.6 is
properly read to mandate the standard of extreme deference suggested by Thailand.9. Second, the initiation of an anti-dumping investigation without substantiation by “relevant
evidence” of either injury or causation, as required  by Articles 5.2 and 5.3 and without proper advance
notice to the Government of Poland, under Article 5.5.
10. Third, the failure of the Thai authorities to provide the Polish respondents with the
fundamental information underlying the final determinations, which we submit, is contrary to both the
letter of Article 6.4 and the spirit of Article 6 as a whole.  The current unwillingness to supply data toall Parties and Third Parties in a timely manner is sadly reminiscent of the Thai national proceedingsWT/DS122/R
Page 101
here at issue, when requests for information and explanation were met only with (and I quote)
“surprise” by Thai authorities.
11. Fourth, we would wish to touch in the subject of injury and look forward to a full opportunity
to  discuss this issue with the Panel.  We submit, that in violation of Article 3, Thailand’sdetermination of injury was not based on  “positive evidence” or on “an objective evaluation” of all
relevant economic factors.  Rather the Thai authorities relied on a series of opaque, internallycontradictory conclusory statements without substantive merit, which, even on their face, do not rise
to the level of “significant” effects needed to support an injury determination.  And while we
appreciate that new so-called “confidential facts” have been supplied regarding the finaldetermination, those new facts cannot rescue the Thai final determination, which, on its face, fails to
meet the requirements of Article 3.
12. Finally, the proper calculation of a “reasonable” profit under Article 2, which does not allow
for the use of a profit figure that is clearly unreasonable on its face.  We note that, but for the use of a
plainly inflated profit figure, the Polish companies would not have been found to be dumping, under
the Thai authorities’ own calculations.
13. We now address these issues seriatim.
Hearing Claims Relating to the New Thai Data Risks Serious Prejudice to Poland in this Matter
14. Since 14 February Thailand has been on the verge of submitting confidential data to the Panel
(after initially attempting an ex parte  communication). Because this new data allegedly underpins the
two critical issues in this dispute – dumping and injury – we remain concerned that our ability to
present our case is being unfairly hampered by the Thai authorities’ action.  How can we effectively
present our case on dumping and injury in this circumstance, with one Party able to fully use one setof data, while the other Party and Third Parties have only just received it.  Our concern is particularly
relevant given that this meeting may well be one of only two substantive meetings of the Panel.  Is the
Panel thus poised to allow Poland and third parties one fewer opportunity than Thailand to present
their case to the Panel?  Absent appropriate actions by the Panel, what is the lesson that Members will
derive from successful use of a procedure so obviously disadvantageous to other Members as thisone?
15. Therefore, we would ask the Panel to agree that Poland may have, should we believe it
necessary, a separate Panel meeting in which Poland alone would be allowed to do what it cannot do
today – make a full oral presentation on all data presented by Thailand on issues of dumping andinjury.  Furthermore, we would note that our own ability to pose and respond to questions regarding
these issues is similarly limited today.  We would thus request that such questions be postponed until
Poland has had a period of at least three weeks from today for review of the new data and that the
timeline for further proceedings in this dispute be adjusted to reflect that reality.  We respectfully
reserve all rights as concerns what to us is a most fundamental due process issue.
Poland’s Due Process Claims Are Properly Before the Panel
16. We would now like to address Thailand’s allegation that Poland’s claims under Articles 5 and
6 of the Anti-Dumping Agreement are not properly before the Panel. We find this allegation incorrect
and misplaced, given Poland’s long-standing complaints about the opaque nature of the Thai
proceedings, and because of the fact that the alleged briefing requirements on which Thailand reliesand claims to be set forth in Korea-Dairy Products
1 were issued by the Appellate Body two months
                                                     
1 Report by the Appellate Body on Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products , WT/DS98/AB/R, 14 December 1999.WT/DS122/R
Page 102
after the Request for Establishment of a Panel was submitted by Poland.  Furthermore, since as in
Korea-Dairy Products, no prejudice has resulted from this alleged imprecision, we submit there is no
basis, even under a new, more stringent pleading standard, for dismissal of Poland’s Article 5 or
Article 6 claims.
17. Until Korea-Dairy Products  was issued by the Appellate Body on 14 December 1999, the
basic standard for the sufficiency of a complain t was set forth by the Appellate Body decision in
European Communities – Bananas.2  There, the Appellate Body stated that it was sufficient for
complainants “to list the provisions of the specific  agreements alleged to have been violated without
setting out detailed arguments as to which aspects of the measures at issue relate to which specificprovisions of those agreements.
3  We submit, that is precisely what Poland has done.
18. As Thailand has noted, the Korea-Dairy Products case expands pleading requirements to
include a listing of the sub-provisions within articles where those articles contain more than one
distinct obligation.  It is hard to see, as a matter of procedural due process, how such a new rule,imposing heightened obligations on complainants, may fairly be applied to a Request filed by a
Member before this new rule was established or explained.  Indeed, in Poland’s view, the results in
the Korea-Dairy Products case speak for themselves, for the pleading in question was deemed
sufficient due to the lack of prejudice to the re spondent.  Thus, the Appellate Body either (i) was
seeking to establish what one might call a “transition rule” until its new, stricter requirements become
fairly known or (ii) was establishing an “actual prejudice” standard that respondents would have to
meet in future cases.  Under either reading of the Appellate Body decision, Poland’s Article 5 and 6claims are properly admissible in this proceeding.
Article 17.6 Anti-Dumping Agreement Provides th e Standard of Review for This Dispute and
Does Not Support the Near Total Deference Requested by Thailand
19. We turn now to the applicable standard of re view.  In their First Written Submissions, the
Parties agree that the standard of review set forth in Article 17.6 of the Anti-Dumping Agreement
governs this dispute.  The Republic of Poland respectfully disagrees, however, with the meaning and
application of that standard as set forth by Thailand in its First Written Submission.
20. In its First Written Submission, Poland set forth its understanding of Article 17.6 succinctly.
With respect to factual questions, under Article 17.6(i) the Panel must determine whether Thai
authorities properly established the material facts.  The Panel must then determine, in light of all
available evidence, whether the Thai authorities’ evaluation of the facts at issue was unbiased and
objective.  As a recent WTO Panel noted with respect to degree of factual evidence justifying
initiation, “we are to examine whether the evidence relied on by the [authorities] was sufficient, that
is, whether an unbiased and objective investigating authority evaluating that evidence could properly
have determined that sufficient evidence [of the matter at issue] existed.”4
21. With respect to Article 17.6(ii) -- interpreting the extent of a Member’s obligations under the
Anti-Dumping Agreement and the consistency of a practice being challenged with those obligations --
Poland requested that the Panel turn to the customary rules of interpretation of public international
law, including the Vienna Convention.  The Panel must  then determine whether, consistent with those
interpretive rules, a provision of the Anti-Dumpin g Agreement is properly susceptible to more than
                                                                                                                                                                    
2 Report by the Appellate Body on European Communities - Regime for the Importation, Sale and
Distribution of Bananas, AB-1997-3, WT/DS27/AB/R, 9 September 1997.
3 Id. at paragraph 41.
4 Report by the Panel on Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS)
from the United States , WT/DS132/R, 28 January 2000, at paragraph 7.57 (emphasis added) (footnote omitted).WT/DS122/R
Page 103
one correct interpretation.  If not, the Panel should base its ruling on the consistency of the Thai
practice being challenged with the sole proper interpretation.  If, and only if, a Panel determines that
an Anti-Dumping Agreement provision has multiple “permissible” interpretations in light of thepractice or action being challenged, then the Panel is instructed to defer to permissible interpretations
consistent with the text of the Anti-Dumping Agreement.  Poland has noted that Article 17.6(ii) doesnot entitle a Member to deference for actions that the Member may deem “permissible”, but which the
Panel determines violate the obligations of a Member under the Agreement.  In particular, the
application of Article 17.6(ii) cannot afford deference to the practices of the Thai authorities in this
dispute absent a determination of the Panel to this effect.
22. Not surprisingly given its authorities’ actions in this case, Thailand urges a near total
deference on the part of the Panel to any and all actions of the Thai authorities.  First, Thailand
demands that the Panel not conduct a de novo  review of the Thai authorities’ “factual determinations”,
citing a series of WTO cases utilizing the Article 11 DSU standard of review.5  Thailand neglects to
note that the same cases it cites also explain that under Article 11 DSU, “the applicable standard isneither de novo review as such, nor ‘total deference.”
6  Using Thailand’s professed logic, this
balancing principle also applies a fortiori  under Article 17.6.
23. Thailand next advances a remarkable proposition in apparent pursuit of total deference: that
“whether Thailand has fulfilled its obligations under the specific provisions [of the Anti-Dumping
Agreement] is not before the Panel.”7  In Thailand’s (apparent) view, WTO dispute settlement is not
to determine whether a Member has or has not fulfilled its international obligations under the specificArticles of a covered Agreement.  Rather, those obligations mean nothing in international dispute
settlement, but may only be viewed “ as defined, or modified,  by Article 17.6.” Id.  Thus, Thailand
seems to assert that Members have two independent sets of “obligations”: (1) those substantive
obligations actually defined in Articles 2, 3, 5, and 6 of the Anti-Dumping Agreement (which are
apparently meaningless in Thailand’s view), and (2) those obligations, “ as defined, or modified,  by
Article 17.6.”  Thailand badly misconstrues both its substantive obligations and Article 17.6.  Poland
objects to the Thai notion that a Member’s obligations under the Anti-Dumping Agreement are
“defined” or “modified” by Article 17.6, and we would respectfully note that Thailand offers not one
citation in support of this radical proposition.
24. The remainder of the Thai argument regarding the standard of review consists largely of
several pleas by Thailand that it is “clear” its authorities acted properly (thereby applying a standard it
has not yet finished defining), and a brief attempt by Thailand to dismiss Article 17.6(ii) as of any
import, given the Thai view that there are several permissible interpretations of the relevant AD
Agreement Articles which should be given deference.  Indeed, Thailand seems to treat Article 17.6(ii)almost as an afterthought, quickly dismissing the notion that the legal obligations of Articles 2, 3, 5,
and 6, as applied to Thai practices in this case,  require anything of Thailand.  While Poland will
respond to these Thai assertions more fully in its Second Written Submission, for now, we would
respectfully note that Thailand offers no substantive response to Poland’s proper interpretation of
Article 17.6(ii) and the fact that there will seldom be more than one permissible interpretation of aMember’s obligations.
25. In sum, the Thai authorities are not due the deference they demand in this case merely
because Thailand deems its own authorities’ actions “permissible”, when that is a decision for the
Panel, not Thailand, to make.
                                                     
5 First Written Submission of Thailand at paragraph 40.
6 Report by the Appellate Body on EC Measures Concerning Meat and Meat Products (Hormones) ,
AB-1997-4, WT/DS26/AB/R, WT/DS48/AB/R, 16 Janua ry 1998, at paragraph 117 (emphasis added).
7 First Written Submission of Thailand at paragraph 43.WT/DS122/R
Page 104
The Record Offers No Support for Thailand’s Injury Determination
26. We would now wish to turn our attention briefly to the issue of Thailand’s June 4 Final Injury
Determination and whether that determination meets the requirements of Article 3 of the Anti-
Dumping Agreement.  Our discussion of this issue is, as stated previously, hampered by the fact thatThailand has only three business days ago provided “confidential information” on which we cannot
fairly comment at this hearing and which we will not comment at this juncture. While Poland feels it
necessary to reserve all rights concerning this new submission and places its trust in the Panel to
ensure that the unusual procedure invoked by Thailand does not serve to prejudice the interests of
Poland and third parties in this case, we would like to make a series of preliminary remarks at thisjuncture, dealing with the legal issues concerned.
27. It is plain under Article VI:6 (a) of GATT 1994 that anti-dumping duties may be imposed in
this case only if the effect of dumped imports is to cause material injury to an established domestic
industry.
28. Under Article 3.1, a proper determination of injury must be based on “positive evidence” and
“an objective examination” of the facts, including both the volume of dumped imports and their effect
on prices for the domestic like product, as well as the impact of the imports on the domestic industry.
29. Under Article 3.2, to find injury, a national authority must find “a significant increase in
dumped imports” and whether price depression or pr ice suppression have occurred “to a significant
degree.”8
 30. Article 3.4 then requires that in determining whether any such impact is “significant”, the
investigating authorities: “shall ... evaluat[e] ... all relevant economic factors and indices  having a
bearing on the state of the industry, including” (b ut not limited to) 15 indicia set forth in the
Agreement.9
31. And, finally, under Article 3.5, the authority must determine the existence of a “causal
relationship between the dumped imports and the injury to the domestic industry ... based on an
examination of all relevant evidence before the authorities.”  This must include an “examin[ation of]
any known factors other than the dumped imports which at the same time are injuring the domestic
industry, and the injuries caused by these other factors must not be attributed to the dumped imports.”
32. Keeping in mind these most fundamental of requirements, let us now recall the facts of
Thailand’s Final Injury Determination.  This is a case in which it is undisputed that, at a minimum, asthe Thais have stated, “most evidence[] of domestic injury indicate a positive performance of the [sole
Thai] company.
10  Even this acknowledgement was an understatement.  Without commenting on the
new Thai data that has now been presented, we note that the record is undisputed that SYS’s
production, capacity, capacity utilization, employment, domestic sales volume, overseas sales volume,
and market share all increased in the IP.  Indeed, although Thailand now says that its market share
figures were typographical errors, the record of th e investigation shows that SYS was so healthy that
the company claimed over 55 per cent of the domestic market within less than 16 months of selling its
first H-Beam.11   SYS inventories fell even as production was rising. We note also that all claims
                                                     
8 Emphasis added.
9 Emphasis added.
10 Final Injury Information Notice, at page 3, paragraph 16. Exhibits POL-10, 11.  Unofficial
Translation
11 As reported previously, SYS had a 55.8 per cent share of the Thai market for the year ending
30 June 1996.  See, e.g., paragraph 17, above.  See Footnote 31 of Thailand’s First Submission, which now
claims that SYS had a 49.8 per cent market share in 1995.  The record does not show a figure for a market sharefor any relevant period before the IP.WT/DS122/R
Page 105
regarding profitability must be viewed in light of two facts.  First, there are no meaningful cost of
production data on the record of the investigation, and Thailand has failed to submit such data to the
Panel.  Second, SYS had been selling steel for only a matter of months during the time period at issue.
We note that there are obvious factors such as a lack of track record that affect all untested market
entrants.  We further note that it is exceedingly un likely that any new entrant in any capital-intensive
industry in the world would be immediately profitab le in its first few months of operation.  Simply
put, to blame imports for SYS’ failure to recover fully allocated costs in such a short period of time is
to deny marketplace realities and to contravene the other evidence actually on the record.
33. The Final Injury Determination shows no evidence of consideration or evaluation of these
factors or why they were outweighed by any other fa ctors elsewhere in the record.  Now, we are not in
a position today to comment regarding new data, but we would like to make a few preliminary
remarks.  First, we note that the non-confidenti al summaries provided by Thailand to the Panel were
not part of the Final Determination. Second, acco rding to the Final Injury Determination, the Thai
authorities claimed to find injury on the basis of two factors.
34. First, the Final Determination states that Polish import volume had “continuously increased”,
giving Poland a share of the Thai market equal to 24 per cent in 1995 and 26 per cent in the IP.
Again, these figures are set forth in the Final Injury Determination without any substantiation and are
contradicted by other facts found in the record.
35. Poland cannot be certain, but apparently these claims are based on Tables attached to the
Draft Injury Notice.  Those data surely do not support any finding that the Polish imports
“continuously increased” because figures for “Import from Poland” move up and move down
throughout the period in question.  Second, in contrast to the Final Injury Determination, the Table
here labeled “Import Data of H-Beam From Poland” states that the Polish market share was 24.2 per
cent in 1995 and 25.3 per cent in the Investigation Period.  Thus, rather than a two-per cent marketshare increase, the actual figure in the record was 1.1 per cent.  More fundamentally, we wish to
emphasize that this examination of supposed market share increase was based on overlapping time
periods ( i.e. 1995 versus an IP of July 1995-June 1996).  We suggest that no meaningful examination
of market share can be made in this way – which effectively compares the last two quarters of the
investigation period (“IP”) with the two quarters im mediately preceding the IP.  And, even if such a
comparison were meaningful, we submit that an in crease of 1.1 per cent of market share by Poland
can hardly be said to be “significant” in its own right in the context of the overwhelming indicia of the
absence of injury clearly present here and the remarkable successes of SYS as a new market entrant.
36. Second, the Final Injury Determination contains a series of statements regarding so-called
“price suppression” and “price depression”.  While we are not in a position to address these claims in
full today and look forward to the opportunity to do so, we wish to note the following.  These claims
are unsubstantiated in the Final Injury Determination.  They appear to be based on Table 1 attached to
their draft final injury notice.
12   Yet, Table 1 establishes nothing even remotely comparable to these
assertions, and we urge the Panel to scrutinize this Table carefully – because it is the only evidence onthese issues presented by Thailand until last week.  Table 1 does not show price suppression or price
depression. It does not allow for the comparisons made by the Thai authorities.  It does not even
support the most basic of assertions, made in the Final Determination, that Polish import prices “move
in the same direction” as SYS’ prices; indeed, most of the time, at least according to these data, the
opposite is true.
13
                                                     
12 See e.g. Paragraph 7,on page 2.
13 They move in the same direction in 3Q 1995 and 1Q 1996, but in opposite directions in 2Q 1995, 4Q
1995, and 2Q 1996.WT/DS122/R
Page 106
37. To the degree that Table 1 establishes any fact, it appears to show that SYS was the price
leader.  It is SYS that precipitated the first decline in average prices during the IP ( i.e. fourth quarter
of 1995), while Polish import prices were still rising.  This decline, as the DFT admits, was a strategic
decision by the company with the aim of “maintaini ng and expanding the market share, so that the
volume of sale will be efficient for the factory production and to achieve economy of scale".14  To
achieve this strategic purpose, the company chose to lo wer prices in order to be able to increase sales.
It was the Thai authorities’ obligation to examine whether SYS lowered its prices for these strategic
reasons or due to Polish import price levels.  Having chosen not to, the Thai authorities showed lack
of objectivity.  Finally, Table 1 lends no support to the conclusion that SYS “decrease[d] its prices to
the level of that Polish imports”. We refer the Panel also to the statement in Paragraph 95 of
Thailand’s First Submission to the Panel that “Poland correctly observes that one cannot determine
from the public version of this chart alone which products were undersold.”  Of course, Thailand now
says that any lack of clarity will be cleared up by the new data, never-before-revealed to the Polish
side, even in non-confidential form.  But the insu fficiency of the Final Injury Determination will not
be altered by such revelations.
38. It is the Republic of Poland’ s view that the Thai DIT’s determinations regarding injury are
regrettably best understood as an attempt to protect Thai industry from fair competitive forces.  SYS
was a new entrant in the steel market in 1995 and Thai authorities candidly confessed their intent that
“the company must maintain and increase its market share”15 and that “it is imperative that the
domestic industry’s market share be preserved and expanded.16   They are to be commended for their
honesty.  But even as a new firm and the sole Thai producer of subject goods, SYS was not and is notcurrently entitled to immunity from competition.  It has no guaranteed right to recover costs or be
profitable in a given period of time, no right to “maintain and increase its market share”, and no right
to a closed domestic market to ensure its profitability.  Thai authorities violate their WTO obligations
by finding injury in such circumstances.  There are no exceptions to Article 3 for new companies.
39. We thus submit that Thailand’s Final Injury Determination was not based on “positive
evidence” or an “objective examination” of the re cord in this proceeding.  Indeed, positive evidence
was overwhelmingly that no material injury existed by reason of Polish imports.  Moreover, the
‘evidence’ set forth in the Final Determination was, we believe, unsupported by the record or
otherwise meaningless given the methods of comparison employed.  Finally, any injury that may haveexisted was not “significant” as required by the Agreement and thus not “material” as required by the
Agreement.  Failure to examine external factors, in this case, in particular, the massive Kobe
earthquake that disrupted steel supplies throughout Asia in this period, should likewise be noted
17
This external factor appears nowhere in Thailand’s analysis.
40. We note further, that in apparent contradiction to Article 3.2 of the Anti-Dumping
Agreement, Article 7.2 of the Thai anti-dumping law in effect for the Thai investigation of Polish H-
Beam steel products did not require the Thai national authority to consider whether any increases in
volume of the imported products were "significant," whether any price undercutting was "significant,"
whether prices were depressed to a "significant" degree, or whether imports prevented price increases
                                                     
14 Final Injury Notice at paragraph 7.
15 Final Injury Information Notice, Exhibits POL-10,  11, at page 3, paragraph 16 (emphasis added).
16 Final Injury Determination, Exhibit POL-13, at page 2, paragraph 2.5.
17 As the Polish respondents explained to the Thai authorities during the investigation, prices generally
rose in Asian markets during the latter half of 1995 due to the massive earthquake in Kobe, Japan.  Asian steelprices then generally returned to pre-existing levels by mid-1996, consistent with global pricing trends.  It is
clear from the DFT’s own data that both Polish import prices and overall import prices followed that same
general trend.  See, e.g.,  the table entitled “Price Data for H-Beam” attached to Draft Injury Determination.  See
paragraph 26, above.  It is self-evident that Polish respondents bore no responsibility for either this price
increase nor the normal re-settling of pr ices from artificially high levels.WT/DS122/R
Page 107
to a "significant" degree.  It is hard to understand how Thailand can claim to support this
Determination in such circumstances.18
41. Before leaving this issue, we would like to  return for a moment to the issue of whether
Thailand met its obligations under Article 3.4 AD Agreement, which we recall requires an evaluationof all relevant economic factors and indices having a bearing on the state of the industry, including
actual and potential decline in sales, profits, output, market share, productivity, return on investments,
or utilization of capacity;  factors affecting domestic prices;  the magnitude of the margin of dumping;
actual and potential negative effects on cash flow, in ventories, employment, wages, growth, ability to
raise capital or investments.”    As the panel in Mexico—High Fructose Corn Syrup  explained a few
weeks ago, consideration of each of these factors must be apparent in the final determination of the
investigating authority, and “while the authorities ma y determine that some factors are not relevant or
do not weigh significantly in the decision, the auth orities may not simply disregard such factors, but
must explain their conclusion as to the lack of relevance or significance of such factors.”
19  As that
panel concluded, we submit that a long line of cases, including United States-Wool Shirts20 and
Korea-Dairy Products21  interpreting similar provisions, support this recognition of the plain meaning
of the language of Article 3.4.
42. No objective reader could consider the Thai final determination to be a proper explanation of
the Thai authority’s weighing of these mandatory factors.  Indeed, as the US notes in its Third Party
Submission (at para. 7), the US “shares Poland’s concern about the adequacy of Thailand’s findings
not only because of the lack of discussion of a number of the enumerated factors, but also becauseThailand’s specific findings on the factors it addressed do not in any way elucidate why it did not give
weight to the factors it did not discuss.”  Instead, the final determination is an admission that most of
these factors point to a finding of no injury, with no explanation of why these factors “lack relevance
or significance”
22  Let us recall here again the Thai authorities admission in the Draft Injury Notice
that “most evidence of domestic injury indicates a positive performance” of SYS.23  The Final
Determination, in fact, makes not a mention of most of the 15 factors that under Article 3.4 must be
considered and explained. Surely, the Thai authorities never explained how these factors were – or
could be -- deemed to support an injury finding.   As such, the Final Determination violates
Thailand’s Anti-Dumping Agreement obligations on its face.
                                                     
18 Notification of Laws and Regulations Under Articles 18.5 and 32.6 of the Agreements, Thailand,
Notification of the Ministry of Commerce on the Imposition of Anti-Dumping and Countervailing Duties B.E.2539, WTO document G/ADP/N/1/THA/3, 13 January 1997.
19 Mexico – Anti-Dumping Investigations of High Fructose Corn Syrup (HFCS) from the United States .
WT/DS132/R, 28 January 2000, at para. 7.128 (citing also Article 12.2.2).
20 United States – Measures Affecting Imports of Woven Wool Shirts and Blouses from India
(United States – Shirts and Blouses), WT/DS33/R (United States – Shirts and Blouses Panel Report),WT/DS33/ABR (United States – Shirts and Blouses AB Report), adopted 23 May 1997, para. 7.25.
21 Korea-Definitive Safeguard Measure on Imports of Certain Dairy Products (Korea-Dairy
Safeguard) , WT/DS98/R ( Korea-Dairy Safeguard Panel Report) , 14 December 1999, para. 7.55.  See also
Argentina-Safeguard Measures on Imports of Footwear (Argentina-Footwear Safeguard) , WT/DS121/R
(Argentina-Footwear Safeguard Panel Report) , para. 8.123.
22 See also Mexico- HFCS  Panel Report at footnote 610.
23 Draft Injury Notice at 3.WT/DS122/R
Page 108
In Constructing Value, Members May Include Only a Reasonable Rate of Profit
43. We wish to turn now to the issue of the calculation of the dumping margin in this case.
Poland submits that Thailand’s calculation of its anti-Dumping margin did not comply with the
requirements of Article 2 of the Anti-Dumping Agreement.  Indeed, Poland finds that Thailand’scalculation was inconsistent with the plain language of the Anti-Dumping Agreement.  We further
note also that if an objectively reasonable figure fo r profit had been used by the Thai authorities, the
Polish respondents would not have been found to be dumping, based on Thai’s own calculations.
44. Our argument today regarding the calculation of dumping again does not have the benefit of
the new information that Thailand submitted on this issue.  Thus, we feel at a disadvantage in
addressing this issue. We reserve all rights in th is regard and wish therefore to make preliminary
remarks only.
45. As a threshold matter, Poland notes that it does not contest, as some may be suggesting, the
right of a Member to include profit in a calculation of normal value based on the cost of production.Indeed, it is the Polish producers who noted in their submissions to the Thai authorities that such an
approach could be appropriate given that domestic sales of JIS-specification H-beams were of small
quantity and that DIN H-beams are not “like” JIS H-beams.
46. Rather, we submit that the amount of profit must be “reasonable” and may not be greater.  We
note that Article VI:1(b)(ii) of GATT 1994 provides that investigating authorities may construct
normal value by using “the cost of production of the product in the country of origin plus a reasonable
addition for selling cost and profit.”
47. Similarly, Article 2.2 Anti-Dumping Agreement provides that normal value may be
constructed by use of “the cost of production in the country of origin plus a reasonable amount for
administrative, selling and general costs and for profits”.
48. Pursuant to what we read as a fundamental requirement that any amount for profit used in
such a calculation be objectively “reasonable”, we note that Article 2.2.2 sets forth a series of methods
for calculating profit.  We emphasise that this provision speaks only to the availability of appropriate
methods.  Two acceptable methods are expressed in sub-paragraphs (i) and (ii).  In addition, insubparagraph (iii), the Agreement explains that other methods may be used so long as they are
“reasonable” and their result does not “exceed the profit normally realised by others or producers”
similarly situated.  We view those requirements in paragraph (iii) as re-stating the Article 2.2
requirements.
49. Under the reading of these provisions given by Thailand, any methodology meeting the
requirements of Article 2.2.2 meets the requirements of Article 2.2 under a per se rule.  We view this
approach as confusing substantive and procedural obligations. The Thai interpretation reads out of the
Agreement the substantive requirements of Article 2 and of Article VI of GATT 1994 that only a
“reasonable amount ... for profit ” may be included in constructing normal value.  We believe thatwhile there may be a valid presumption that such methodologies yield reasonable margins, we do not
believe that an investigating authority may “put its head in the sand” and irrebutably presume that
such margins are per se reasonable when the record contains overwhelming evidence – indeed an
admission by the petitioners – that the margin at issue here was wildly incorrect.  Thus, while these
provisions may well evidence a presumption in favour of a rule that the Article 2.2.2 methodologies
yield “reasonable” profit margins, we believe that presumption to be rebuttable – and clearly rebutted
by the facts and evidence in this case.
50. As explained in our First Written Submission, Polish respondents presented the Thai
authorities with three reasonable options regarding profit: the typical JIS product profit claimed in the
Thai petition, the actual verified Huta Katowice company profit rate, or the profit rates from HutaWT/DS122/R
Page 109
Katowice sales of truly like products in third countries. Instead, the Thai authorities used a profit rate
of 36.3 per cent in the final calculations, a figure that more than five times the maximum “reasonable”
amount of profit (7 per cent) that had been alleged  by SYS in its anti-dumping petition and was more
than eight times the profit margin (4.55 per cent) for Huta Katowice shown  in the company’s most
recent annual income statement that was before the DFT.24
51. In such a circumstance, and because we find no basis in the Agreement for the per se  rule
advanced by Thailand, we believe that the calculation of profit and thus of dumping by the Thai
authorities violated Article 2 of the Anti-Dumping Agreement.  Again, we shall have more to say on
this subject when we, like Thailand, have the benefit of the full record in this matter.
Initiating an Investigation Without Rational  Basis and Without Required Notice Violates
Article 5 of the Anti-Dumping Agreement
52. We would like now to turn to Poland’s claims under Article 5 relating to the initiation of this
anti-dumping investigation by Thailand.
53. Article 5.2 Anti-Dumping Agreement provides, in part, that an anti-dumping petition must
include evidence of dumping, injury, and causation and that “[s]imple assertion, unsubstantiated by
relevant evidence, cannot be considered sufficient to meet the requirements” for initiating an
investigation.
54. Similarly, Article 5.3 Anti-Dumping Agreement further requires that “authorities shall
examine the accuracy and adequacy of the evidence provided in the application to determine whether
there is sufficient evidence to justify the initiation of an investigation.”
55. These requirements are plain.  There must exist sufficient, relevant evidence to initiate an
anti-dumping investigation. Such relevant evidence must be presented concerning dumping, injury,
and causation.  Simple assertions on any of these three points renders a petition insufficient for
purposes of initiation.  Authorities have an obligation to conduct an objective examination of the
“accuracy and adequacy” of evidence presented before they may initiate an investigation.
56. The record of the Thai investigation demonstrates that the initiation application of the
petitioner, Siam Yamato Steel Co, Ltd., did not contain the requisite evidence of injury or causation
needed to justify initiation.  First, the application appears to contain no evidence of injury. Second, no
causal link is provided between allegedly dumped imports of respondents and the alleged injury
suffered by SYS, the domestic producer.  We submit that conclusory statements in a notice ofinitiation are no substitute for the basic requirement that a petition contain requisite evidence
supporting initiation.  We invite the Panel to examine the petition of SYS (Thailand Exhibit 1) for
evidence of injury and causation.  If deemed insufficient on either point, then Thailand violated
Articles 5.2 and 5.3 of the ADA.
57. We wish to discuss one further claim in this regard.  Thailand had a responsibility under
Article 5.5 of the Anti-Dumping Agreement, as read in conjunction with Article 12.1 thereof, to notify
Poland regarding filing of the petition in this investig ation.   In violation of Thailand’s obligations,
such notice was not properly or timely provided.  We recognise that this claim is based on a
disagreement with the Thai authorities as to the content of discussions held on the 17th of July 1996
between the DFT and our Government’s Commercial Counsellor in Bangkok.  For this very reason,
we believe that Article 5.5 is meant to require written “notice” to the government of the exporting
                                                     
24 In its application for relief (at page 12, point 27), SYS informed the DFT that the “reasonable profit
rate” in the steel industry was between five and seven per cent.  SYS then used a six per cent profit figure whencalculating normal value in its application.  Huta Katowice’s 1995 income statement, which was also properlybefore the DFT, shows that the company’s 1995 profit margin was 4.55 per cent.WT/DS122/R
Page 110
country concerned, and no such written notice, it must be agreed, was ever provided.  Nor does the
notice of initiation itself or a letter months after the fact (Thailand Exhibit 14) provide evidence that
proper notice was in fact provided.
Denying Fundamental Information to a Member Violates Article 6
58. In its First Submission, the Republic of Poland detailed the Thai authorities’ violation of
Article 6 by their denial to Polish firms of the opportunities mandated under Article 6 for fair review
of evidence.  As Polish respondents stated in the investigation, “a party has no opportunity to properly
defend itself if it does not have access to the proof and evidence by which a foreign governmentproposes to foreclose future sales in its territory.  Transparency is lost, and respondents appropriately
believe that conclusions were pre-ordained, regardless of actual evidence.”  Such was the situation in
this case.
59. Poland has raised its Article 6 claim as regards the Thai preliminary, draft final, and final
determinations.  As discussed above, none offers Poland the required explanation of the basis for the
conclusions reached by the Thai authorities.  By failing to evaluate factors, to explain why certain
purported facts outweighed the authorities’ own recognition that “most evidence” showed the absence
of injury, and then by  “expressing surprise” rather than offering meaningful disclosure, Thailand has
violated Article 6 in at least three regards.
60. First, it has failed to offer Poland “meaningful opportunities . . . to see all information that is
relevant to the presentation of their case” so as to be allowed to make their “presentations on the basis
of this information”, as required by Article 6.4.  We submit that it would indeed have been
“practicable” for Thailand to do so, either as rega rds the apparently forthcoming information to the
extent it may be inappropriately deemed  “confidential” or, at the very least, as regards coherent non-
confidential summaries thereof.
61. As a related mater, Poland submits that the internally inconsistent, conclusory, and opaque
nature of the non-confidential summaries that were provided do not meet the requirements of
Article 6.5.1.  We note that summaries that are provided must be “in sufficient detail to permit a
reasonable understanding of the substance of the information submitted in confidence.”  That has notbeen the case here.  Tossing out labels such as “price suppression” and “price undercutting” –
especially when contradicted by the very evidence on which such conclusions are said to be based –
cannot be said to meet this requirement.
62. Finally, Poland submits, that Thailand has violated Article 6.9, because before the Final
Injury Determination, Thailand failed to inform Polish firms of the “essential facts under
consideration which form the basis for the decision whether to apply definitive measures” and that
such disclosure did not “take place in sufficient tim e for the parties to defend their interests”.  In this
regard, we would emphasise that at no point during the investigation did the Thai authorities provide
the respondents, inter alia , a specification of, or a proper weighing of, all relevant economic factors
used as the basis for the final injury determination by the Thai Department of Internal Trade.  This
would include, for example, any rational basis for using overlapping 12-month periods for comparison
in the final determination.
63. These Article 6 claims must be read in the context of the requirements of Article 12.2, which,
of course, required the Thai final determination to “set forth, or otherwise make available through a
separate report, in sufficient detail the findings and conclusions reached on all issues of fact and lawconsidered material by the investigating authorities.” Under Article 12.2.2, this includes, “all relevant
information on the matters of fact and law and reasons which have led to the imposition of final
measures” including  “the reasons for the acceptance or rejection of relevant arguments or claims
made by the exporters and importers.”WT/DS122/R
Page 111
64. This, quite plainly, never happened.  Indeed, when the Polish respondents asked for such a
disclosure on 20 June and again on 23 June 1997, they were informed by the Thai Ministry of
Commerce that no disclosure would follow.25  Rather, the Thai authorities expressed “surprise” at this
request, suggesting the Polish firms should be content with what had been supplied previously, andreferring Polish respondents back to preliminary or draft
 materials in the administrative files in this
case.  No reasons were given for the rejection of relevant arguments made by the Polish firms.  Basicprocedural fairness requires that the respondents should have been given timely access to any relevant
data or analysis, so they could present their defense or request correction of any errors by the
investigating authority. Rather, they were off-handedly referred back to preliminary or draft
statements in the record, as detailed above, which did not support the decision that was taken.
65. Poland’s claims in this regard are essentially the procedural side of the substantive claims
made above.  But they are fundamental in their own right.  We would commend the recent Mexico-
High Fructose Corn Syrup case to the Panel’s attention on these matters.  Let us quote from that
report as regards quite similar claims by the Mexican administration.
There is some information concerning some of these elements reflected in the
determination.  However, the mere recitation of data does not constitute explanation,
or findings and conclusions, sufficient to satisfy the requirements of Article 12.2 of
the AD Agreement.  Mexico also pointed to certain working papers in the
administrative file which contain information on certain of the Article 3.4 factors.
However, unless consideration of a factor is reflected in the final determination, wedo not take cognizance of underlying evidence in the record.  See Korea-Resins Panel
Report , paras. 210, 212, Argentina-Footwear Safeguard Panel Report , para. 8.
26
CONCLUSION
66. In conclusion, the Republic of Poland respectfully requests that the Panel find that by
imposing anti-dumping duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel: H-Beams
imports from the Republic of Poland, the Kingdom of Thailand has violated:
67. Anti-Dumping Agreement Article 3, as read in conjunction with Article VI of GATT 1994,
by imposing anti-dumping duties where no material injury exists;
68. Anti-Dumping Agreement Article 2, as read in conjunction with Article VI of GATT 1994,
by failing to make a proper determination of dumping and by calculating an unsupportable and
unreasonable alleged dumping margin; and
69. Anti-Dumping Agreement Articles 5 and 6, as read in conjunction with Article VI of GATT
1994 and Article 12 Anti-Dumping Agreement, by unreasonably initiating and conducting its anti-
dumping investigation of such products in violation of the procedural and evidentiary requirements set
forth in Anti-Dumping Agreement Articles 5 and 6.
                                                     
25 Exhibits POL-14, 15, and 16.
26 Footnote 610.WT/DS122/R
Page 112
70. In so doing, the Republic of Poland respectfully requests that the Panel also find that the
Kingdom of Thailand has nullified and impaired benefits accruing to Poland under the WTO
Agreements.  The Republic of Poland further requests that the Panel recommend that the Kingdom of
Thailand immediately bring its measures into conformity with its WTO obligations.
71. On behalf of my Government, I thank you for your attention.WT/DS122/R
Page 113
ANNEX 1-3
CONCLUDING STATEMENT OF THE REPUBLIC OF POLAND
DURING THE FIRST SUBSTANTIVE MEETING WITH THE PANEL
(8 March 2000)
Mr. Chairman, distinguished Members of the Panel. The Republic of Poland would like to
present brief concluding remarks.  However, before doing so Poland wishes to thank you for the
professional way in which you have handled the proceedings over the last two days, which has
allowed the parties and third parties to engage in an interesting and quite helpful debate.  We are
looking forward to receiving your further questions  in writing.  Poland would like to make the
following concluding points.
First, Poland would like to touch upon the question of the appropriate standard of review for
this case.  Thailand (and the United States) have proposed that the Panel should afford what we
consider to be undue deference to the interpretations and decisions of the Thai national authorities in
this matter.  Poland has already strongly rejected th is idea in its opening statement, for the following
reason – it runs contrary to the requirements of Article 17.6 and impermissibly seeks to substitute theviews of national administrators for those of the Panel itself.  While we understand why national
authorities desire such deference, we find it is  inconsistent with the requirements set forth in
Article 17.6 of the ADA.
Second, we wish to highlight the issue of inclusion of a “reasonable amount” of profit in a
calculation of constructed value.  As we have informed the Panel, we believe that whatever
presumption there may be that specified methodologies will lead to “reasonable” results, we do not
believe those results per se  meet the requirements of Article 2.2.  In our view, such a presumption
must be rebuttable – and we believe that other evidence in this record – indeed, the petitioner’s own
admission – shows that any presumption of reasonableness is rebutted in this case.
Third, on the issue of injury, we would simply add the following – in our view, the Thai DIT
never conducted an objective examination of the record in this proceeding and the Final Injury
Determination was not based on positive evidence.  Moreover, the Thai Determination was
conclusory and opaque, at best, and any injury that may have existed was not “significant” and thusnot “material” as required by the Agreement.  We view the DIT determination as wholly outcome
determinative.
Fourth, we submit that the petition in this case did not meet the requirements of Article 5, as it
contained no evidence of injury or of causation and thus was not sufficient under Articles 5.2 and 5.3.In addition, required pre-initiation notice was not provided, in violation of Article 5.5.
Finally, we have argued that the Thai authorities have failed to provide Polish respondents
with the fundamental information underlying the fina l determinations, which we submit, is contrary to
both the letter of Article 6.4 and the spirit of Article 6 as a whole.  It is a sad fact that the Thai
authorities have never made plain exactly what facts they relied upon in reaching their conclusions.
Again, on behalf of my Government, I wish to thank you for the highly professional manner
in which you have conducted these proceedings.WT/DS122/R
Page 114
ANNEX 1-4
SECOND WRITTEN SUBMISSION OF
THE REPUBLIC OF POLAND
(29 March 2000)
TABLE OF CONTENTS
Page
INTRODUCT ION................................................................................................................... ........ 116
I. THAILAND HAS EXPERIENCED NO PREJUDICE FROM ANY
ALLEGEDLY IMPRECISE CLAIMS BY POLAND AND THAILAND'S
REQUEST FOR A PRELIMINARY RULING DISMISSING POLAND'S
CLAIMS SHOULD BE DENIED................................................................................... ..117
II. THAILAND MISINTERPRETS ARTIC LE 17.6 ADA, WHICH REQUIRES A
THOROUGH REVIEW BY THE PANEL AND DOES NOT SUPPORT THE
NEAR TOTAL DEFERENCE REQU ESTED BY TH AILAND................................... 121
III. THE THAI DETERMINATION OF INJURY WAS NOT BASED ON
POSITIVE EVIDENCE, DID NOT INVOLVE AN OBJECTIVE EVALUATION
AND WAS FLATLY INCONSISTENT WITH THE STANDARDS SET FORTH
IN ARTICLE VI GATT 1994 AND ARTICLES 3.1, 3.2, 3.4 AND 3.5ANTI-DUMPING AG REEMEN T.................................................................................... 125
A. THAILAND DEMONSTRATES A FUNDAMENTAL MISUNDERSTANDING
OF THE REQUIREMENTS SET FORTH IN ARTICLES 3.1 AND 3.2
ANTI-DUMPING AG REEMENT ...................................................................................... 126
B. THAILAND DEMONSTRATES A FUNDAMENTAL MISUNDERSTANDING
OF THE REQUIREMENTS SET FORTH IN ARTICLE 3.4 ANTI-DUMPING
AGREEMEN T..................................................................................................................... 1 27
C. THE NEW SECRET THAI DATA FLATLY CONTRADICTS THE
MOST IMPORTANT PUBLIC FACTUAL FINDINGS ON  INJURY,
DEMONSTRATING THAT THAI FINAL INJURY DETERMINATION IS
NOT BASED ON POSITIVE EVIDENCE OR OBJECTIVE EXAMINATION
OF RELEVANT FACTS..................................................................................................... 130
1. The "Influence" of Polish Prices ............................................................... 131
2. Did Polish Imports Increase?..................................................................... 1323. Did Polish Market Share Rise Significantly? ........................................... 133
D. THAILAND DID NOT DEMONSTRATE CAUSATION CONSISTENT WITH
ARTICLE 3.5 ADA............................................................................................................. 135WT/DS122/R
Page 115
IV. IN VIOLATION OF ARTICLE 2 ADA THAILAND USED AN
UNREASONABLE PROFIT FIGURE IN ITS NORMAL VALUE
CALCULATIO NS ............................................................................................................. 138
V. THE SYS PETITION FAILED TO SATISFY ARTICLE 5.2 AND, BY
INITIATING AN INVESTIGATION ON THE BASIS OF THAT PETITION,
THAI AUTHORITIES VIOLATED 5.3.  MOREOVER, THEY FAILED TO
GIVE REQUIRED NOTICE  UNDER ARTIC LE 5.5.................................................... 141
VI. THAILAND HAS VIOLATED ARTICLE 6 IN FAILING TO PROVIDE
ESSENTIAL INFORMATION TO POLISH RESPONDENTS DURING
THE COURSE OF THE INVESTIGATION.................................................................. 142
VII. CONCLUSION ................................................................................................................. . 143WT/DS122/R
Page 116
INTRODUCTION
1. As documented at length in the record before the Panel, the course of the Thai anti-dumping
investigation of H-Beam steel products from the Rep ublic of Poland was marred by a striking number
of procedural and substantive irregularities.  Indeed, from its flawed initiation through the impositionof definitive anti-dumping duties on Polish imports, the Thai investigation proceeded unwaveringly
toward an apparently predetermined outcome.
2. Throughout the Thai investigation, Polish respondents were never afforded the opportunity to
review significant portions of the alleged “evidence”, much less to correct obvious substantive errorstherein.  The reticence of the Thai authorities to explain their actions or to allow Polish respondents
any meaningful opportunity to defend themselves extended even to “findings” alleged to have been
made with Polish data – these were withheld under the guise that they were secret or “confidential”.
3. The repeated reluctance of the Thai authorities to provide essential documents and data, andto explain or justify their actions, regrettably extends to the current proceeding.  With its actions
appropriately challenged in this proceeding, Thailand first attempted to provide the Panel with a series
of secret documents, adamantly insisting it was entitled to withhold those documents from any
scrutiny by the Republic of Poland and Third Parties.  Were it not for the refusal of the Panel to accept
the attempted Thai ex parte communication, the Government of Poland would today find itself in
much the same position as Polish steel companies did during the Thai proceedings – with neither
access to, nor ability to respond to, crucial data.  Fortunately, this has not been the case.  As thesubstantive discussion below makes clear, Poland's ability to respond to the secret Thai data has
proven to be very important.
4. Unable to withhold its alleged secret data from scrutiny by Poland and others, Thailand
further informed the Panel of its remarkable view that the question of “whether Thailand has fulfilledits obligations under the specific provisions is not before the Panel”, as Thailand apparently views its
substantive obligations as meaningless until they are “defined or modified” by Article 17.6 ADA.  Not
surprisingly, Thailand then explains to all concerned that Article 17.6 requires a near total deference
to any Thai action, obviating any need for close examination by the Panel.
5. Thailand’s attempts to circumvent required procedural fairness and its eagerness to avoid any
scrutiny of its practices at issue are understandable in light of compelling evidence:  that Thailand has
repeatedly violated the most basic substantive requirements of Article VI GATT 1994 and of
Articles 2, 3, 5 and 6 of the Anti-Dumping Agreement.  As Poland has previously detailed and
explains further below, the Thai authorities failed properly to initiate and conduct their investigation,
failed properly to determine dumping margins, and fa iled properly to determine the existence of injury
or causation by reason of imports.  As a result, Thailand imposed definitive anti-dumping duties in
violation of the Anti-Dumping Agreement.
6. This submission is divided into the following sections.  First, Poland addresses the Thai
request for a preliminary ruling, concluding it should be denied.  Second, Poland addresses several
flaws in Thailand’s legal arguments, including:
• the false Thai claim that Article 17.6 ADA mandates the near total deference preferred by the
Thai authorities;
• the inconsistency of the Thai injury determination with the plain standards and requirements set
forth in, inter alia, Articles 3.1, 3.2, 3.4 and 3.5 ADA;
• the Thai authorities' use of a profit figure in ca lculating dumping that was clearly unreasonable, in
violation of Article 2.2 ADA;WT/DS122/R
Page 117
• the Thai initiation of an anti-dumping investigation without substantiation by “relevant evidence”
of either injury or causation, as required by Articles 5.2 and 5.3, and without proper advance
notice to the Government of Poland, under Article 5.5; and
• the Thai authorities’ refusal to respect the basi c due process requirements set forth in Article 6
ADA.
We now address these issues seriatim.
I. THAILAND HAS EXPERIENCED NO PREJUDICE FROM ANY ALLEGEDLY
IMPRECISE CLAIMS BY POLAND AND THAILAND’S REQUEST FOR APRELIMINARY RULING DISMISSING POLAND’S CLAIMS SHOULD BE DENIED
7. As a preliminary matter, Thailand has argued that Poland’ s Request for the Establishment of
a Panel (the “Request”) failed to meet the requirements of Article 6.2 of the Dispute Settlement
Understanding (the “DSU”). Thailand’s claim miscons trues Article 6.2 DSU and the teachings of the
Appellate Body in Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products.
1  It is
plain that Thailand has long had actual knowledge of the exact nature of Poland ’s claims and has in
no respect been prejudiced in “its ability to defend itself  in the course of Panel proceedings.”2
8. Article 6.2 of the DSU reads as follows:
The request for the establishment of a panel shall be made in writing.  It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the complaint sufficient to present the problem
clearly.  In case the applicant requests the establishment of a panel with other than
standard terms of reference, the written request shall include the proposed text of
special terms of reference.
9. The issue before the Panel, therefore, is whether Poland’s Request provided “a brief summary
of the legal basis of the complaint sufficient to present the problem clearly.”   Thailand appears to
argue that Poland has merely listed Articles of the Anti-Dumping Agreement without identifying
relevant subparagraphs, and that such a mere listing of articles is never sufficient for meeting the
Article 6.2 DSU standard for due process.
10. Thailand does not properly interpret the holding in Korea – Dairy Products in the context of,
and given the realities of, this proceeding.  First, the Appellate Body has never held that an express
listing of all sub-provisions of a particular article of a covered agreement is a sine qua non for a
proper request for establishment of a panel under Article 6.2 DSU.  Rather, the Appellate Body hasmade plain that the sufficiency of a Request shall be viewed “in light of the attendant circumstances”,
taking into account “whether the ability of the respondent to defend itself was prejudiced, given the
actual course of the panel proceedings . . . .
3
11. In this regard, the Appellate Body has established an objective test – whether the respondent,in view of such  attendant circumstances, has “been misled as to what claims were in fact being
asserted against it as respondent”.
                                                     
1 Report by the Appellate Body on  Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products, WT/DS98/AB/R, 14 December 1999 (“Korea – Dairy Products”).
2 Id. at paragraph  131.
3 Id. at paragraphs 124, 127.WT/DS122/R
Page 118
12. Poland respectfully wishes to focus the Panel’s attention on the precise language of the
Appellate Body.  First, because prejudice, if any, is to be judged on a “case-by-case basis"4 in light of
“actual” circumstances, it shall be judged objectively.  A respondent’s subjective claims, regardless of
the intensity of that party’s rhetoric, shall not be given weight.
13. Second, as prejudice shall be viewed in light of “attendant circumstances” as they exist “ in
the course of the Panel’s proceedings”, any lack of precision is susceptible to prospective cure by a
complainant.  This consideration of attendant circumstances and the opportunity to cure any
imprecision would logically appear to be even more compelling at the early stages of a proceeding,
when the prospect of actual “prejudice”  is all the more remote.
14. Third, an examination of “prejudice” should include an examination of intent – whether a
complainant has sought to “mislead” another party -- which, in turn, requires one to examine the
clarity of any now-applicable requirements at the time the Request was originally submitted.
15. Finally, the Article 6.2 DSU requirements must be read in the context of dispute settlement as
a whole, inter alia, “to secure a positive solution to  a dispute” (Article 3.7 DSU) so as to provide
“predictability” in the multilateral trading system and “clarify the existing provisions” of covered
agreements (Article 3.2 DSU).  Overly strict interpretations of provisions designed to ensure due
process rights of all parties would themselves impermissibly burden dispute settlement procedures
and frustrate Members’ intent to secure a “positive solution to a dispute.”
16. In light of these considerations, Poland submits that Thailand’s objections to the Request
should be rejected for at least four reasons.  First, Poland’s claims are set forth in sufficient clarity to
satisfy the terms of Article 6.2 DSU, particularly in light of the attendant circumstances in this case,
including Thailand’s actual notice of Poland’s claims.  Second, any lack of clarity in the Request has
been cured by Poland’s later actions.  Third, Poland has never intended to mislead Thailand in theseproceedings.  Fourth, Thailand has not demonstrated, based on “supporting particulars”
5, that it has
sustained any meaningful prejudice as a result of the imprecision it now alleges.
17. The terms of Poland’s Request are undoubtedly well known to the Panel by now.  Poland’s
Request provides, in relevant part:
Thai authorities have made a determination that Polish imports caused injury to the
Thai domestic industry, in the absence of, inter alia, “positive evidence” to support
such a finding and without the required “objective examination” of enumerated
factors such as import volume, price effects, and the consequent impact of suchimports on the domestic industry, in contravention of Article VI of GATT 1994 and
Article 3 of the Antidumping Agreement;
Thai authorities have made a determination of dumping and calculated an alleged
dumping margin in violation of Articl e VI of GATT 1994 and Article 2 of the
Antidumping Agreement;
Thai authorities initiated and conducted this investigation in violation of the
procedural and evidentiary requirements of  Article VI of GATT 1994 and Articles 5
and 6 of the Antidumping Agreement.
6
18. In addition, Poland notes that its Request for Establishment states that further factualbackground regarding Poland’s claims is set forth in the Request for Consultations, which provides
                                                     
4 Id. at paragraph  127.
5 Id. at paragraph 131.
6 WT/DS122/2, 15 October 1999.WT/DS122/R
Page 119
greater detail regarding the violations that occurred in the underlying Thai investigation.  We have
attached as Exhibit POLAND 19 the document read to Thailand during those consultations, which
details Poland’s claims in full, listing sub-provisions of the relevant Articles, and otherwise, once
again, giving actual notice to the respondent.
19. Turning now to the specifics of Thailand’s claims, it is not correct, as Thailand argues, that
this Request fails to satisfy Article 6.2 DSU simply b ecause it fails to include an express listing of the
sub-paragraphs of Article 2, 3, 5, and 6 of the Anti-Dumping Agreement.  Thailand’s argument puts
form over substance.  Rather, the Appellate Body has now indicated – months after submission of the
Request at issue – that a listing of such sub-paragraphs is not necessary (nor indeed necessarilysufficient), so long as “due process objectives” are, in fact, accomplished.
7
20. In the same regard, Thailand argues that the above-referenced paragraphs constitute a “ mere
listing” of the relevant ADA provisions.  In response, Poland need only refer the Panel to the Korea –
Dairy Products case.  There, without any of the at tendant explanation contained in Poland's Request,
the European Communities simply requested establishment of a panel for an unspecified “breach of
Korea’s obligations under the provisions of the Agreement on Safeguards, in particular Articles 2, 4,
5, and 12 of the said Agreement and in violation of Article XIX of GATT 1994.8  To equate these two
requests, as Thailand suggests, simply because both lack an express listing of sub-paragraphs, is
simply not meaningful.  It ignores, for example, th e fact that Poland’s explanation of its Article 3
claims is hinged on express language reflecting the relevant sub-paragraphs 1, 2, 4, and 5 of Article 3.
Furthermore, the EC’s terse request in Korea – Dairy Products must be viewed in light of its equally
terse request for consultations.  By contrast, Poland’s request for consultations in this dispute and the
documents presented at that meeting, as evid enced by Exhibit POLAND 19, demonstrate that the
actual subject matter of Poland's claim was repeatedly communicated to Thailand.  Thailand similarly
ignores the fact that this panel proceeding relates squarely to the actual subject matter of the Thai
investigation, in which each of Poland’s claims previously were made directly to Thai authorities.
21. The Appellate Body has, of course, mandated that Panels examine Requests not only in terms
of the precise language at issue, but more meaningfully, in light of the particular circumstances of the
proceeding.  Pursuant to this inquiry, Thailand’s impassioned pleas ring particularly hollow.  As set
forth in Poland’s Responses to Questions from the Panel, Thai authorities have known for many yearsof Poland's concerns regarding the Kafkaesque nature of the Thai investigation and the lack of any
required basis for imposition of anti-dumping duties on Polish firms.  It is perhaps important to detail
the Polish concerns once again.
22. As regards Poland’s Article 5 ADA claims, it is plain that, from the middle of 1996, Poland
has complained to Thai authorities about the lack of evidence of injury or causation in the SYS
petition, the failure of Thai authorities to examine the sufficiency of that petition before they initiated
this investigation, and the failure of Thailand to give proper notice to Poland before initiation of this
investigation.
9
23. As regards Poland’s Article 6 claims, from early 1997, Poland has complained to Thaiauthorities about the incomprehensibility of the non-confidential summaries that were supplied and
about the failure of Thai authorities to explain their evaluation, if any, of relevant evidence.
10  Now
that we know that such a document exists, we also  are complaining of Thailand’s failure to provide
Polish respondents the non-confidential summary of the SYS questionnaire response, Exhibit
THAILAND 21, during the investigation.
                                                     
7 Korea – Dairy Products  at paragraph 126; see also  id . at 123-31.
8 WT/DS98/4, 12 January 1998.
9 See Poland's 29 March 2000 Response to Question 4 from the Panel.
10 Id.WT/DS122/R
Page 120
24. As regards Poland’s Article 2 claims, from the time of the preliminary determination in
January 1997, Poland has complained to Thai authorities about the use of an “unreasonable” amount
of profit in its constructed value calculation of normal value.11
25. Most importantly, as regards Poland’s Article 3 claims, from the time of the preliminarydetermination in January 1997, Poland has complained to Thai authorities about the lack of evidence
to support a determination of injury by reason of Polish imports, the incoherence and internal
inconsistency of the non-confidential documents supplied, and the failure of Thai authorities to
explain their evaluation, if any, of relevant evidence.
12  These complaints have now proven prescient,
as Exhibit THAILAND 44 demonstrates.
26. All of these points were raised again in the context of the bilateral consultations that took
place in Geneva on 29 May 1998.
27. Based on the foregoing realities, it is plain that Thai authorities were in no way burdened in
the effective exercise of their rights in this matter.  Furthermore, we would emphasize again that the
existence of prejudice is not seen in a simple snapshot, but rather in light of the circumstances of a
case “in line with the letter and spirit of Article 6.2.”  In this regard, even any temporary uncertainty,
if indeed objectively based, has long been resolved by Poland’s First Written Submission, First Oral
Statement and Concluding Statement, and answers to quite detailed questions from the Panel during
the First Substantive Meeting.  For Thailand to claim otherwise has begun to border on the
disingenuous.
28. Poland further notes that Thailand's own requests for establishment submitted to the dispute
settlement body have not employed the same level of specificity which Thailand now claims is
required of others, and that this discrepancy speaks for itself.  For example, in Thailand’s request in
United States – Import Prohibition of Certain Shri mp and Shrimp Products, Thailand (and Malaysia)
requested the panel “to find, inter alia, [that the United States] failed to carry out its obligations and
commitments under several provisions of the WTO Agreement, including but not limited to
Article XI, Article I, and Article XIII of the GATT” and that “such failure is not justified by any
provision of the said agreements, including the exceptions set forth in Article XX of the GATT.13
Similarly, in its September 1999 request for establishment of a panel in Colombia—Safeguard
Measures on Imports of Plain Polyester Filaments from Thailand, Thailand requested that the panel
find that “Colombia has failed to carry out its obligations under several provisions of the WTO
Agreement, including but not limited to Article 2 and 6 of the ATC”.14
29. Thailand's claims in this regard should be viewed in the light of its own practices during thisproceeding.  In particular, it is noteworthy that Thailand's Request for Preliminary Ruling lacks any
evidence of actual prejudice.  As the Appellate Body has made clear, actual prejudice, not imprecise
claims thereof, is a necessary prerequisite for the sweeping relief Thailand is now seeking.  The
burden is on Thailand to "demonstrate" by means of "supporting particulars" how it has sustained any
prejudice – let alone a degree of prejudice that would justify the sweeping action it now seeks.
Simply put, Thailand has failed to meet that burden of proof.
30. This burden should be particularly high with respect to Thailand's allegations of prejudice
arising from Poland's claims under Articles 2 and 3.  These allegations were raised only in Thailand's
closing statement to the Panel, long after Thailand's other Article 6.2 DSU allegations.  The
implication therefore is that somehow Poland's claims became less clear to Thailand during the
"actual course of the panel proceedings".  Any such view is completely without merit.  We note, for
                                                     
11 See Poland's 29 March 2000 Response to Question 9 from the Panel.
12 Id.
13 WT/DS58/2, 10 January 1997.
14 WT/DS180/1, 8 September 1999.WT/DS122/R
Page 121
example, that Poland responded orally to very precise questions from Thailand and the Panel
regarding its claims under these provisions.  Yet Thailand simply ignores the clarifications it sought
and received from Poland.  Such intentional confusion is no substitute for a demonstration, based on
supporting particulars, of actual prejudice.
31. Finally, we submit that the Panel's concern for due process in this proceeding must also take
account of Thailand's remarkable attempts to make ex parte  submissions of "secret" data to the Panel.
Surely, those attempts – characterized as "bizarre" by the European Communities – have led to
commensurate expenditures of "scarce resources" by parties and third parties.15  We would point also
to Thailand's submission to the Panel of a non-confidential questionnaire response by SYS, ExhibitThailand 21, which was never supplied to Polish respondents in the investigation.  Poland places its
faith in the Panel's declaration that it would adopt procedures to ensure that Poland would not be
prejudiced as a result of those Thai submissions.  The time has long since passed for Thailand to do
the same.
II. THAILAND MISINTERPRETS ARTICLE 17.6 ADA, WHICH REQUIRES A
THOROUGH REVIEW BY THE PANEL AND DOES NOT SUPPORT THE NEAR
TOTAL DEFERENCE REQUESTED BY THAILAND
32. In both its written and oral submissions to the Panel, Thailand advances a claim that the
Article 17.6 ADA standard of review requires the Panel to afford near complete deference to all
factual claims, practices, and legal interpretations made by the Thai authorities.  Thailand deems allits actions “permissible”, largely dismissing any notion that the customary rules of interpretation set
forth in the Vienna Convention should play a substa ntive role in resolving any ambiguity in relevant
provisions.
16  Thailand apparently hopes to avoid a substantive or serious examination of its practices
by the Panel.
33. For the reasons outlined below and as set forth previously, Poland respectfully disagrees with
this interpretation.  In the present case, facts were not properly established by national authorities, and
even those few facts properly established were not evaluated in an objective and unbiased manner.
Furthermore, the Thai practices in this case are not consistent with the correct interpretation of the
relevant Anti-Dumping Agreement provisions at issue.  These provisions do not admit of more thanone correct interpretation regarding the Thai practic es in this case, as though the commonly agreed
international obligations in the ADA somehow estab lish one obligation for a particular Member and a
completely different obligation for another Member.  As a result, the Panel should not accord
inappropriate deference to the Thai actions at issue herein.
34. In its prior submission and statements, Poland has set forth its basic understanding of
Article 17.6.  With respect to factual questions, under Article 17.6(i) the Panel must first determine
whether Thai authorities' establishment of the facts was proper.  Of course, WTO panels are not in a
position to re-determine every factual determination made by a national authority, and Poland doesnot suggest that such is their role.  At the same time, Article 17.6(i) makes clear that in the dischargeof its duties, a panel must perform “an assessment of the facts of the matter.”  Poland submits that in
order for the Thai authorities' “establishment” of the facts to be “proper”, at an absolute minimum
those record facts must first be consistent with one another.  Therefore, a national authority cannot be
found to have established properly any “fact” when that alleged “fact”  is contradicted by another“fact” elsewhere in the record of the same proceeding.  Such a “fact” is not even established, much
less properly so.
                                                     
15 Third Party Oral Presentation by the European Communities, 8 March 2000, at paragraph 4.
16 See, e.g.,  First Written Submission of Thailand at paragraph 42.WT/DS122/R
Page 122
35. “Proper” establishment of facts includes several additional requirements which direct the
Panel to examine the actions of the Thai authorities in this dispute.  Facts cannot be properly
established if the respondents in an investigation are not given, inter alia, the opportunity to provide
all relevant facts, to review the material facts alleged against them, and to correct any mistaken
allegations upon which the authorities plan to base their final determination.  Therefore, in addition tothe consistency of the facts “established”, the fact-gathering and evaluation procedures employed by
the Thai authorities are also directly relevant to the Panel’s required assessment of the facts.  National
investigating authorities cannot claim to base their determinations on documents outside the record
that are not shared with the parties to an anti-dumping investigation.
17  The facts relied upon by
Thailand must not only be consistent with one another, but the evidentiary procedures used to gatherthose consistent facts must also have been fair and open.
36. For those facts found to have been established properly, the Panel must then determine, in
light of all available evidence, whether the authorities’ evaluation of the facts at issue was unbiased
and objective. The ordinary meaning of “objective” is “expressing or dealing with facts or conditions
as perceived without distortion for personal feelings, prejudices, or interpretations”18  The ordinary
meaning of  “unbiased” is “not unduly or improperly influenced or inclined; unprejudiced,
impartial.”19 An evaluation is not “objective” unless all evidence is  considered and then weighed
without any favouritism toward a national producer or industry.  Thus, the baseline of an “objective”evaluation is that when a provision of the Anti- Dumping Agreement, such as Article 3.4, requires
examination and evaluation of several factors in making a determination, the national authorities
should not be permitted to pick and consider only those factors they find convenient or believe mightsupport their case.  The omission or disregard of fa ctors that an ADA provision requires authorities to
consider is a prima facie case of bias in an evaluation.
37. With respect to Article 17.6(ii) -- interpreting the extent of a Member’s obligations under the
Anti-Dumping Agreement and the consistency of a practice being challenged with those obligations --Poland has requested that the Panel turn first and foremost to the customary rules of interpretation of
public international law, including the Vienna Convention, Articles 31 and 32.  Poland’s request in
this regard is based on the explicit text of the first sentence of Article 17.6 (ii), which states that
panels “shall” perform their interpretive task “in accordance with the customary rules of interpretation
of public international law.”  The point of these in terpretive rules is to resolve any ambiguities in a
treaty’s text.  Thus, in virtually all instances, a panel will determine, consistent with the Convention’s
interpretive guidance, that a provision of the Anti-Dumping Agreement is not properly susceptible to
more than one correct interpretation.  In such instances, the Panel should base its ruling on theconsistency of the Thai practice being challenged with the sole proper interpretation of the relevant
ADA provision.
38. If, and only if, a panel determines that an Anti-Dumping Agreement provision somehow has
multiple “permissible” interpretations in light of the practice or action being challenged, then the
panel is instructed to defer to permissible interpretations consistent with the text of the Anti-Dumping
Agreement.  In Poland’s view, such a circumstance  would be extremely unusual, and is not present in
the case before the Panel. Provisions of the Anti-Dumping Agreement are not subject to differing
multilateral obligations, depending on the Member performing the interpretation of a given provision.
The deference baselessly urged by Thailand would have exactly this result -- creating several differing
international obligations from the same ADA provision.  Far more faithful to Article 17.6(ii) is a
consistent multilateral interpretation based on a multilateral understanding of the ADA provision
being examined.  Effective panel review of the consistency of a Member’s actions with the text of theAnti-Dumping Agreement otherwise would be rendered impossible.
                                                     
17 See Korea – Anti-Dumping Duties on Imports of Polyacetal Resins from the United States  Report of
the Panel (ADP/92, and Corr.1*), 2 April 1993, at paragraphs 19, 24, 27, 207-209.
18 Websters Ninth New Collegiate Dictionary (1990).
19 Oxford English Dictionary (1971).WT/DS122/R
Page 123
39. Therefore, Article 17.6(ii) does not entitle a Member to deference for actions that the Member
may deem “permissible”, but which the panel determines violate the Member's obligations under the
Agreement.  In particular, the application of Article 17.6(ii) cannot afford deference to the practices of
the Thai authorities in this dispute absent a determination of the Panel to this effect.
40. Not surprisingly, given its authorities’ actions in this case, Thailand’s professed
understanding of Article 17.6 for purposes of this dispute is quite different.   Thailand urges a near
total deference on the part of the Panel to all actions of the Thai authorities, as Article 17.6
“provide[s] for considerably more deference to the factual and legal determinations . . . than . . .Article 11 of the DSU.”
20 Thailand does not explain any material differences between Article 11 DSU
and Article 17.6 ADA that justify the radical distin ction Thailand wishes to draw, and there are none.
Article 17.6 applies only to the degree it differs from Article 11 DSU.  Indeed, both the DSU and
Anti-Dumping Agreement require an “objective” assessment, and both require interpretation in
accordance with the “customary rules of interpretation of public international law.”21
41. Highlighting the similarity between Article 11 DSU and Article 17.6 ADA that it seeks todeny otherwise, Thailand first informs the Panel that it may not conduct a de novo review of the Thai
authorities’ “factual determinations”, as held by a series of WTO cases utilizing the Article 11 DSU
standard of review.22 Thailand neglects to note that the same cases it cites as decisive authority also
explain that under Article 11 DSU, “the applicable standard is neither de novo review as such, nor
‘total deference'.”23  Using Thailand’s logic, this balancing principle also applies a fortiori under
Article 17.6.
42. Thailand next seeks to establish a requirement of total deference to its actions by asserting
that international obligations assumed by Members under the Anti-Dumping Agreement have no
meaning for purposes of dispute settlement under the Anti-Dumping Agreement.  Rather, inThailand’s view, a Member apparently commits to one set of allegedly binding obligations that are
not really binding, as Members may only be held accountable for an entirely different set of filtered
commitments.  Thus, Thailand remarkably asserts that  the question of “whether Thailand has fulfilled
its obligations under the specific provisions [of Articles 2, 3, 5 and 6 of the Anti-Dumping
Agreement] is not before the Panel.”
24
43. Poland had thought this to be the very basis of its challenge of Thailand’s actions – that theywere inconsistent with Thai obligations under several important provisions of the Anti-Dumping
Agreement.  In Thailand’s view, however, dispute settlement is not to determine whether a Member
has or has not fulfilled its international obligations under the specific Articles of a coveredAgreement.  Rather, those obligations may only be viewed “as defined, or modified, by
Article 17.6.”25  Thus, Thailand seems to assert that Members have two independent sets of
                                                     
20 First Written Submission of Thailand at paragraph 39.
21 The Ministerial Declaration on Dispute Settlement Pursuant to the Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 or Part V of the Agreement on Subsidies andCountervailing Measures, which explains the “need for consistent resolution of disputes arising from anti-dumping and countervailing duty measures,”  argues for a narrow construction of Article 17.6 ADA and a
narrow reading of any differences between Article 11 DSU and Article 17.6 ADA.  The Appellate Body has
made clear that Article 17.6 applies only to the AD A, while Article 11 DSU applies to the SCM Agreement.
Report by the Appellate Body on Argentina – Safeguard Measures on Imports of Footwear , WT/DS121/AB/R,
14 December 1999, at paragraph 118.  Consistent resolution of disputes between the ADA and SCM Agreementis, therefore, most likely to be achieved when Article 17.6 is properly read narrowly.
22 First Written Submission of Thailand at paragraph 40.
23 Report by the Appellate Body on  EC Measures Concerning Meat and Meat Products (Hormones) ,
AB-1997-4, WT/DS26/AB/R, WT/DS48/AB/R, 16 Janua ry 1998, at paragraph 117 (emphasis added).
24 First Written Submission of Thailand at paragraph 43 (emphasis added).
25 Id.WT/DS122/R
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“obligations”:  (1) those substantive obligations actually defined in Articles 2, 3, 5, and 6 of the Anti-
Dumping Agreement (which have no meaning in Th ailand’s view), and (2) those obligations,  “as
defined, or modified, by Article 17.6.”
44. Thailand grossly misinterprets both its substantive obligations and Article 17.6.  Members'
obligations under the Anti-Dumping Agreement are not “defined” or “modified” by Article 17.6, and
nothing in the text of the Anti-Dumping Agreement suggests that such is the case.  Thailand further
offers no citation in support of its proposition, as neither GATT jurisprudence, nor WTO panels nor
the Appellate Body have ever suggested that such an approach to a Member’s freely assumed
international obligations might somehow be permissible.  Thailand, of course, offers no explanationof which of its otherwise applicable “obligations” is “modified” by Article 17.6.
45. After suggesting that Members have two independent sets of differing obligations under the
ADA, Thailand next asserts that under Article 17.6(i) any decision that “could have been made by a
reasonable, unprejudiced person” is acceptable under the ADA standard of review.26  Thailand is
again incorrect.  The words “could” and “reasonable” are found nowhere in the text of Article 17.6.
Had the drafters wanted the more deferential standard suggested by Thailand regarding the mandated
assessment of the facts, they were free to say so by , for instance, requiring panels to examine whether
evaluations by national authorities “could have been” or “might have been” unbiased and objective.
The drafters, however, did not adopt that standard.  Instead Article 17.6 speaks of “proper”
establishment of the facts, as well as an evaluation that “was unbiased and objective” (emphasis
added).27
46. The remainder of the Thai argument regarding the standard of review consists of an
inexplicable Thai claim that Poland has not alleged bias by the Thai authorities, repeated assertions by
Thailand that it is “clear” its authorities acted properly (thereby applying a standard it has not yet
finished defining), and a brief attempt by Thailand to dismiss Article 17.6(ii) as without import, giventhe Thai view that there are multiple permissible (but unexplained and unarticulated) interpretations of
the relevant AD Agreement Articles which should be given deference.  We address each of these
claims briefly below.
47. The Thai claim that Poland has not made a case for bias or lack of objective evaluation
because Poland somehow failed to allege such bias on the part of Thailand is false and inexplicable.
In the first paragraph of its legal argument, Poland notes that “the determination of the Thai
authorities that Polish imports caused injury to the Thai domestic industry, in the complete absence of,
inter alia, positive evidence to support such a findi ng and without the required ‘objective examination’
of the factors enumerated for purposes of such an examination was in direct contravention ofArticle VI of GATT 1994 and Articles 3.1, 3.2, 3.4 and 3.5 of the Anti-Dumping Agreement".
28  As if
this were not sufficiently clear, heading III.C.2 of Poland’s First Written Submission asserts that “The
Thai Determination of Injury Was Not Based On Any Rational Reading of Positive Evidence, Did
Not Involve An Objective Evaluation and Was Flatly Inconsistent With the Standards Set Forth in
Article VI GATT 1994 and Articles 3.1, 3.2, 3.4 and 3.5 Anti-Dumping Agreement.”  Both statementsprovide obvious allegations that the Thai evaluations were not objective and unbiased.
48. The accuracy of the repeated Thai claims that it is “clear” its authorities acted properly is, of
course, for the Panel to determine, not Thailand.  With regard to Article 17.6(ii), Thailand treats this
provision almost as an unfortunate afterthought, quickly dismissing the notion that the legal
                                                     
26 Id. at paragraph 45 (emphasis added).
27 Thailand’s reliance on Guatemala Cement  and Mexico-HFCS  is unpersuasive, as both panels were
addressing the sufficiency of evidence warranted for initiation.  The degree of evidence needed for initiation is
certainly less than that required for the definitive imposition of anti-dumping duties.  See First WrittenSubmission of Thailand at paragraph 50, note 13.
28 See First Written Submission of Poland at paragraph 38.WT/DS122/R
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obligations of Articles 2, 3, 5, and 6, as applied to Thai practices in this case, require anything of
Thailand.  Thailand concedes the obvious -- that a pplication of the Vienna Convention will “in many
instances . . . lead to only one permissible interpretation” but then asserts that “in many other cases
multiple permissible interpretations will exist”.29  Thailand does not offer a single example of a
provision or subpart of Articles 2, 3, 5 or 6 that is properly subject to multiple correct interpretations.Nor does Thailand offer any support for its statement that Article 17.6(i), not Article 17.6(ii), applies
“in most instances in the present dispute.”
30  Instead, Thailand offers the summary conclusion that
“where interpretation of applicable provisions of the Anti-Dumping Agreement was necessary” (as if
there are some instances where the Agreement’s requirements are not “necessary”), it acted
permissibly.31  Thailand thus offers no substantive response to Poland’s proper interpretation of
Article 17.6(ii) and the fact that there will seldom be more than one permissible interpretation of a
Member’s obligations.
49. In sum, the Panel should read and utilize Article 17.6 ADA and Article 11 DSU together.
Article 17.6 ADA applies only in the limited instances when it may differ with Article 11 DSU.Neither Article 11 DSU nor Article 17.6 ADA provides Thai authorities the deference they demand in
this case.  The limited latitude in Article 17.6 ADA does not extend to false legal interpretations,
improper factual establishment, and biased factual evaluations which were not objective.  The Panel
should examine the full matter before it, including performing an assessment of the facts and a proper
interpretation of the relevant Anti-Dumping Agreement provisions in accordance with the customary
rules of interpretation of public international law.  It should then apply those proper interpretations to
the facts of this case.
III. THE THAI DETERMINATION OF INJURY WAS NOT BASED ON POSITIVE
EVIDENCE, DID NOT INVOLVE AN OBJECTIVE EVALUATION AND WAS
FLATLY INCONSISTENT WITH THE STANDARDS SET FORTH IN ARTICLE VI
GATT 1994 AND ARTICLES 3.1, 3.2, 3.4 AND 3.5 ANTI-DUMPING AGREEMENT
50. In its First Written Submission, Thailand de monstrates a fundamental misunderstanding of
the requirements of a proper injury determination as set forth in Article 3 of the Anti-Dumping
Agreement.  Thailand appears to believe that it is free to rewrite the established and undisputed record
of its injury determination, now claiming (for the first time) that any inconvenient or contradictoryfacts were simply “typographical” errors it is free to change after the fact for purposes of this panel
proceeding.
32  Thailand next claims that it “disclosed to interested parties all non-confidential
information that was considered in reaching its final determination”33, but then informs the Panel that
its real decisions were based on supposedly secret data of which there is no record or meaningful
summary in the investigation, and which was only recently  provided to Poland after a Thai attempt at
a prohibited ex parte communication with the Panel.34  Given the alleged data which Poland has now
reviewed in the “confidential” Thai exhibits, it is not surprising that Thailand initially attempted to
prevent Poland and the Third Parties from even reviewing the data.
51. Remarkably, Thailand informs the Panel that “the clarity of the public summary of
confidential information is irrelevant to the vi ability of the injury determination . . . based on
confidential information.”35  Thailand apparently feels free to have its investigating authorities claim
to base their determinations on documents outside the record that are not shared in any coherent form
or manner with the parties to an anti-dumping investigation.  The panel should not permit the use in
                                                     
29 First Written Submission of Thailand at paragraph 56.
30 Id. at paragraph 42.
31 Id. at paragraph 57.
32 See, e.g.,   First Written Submission of Thailand at paragraph 79, footnote 71.
33 Id. at paragraph 77 (emphasis added).
34 See, e.g., id.  at paragraphs 89, 92, 95, 96.
35 Id. at paragraph 96 (emphasis added).WT/DS122/R
Page 126
panel proceedings of secret documents offered post hoc as evidence of the existence of the legal
prerequisites for an anti-dumping determination.
52. Thailand concludes its defence of its injury determination by repeatedly informing the Panel
that because an injury factor is mentioned in a Th ai document, that injury factor was definitely and
properly established, correctly “considered” and properly “evaluated".36  Thailand offers no evidence
of any meaningful establishment, consideration and evaluation of several factors enumerated in
Article 3, and utterly ignores the requirement that it explain why it did not give weight to the factors it
did not discuss.  In short, Thailand makes no demonstration that dumped imports are causing material
injury to SYS.  As such, Thailand violates several requirements of Article 3 ADA.
53. Poland set forth material violations by Thailand of Articles 3.1, 3.2, 3.4 and 3.5 ADA and
Article VI:6 of GATT 1994 in its First Written Submission and Oral Statement at the First Meeting
with the Panel.  We now wish to discuss these provisions seriatim.
A. THAILAND DEMONSTRATES A FUNDAMENTAL MISUNDERSTANDING OF THE
REQUIREMENTS SET FORTH IN ARTICLES 3.1 AND 3.2 ANTI-DUMPING
AGREEMENT
54. Poland views the requirements of Article 3.1 as plain and well-settled:  a proper determination
of injury must be based on “positive evidence” and “an objective examination” of the facts, including
both the volume of allegedly dumped imports and their effect on prices for the domestic like product,
as well as the impact of the imports on the domestic industry.  In support of its claim of violation of
these fundamental requirements, and consistent with the teachings of the panel in Mexico –High
Fructose Corn Syrup37, Poland has identified in its First Written Submission and its First Oral
Statement a litany of failures by the Thai authorities, as well as a multitude of confused, internally
inconsistent, and simply false factual statements and  legal conclusions without any factual basis.
55. As discussed more fully below, Thailand purports to determine that Polish prices went down,
when in fact they went up; that Thai prices plummeted, when in fact they did not; that Polish and Thai
price movements were linked, when the opposite is true; that Polish volumes surged, when in fact
they did not; that Polish market share was large and expanding, when the “secret” Thai statisticspresented to the Panel and Poland are gibberish; that domestic prices were lower than export prices,
when the opposite is true – all while ignoring other factors on the record, such as SYS’ high start-up
costs, the level of demand of the local construction industry, the highly aggressive nature of SYS’
entry into the H-Beam market, technology developments, and the Kobe earthquake.  In response to
Poland’s claims and the facially obvious contradictions in its own alleged data, Thailand repliessimply that Poland has supplied “no evidence” and otherwise “failed to meet its burden of proof”.
38
We respectfully submit that the facts establish otherwise.
56. With respect to Poland’s Article 3.2 claims, Poland respectfully notes that the requirements of
these provisions are clear:  to find injury, a national authority must find “a significant increase in
dumped imports” (emphasis added) and  “a significant degree of price depression or price
suppression.”  In response, Thailand repeatedly claims that the Thai authorities “clearly” considered
whether volume increases were “significant” and whether price depression or price suppression was
“significant”.39  However, the Thai determinations do not contain any such statements or provide any
such evidence whatsoever.  Furthermore, as Poland and other Members have noted, Thai law at the
                                                     
36 See, e.g., id.   at paragraphs 89, 98, 105.
37 Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States,
WT/DS132/R, 28 January 2000 at paragraph 7.118  At its meeting on 24 February 2000, the Dispute Settlement
Body adopted the panel’s report. WT/DS132/4, 29 February 2000.
38 Id. at paragraph 81;  see Thailand’s Oral Statement at paragraphs 29-37.
39 See, e.g.,  First Written Submission of Thailand at paragraphs 82, 87,  and 94.WT/DS122/R
Page 127
time was inconsistent with the Anti-Dumping Agreement and did not require any such findings.40  We
therefore find it remarkable that Thailand now seeks to “reiterate"41 that it found “significant”
required volume increases or price effects – one cannot “re-iterate” what one has not once properly
established or stated in the first place.
57. Thailand next asserts that it had no obligation to provide comprehensible non-confidential
information to Poland as regards price underselling (and by implication other issues).42  T h a i l a n d
admits that “one cannot determine from the public version of this chart alone which products were
undersold” , but then claims, without any citation, that “[w]hen read in light of other statements
appearing elsewhere in the record, however, a reader can readily grasp the pattern of underselling by
the dumped Polish imports”.43  This claim is breathtaking, for it is Thailand’s obligation to provide
coherent, rational and consistent explanations for its findings, not Poland’s obligation to search
futilely through the record in search of any evidence of an unspecified and unproven “pattern” of
underselling.44  Moreover, this statement only underscores the failure of the Thai authorities to find
“significant” underselling – or to document the alleged “underselling” that they did indeed “find” .
58. The next step of this required Article 3 ADA inquiry is whether the Thai authorities properly
evaluated all relevant economic factors and indices in order to judge the significance of their impact.
Because Poland and Thailand agree on the centrality of this element in assessing the compatibility of
Thailand’s actions with Article 3, we now discuss Article 3.4 in detail.
B. THAILAND DEMONSTRATES A FUNDAMENTAL MISUNDERSTANDING OF THE
REQUIREMENTS SET FORTH IN ARTICLE 3.4 ANTI-DUMPING AGREEMENT
59. In its First Written Submission, Thailand de monstrates a fundamental misunderstanding of
the requirements of Article 3.4 ADA.  Thailand falsely claims to have considered and evaluated all
relevant factors, when several factors are not even so much as mentioned in its analysis.45  For those
mandatory factors deemed worthy of a simple brief reference by the Thai authorities, Thailand seems
to believe that a conclusory statement without any supporting evidence suffices for the evaluation
required by Article 3.4 ADA.  As explained below, Poland respectfully disagrees.
60. Article 3.4 provides guidance with regard to the proper factors that must be considered and
evaluated in determining how “significant” an impact imports have on the domestic industry, stating
that the evaluation by the investigating authorities “shall include an evaluation of all relevant
economic factors and indices having a bearing on the state of the industry, including actual and
potential decline in sales, profits, output, market share, productivity, return on investments, or
utilisation of capacity; factors affecting domestic prices; the magnitude of the margin of dumping;
                                                     
40 Thailand offers no response in its First Written Submission to the material discrepancy between
Article 3.2 of the Anti-Dumping Agreement and Article 7.2 of the Thai anti-dumping law in effect for the Thaiinvestigation of Polish H-Beam steel products.  The Thai law, contrary to the ADA, did not require the Thainational authority to consider whether any increases in volume of the imported products were “significant,”whether any price undercutting was “significant,” whethe r prices were depressed to a “significant” degree, or
whether imports prevented price increases to a “significant ” degree.  No such determinations were made on the
record of the investigation, itself a plain violation of the ADA.
41 Id. at paragraph 91.
42 First Written Submission of Thailand at paragraph 95.
43 Id.
44 Article 3.7 Anti-Dumping Agreement provides additional contextual support for the fundamental
Article 3 requirement that injury and causation be demonstrated  rather than assumed, providing that
determinations regarding threat of material injury “shall be based on facts and not merely on allegation,conjecture or remote possibility.”
45 See First Written Submission of Thailand at paragraphs 97-106.WT/DS122/R
Page 128
actual and potential negative effects on cash flow, in ventories, employment, wages, growth, ability to
raise capital or investments.46
61. As Poland discussed with the Panel during the First Substantive Meeting, Article 17.6(i) ADA
requires that when a panel examines national authorities’ actions, establishment of all facts by theinvestigating authority must be “proper” (including the state of the factors specified in Article 3.4),
and that any evaluation of facts (again, including Article 3.4 factors such as actual decline or increase
in sales, etc.) must be  “unbiased and objective.”  The legal weight to be given to those facts properly
established and objectively evaluated is a function of the proper legal interpretation of the ADA
provision at issue, understood in accordance with the customary rules of interpretation of publicinternational law (see Article 17.6(ii)).
62. In Poland’s view, the required consideration, evaluation and weighting applied to the factors
listed in Article 3.4 would be a “proper” establishment of the facts only when all factors were
considered.  In the same light, the factors can only be “objectively” evaluated if they are all
considered, weighed and discussed.  Thus, the minimum starting point of an “objective” evaluation isa recognition that when Article 3.4 explicitly requires examination and evaluation of several specified
economic factors (“including . . .”) in making a determination, Thai national authorities should not be
permitted to pick and consider only those factors they find convenient or believe might support their
case.
63. The omission or disregard of factors that Article 3.4 requires to be considered is a prima facie
case of bias in an evaluation, and this is exactly what has happened in the present situation.  If all
factors are not carefully considered, there is no “objective” means by which to judge the degree to
which a factor may be more or less relevant to the determination being made.  Furthermore, as the text
of Article 3.4 makes clear, all listed factors are presumed to be relevant unless shown and explained to
be otherwise (“shall include an evaluation of all relevant economic factors . . . including . . .”).Therefore, if national authorities deem a listed factor somehow not relevant to their determination,
they must explain why (in a rational manner consistent with other facts/evidence in the investigation)
in the text of their final determination.
64. Since Poland’s First Written Submission in this dispute, the requirements of Article 3.4 have
also been considered and explained at length by the panel in Mexico—High Fructose Corn Syrup .
47
The Mexico-HFCS  panel’s interpretation of Article 3.4 is consistent with the interpretation set forth
by Poland in this case, and the panel completely rejects the Thai suggestion that authorities are free to
pick and choose which Article 3.4 factors they will consider, properly evaluate and discuss.  First, the
panel correctly explains that the text of Article 3.4 is “mandatory”, with the “language mak[ing] itclear that the listed factors in Article 3.4 must be considered in all cases
”.48  The panel further
explains that “[t]here may be other relevant economic factors in the circumstances of a particular case,consideration of which would also be required.”
49  The panel concludes by explaining that
consideration of each of the Article 3.4 factors “must be apparent in the final determination of the
investigating authority”50, and that other panels have made clear in similar contexts that “while the
authorities may determine that some factors are not relevant or do not weigh significantly in the
decision, the authorities may not simply disregard su ch factors, but must explain their conclusion as to
the lack of relevance or significance of such factors”.51
                                                     
46 Emphasis added.
47 Mexico –High Fructose Corn Syrup, at paras. 7.128-7.131.
48 Id. at paragraph 7.128 (emphasis added).
49 Id. (emphasis added).
50 Id. (also citing Article 12.2.2) (emphasis added).
51 Id. at 7.129.WT/DS122/R
Page 129
65. The Mexico-HFCS panel’s conclusion that all factors must be properly considered finds
additional support in light of the change in the re levant text between Article 3.3 in the Tokyo Round
Anti-Dumping Code and the present analogous Article 3.4 Uruguay Round ADA.  While few changes
were made to the text, one change was to delete the words “such as” and insert the word “including.”
The plain meaning of this change is that while the list of factors to be considered in the Tokyo RoundCode could plausibly be considered illustrative examples (such as . . .), no such freedom exists in
Article 3.4 ADA (“all relevant factors . . .  including . . .”).  “Such as” is not synonymous with
“including”, according to the definitions supplied by the Oxford English Dictionary, and if no change
in meaning was intended, there was absolutely no need for the drafters to change the text.
66. In sum, in order for an investigating authority’s actions to be consistent with Article 3.4, the
investigating authority must consider all of the enum erated factors as well as their relevance, clearly
explain on the record in the final determination available to the parties which factors, if any, are not
relevant and the precise objective reason(s) this is the case in the context of all evidence, and then
carefully and fully evaluate and explain each remaining listed factor, as well as any other factorsbefore it that bear on the state of the domestic industry.  Each factor in Article 3.4 must be addressed
in order for the fact-finding portion of this endeavour to be objective and unbiased.
67. The record in this dispute makes clear that the Thai authorities failed to act consistently with
each Article 3.4 requirement.  First, Thailand failed even to consider several factors mandated by
Article 3.4, including actual and potential decline in productivity, the magnitude of the margin of
alleged dumping, actual and potential negative effects on wages, actual and potential negative effectson ability to raise capital, actual and potential negative effects on investments, and actual and
potential decline in profits.  Thailand has fa iled to offer any explanation for ignoring these
enumerated factors or any evidence that their arbitrary exclusion was based on objective criteria –
indeed, it is difficult to see how relevance can be objectively assessed if a factor is not even
considered.
68. Second, it is not discernible from the published Thai Final Determination and documents
provided to the respondents whether the Thai authorities even evaluated with any adequacy the factors
they claimed to “consider.”  Conclusory statements  are not a surrogate for the objective evaluation
mandated by Article 3.4.  Thailand not only refuses to discuss several specified factors, but it furtheroffers no explanation of the weight it purportedly gave to each factor and the reasons for assigning
that weight, both for factors allegedly “considered” and for those completely ignored.
69. Third, the post hoc secret documents that were never acknowledged or provided to anyone in
any form during the case lend no support to the Thai claim to have satisfied Article 3.4.  Proper
determinations by investigating authorities may not be based on secret documents outside the
established record that are never shared or accurately summarised for the parties to an anti-dumping
investigation.  Further, as detailed below, in numerous material instances, the confidential documents
belatedly supplied by Thailand to Poland and Third Parties flatly contradict other alleged record
evidence.
70. Lastly, as Thailand is forced to concede, even by the terms of its own deeply flawed and
contradictory evaluation, “considered” factors point inescapably to the lack of injury.  SYS’s
production, capacity, capacity utilization, employment, domestic sales volume, overseas sales volume,
and market share all increased in the IP.  The Thai authorities explain that “most evidence[] of
domestic injury indicate a positive performance of the  [sole Thai]  company.”52  Indeed, although
Thailand now claims, after the fact and in the face of this dispute settlement proceeding, that itsmarket share figures were typographical errors, the record of the investigation shows that SYS was so
healthy that the company captured over 55 per cent of the domestic market within less than 16 months
                                                     
52 Final Injury Information Notice at page 3, paragraph 16.  Exhibits POLAND 10, 11.WT/DS122/R
Page 130
of selling its first H-Beam.53  Even the few factors alleged by Thailand somehow to favor a finding of
injury are contradicted by other clear evidence on the record, as discussed below.
71. In short, no objective reader could consider the Thai final injury determination to have met
the requirements of Article 3.4 or to be a proper explanation of the Thai authorities' consideration,evaluation and weighing of the mandatory Article 3.4 factors.  Thailand failed to establish properly
the material facts (as several contradict one another), it failed to evaluate them in an unbiased and
objective manner (as several were ignored), and it failed to meet the legal standard set forth in
Article 3.4 requiring evaluation of all relevant economic factors and indices.
C. THE NEW SECRET THAI DATA FLATLY CONTRADICT THE MOST IMPORTANT
PUBLIC FACTUAL FINDINGS ON INJURY, DEMONSTRATING THAT THE THAI
FINAL INJURY DETERMINATION IS NOT BASED ON POSITIVE EVIDENCE OR
OBJECTIVE EXAMINATION OF RELEVANT FACTS
72. The ability to comment in significant detail on the confidential data provided by the Thai
authorities (just prior to the First Meeting wi th the Panel) remains somewhat limited for one
predominant reason:  many of the secret Thai data fundamentally contradict the public Thai data
actually shown to and relied upon by the parties during the Thai national proceeding.  A typical
simple example amply illustrates the issue.  Pricing of imports is necessarily central to any proper
examination and evaluation of possible injury.  Yet, in three places, the Thai authorities provide three
completely different figures for the same purported fact regarding import pricing.  The public Draft
Final Injury Notice (at par. 6 and in the Table “Price Data of H-Beams”)  states that average CIF
import prices were 8,754 Baht during the investigation period.  Yet, in the secret Exhibit 44, at
paragraph 1.9.1, the Thai authorities state that average CIF import prices were  9,462 Baht during the
investigation period.  Later in the same exhibit (this time at paragraph 4.6), Thailand states that the
average CIF import price was 10,782 Baht.  The Thai authorities thus manage to contradictthemselves on essential data.
73. The new secret Thai data are remarkable when considered in this light.  Not only are
fundamental due process concerns implicated, but, in addition, if “proper” establishment of the facts
under Article 17.6(i) is to have any meaning, it must certainly stand for the proposition that authoritiesnot be permitted to “establish ” two (or three) sets of contradictory facts and use whichever set they
deem to suit their purposes in a given instance.  Poland has therefore posed written questions toThailand regarding some of the more glaring incons istencies raised by the recent Thai submissions.
Once Thailand has made clear which of its apparent “facts” it is willing to stand behind and the
reasons therefore, we would expect to offer substantial additional confidential comment to the Panel.
74. In the face of this perplexing limitation, Poland notes that there were effectively three factors
allegedly relied upon in the final determination as  somehow demonstrating injury to SYS:  the
“influence” of Polish prices on Thai prices, which supposedly forced Thai producers to lower their
prices to “match” Polish price levels; increase in Polish import volumes; and increase in Polish share
of the Thai market.  These factors then were deemed, without explanation, to result in price
undercutting and price suppression, and to render SYS unable to “recover cost in a reasonable period
of time”, a finding Thailand apparently links to issues of profit/loss, return on investment, and cash
flow, the three factors allegedly “considered” (but not evaluated) by Thai authorities, as discussed
above.   Because each of these Thai findings is improper, without rational basis and biased, we wish
to consider each seriatim.
                                                     
53 See First Written Submission of Poland at paragraph 17 and accompanying chart.WT/DS122/R
Page 131
1. The “Influence” of Polish Prices
75. The heart of the DIT’s claimed injury finding is the “influence” of Polish prices on the prices
of SYS.  The Final Injury Determination implies th at this influence was dramatic, so much so that
average CIF Polish import prices and average SYS prices “move in the same direction”(paragraph 2.2), that SYS had to reduce its prices sharply to “match” Polish prices (paragraph 2.5) and
that SYS “has no choice but to decrease its price to the level of Polish imports” (paragraph 2.3).  The
influence of Polish imports was allegedly demonstrated (paragraph 2.4) by comparison of the Thai
market with SYS’ export markets, because, as stated  in the Final Injury Information Notice, “SYS can
sell [its] exports at the price higher than in the domestic market”, implying that prices in Thailand
would be higher, but for unfairly priced imports.
54
76. According to Thailand itself, however, none of  these findings is correct.  They are
contradicted by evidence on the non-confidential record – and shattered by the new “confidential”
information in Exhibit THAILAND 44.
77. Let us begin with the non-confidential data.  These Thai “findings” are contradicted by the
data contained in Final Injury Notice Table 1 on Average Quarterly Prices.  Table 1 contradicts the
first vital finding regarding injury – that average Polish CIF prices and average SYS prices “move in
the same direction”.  Plainly, that was not so, for they move in the same direction less than half the
time.55  Table 1 also contradicts the second vital finding regarding injury – that SYS lowered its prices
to “match” those of Poland.  The record clearly s hows that SYS entered the market at prices well
above those of Polish imports and that SYS prices in the IP were well above those for 1995.56
Thirdly, Table 1 punctures any claim of price leadership by Polish firms – for it was SYS that plainlyprecipitated the first decline in prices during the IP (4th quarter 1995).
78. Exhibit THAILAND 44 for the first time allows Poland to attach purported numbers to
Thailand’s erroneous conclusions.  First, Exhibit 44 shows that Polish prices went up, not down, from
1995 to the IP.  Exhibit 44  (at paragraph 1.9.2) shows Polish prices (in Baht/metric ton) moving from
8,409 Baht in 1995 up to 8,473 Baht in the IP.
57  By contrast, the public Final Injury Information
Notice (at paragraph 6 and the Table entitled “Price Data for H-Beams”) shows Polish prices movingfrom 8,409 Baht in 1995 down sharply to 7,975 Baht in the IP.  Thus, according to Thailand’s own
alleged secret data and despite Thailand’s public statement to the contrary, Polish prices were rising in
the IP.
79. As regards Thai prices, the Final Determination states that they fell sharply to “match” Polish
prices. However, Exhibit 44, paragraph 1.12.6, states that for the four quarters of the IP, they were[P+ 3,067.38] Baht, [P+ 2,869.38] Baht, [P+ 1,974.38] Baht, and [P+ 1,768.38] Baht.  Two pages
later, at paragraph 1.17.1, the Thai authorities appear to change their mind, providing different figures
for Thai domestic selling prices during the IP – this time the “facts” are purportedly
[P+ 3,002.38] Baht, [P+ 2,869.38] Baht, [P 1,974.38] Baht, and [P+ 1,739.38] Baht.
58  Whichever set
of figures for Thai prices is correct (if either) and whichever set of figures for  Polish prices is correct(if either), one fact seems plain -- Thai prices during the IP were thousands of Baht more per metric
ton than Polish prices. The “finding” in the Final Injury Determination -- that SYS reduced its prices
                                                     
54 Final Injury Information Notice, paragraph 10.
55 Final Injury Determination at 2.2. They move in the same direction in 3Q 1995 and 1Q 1996, but in
opposite directions in 2Q 1995, 4Q 1995, and 2Q 1996.
56 It is also plain that SYS entered the market at  prices well above those of the Polish importers.  See,
e.g., Exhibit THAILAND 41 and page 2 (“the complainant entered the Thai market at significantly higher prices
than Polish product . . .).
57 This figure is repeated in paragraph 1.11 of Exhibit 44.
58 It is unclear why there are different prices listed here than in paragraph 1.12.6.WT/DS122/R
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to “match” the level of Polish imports -- is, using Thailand’s own alleged data, therefore demonstrably
pure fiction.
80. Turning next to the notion that Polish prices so  influenced Thai prices that they moved in the
same direction, this also is shown to be false by the new “secret”  “facts.”  As demonstrated above andas expressly found by the DIT, Polish prices were “stable”
59 increasing modestly from 1995 through
the IP.  Thai prices were also stable, decreasing modestly during the same time period.  They surely
did not move in the same direction.60  Indeed, as the DIT expressly stated in assessing the Thai
domestic market, “there is price stability with reference to the subject merchandise.61  In the light of
such price stability, what remains a mystery is how the Thai authorities could determine the existence
of such a strong and negative Polish “influence” on the prices of SYS.  It also remains a mystery how
they were able to track quarterly price movements in the non-confidential Final Injury Notice, when
no quarterly price data for Polish firms is contained in the purported confidential version thereof.62
81. Moreover, as discussed previously, by using CI F prices and ignoring those many cost factors
(port fees, regular duty, commissions to local agents, inland transportation costs) that must be
included for a proper comparison of domestic prices with CIF import prices, it is plain that Thai
authorities have understated the actual level of import prices, again to the detriment of Polish
respondents.63
82. The last major claim in the Final Determination regarding injury by reason of price levels is
that SYS sold at higher prices in export markets and that, but for unfairly priced imports, SYS would
sell at higher prices domestically. We recall that Thai authorities stated in their Final Injury
Information Notice, “SYS can sell [its] exports at the price higher than in the domestic market.64  The
major problem with this claim is that it is flatly contradicted by the new “secret” evidence.  As Exhibit
44 states, [X-Conf.] .65  Apparently, therefore, the statement regarding SYS' higher export price was
invented for purposes of the non-confidential version of the Final Determination.
83. The Thai claim regarding higher export prices is particularly telling because it shatters one of
the DIT’s essential myths – that somehow Polish firms were unfairly subjecting SYS to domestic
market conditions far more adverse than would otherwise apply.  The realities are quite different –
prices in the Thai market were “stable” and well above those in other markets where SYS sold itsproducts.  Thai prices remained well above Polish prices with little movement in either direction.
SYS did so well that it captured over 55 per cent of the domestic market within 16 months of
operation.  If export prices had matched Thai domestic prices, it might well have been profitable, a
remarkable achievement for any new firm in a cap ital-intensive industry producing commodities.
SYS’ failure to meet its ambitious goals – as a result of low prices in overseas markets – is hardly theresponsibility of the Polish industry.  
2. Did Polish Imports Increase?
84. The second alleged cornerstone of the Final Injury Determination (at paragraph 2.1) is the
“fact” that the level of Polish imports into Thailand had “continuously increased” and that Poland had
an increasing share of total imports.   Thai auth orities of course never made any finding that such
increases were “significant” .  They did make one finding, however – that Polish import volumes
                                                     
59 Exhibit 44, paragraph 1.9.2 (“[t]he average C.I.F. price of imports from Poland remain stable” from
1994 to 1995 to IP).
60 This fact was clear even from price movements shown on the Table 1 of the Final Injury Notice.
61 Id. at paragraph 5, page 13 (emphasis added).
62 Exhibit 44, paragraph 1.9 lists only average CIF prices for Polish imports on an annual basis.
63 See Poland’s First Written Submission, at paragraph 27.
64 Final Injury Determination at paragraph 2.4 (paragraph 10).
65 Exhibit THAILAND 44, paragraph 1.12.6 (first indent) (emphasis added).WT/DS122/R
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“continuously increased”.  This conclusion is, in a familiar pattern, wrong.  The error requires no
second guessing or re-evaluation of the Thai authorities' “findings” – it is apparent from their own
documents, in particular, the non-confidential Table 2 attached to the Draft Injury Notice, which
shows that “Imports from Poland” move up and move down throughout the period in question.  More
fundamentally, from the very beginning of this investigation, Poland has raised questions as to thevalidity of the Thai import data.
66  When questions were raised, Thai officials dismissively asserted
that these sharp differences were “accounted for by shipments on the high seas.67
85. But the “high seas” were not responsible for the realities of what took place here.  To the
contrary, the new “secret” Thai data show that Thailand’s “ determinations” were based on nothingmore than a hopeless jumble of numbers.  Exhibit 44 states that total imports in 1994 equalled those in
1995, but also that imports “shrunk continuously” during this time.
68  While it is admitted that SYS
output, sales, market share, etc., grew markedly in  the IP,  Exhibit 44 states that imports in the IP
equalled domestic demand.69  Exhibit 44 further states that Polish imports “skyrocketed” to
[I+ 12,445] MT, but that Poland held 25.3 per cent (47,435 MT) of a total market of 187, 490 MT.70
Some Exhibit 44 data claim to show that domestic demand contracted sharply.71  Yet the same exhibit
also states that domestic demand increased D* per cent in the IP, and paragraph 1 of the Final Injury
Information Notice states that “during the period of investigation, the consumption of H-Beams inThailand increased by 4% from 1995.”  In sum, Thailand’s findings concerning Polish import
volumes are nothing more than unsupportable numbers  placed on a sheet of paper – and hardly could
be reconciled by “shipments on the high seas.”
3. Did Polish Market Share Rise Significantly?
86. The third and final alleged cornerstone of the Final Injury Determination (at paragraph 2.1) is
the claimed “fact” that Polish imports captured 26 per cent of the Thai market in the IP, up from
24 per cent in 1995.  This finding is inconsistent with the findings in the Final Injury InformationNotice and the Preliminary Determination that the Polish market share was 24.2 per cent in 1995 and
25.3 per cent in the Investigation Period.  Thus, rather than the 2-per cent market share increase stated
in the Final Injury Determination, the actual figure in the record was 1.1 per cent.  This factual error is
all the more critical because of the failure of Th ai authorities to make the required determination
whether a 2-per cent increase was “significant” in its own right; of course, they made no such findingwith respect to a 1.1 per cent increase either.  Moreover, these market share percentages were based
on volume figures that have long been disputed by Polish respondents.  Given the completely
unintelligible volume numbers contained in Exhibit THAILAND 44, and the fact that a wide
assortment of figures for Polish imports and Thai demand have been “established” by the authorities,
it is not surprising that the market share percentages derived from those figures are likewise unclear.From these data one cannot tell if Polish market share in the IP was 25.3 per cent, 26 per cent, or
some other number.  Furthermore, we reiterate that Thailand’s data on “increase” in market share are
based on overlapping time periods, effectively comparing only figures for the first semester  of 1995
(either March-June or January-June) with the first semester of 1996.  But even if that comparison
were meaningful, an authority must first establish actual volume figures.  If it fails to do so, yet
                                                     
66 See, e.g.,  Letter of Stalexport, dated 2 February 1997, page 1-2, points 1,3, Exhibit THAILAND 26;
Letter from Huta Katowice, dated 13 February 1997, page 2, point 9; Exhibit THAILAND 27; Brief of PolishRespondents, dated 9 March 1997, page 3 and footnote 2, Exhibit THAILAND 35.   See also  Poland's 29 March
1998 Response to Question 9 from the Panel.
67 Proposed Final Determination, point 9.1, page 7 (Exhibit POLAND 10; Exhibit THAILAND 37).
68 Exhibit 44, paragraph 1.8.1.
69 Id. at paragraphs 1.7, 1.8.1 (both were said to equal 187,490 MT in the IP).
70 Id. at paragraph 1.8.2.
71 Paragraph 1.7 of Exhibit 44 shows domestic demand for H-Beams falling from [D- 8,927] MT in
1995 to 187,490 MT in the IP.WT/DS122/R
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reaches conclusions based on contradictory and incoherent evidence, it cannot be found to be
objectively examining the “facts” before it.
87. One final point needs to be addressed with respect to Exhibit 44. Despite containing purported
data regarding Polish respondents which certainly was not “secret” with regard to those respondents,Thailand never shared the alleged “facts” in this document with Polish respondents or with the
Republic of Poland during consultations. The Panel needs no reminder that Thailand first sought to
submit this document to the Panel only on an ex parte basis.  After considerable disagreement,
Thailand then submitted it to all parties and third parties.  Next, at the First Substantive Meeting of the
panel, Thailand surprisingly attempted to distance itself from this and the other new secret Exhibits,stating that they were not a necessary part of the Thai record in this case.
88. Prior GATT and WTO jurisprudence, including Korea-Resins and Guatemala-Cement,
condemns the use of documents outside the record that are not shared with the parties to an
investigation.  In those cases panels have refused to take into account certain alleged “evidence” thatauthorities claimed was part of their administrative decision-making, but which was not part of the
administrative record of an investigation.  Poland notes that Exhibit 44 and the purported non-
confidential version thereof bear little relation to one another.  Secret Exhibit 44 contains Polish data
which Polish respondents had a right to review.  Failure to disclosure it constitutes a violation of basicdue process (under Article 6.1, 6.1.2, 6.3, 6.4, 6.5.1 and 6.9, just for instance).
89. But the current situation created by Thailand is worse than the other cases mentioned. In this
proceeding, Thailand now seeks to distance itself from a secret document that was, according to
Thailand, part of the administrative record, but never disclosed in any meaningful form to
respondents.  For the first time, the alleged “facts” on which the Thai authorities relied have been laid
bare, and Thailand understandably wishes to walk away from the several fundamental contradictions
they create.
90. In sum, the factual inaccuracies demonstrated by Exhibit 44 render meaningless the claim of
the Thai authorities to have made “proper” determination of facts based on “objective examination” of
the record.
• Thailand claimed to have publicly determined that Polish prices went down in the IP,
when Thai secret data showed that Polish prices went up;
• Thailand claimed to have publicly determined that Thai prices went down sharply to
“match” the level of Polish prices, when Thai secret data showed they did not;
• Thailand claimed to have publicly determined that Polish prices and Thai prices “move in
the same direction”,  when Thai secret data showed they do not;
• Thailand claimed to have publicly determined that Polish prices “influence” SYS prices,
when Thai secret data showed they were both stable;
• Thailand claimed to have publicly determined that Polish import volumes surged, when
Thai secret data are incomprehensible and support no such determination;
• Thailand claimed to have publicly determined that domestic demand rose 4 per cent,
when Thai secret data show both that it rose [D*] per cent, but also that it fell;
• Thailand claimed to have publicly determined that Polish market share was large and
expanding, when Thai secret volume statistics are incomprehensible and support no suchdetermination;WT/DS122/R
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• Thailand claimed to have publicly determined that Polish market share had risen from
24 per cent to 26 per cent in the IP, when all “evidence” in the record showed the rise to
be from 24.2 per cent to 25.3 per cent;
• Thailand claimed to have publicly determined that SYS’ domestic prices were lower than
SYS’ export prices when Thai secret da ta declare the opposite -- that SYS’ domestic
prices were higher than SYS’ export prices.
91. It is thus readily apparent that the findings in Thailand’s Final Injury Determination find no
support in the new “confidential” data on which they were purportedly based.  As a result, the
conclusions in that Determination of price suppression and price depression are without factualfoundation.  Rather, such data paint a picture of a new company with unrealistic market expectations,
hoping to sell (and in fact selling) at relatively high prices at home, while selling at sharply lower
prices in overseas markets.  They show a domestic market with “stable” prices in which a new
domestic entrant has catapulted to market leadership.  What the data do not show, however, is the
existence of material injury.
92. We thus submit that Thailand’s Final Injury Determination was not based on “positive
evidence” or an “objective examination” of the re cord in this proceeding.  Indeed, positive evidence
was overwhelming that no material injury existed by reason of Polish imports.  Moreover, the
“evidence” set forth in the Final Determination was unsupported by the record, contradicted by “secret” facts, or otherwise meaningless given the methods of comparison employed.  The injury
Thailand claimed to exist was not properly determined to be “significant” and “material” as required
by the Agreement. Finally, Thailand failed to examine external factors called to its attention,
including SYS’ aggressive entry into the H-Beam market and the massive Kobe earthquake that
disrupted steel supplies throughout Asia in this period.  These vital factors appear nowhere in
Thailand’s analysis.
D. THAILAND DID NOT DEMONSTRATE CAUSATION CONSISTENT WITH
ARTICLE 3.5 ADA
93. Even if SYS had experienced injury, which it plainly had not, Thai authorities still were
required properly to find, based on an objective examination of all relevant evidence, that such injurywas caused by reason of dumped Polish imports. The heart of the Thai Final Injury Determination (at
paragraph 2.3) is that Polish imports caused material injury by forcing SYS to “decrease its price to
the level of Polish imports”  and that this resulted in price undercutting and price suppression,
occasioning SYS’ inability to “increase its price to recover its costs in a reasonable period of time.”
94. Poland has commented in the prior section on the substance of these claims, which we have
shown to be false in their entirety.  Poland reserves its rights to comment more fully on this issue once
it has received Thailand’s responses to the questions Poland has posed concerning Exhibit
THAILAND 44, precisely because that document contains so many “facts” that contradict “facts”
found elsewhere in the Thai determinations.  As a result, Poland is no longer sure which factsThailand is relying on in this inquiry.  We have long maintained, however, that Thai pricing data were
simply incorrect and ignored market reality both in Thailand and elsewhere in Asia.
95. However, even the non-confidential information of the Department of International Trade
reveals the insufficiency of the Final Injury Determination on the question of causation.  The
Determination shows no “examination of all relevant evidence before the authorities”, including no
examination of  why the factors enumerated in Article 3.5 Anti-Dumping Agreement were or were notWT/DS122/R
Page 136
themselves relevant.72  The Final Determination shows no examination of the influence of non-Polish
imports, the level of demand of the local construction industry, the highly aggressive nature of SYS’
entry into the H-Beam market, domestic industry productivity and cost structure, technology
developments, market realities in SYS export markets, or the Kobe earthquake.73  The F ina l I njury
Determination shows no examination of why these factors were outweighed by any other factors
elsewhere in the record.74  As a result, the Final Injury Determination was inadequate on its face.
96. Moreover, the Final Injury Determination and its companion Draft Injury Information Notice
are internally inconsistent on the causation points they do address.  We have discussed these points in
our injury section, but, at the risk of repetition, do so again here, in abbreviated form, for the sake ofcompleteness.
97. The DIT’s critical finding regarding causation -- that the “influence of Polish imports” is so
complete that SYS sharply reduced its prices to “match” the level of Polish import prices – cannot be
correct.
75  This finding of a sharp price decline is contradicted by the findings in the non-confidential
record that SYS entered the market in 1995 at prices well above those of Polish imports – and that
SYS’ prices then rose above 1995 levels during the IP.76  Moreover, Table 1 contradicts the second
vital DIT conclusion regarding causation – that the “ influence of Polish imports” is so complete that
average Polish CIF prices and average SY S prices “move in the same direction”.77  Table 1 shows that
clearly this was not so; they do so less than half the time.  Thirdly, Table 1 punctures any claim of
price leadership by Polish firms – for it was SYS that plainly precipitated the first decline in prices
during the IP (4th quarter 1995).  Even the most basic factual statements – such as those regardingmarket share are not consistent.  The Final Injury Determination states that market share rose from
24 per cent (1995) to 26 per cent (IP), whereas the Final Injury Information Notice and the
preliminary injury determination,  Exhibit POLAND 8, both state that market share went only from
24.2 per cent to 25.3 per cent.
98. The DFT also attempted to show causation by reason of the quantity of imports from Poland.
It inexplicably bases its conclusion (at paragraph 8 of the Final Injury Information Notice) on
examination of only two quarters of the IP, during which Thailand claims that Polish imports led to
either decreased sales or decreased output by SYS.  There are several obvious problems with this
conclusion.  First, Thai authorities fail to explain their own record evidence directly contradicting
their conclusion regarding decreased sales or output.  At the same time that one of their charts
purports to show decreased sales and output, Thai  authorities also acknowledged that SYS market
share tripled and that production quantity rose
 over 10% (while inventories decreased). In addition,
the other two quarters not referenced by Thailand -- and the IP as a whole -- tell a very different storythan Thailand alleges.  But even the two quarters ex amined do not support the claim:  in each of those
two quarters, SYS sharply raised its prices from previous levels, and, not surprisingly, faced market
resistance.
78
                                                     
72 For a discussion of relevancy and an authority’s obligation to consider all factors and carefully
evaluate each “relevant” factor enumerated in th is Article, please see the immediately prior section.
73 The impact of the Kobe earthquake was raised by Polish respondents at the oral hearing in Bangkok,
during verification, and in the respondents’ 13 May 1997 submission (Exhibit THAILAND 40).
74 We note that the non-confidential document provided by Thailand as Exhibit Thailand 21, was not
furnished to Polish respondents and was not, to the best of our knowledge, a part of the Final Determination.
75 We note further that in paragraph 2.5 of the Final Determination, the DIT states that SYS was forced
to “match” Polish prices.
76 See footnote 56 above.
77 See footnote 55 above.
78 See table entitled “Average Quarterly Price” attached to Final Injury Information Notice, Exhibits
POLAND 10, 11.WT/DS122/R
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99. Turning now to the confidential information of the DIT, Poland respectfully notes again (and
at the risk of repetition) that not a single one of the Thai authorities’ key “facts” finds support in
Exhibit 44, the “Information for Final Determination Prepared by the Department of Foreign Trade” .
As noted above, DIT publicly determined that Polish prices fell, when they actually rose.  DIT
publicly determined that Thai prices fell sharply when Thai prices were “stable” .  DIT publiclydetermined that Polish prices “influence[d]” Thai prices, causing SYS to have to “match” Polish
import prices, when that was not true – Thai prices were and remained much higher.  It found that
Polish and Thai prices “move in the same direction”, when that was not true.  DIT publicly
determined that Polish import volumes surged, wh en Thai secret data are incomprehensible and
support no such determination.  DIT publicly determined that domestic demand rose 4 per cent, whenThai secret data show both that it rose [D*] per cent,  but also that it fell.  DIT publicly determined that
Polish market share had risen from 24 per cent to 26 per cent in the IP, when all “evidence” in the
record showed the rise to be from 24.2 per cent to  25.3 per cent.  DIT publicly determined that SYS’
domestic prices were lower than SYS’ export prices when Thai secret data declare the opposite -- that
SYS’ domestic prices were higher than SYS’ export prices.  In sum, and given the Thais' secret
finding of “price stability with reference to the subject merchandise”.79  Exhibit 44 separates the state
of the domestic industry from any activities of Polish importers and offers no meaningful basis for
any of Thailand's conclusions regarding volume levels or price effects or whether any “injury” was
indeed caused by reason of Polish imports.
100. The “secret” Thai data are remarkable in a number of other respects.  First, Thailand has
blacked out the cost of production data.  Poland cannot speculate as to why Thailand has refused torelease such outdated information, but glimpses of a possible motive remain in Exhibit 44.  For
example, paragraph 4.8 points to SYS losses “due to operating expenditures that cannot be reduced.”
Similarly, paragraph 5 states that “SYS has to bear the costs of new entrants which [are], as a rule,
high”.  It is thus clear that SYS, like any new entrant in its position, had high costs and high operating
expenditures that it could not reduce.  This is no su rprise – but the failure of the Thai authorities to
evaluate this obviously relevant economic factor is itself a violation of Articles 3.4 and 3.5.  We
discuss the cost of production further below.
101. Moreover, Exhibit 44 also details another of the key relevant economic factors affecting the
state of the industry – namely the global nature of the steel market, the high prices that pre-dated theIP (due both to the demand cycle and to the interruption of supply due to the Kobe earthquake), and
the subsequent evolution of prices due to effects of supply and demand.  As the DIT wrote:
Whereas SYS relied on export for about [X-Conf.]  per cent of its sales, it is much
effected [sic] by the downturn of world market price for H-beams.  This is due to thefact that there is a slowdown of construction world-wide coupled with the fact that
the total production capacity far surpassed demand. 
102. The examination of this evidence, moreover, cannot be divorced from the admission of Thai
authorities that “most evidence[] of domestic injury indicate a positive performance of the   [sole Thai]
company.
80  It is, of course, undisputed that SYS’s production, capacity, capacity utilization,
employment, domestic sales volume, overseas sales volume, and market share all increased strongly
in the IP. SYS inventories fell even as production was rising.
103. Moreover, Thailand’s argument regarding the heal th of SYS must be viewed in light of two
additional relevant facts.  First, there are no meaningful cost of production data on the public record of
the investigation, and Thailand has failed to submit such data to the Panel.  SYS’ desire of
“maintaining and expanding the market share, so that the volume of sale will be efficient for the
                                                     
79 Exhibit 44, paragraph 5, page 13.
80 Final Injury Information Notice, at page 3, paragraph 16.  Exhibits POLAND 10, 11.WT/DS122/R
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factory production and to achieve economy of scale"81 was simply the rational act of a high-cost
producer, a new firm seeking to sell at any price above its marginal cost of production, in order to
recover high fixed costs.82  Polish respondents made arguments to Thai authorities regarding the
inevitable high start-up costs associated with entry into a capital-intensive industry, but Thai
authorities failed to examine thes e factors in their determination.83  Second, SYS had been selling
steel for only a matter of months during the time period at issue.  In addition to a high cost structure,
SYS was an untested market entrant with no track record among customers.  Like any new entrant in a
capital-intensive industry, SYS could not reasonably expect to recover fully allocated costs in a few
calendar quarters, and thus the company was a victim of its own unrealistic expectations.  Simply put,
the Thai authorities were not objective when they bl amed imports for SYS’ failure to recover all costs
in such a short period of time, thereby denying the most basic marketplace realities.
104. Rather than face the undeniable health of the new Thai producer, Thai authorities simply
declared that SYS’s health “cannot” be an indicator that “the domestic industry has suffered no injury
from Polish imports".84  By this very declaration, Thailand has  impermissibly reversed the standard
of causation set forth in Article 3.5, as well as the positive evidence requirement in Article 3.85
Respondents are not tasked with proving “no injury” in order to escape an anti-dumping duty order; it
is the petitioner that always bears the burden of showing “significant” impact based on “positive
evidence” and causing “material” injury.
105. As we have explained, it is the Republic of Poland’s view that the Thai DIT’s determinations
regarding injury are an attempt to protect Thai industry from fair competitive forces in contraventionof the evidence on the record, and the Final Determination nearly admits as much.  SYS was a new
entrant in the steel market in 1995 and Thai authorities candidly confessed their intent that “the
company must maintain and increase its market share"
86 and that “it is imperative that the domestic
industry’s market share be preserved and expanded".87  As Poland has stated previously, the DIT is to
be commended for its honesty.  But even as a new firm and the sole Thai producer of subject goods,SYS was not entitled to immunity from competition.  It has no guaranteed right to recover costs or be
profitable in a given period of time, no right to “maintain and increase its market share”, and no right
to a closed domestic market to ensure its profitability.  Thai authorities violate their WTO obligations
by finding injury by reason of imports in such circumstances.  There is no separate causation standard
available to new company complainants.
IV. ADA THAILAND USED AN UNREASONABLE PROFIT FIGURE IN ITS NORMAL
VALUE CALCULATION, IN VIOLATION OF ARTICLE 2
106. The Anti-Dumping Agreement is intended to implement and “govern the application of
Art. VI of GATT 1994".
88  Thus, the provisions of the Anti-Dumping Agreement must be read and
interpreted in light of GATT 1994.  Article VI(1)(b)(ii) of  GATT 1994 states that a product is sold at
less than normal value if, inter alia, it is exported from one country at a price that is less than “the cost
                                                     
81 Final Injury Notice at paragraph 7.
82 Exhibit THAILAND 44 at paragraphs 4.8, 5.
83 See Polish respondents' submissions, Exhibits THAILAND 35, 40.
84 Final Injury Determination, Exhibit POLAND 13 at page 2, paragraph 2.5 (emphasis added).
85 The DIT’s Final Injury Determination includes an apparent finding of threat of material injury by
reason of Polish imports.  Exhibit POLAND 13 at paragraph 2.  This was the sole indication to Polishrespondents that they were facing a “threat” case.  If  the Thai authorities did in fact make such a finding, itwould violate Article 3.7 of the Anti-Dumping Agreement as being based solely on “allegation, conjecture, ormere speculation”.  There is no evidence on the record of  such a threat and no such evidence was ever requested
from any party, to the best of our information.
86 Final Injury Information Notice, Exhibits POLAND 10, 11, at page 3, paragraph 16.
87 Final Injury Determination, Exhibit POLAND 13, at page 2, paragraph 2.5.
88 See Anti-Dumping Agreement Article 1.WT/DS122/R
Page 139
of production of the product in the country of origin plus a reasonable addition for selling cost and
profit” (emphasis added).  Given this explicit re quirement in GATT that the amount added for profit
must not exceed what is “reasonable,” the provisions of the AD Agreement implementing this GATT
Article are properly read to include a “reasonableness” requirement.
107. As Poland has stated in its First Written Submission and First Oral Statement, the ordinary
meaning of the above provisions is clear and appl ies to all sub-paragraphs of Article 2.2:  when
normal value is calculated based on the cost of production and other expenses, only a “reasonable”
amount may be added for profit in the calculation.  Adding an unreasonable amount of profit in any
such calculation necessarily violates a Member’s obligations under Article VI GATT 1994 andArticle 2.2 of the Anti-Dumping Agreement.
108. Article 2.2.2  sets forth a number of alternative methodologies for calculation of profit “for
the purpose of ” Article 2.2.  First, it provides that
[f]or the purpose of paragraph 2, the amounts for administrative, selling and general
costs and for profits shall be based on actual data pertaining to production and sales in
the ordinary course of trade of the like product by the exporter or producer underinvestigation.  (Emphasis added.)
But where such amounts cannot be determined on this basis, Article 2.2.2 further provides that they
“may” be determined on the basis of other “reasonable” methodologies:
(i) the actual amounts incurred and realised by the exporter or producer inquestion in respect of production and sales in the domestic market of the country of
origin of the same general category of products;
(ii) the weighted average of the actual amounts incurred and realised by other
exporters or producers subject to investigation in respect of production and sales ofthe like product in the domestic market of the country of origin;
(iii) any other reasonable method, provided that the amount for profit so
established shall not exceed the profit normally realised by other exporters or
producers on sales of products of the same general category in the domestic market of
the country of origin.  (Emphasis added.)
109. As Poland has stated previously, we read Article 2.2.2 as establishing “reasonable”
methodologies for purposes of Article 2.2, but believe it is clear that Members understood that such
methodologies may, in some cases, yield unreasonable  results – which, pursuant to Article 2.2, are not
to be employed in constructing normal value.  We note that the second sentence of Article 2.2.2provides only that the subsequent methodologies   “may” be employed, whereas if use of such
methodologies were required, the second sentence, like the prior sentence, would have employed the
verb “shall”.  Here, we believe, Members instead expressed uncertainty as to whether such
methodologies would indeed ipso facto yield reasonable results.  We believe this is also clear from the
requirement of subparagraph (iii), which expressly provides that even reasonable methodologies maysometimes yield results that are not fairly usable in constructing value.  Subparagraph (iii) is also
instructive because the ceiling it imposes (that the amount of profit included may not exceed that
“normally realised . . .”) is arguably stricter than that of the “reasonableness” standard which
otherwise flows from Article 2.2 to each provision thereunder.
110. This conclusion -- that methodologies may not be applied blindly  -- receives further
contextual support from other provisions within  Article 2.2.  For example, Article 2.2.2 (firstWT/DS122/R
Page 140
sentence) limits “actual data” to data objectively “pertaining to production and sales in the ordinary
course of trade” (emphasis added).  Thus data that would themselves be unrepresentative, and
therefore yield unrepresentative results, shall not be employed.  Similarly, in order to attempt to
achieve such representativeness – that is, to prevent results which, while arithmetically correct, are not
themselves representative or “reasonable” – all profit amounts calculated under subparagraphs (i) or(iii) must be calculated not on small (and thus more likely unrepresentative) market segments, but
rather more broadly so as to cover all production and sales “of the same general category of products”
(emphasis added).  (This contrasts importantly with Article 2.2.2 (first sentence) which allows forcomparison within the narrower “like product” category).
89
111. As Poland has explained previously, in this investigation, the Thai investigating authorities
properly determined that DIN specification Polish sales were not comparable to Thai sales of JIS
standard products and that, as a result, a proper comparison of prices between like products could not
take place between the DIN and JIS materials.  They instead proceeded, as suggested by Polish
respondents, to employ a constructed value calculation. In doing so, they used the methodology setforth in Article 2.2.2(i), but utilized the wrong sales and production data.  More specifically, Thailand
had an obligation to use production and sales data not just of H-Beams, but more broadly of all
products “of the same general category” – i.e., “Angles, shapes and sections of iron or non-alloy steel
under HS 7216” (emphasis added).90  As set forth above, this requirement is expressly provided in
Article 2.2.2(i) to avoid what occurred in this case – use of a profit figure well above what even the
petitioners claimed was reasonable.
112. Thailand used a profit rate of 36.3  per cent in its final calculations.  This figure was more than
five times the maximum “reasonable” amount of profit (7 per cent) that had been alleged by SYS in
its anti-dumping petition, more than six times the figure (6 per cent) used by SYS in its suggested
calculation of normal value, and  more than eight times the profit margin (4.55 per cent) for Huta
Katowice verified by Thai authorities and shown in the company’s most recent annual income
statement that was before the DFT.91  In arriving at a profit rate of 36.3 per cent, Thai authorities
claimed to be using the alleged profits from the sales in Poland of DIN products – the very sales that
Thai authorities had conclusively rejected for purposes of a normal value comparison of like products.
But data for the broader “same general category of product” were not employed.  Moreover, Thaiauthorities also neglected the verified fact that Huta Katowice used different production processes inmaking these two products and that DIN-specificat ion H-Beams are a special niche product, newly on
the Polish market and not meaningfully produced or sold within the ordinary course of trade.
113. Even if the results had been based on the same general category of products, the calculation
must, for the reasons outlined above, still be examined to determine its reasonableness underArticle 2.2.  Poland has suggested a “rebuttable presumption” of reasonableness for these purposes,
based on the apparent preference for use of the methodologies set forth in Article 2.2.2, at least to the
                                                     
89 The use of the methodologies described in Art. 2.2.2 of the AD Agreement to calculate profit is
analogous to the use of “Best Information Available” and should be subject to the same limitations, as set forthin Annex II to the AD Agreement.  Paragraph 3 of Annex II states that “all information [submitted by theparties] which is verifiable, which is appropriately submitted . . . , [and] which is supplied in a timely fashion . .
. should be taken into consideration.”  Furthermore,  Paragraph 7 of Annex II states that when information for
BIA is drawn from a secondary source, the authorities should “check the independent sources at their disposal . .. .”  Like the use of BIA, the use of the results of the application of the methodologies under subparagraphs (i) or(iii) of Art. 2.2.2 is not per se  reasonable.  Instead, the reasonableness of those results must be measured in light
of other available data.
90 We view Thailand’ s contrary comments on this point (at paragraph 73 of its First Written
Submission) as ignoring the plain language of Article 2.2.2.
91 In its application for relief (at page 12, point 27), SYS informed the DFT that the “reasonable profit
rate” in the steel industry was between five and seven percent. Huta Katowice’s 1995 income statement, whichwas also properly before the DFT, shows that the company’s 1995 profit margin was 4.55 percent.WT/DS122/R
Page 141
extent they yield results complying with the “reasonableness” mandate of Article 2.2.  Yet, even such
a presumption arguably is not required.  The record in the investigation contained three other profit
figures, all closely similar, none even remotely at  the level assumed by the authorities.  Moreover,
given the substantial debate on these issues, includin g at verification, Thai authorities knew that there
were difficulties in proper comparison of DIN and JIS products and that different productionprocesses were involved, and these facts also required the DFT to question the appropriateness of
such an exorbitant figure.
114. Thus, the methodology of subparagraph (i) was not correctly employed in this instance.  It
yielded a profit amount that is grossly disproportionate to other evidence of reasonable profitcontained in the DFT record.  Indeed, petitioners have admitted as much.  In the face of such
evidence, Thailand has done precisely what a WTO Member may not -- it has constructed value using
an unreasonable profit amount. It is clear that if any of the profit figures in the DFT record had indeed
been used, the Polish respondents would not have been found to be dumping, based on Thailand’s
own calculations.  The result has been to penalize the Polish firms impermissibly.
V. THE SYS PETITION FAILED TO SA TISFY ARTICLE 5.2 AND, BY INITIATING
AN INVESTIGATION ON THE BASIS OF THAT PETITION, THAI AUTHORITIES
VIOLATED 5.3.  MOREOVER, THEY FA ILED TO GIVE REQUIRED NOTICE
UNDER ARTICLE 5.5
115. Poland’s claims under Article 5 are both simple and fundamental.
116. In the first instance Poland claims that the SYS petition on which the Thai investigation was
based failed, in violation of the chapeau of Articl e 5.2, to contain data, evidence, or analysis of any
kind regarding (1) the existence of injury to SY S or (2) a causal link between alleged dumping by
Polish firms and any such injury to SYS.   This contradicts the plain requirement of Article 5.2 that apetition must include “evidence of (a)  dumping, (b)  injury within the meaning of Article VI of
GATT 1994 as interpreted by this Agreement and (c)  a causal link between the dumped imports and
the alleged injury”.
92
117. Poland notes that, in further violation of Article 5.2, the SYS petition contained only rawnumerical data on alleged dumping.  Such raw data, in and of themselves, are not sufficient under,
inter alia , Article 5.2(iv), for they constitute no more than "simple assertions, unsubstantiated by
relevant evidence.".  Under Article 5.2, an application must contain information on the "evolution" of
import volume, the likely impact of (allegedly dumped) imports on the domestic industry, and the
attendant relevant economic factors and indices be aring on the likely state of the domestic industry.
As the Mexico-HFCS  panel explained (at para. 7.72 et seq .), the petition must contain "information",
in the sense of evidence, which must "demonstrate" the consequent impact of the (allegedly dumped)
imports on the domestic industry.  While the inclusion of the word "relevant" and the phrase "such as"
in Article 4.2(iv) may indicate that an application need not contain information on all the factors set
forth in Articles 3.2 and 3.4 of the ADA, it is nonetheless apparent that the application must containsufficient evidence to "demonstrate" the consequent impact of dumped imports.  this the SYS petition
also failed to do.
118. In the course of the Panel's First Substantive Meeting, Thailand expressed great irritation at
this Polish claim.  Thai officials indicated that Poland should content itself with indications regarding
injury and causation contained in the Thai notice of initiation.  We respectfully submit that such
suggestions are beside the point.  The text of Article 5.2 is plain;  the SYS petition (Exhibit
THAILAND 1) is lacking in respect of these fundamental due process requirements.
                                                     
92Please see attached Exhibits POLAND 17 and POLAND 18 .WT/DS122/R
Page 142
119. As a related matter, Poland alleges that Thai authorities failed to conform to the requirements
of Article 5.3 of the Anti-Dumping Agreement by initiating this investigation without determining
that the evidence in the SYS petition was “sufficient” in terms of both scope and accuracy to justify
the initiation of this investigation.  No authority should be deemed to have met its Article 5.3
obligations where a petition lacks two of the three basic requirements for initiation, and is whollydeficient with respect to the third.  Authorities have a plain obligation to conduct an objective
examination of the “accuracy and adequacy” of evidence before they may initiate an investigation.
120. Finally, Poland claims that Thailand failed to meet its obligations under Article 5.5 by
neglecting to provide Poland with notice of the planned initiation of this investigation, as requiredunder Article 5.5 of the Anti-Dumping Agreement, as read in conjunction with Article 12.1 thereof.
As Poland has stated previously, we recognize that this claim is based on a disagreement with the
Thai authorities as to the content of discussions held on 17 July 1996 between the DFT and the Polish
Government’s Commercial Counsellor in Bangkok.  We also recognize the difficulty for a panel to
rule properly based on oral communications.  For this very reason, we believe that Article 5.5 shouldbe read to require written “notice” to the government of the exporting country concerned, and no such
written notice, it must be agreed, was ever provided. We note that the Ad-Hoc Group on
Implementation of the Committee on Anti-Dumping Practices has discussed this question, including
the issue of the form of notice.  This discus sion, reported in the Ad-Hoc Group’s 4 August 1998
Summary Report, concerned  “whether an oral notification, or a note verbale, would be adequate” to
meet the requirements of Article 5.5.  The summary report appears to indicate that written notice was
surely satisfactory in form, but oral notification was not.
93
VI. THAILAND HAS VIOLATED ARTICLE 6 IN FAILING TO PROVIDE ESSENTIAL
INFORMATION TO POLISH RESPONDENTS DURING THE COURSE OF THE
INVESTIGATION
121. In its First Written Submission and its First Oral Statement, the Republic of Poland detailed
the Thai authorities’ violation of Article 6 by their denial to Polish firms of the opportunities
mandated under Article 6 for fair review of evidence during the course of an investigation.  As Polish
respondents stated in the investigation, “a party has no opportunity to properly defend itself if it does
not have access to the proof and evidence by which a foreign government proposes to foreclose futuresales in its territory.  Transparency is lost, and respondents appropriately believe that conclusions
were pre-ordained, regardless of actual evidence.”  As we have stated, this was regrettably the
situation in the case at hand.
122. Poland has raised its Article 6 claim as regards the Thai preliminary, draft final, and final
determinations.  These claims for fair access to information are particularly acute in a case like this
one where the authorities have recognized that “most evidence” showed the absence of injury.  In
such a circumstance, rather than continuing to issu e inconsistent draft or preliminary notices and then
“expressing surprise” when a proper explanation is requested, authorities have an obligation to
explain the basis for their conclusions, their evaluation of factors, and why certain facts weighed soheavily in the authorities’ determination.  By failin g to do so, Thailand has violated Article 6 in at
least three regards.
123. First, it has failed to offer Poland “meaningful opportunities . . . to see all information that is
relevant to the presentation of their case” so as to be allowed to make their “presentations on the basis
of this information”, as required by Article 6.4.  We submit that it would indeed have been
“practicable” for Thailand to do so, at the very least as regards coherent non-confidential summaries
                                                     
93 Committee on Anti-Dumping Practices, Ad Hoc Group on Implementation, Summary Report Of The
Meeting Of The Ad Hoc Group On Implementation Of The Committee On Anti-Dumping Practices, 27-28April 1998, G/ADP/AHG/R/4, 98-3074, 4 August 1998.WT/DS122/R
Page 143
of submitted information.  In this regard, we note, for example, that Polish respondents were never
informed of, or given a copy of, the non-confidential version of the SYS questionnaire response,
Exhibit THAILAND 21,  and were not provided a legally adequate copy of any petition, as the non-
confidential summary, Exhibit THAILAND 1, fails to meet the requirements of Article 5.3 AD.   We
further note that the Final Injury Determination was based not on detailed findings of fact, but on“draft”, “preliminary”, or “secret” findings, many of which contradict statements found in the Final
Injury Determination.
124. As a related matter, Poland submits that the internally inconsistent, conclusory, and opaque
nature of the non-confidential summaries that were provided do not meet the requirements ofArticle 6.5.1.  We note that summaries that are provided must be “in sufficient detail to permit a
reasonable understanding of the substance of the information submitted in confidence.”  That has not
been the case here.  Tossing out labels such as “price suppression” and “price undercutting” –
especially when contradicted by the very evidence on which such legal conclusions are claimed to be
based – cannot be said to meet this requirement.  As for Thailand’s claim that Article 6.5.1 requiresinterested parties to furnish non-confidential su mmaries of their submissions to investigating
authorities, but such authorities have no obligation to provide those summaries to exporters or foreign
producers, we find this claim plainly wrong.  Consistent with the provisions of Article 6.4 that
interested parties shall receive timely opportunity to review all non-confidential information material
to their claims, such summaries are provided to auth orities precisely so that they can then be provided
to interested parties.  This is no mere formality ; rather, it is fundamental to due process rights
enshrined in the Agreement.  Basic procedural fairness requires that respondents be given timelyaccess to any relevant data or analysis, so they may present their defense or request correction of
errors by the investigating authority.
125. Finally, Poland submits that Thailand has violated Article 6.9, because in the context of Thai
authorities inviting comments from Polish respondents on the proposed definitive determinations,Exhibit POLAND 11, Exhibit THAILAND 37, Thailand failed to inform Polish firms of the “essential
facts under consideration which form the basis for the decision whether to apply definitive measures.”
Further, such disclosure did not “take place in sufficient time for the parties to defend their interests”
within this investigation.  In this regard, we woul d emphasize that at no point during the investigation
did the Thai authorities provide the respondents, inter alia, a specification, or a proper weighing, of allrelevant economic factors used as the basis for the final injury determination by the Thai Department
of International Trade.  This would include, for example, any rational basis for using overlapping 12-
month periods for comparison in the final determina tion.  And the “disclosure” that took place at the
end of the investigation amounted to no more than referencing early “draft”  or “preliminary”
materials in the administrative record (now contradicted by other record facts), as well as materialssubmitted by the Polish respondents themselves.  Because the Thai documents were replete with
inconsistencies, Polish firms were denied the “esse ntial facts” underlying the Thai determinations.
94
VII. CONCLUSION
126. At issue in this dispute are several important precepts of the Anti-Dumping Agreement.
Thailand has failed to comply with its substantive and procedural obligations under the above-
referenced provisions of Article VI GATT 1994 and Articles 2, 3, 5, and 6 ADA.  Thailand further
believes that its anti-dumping practice is not subject to meaningful review by this Panel.  The standard
                                                     
94 We have suggested that these Article 6 claims must be read in the context of the requirements of
Article 12.2, which, of course, required the Thai final determination to “set forth, or otherwise make availablethrough a separate report, in sufficient detail the findings  and conclusions reached on all issues of fact and law
considered material by the investigating authorities.” Under Article 12.2.2, this includes, “all relevant
information on the matters of fact and law and reasons which have led to the imposition of final measures”including  “the reasons for the acceptance or rejection of  relevant arguments or claims made by the exporters
and importers.”WT/DS122/R
Page 144
of review in this dispute is plain, and the Panel should not retreat from its obligations to examine,
under Article 11 DSU and Article 17.6 ADA, the conformity of Thailand’s practice with Thailand’s
obligations to Poland under the Anti-Dumping Agreement.
127. For the foregoing reasons, the Republic of Poland respectfully renews its request that the
Panel find that the Kingdom of Thailand has imposed anti-dumping duties on exports from the
Republic of Poland in violation of the above-referenced requirements of the Anti-Dumping
Agreement.WT/DS122/R
Page 145
ANNEX 1-5
RESPONSE OF THE REPUBLIC OF POLAND TO THE
QUESTIONS FROM THE PANEL AND FROM THAILAND
(29 March 2000)
RESPONSES TO QUESTIONS FROM THE PANEL
A. REQUESTS BY THAILAND FOR RULINGS UNDER ARTICLE 6.2 DSU
1. Request with respect to Articles 5 and 6 AD
1. We note the following passage from the Appellate Body Report in the Korea – Dairy
Safeguard  case:
“… There may be situations where the simple listing of the articles of the
agreement or agreements involved may, in the light of attendant circumstances,
suffice to meet the standard of clarity  in the statement of the legal basis of the
complaint.  However, there may also be  situations in which the circumstances
are such that the mere listing of treaty articles would not satisfy the standard of
Article 6.2.  This may be the case, for instance, where the articles listed establish
not one single, distinct obligation, but rather multiple obligations.  In such a
situation, the listing of articles of an agreement, in and of itself, may fall short ofthe standard of Article 6.2.”
1 (emphasis in original)
(a) How is the phrase "in the light of attendant circumstances" in the above passage to be
interpreted, both in general, and in the cont ext of the present dispute?  What relevance,
if any, could this phrase have in this particular case.  Are there any "attendant
circumstances" in this case that might be  relevant to the request by Thailand for a
ruling under Article 6.2 DSU with respect to Articles 5 and 6 AD?  Please explain in
detail.
Reply
Poland submits that the phrase “in the light of attendant circumstances” in the quoted
paragraph should be interpreted in conjunction with the language used by the Appellate Body in theimmediately prior paragraph of the Korea – Dairy Safeguards case – whether “[i]n view of all the
circumstances surrounding that case . . . [the respondent had been] misled as to what claims were in
fact being asserted against it.”  In the context of th e present dispute, this requires the Panel to assess
whether actual prejudice – not vague claims thereof – has indeed been experienced by Thailand and, if
so, whether such prejudice is of an objectively significant magnitude as to warrant the drasticmeasures requested by Thailand.  As regards this final factor, we note that the word “misled” includes
an element of scienter or deliberate deceit on the part of an actor. Such intent has not been alleged and
surely was not present on the part of Poland in this regard.
The phrase “in light of the attendant circumstances” is also important to this dispute because
it requires an examination of “all the circumstances surrounding” Thailand’s request.  The substance
of Poland’s Articles 5 and 6 claims were well known to Thailand.
                                                     
1 WT/DS98/AB/R, para. 124.WT/DS122/R
Page 146
For several years now, Thailand has been amply aware of the contentions of Poland and of
Polish respondents that the Thai investigations were not properly initiated in two respects – (i) the
petition contained no evidence of injury or causation, such that the subject investigation should not
have been initiated; and (ii) the Thai authorities failed to provide required notice to the Government of
Poland before the investigation was initiated.
In addition, for several years now, the Thai author ities have known of Polish claims regarding
the insufficiency of the non-confidential evidence presented by Thai authorities to Polish firms during
the course of the investigation.  We note further the failure of Thai authorities to provide Polish
respondents with even a non-confidential version one of the key elements of this investigation, thepetitioner’s questionnaire response.
These claims were repeated in consultations before the request for establishment of this panel,
and in Poland’s First Written Submission and First Oral Statement.
(b) Does Poland's request for establishment “merely list” Articles 5 and 6 AD, or does it go
beyond a “mere listing”?
Reply
Poland's request with respect to Articles 5 and 6 goes beyond a “mere listing” for the reasons
stated in our response to Question 1(d) below.  We note at the outset that the quoted paragraph 124does not state that a “mere listing” would violate “the standard of clarity” of  Article 6.2 simply
because the article at issue established multiple obligations.  Rather, the quoted paragraph simply says
that “this may be the case”.  In the Korea – Dairy Safeguards case, in fact, the European Communities
simply requested establishment of a panel for unspecified “breach of Korea’s obligations under the
provisions of the Agreement on Safeguards, in particular Articles 2, 4, 5, and 12 of the saidAgreement and in violation of Article XIX of GATT 1994,”  (WT/DS98/4). This terse statement
contrasts significantly with the terms of Poland’s request.  Please see Response to Question 1 (d)
below.
(c) Do Articles 5 and 6 AD each establish one single, distinct obligation or rather multiple
obligations? What is the basis for your response?
Reply
The Appellate Body report in Korea – Dairy Safeguards  does not answer this question, in our
view.  For example, in paragraph 129 thereof, the Appellate Body makes plain that each of a number
of paragraphs in the Safeguards Agreement contai ns distinct obligations, but does not make clear,
whether those obligations, collectively, may be viewed as a single obligation.
(d) If Poland is of the view that the request for establishment goes beyond a mere listing,
would Poland please identify specifically all additional elements that describe its claims
under Articles 5 and 6 AD?  If Poland is of the view that the request for establishment
“merely lists” Articles 5 and 6 AD, would Poland please explain why in its view this
satisfies the standard of Article 6.2, e.g. are there any "attendant circumstances",
particularly in view of the fact that each of these articles may establish multiple
obligations?  Please explain, indicating any relevant parts of the Panel record as it
currently stands.WT/DS122/R
Page 147
Reply
As Poland has stated above, it does not regard its request for establishment as constituting a
“mere listing”, as that term was used by the Appellate Body regarding the EC’s request in Korea –
Dairy Safeguards.  Poland’s Request is significantly more informative as to the legal basis of
Poland’s complaint than the EC request then unde r scrutiny. We would note that these claims are
expanded upon in the request for consultations and were the subject of extensive consultation between
the parties on 29 May 1998.  We would further note that these very claims had been raised by Polish
respondents and the Polish government during the investigation that is the subject of this dispute –
with the exception of our claim that Thailand fail ed to supply Polish respondents with the SYS non-
confidential questionnaire response – which, until it was submitted to the Panel as Exhibit
THAILAND 21, was unknown to the Polish side. Finally, the claims have been set forth in plain
terms both in Poland’s First Written Submission and in Poland’s First Oral Statement and First
Concluding Statement.  Please see Poland’s responses below to questions 1-4.
Even if the Panel were to decide that Poland’s claims constitute a "mere listing”, we
respectfully submit that, “in light of attendant circumstances”, they meet the standard of clarity set
forth in Article 6.2 DSU.  This would be true whether or not the provisions in question establish
multiple obligations.  Thailand has experienced no actual prejudice as a result of these alleged
omissions, whose existence, in any event, was made clear only in the Korea – Dairy Safeguards case,
which was issued by the Appellate Body two mont hs after the Request for Establishment herein at
issue.  Furthermore, there has been no attempt by Poland to mislead or otherwise deprive Thailand ofits due process rights in this regard, any more than we are sure, Thailand sought to disadvantage
Poland through the untimely submission of its confidential data.  Given the identity of these claims
with those raised in the investigation and raised again at consultations, and the absence of intent or
actual prejudice in any meaningful sense, we submit that the “attendant circumstances” in this matter
require denial of Thailand’s procedural request.
Finally, the Article 6.2 DSU requirements must be read in the context of dispute settlement as
a whole, inter alia , “to secure a positive solution to a dispute” (Article 3.7 DSU) so as to provide
“predictability” in the multilateral trading system and to “clarify the existing provisions” of covered
agreements (Article 3.2 DSU).
For further discussion, please see discussion of this issue in Poland’s 29 March 2000 Second
Written Submission.
2. We note the following passage from the Appellate Body Report in the Korea – Dairy
Safeguard  case:
"… whether the mere listing of the articles claimed to have been violated meets
the standard of Article 6.2 must be ex amined on a case-by-case basis.  In
resolving that question, we take into  account whether the ability of the
respondent to defend itself was prejudiced, given the actual course of the panel
proceedings, by the fact that the pane l request simply listed the provisions
claimed to have been violated."
2
(a) What is the meaning of the phrase "given the actual course of the panel proceedings" in
the above passage?  Would it, for example, permit the subsequent "remedying" of a
possibly insufficient panel request in the cour se of the panel proceedings?  How is this
phrase to be interpreted and applied in the pr esent case in respect of the request for a
ruling under Article 6.2 relating to Articles 5 and 6 AD?  Please explain in detail.
                                                     
2 WT/DS98/AB/R, para. 127.WT/DS122/R
Page 148
Reply
Poland submits that the phrase “given the actual course of the panel proceedings” in the cited
passage means that a respondent must have experienced actual prejudice, in an objective sense, beforeeven a “mere listing” of relevant provisions woul d violate the standard of Article 6.2.  This phrase
requires that prejudice be viewed in light of the to tality of circumstances and clearly contemplates that
a possibly insufficient panel request may be “remedied” by subsequent clarification, particularly in
the absence of any intent to “mislead” on the part of the complaining party.  In Poland’s view, the
Panel must therefore consider not just the Request itself, but also Poland’s First Written Submission,First Oral Statement and First Concluding Statement, as well as answers provided by Poland during
the Panel’s First Substantive Meeting and during the course of the underlying investigation.  On all of
these occasions, each of Poland's concerns was raised with Thai authorities.  We would further submit
that, even then, further submissions, statements, or answers by Poland could serve to remedy any
remaining “insufficiency” on this issue.
3. Up until this point in the Panel proceedings , what are the specific allegations raised by
Poland and the specific paragraphs of Articles 5 and 6 AD under which Poland has raised these
allegations?  Please identify any relevant parts of the Panel record.
Reply
Poland’s Article 5.2 claim is that the SYS application failed to include any evidence of (i)
injury within the meaning of Article VI of the GATT 1994, as interpreted by the Antidumping
Agreement and (ii) a causal link between allegedly dumped imports and the alleged injury.  Poland is,
quite obviously, not in a position to make any claim regarding the “sufficiency” of any such perhaps-
still-to-be-submitted evidence.  Relevant parts of the Panel record include paragraphs 86-90 ofPoland’s First Written Submission, paragraphs 9, 52-57, and 69 of Poland’s First Oral Statement, and
Exhibits POLAND 17 and 18, attached to our Second Written Submission, which detail Poland’s
raising of these claims with Thailand in September and October 1996, respectively.
Poland’s Article 5.3 claim is that Thailand failed to “examine the accuracy and adequacy” of
the SYS petition in order to “determine whether there is sufficient evidence to justify the initiation”.
Given the absence of evidence on injury and causation from the SYS petition, Thailand’s initiation of
an investigation violated the plain terms of Article 5.3.  This claim is evidenced in the same parts of
the Panel record as Poland’s Article 5.2 claims.
Poland’s Article 5.5 claim is that Thailand failed to “notify” Poland of Thailand’s “receipt of
a properly documented application” and Thailand’s intent to “proceed[] to initiate an investigation”.
Relevant parts of the Panel record include paragraphs 86-90 of Poland’s First Written Submission,
paragraphs 9, 52-57, and 69, new Exhibits POLAND 17 and 18, attached to our Second Written
Submission, and Exhibit THAILAND 14.
Poland’s Article 5 claims also were the subject of substantial comment by Poland during the
‘Question and Answer’ portions of the Panel’s First Substantive Meeting.
Poland’s Article 6.4 and 6.5 claims may be summarised together as follows.  The Thai
preliminary, draft final, and final determinations are opaque, internally inconsistent, and conclusory
summaries that fail to offer Polish respondents “meaningful opportunities . . . to see all informationthat is relevant to the presentation of their case” so  as to be allowed to make their “presentations on
the basis of this information”, as required by Article 6.4.  Furthermore, Thailand violated Article 6.4
in that Polish respondents were never informed of, or given a copy of, the non-confidential version of
the SYS questionnaire response, Exhibit THAILAND 21, and were not provided a legally adequateWT/DS122/R
Page 149
copy of the petition, as the non-confidential summary, Exhibit THAILAND 1, fails to meet the
requirements of Article 5.3 AD.   We further note that the Final Injury Determination was based not
on detailed findings of fact, but on “draft”, “preliminary”, or “secret” findings, many of which
contradict statements found in the Final Injury Determination.
As a related matter, Poland submits that the internally inconsistent, conclusory, and opaque
nature of the non-confidential summaries that were provided do not meet the requirements of
Article 6.5.1.  We note that summaries that are provided must be “in sufficient detail to permit a
reasonable understanding of the substance of the information submitted in confidence.”  Of course,
failure to provide such summaries at all (Exhibit THAILAND 21) – or to provide wholly inadequateones (Exhibit THAILAND 1) also violates these express requirements.
Finally, Poland submits that Thailand has violated Article 6.9, because in inviting comments
from Polish respondents on the proposed definiti ve determinations, Exhibit POLAND 11, Exhibit
THAILAND 37, Thailand failed to inform Polish firms of the “essential facts under considerationwhich form the basis for the decision whether to apply definitive measures.”  Further, such disclosure
did not “take place in sufficient time for the parties to defend their interests” within this investigation.
In this regard, we would emphasize that at no point  during the investigation did the Thai authorities
provide the respondents, inter alia , a specification, or a proper weighing, of all relevant economic
factors used as the basis for the final injury determination by the Thai Department of International
Trade.
In addition to the Request for Establishment itself, Poland’s Article 6 claims are set forth in
paragraphs 91-95 of Poland’s First Written Submission, paragraphs 58-65 of Poland’s First Oral
Statement, Poland’s Concluding  Statement, Exhibits POLAND 14, 15, and 16, and THAILAND 27.
Poland’s Article 6 claims also were the subject of substantial comment by Poland during the
‘Question and Answer’ portions of the Panel’s First Substantive Meeting.
Without repeating here the details provided else where, any claims by Thai authorities of the
sufficiency of their draft final and final determinations is wholly shattered by the facts as set forth in
Exhibit THAILAND 44.
4. The Panel notes that evidence in the record (Exhibit THAILAND 14/Exhibit POLAND
4) shows that the issue of notification under Article 5.5 AD was raised by Poland during the
course of the anti-dumping investigation.  Is this relevant to the request by Thailand for a
preliminary ruling to dismiss Poland’s claims under Articles 5 and 6 AD for lack of specificity
under Article 6.2 DSU?  Please explain in detail.  Were other issues that have been raised byPoland in these Panel proceedings under Articles 5 and 6 AD raised by the Polish exporters
during the course of the anti-dumping investigation?  If so, please describe in detail and indicate
where this is reflected in the record.
Reply
The issue of the sufficiency of a request for establishment depends, ultimately, on whether a
respondent objectively has been “misled” in a manner actually prejudicing its ability to defend itself.
Such prejudice must be determined in light of the totality of the circumstances, “given the actual
course of the panel proceedings”.  In this inquiry, a respondent’s actual knowledge of these claims is
highly relevant; indeed, we submit, it is dispositive.  Thailand has known since 1996 the precise
nature of Poland’s claims as to the insufficiency of the “notice” it provided prior to initiation.  SeeExhibits POLAND 4, 17, 18; Exhibit THAILAND 14.  As a result, and despite increasingly
unfortunate language to the contrary, there can be no resultant prejudice to Thailand’s interests on this
matter.WT/DS122/R
Page 150
Similarly, the substance of Poland’s Article 5.2, 5.3, 6.4, 6.5, and 6.9 claims are found
repeatedly in the record of the underlying investig ation, as detailed at length above in response to
question 3 from the Panel
2. Request with respect to Articles  2 and 3 AD and Article VI GATT 1994
5. In para. 8 of its closing statement at the first substantive meeting of the parties with the
Panel on 8 March 2000, Thailand states that it "con siders that it is suffering serious prejudice in
attempting to respond to Poland's vague and imprecise claims" with respect to Article VI of
GATT 1994 and Articles 2 and 3 of the Anti-Dumping Agreement and "requests that the Paneldetermine whether Poland compli ed with Article 6.2 of the DSU with respect to purported
claims under Article VI of GATT 1994 and Articles 2 and 3 of the Anti-Dumping Agreement".
(a) How does Poland react to this request by Thailand?
Reply
Please see Poland’s response to the next question from the Panel, question 5(b).
(b) What relevance, if any, is there in the fact that this request by Thailand under
Article 6.2 DSU concerning Articles 2 and 3 AD and Article VI GATT 1994 occurred at
this point in the Panel proceedings?
Reply
Poland finds Thailand’s request both untimely and somewhat shocking. Thailand failed to
make such claims in its First Written Submission, First Oral Statement, or during the 1 ½ days of
substantive meetings before its closing statements.  The implication therefore is that somehowPoland’s claims became objectively less clear to Thailand during the “actual course of the panel
proceedings.”  Any such view is simply without me rit.  Beyond the untimely nature of this unfounded
request, we note, for example, that Poland responded orally to very precise questions from Thailand
and the Panel regarding its claims under these provisions.  It is unfortunate that Thailand has chosen
to ignore the request clarifications that Poland has provided.  Please see Responses to Questions  6-9,
below.
6. We refer to the passage from paragraph 124 of the Appellate Body Report in Korea –
Dairy Safeguard  cited in question 1 above.
(a) Are there any "attendant circumstances" in this case that might be relevant to the
request by Thailand for a ruling under Article 6.2 DSU with respect to Articles 2 and 3
AD and Article VI GATT 1994?  Please explain in detail.
Reply
We wish to note the actual text of the Polish request for establishment. As regards Poland’s
Article 3 claims, the Request provides
Thai authorities have made a determination that Polish imports caused injury to the
Thai domestic industry, in the absence of, inter alia,  “positive evidence” to support
such a finding and without the required “objective examination” of enumeratedfactors such as import volume, price effects, and the consequent impact of such
imports on the domestic industry, in contravention of Article VI of GATT 1994 and
Article 3 of the Antidumping Agreement;WT/DS122/R
Page 151
This is not a “mere listing” as was present in the Korea – Dairy Products  dispute. There, as stated, the
European Communities requested establishment of a panel simply for unspecified “breach of Korea’s
obligations under the provisions of the Agreement on Safeguards, in particular Articles 2, 4, 5, and 12
of the said Agreement and in violation of Arti cle XIX of GATT 1994,”  (WT/DS98/4). By contrast,
Poland’s Request is hinged on actual language from  the relevant sub-provisions of Article 3, and any
fair reading of this paragraph would lead to the conclusion that Poland was advancing Article 3 claims
under paragraphs 1, 2, 3, and 5, thereof.  Moreover, consideration of the “attendant circumstances”
would remove any doubt that might linger among respondents or their counsel.  Such attendant
circumstances, in light of the actual course of these proceedings,  would surely include a careful
reading of Poland’s First Written Submission (p aras. 47-76) and Poland’s First Oral Statement
(paras. 26-42), as well as a careful consideration of Poland’s responses to questions from the panel
regarding these provisions.   We would further note that Poland’s claims are those made at great
length during the course of the Thai investigation, and during the 29 May 1998 bilateral consultations,
and thus clearly represent no surprise to the Thai authorities.   We would respectfully call the Panel’s
attention to the 1997 briefs of Polish respondent s in the investigation, where Articles 3.1, 3.2, 3.4, 3.5
were quoted, cited, and relied on.  Exhibits THAILAND 35, 40; Please see Responses to Questions 5,
7-9, below.
Second, Thailand now claims that it has somehow suffered prejudice as regards Poland’s
Article 2 claim.  First we note that Poland’s request for establishment provides:
Thai authorities have made a determination of dumping and calculated an alleged
dumping margin in violation of Articl e VI of GATT 1994 and Article 2 of the
Antidumping Agreement.
Once again, this is not a “mere listing” as was present in the Korea – Dairy Products  dispute.   In light
of the course of these proceedings and the bilateral consultations between the parties, it is
unimaginable how Thai authorities could experience any uncertainty or prejudice regarding this claim.Moreover, any doubt that might linger among respondents or their counsel would surely be removed
by reading Poland’s First Written Submission ( i.a., paras. 77-84), Poland’s First Oral Statement ( i.a.,
paras. 43-51), and listening to Poland’s responses to questions from the panel regarding these
provisions. As above, we would further note that Poland’s claims are those made at great length
during the course of the Thai investigation, and during 29 May 1998 bilateral consultations, and thusclearly represent no surprise to the Thai authorities.   We would respectfully call the Panel’s attention
to the briefs of Polish respondents in the investigation, where Articles 2 and 2.2 and quoted, cited, and
relied on.  Exhibits THAILAND 35, 40; Please see Responses to Questions  5, 7-9, below.
(b) Does Poland's request for establishment “merely list” Articles 2 and 3 AD and Article
VI GATT 1994, or does it go beyond a “mere listing”?
Reply
As discussed more fully in our 29 March 2000 Written Submission and below in response to
question 6 (d) from the Panel, Poland’s two paragraph discussion of its Article 2 and 3 claims goes
well beyond a “mere listing”.
(c) Do Articles 2 and 3 AD and Article VI GATT 1994 each establish one single, distinct
obligation, or rather multiple obligations ?  What is the basis for your response?
Reply
As regards Question 6(c), please see Poland’s answer to question 1(c), above.WT/DS122/R
Page 152
(d) If Poland is of the view that the request for establishment goes beyond a mere listing,
would Poland please identify specifically all additional elements that describe its claims
under Articles 2 and 3 AD and Article VI GATT 1994?  If Poland is of the view that the
request for establishment “merely lists” Articles 2 and 3 AD and Article VI GATT 1994,
would Poland please explain why in its view this satisfies the standard of Article 6.2, e.g.are there any "attendant circumstances", partic ularly in view of the fact that each of
these articles may establish multiple obligation s?  Please explain, indicating any relevant
parts of the Panel record, as it currently stands.
Reply
Poland’s Article 3 claim quotes the express language of Article 3.1, the cornerstone of any
injury analysis.  In the words of the Panel in Mexico-HFCS,  “The succeeding sections of Article 3
provide more specific guidance on the determination of injury.” Mexico-HFCS Panel Report  at
paragraph 7.119 .  The compatibility of a Member’s practice with its obligation under Article 3.1 is
thus determined utilising, inter alia , the evaluative standards set forth in Articles 3.2, 3.4, and 3.5.
Although Poland's Request did not refer explicitly to each of these subparagraphs of Article 3 by
number, the language of the Request clearly and unambiguously implicates each of these
subparagraphs.  When Poland referred to “import volume and price effects”, it was thus referring as
well to consideration of “the volume of dumped imports” and “the effect of the dumped imports on
prices” in Article 3.2.  When Poland referred to Thailand’s failure to conduct “the required ‘objective
examination’ of the enumerated factors such as ...” it was thus referring as well to the factors
enumerated  in Article 3.4 (hence the term “such as) which have a bearing on the state of the industry.
When Poland referred to Thailand’s finding “that Po lish imports caused injury” in the absence of a
proper assessment of the “consequent impact of such imports on the domestic industry” it was
referring as well to the causation standard set forth in Article 3.5.  We think any objective reader of
this paragraph would clearly understand Poland's specific objections and the subparagraphsimplicated by those objections, as apparently Thailand did until 1 ½ days into the Panel proceeding.
Under very much the same reasoning, Poland’s Article 2 claim does not constitute a mere
listing under the standard of Korea – Dairy Products.  Poland explained that it was challenging both
the determination of dumping and the calculation of the alleged dumping margin.  In particular, thephrase “calculation of the dumping margin” should have provided Thailand with sufficient notice as
to the particulars of Poland’s Article 2.2 claim.
We would emphasise that each of these claims were made in detail in the underlying
investigations and repeated in the bilateral cons ultations.  Thus, Thailand cannot complain that it
lacked actual knowledge of the particulars.
For further discussion why “attendant circumstances” preclude dismissal of Poland’s Article 2
and 3 claims, even if they are deemed by the Panel to constitute a  “mere listing”, please see Poland’s
response to questions 6 (a) –(c) from the Panel.
7. We refer to the passage from paragraph 127 of the Appellate Body Report in Korea –
Dairy Safeguard  cited in question 2 above.
(a) How is the phrase "given the actual course of the panel proceedings" to be interpreted
and applied in the present case in respect of the request by Thailand for a ruling under
Article 6.2 relating to Articles 2 and 3 AD and Article VI GATT 1994?WT/DS122/R
Page 153
Reply
As set forth i.a. in our response to Question 2 above, we believe that the phrase “given the
actual course of the panel proceedings" in the cited passage means that a respondent must have
experienced actual prejudice to its ability to defend its  interests, in an objective sense, before even a
“mere listing” of relevant provisions would violate the standard of Article 6.2.  This phrase requires
that ‘prejudice’ be judged in light of the totality of circumstances and clearly contemplates that a
possibly insufficient panel request may be “remedied” by subsequent clarification, particularly in the
absence of any intent to “mislead” on the part of the complaining party.  In Poland’s view, the Panel
must therefore consider issues raised not just in  the Request itself, but also those raised in the
underlying investigation, in the context of bilateral consultations, in complainant’s First Written
Submission, First Oral Statement, and First Concl uding Statement, as well as answers provided by
complainant during the Panel’s First Substantive Meeting.  We would further submit that, even then,
further submissions, statements, or answers by co mplainant could serve to remedy any remaining
“insufficiency” on this issue.
8. Up until this point in the Panel proceedings , what are the specific allegations raised by
Poland and the specific paragraphs of Articles 2 and 3 AD and Article VI GATT 1994 under
which Poland has raised these allegations?  Pl ease identify any relevant parts of the Panel
record.
Reply
As regards Article 2, Poland is claiming that, in violation of Article 2.2 AD and
Article VI:1(b)(ii) of GATT 1994 Thailand has failed to make a proper dumping calculation by its
inclusion of an unreasonable amount of profit in its constructed value calculation of normal value.
This claim is set forth in paragraphs 77-84 of Poland’s First Written Submission, paragraphs 43-51 ofPoland’s First Oral Statement.  In addition, the claim was discussed at great length during the First
Substantive Meeting.
As regards Article 3 and Article VI:6 (a) of GATT 1994, Poland is claiming that that
Thailand’s determination of injury was not made on the basis of “positive evidence” and an “objectiveexamination” of the facts, in violation of Article 3.1 AD, that Thailand failed to find a “significant”
increase in dumped imports and that price suppression or price depression had occurred to a
“significant” degree, in violation of Article 3.2 AD, that Thailand failed to a required examination of
“all relevant economic factors and indices having a bearing on the state of the industry,” in violation
of Article 3.4 AD, and that Thailand failed to demonstrate that Polish imports were causing injury tothe domestic industry, in violation of Article 3.5 AD.  These claims are set forth in paragraphs 47-76
of Poland’s First Written Submission, paragraphs 26-42 of Poland’s First Oral Statement, and were
discussed at great length during the First Substantive Meeting.
9. Were the issues under Articles 2 and 3 AD and Article VI GATT 1994 raised by Poland
in these Panel proceedings raised by the Polish exporters during the course of the anti-dumping
investigation?  If so, please describe in detail and indicate precisely where this is reflected in the
record.   Is this relevant to the request by Tha iland for a preliminary ruling to dismiss Poland’s
claims under Articles 2 and 3 AD and Article VI GATT 1994 for lack of specificity under
Article 6.2 DSU?  Please explain in detail.
Reply
Yes, all claims made by Poland under Article 2 and 3 in these Panel proceedings were raised
by Polish exporters during the course of the antidumping proceeding.WT/DS122/R
Page 154
As regards Article 2, Poland’s claims are, in particular, set forth in great detail in submissions
to the Thai authorities dated 9 March 1997 and 13 May 1997.  The 9 March 1997 filing, Exhibit
THAILAND 35 at pages 5-8, contains nearly four pages of discussion on addition of a “fair amount”
of profit in constructing normal value and includes a quotation and citation to relevant WTO and Thai
law.  The 13 May 1997 filing, Exhibit THAILAND 40 at page 5, contains an additional page ofdiscussion on use of a “fair amount” of profit in constructing normal value and again cites to relevant
WTO and Thai law.   This issue was discussed at the Hearing in Bangkok, Exhibit THAILAND 36, at
pages 3 and 6.  It was a subject of proposed definitive dumping determination,
Exhibit THAILAND 37, at points 1 and 6 and the comments on the proposed final dumping
determination, Exhibit THAILAND 41, at pages 3-4, as well as, of course, the final determinationitself.  See also confidential Exhibit THAILAND 44.   Proper calculation of profit also was a  subject
of the consultations held between the parties, as evidenced by Exhibit POLAND 17.
As regards Article 3, Poland’s claims are, in particular, set forth in great detail in submissions
to the Thai authorities dated 9 March 1997 and 13 May 1997.  The 9 March 1997 filing, ExhibitTHAILAND 35 at pages 2-5, contains nearly four  pages of discussion on the requirements for a
determination of injury quoting the requirements and/or citing the text of Article 3.1, 3.2, 3.4, and 3.5.
The 13 May 1997 filing, Exhibit THAILAND 40 at page 2-5, contains an additional four pages of
discussion on “injury”, the WTO standards, and the facts of this case.  This issue was discussed at the
Hearing in Bangkok, Exhibit THAILAND 36, at pages 3-5.  It was also a subject of the Final Injury
Information Notice, Exhibit THAILAND 37, and the comments on the proposed final dumping
determination, Exhibit THAILAND 41, as well as the Final Injury Determination itself.  See also
confidential Exhibit THAILAND 44.   Proper determination of injury was  also a  subject of the
consultations held between the parties, as evidenced by Exhibit POLAND 17.
These facts are most certainly relevant to Thailand’s request for preliminary ruling.  They
show that Thailand has long known the claims at issue in these proceedings and has not been “misled”in any way.  Allegations of prejudice resulting from surprise or unfamiliarity with these claims are
simply without merit.  Moreover, given the “actual course” of these proceedings, it should be plain
that Poland has clearly confirmed the claims made by Polish exporters in the underlying proceeding.
Any assertion of prejudice arising from Poland’s Request has begun to border on the disingenuous.
B. ARTICLE 5 AD
10. In the view of the parties, in light of the panel report in Mexico – HFCS , what
documents in the record are rele vant to the Panel's examination of Poland's claims concerning
the contents of the petition and the sufficiency of evidence to justify the initiation of the
investigation?
Reply
The only document in the record of relevance to the Panel’s examination regarding the
adequacy of the petition and the sufficiency of evidence to justify the initiation of the subject
investigation is Exhibit THAILAND 1, the SYS petition.  That document contains no information
regarding injury or causation.
11. In respect of its claims under Articles 5.2 and 5.3 AD, is Poland arguing that the petition
did not contain any information pertinent to some  of the factors listed in Article 5.2, or that
information was provided, but did not reflec t sufficient evidence of dumping, injury and
causation to justify the determination to initiate  an investigation, or both?  Please explain in
detail.WT/DS122/R
Page 155
Reply
Poland is arguing that the petition did not contain any information relevant to some of the
required factors listed in Article 5.2, i.e. injury and causation .   This claim is based on the only
information in our possession – the non-confidential versions of the petition.  Thailand is apparentlynow claiming that information on causation and injury was contained in the confidential version of the
petition, a claim that we are, for obvious reasons, in no position to evaluate.  If and when the
confidential version of the petition is supplied to the Panel and to Poland, Poland will be in a position
to evaluate whether it contains sufficient evidence of  injury and causation to justify the determination
to initiate an investigation.
12. Would Poland please indicate precisely how it considers that the Thai investigating
authorities did not comply with the requirement in Article 5.3 AD to examine "the accuracy and
adequacy of the evidence provid ed in the application to determine whether there is sufficient
evidence to justify the initiation" of the investigation?
Reply
Poland submits that an authority’s obligatio n to examine the “adequacy of the evidence
provided” extends to verifying that a petition indeed contains “adequate” evidence of injury and
causation, before an investigation is initiated.  Failure to ensure that these elements were contained in
the SYS petition constitutes a violation of Thailand’s duty under Article 5.3.
13. Did the petition contain data on dumping, injury and a causal link?  Did the petition
contain analysis concerning each of the factors on  which data were provided?   Please explain in
detail, citing specific parts of Exhibit THAILAND 1, where relevant.
Reply
The SYS petition (Exhibit THAILAND 1) contains no data, evidence, or analysis of any kind
regarding injury or causation.  It contains many charts and tables that were deemed to support a claim
of dumping, but there is no analysis at all of such  data.  As such, even the SYS claim of dumping by
Polish firms is unintelligible.  Please see Poland’s response to Question 14, below.
14. Does Article 5.2 require that an application contain analysis or is numerical data
enough?  Please explain, and indicate the relevance, if any, of the panel report in Mexico-HFCS .
Reply
In addition to lacking data on injury and causation, the SYS petition contained only raw
numerical data on dumping and such raw data, in and of themselves, are not sufficient under, i.a.,
Article 5.2 (iv).  Under Article 5.2, an application must contain information on the “evolution” ofimport volume, the likely impact of (allegedly dumped) imports on the domestic industry, and the
attendant relevant economic factors and indices be aring on the likely state of the domestic industry.
As the Mexico-HFCS  panel explained (at para. 7.72 et seq.), as such, the petition must contain
"information", in the sense of evidence, regarding the consequent impact of the (allegedly dumped)
imports on the domestic industry and such "information" must "demonstrate" the consequent impact
of the imports on the domestic industry.
   And while the inclusion in Article 5.2(iv) of the word
"relevant" and the phrase "such as" in the reference to the factors and indices in Articles 3.2 and 3.4may indicate that an application need not contain information on all the factors and indices set forth in
Articles 3.2 and 3.4, it is likewise apparent that the application must contain evidence sufficient to
“demonstrate” the consequent impact of dumped imports on the domestic industry.WT/DS122/R
Page 156
18. In its first written submission (para. 90), Poland alleges that notification under
Article 5.5 AD was "not properly or timely provid ed" by Thailand.  In its oral statement at the
first meeting (para. 57), Poland "recognise[d] that this claim is based on a disagreement with
the Thai authorities as to the content of discussions held on the 17th of July 1996 between the
DFT and our Government's Commercial Counsellor in Bangkok".To both parties
(a) Under what circumstances and for what stated purpose was Poland invited to the
meeting by Thailand?
Reply
The Thai authorities requested a meeting with the Polish Commercial Counselor in Bangkok
for the purpose of discussing the “troubling level”  of Polish steel imports into Thailand and what
could be done about them. No “notice” was given (or mention made) that an antidumping petition hadbeen received or that Thai authorities were to  initiate an investigation regarding H-Beams from
Poland.  Poland is unaware of any documents regarding this meeting other than Exhibit POLAND 4 /
THAILAND 14. We view the conduct of the Thai offici als as insufficient because of their failure to
“notify” our government on a timely basis that a properly documented petition had been received and
that an investigation would be initiated.
(b) What occurred at this meeting?  A re there any documents (other than Exhibit
POLAND 4 / THAILAND 14) including any invitation to and/or written record of, that
meeting that would indicate to the Panel the nature and content of the meeting?  If so,
please indicate where these are in the record, or provide them to the Panel.
Reply
As regards Question 8(b), please see Poland’s answer to question 8(a), above.
(c) Would Poland please clarify why, and on what legal basis, it does not consider this
meeting to have constituted sufficient notification under Article 5.5 AD with respect toits "timeliness" or its "propriety"?  What does Poland think should have happened at
this meeting, but did not?
Reply
As regards Question 8(c), please see Poland’s answer to question 8(a), above.
19. In its oral statement at the first meeting (para. 57), Poland states that "Article 5.5 is
meant to require written "notice" to the govern ment of the exporting government concerned".
(a) What is the legal basis for this view that Article 5.5 AD requires written notice?  Please
explain, in light of the text and context of the provision and any other relevant
considerations.
Reply
We note that the Ad-Hoc Group on Implementation of the Committee on Anti-Dumping
Practices has discussed this issue including the specific question of the form of notice required.  This
discussion, reported in the Ad-Hoc Group’s  Au gust 4, 1998 Summary Report, concerned  “whether
an oral notification, or a note verbale, would be adequate” to meet the requirements of Article 5.5.WT/DS122/R
Page 157
This summary report appears to indicate that written notice was surely satisfactory in form, but oral
notification was not.3
20. The Panel notes that Poland refers to Article 12 AD in connection with its Article 5.5
claim.
(a) On what basis does Poland invoke this Article, e.g. as context that informs the type of
notification required under Article 5.5, or as containing the specific requirements as to
the form and content of such notifications, or some other basis?
Reply
Poland refers to Article 12 AD as useful contex t in connection with its Article 5.5 AD claims.
C. ARTICLE 6 AD
21. With respect to your claims under Article 6 AD, please specify the precise information
that you believe you should have receiv ed during the investigation and did not.
Reply
Polish respondents should have received coherent, comprehensive non-confidential
summaries of the facts being relied on by the Thai authorities in reaching their Preliminary Injury
Determination. Failure to supply these critical documents violated Thailand’s obligations under i.a.
Articles 6.4 and 6.9 AD.
Polish respondents should have received a copy of the non-confidential version of the SYS
questionnaire response, which SYS has now submitted to the Panel as THAILAND Exhibit 21.
Failure to supply this critical document violated Thailand’s obligation under i.a. Articles 6.4 and 6.5
AD.
Polish respondents should have received coherent, comprehensive non-confidential
summaries of the facts being relied on by the Thai authorities in reaching their Final Injury
Determination (including the Final Injury Information Notice).  Instead, the non-confidential
summaries provided are opaque and internally inconsistent and fail to address how Thai authorities
may have considered and evaluated relevant data.  Furthermore, they are flatly contradicted by the
actual data relied on by Thai authorities, as s hown by Exhibit THAILAND 44.  And repeated requests
to explain the determinations were met with only “s urprise” by the Thai authorities.  Please compare
Exhibits THAILAND 40, 47, and 48 with Exhibit THAILAND 49. Failure to supply these critical
documents violated Thailand’s obligations under i.a. Articles 6.4 and 6.9 AD.
22. With respect to your reference in paragraph 92 of your first written submission to data
based on "overlapping time periods for comparis on in the final determination", are you arguing
that the use of such data would necessarily introduce a flaw in the analysis conducted by the
Thai investigating authorities.  If so, why?  Co uld such an approach confirm the persistence of
trends over time, as Thailand asserts in paragraph 80 of its first written submission?
                                                     
3 Committee on Anti-Dumping Practices, Ad Hoc Group on Implementation, Summary Report Of The
Meeting Of The Ad Hoc Group On Implementation Of The Committee On Anti-Dumping Practices, 27-28April 1998, G/ADP/AHG/R/4, 98-3074, 4 August 1998.WT/DS122/R
Page 158
Reply
Poland contends that, in the context of this investigation, the use of overlapping time periods
introduces a flaw in the Thai authorities' analysis.   Analysis under Article 3 concerns, inter alia,
changes in indicia over time.  For example, Article 3.2 concerns the existence of an “increase” in thevolume of dumped imports.  Likewise Article 3.4 examines “actual of potential decline” in a number
of economic factors and indicia.  In order for such movements to be meaningful, they require a
meaningful baseline from which measurement may be made.  This baseline for measurement is
particularly important in a case such as this one where, the petitioning company had been in existence
for only a matter of months.  The use of overlapping periods essentially obscured the situation facedby the company at the beginning of the IP.
By way of example, SYS now claims a mark et share of 49.8 percent in 1995 and only a
slightly higher share for the IP.  Thus, it appears that the company’s situation during the IP was little
changed, when, in fact, SYS’ market share rose dramatically during the IP.  The company had a zeropercent market share in March (or, now accord ing to Thailand, January?) 1995 when it began
operations but a 55% market share for the IP.  One can only assume, consistent with that trend that its
market share just before the IP was much smaller than its share during or at the end of the IP.  But all
those critical realities are obscured by the Thai methodology. This situation applies mutatis mutandis
to the other factors in Article 3.4, for example.
Thailand’s claim in Paragraph 80 of its First Submission is highly instructive on this point, for
it champions the use of overlapping time periods in the context of examination of data for calendar
year 1998, 1999, 2000, and July 1999-June 2000, with this last time period “confirming the
persistence of trends over time”.  Poland respectfully submits that such plainly is not the situation
here, where the health of the Thai industry before the IP – and the movement of the key factors and
indicia thereafter – may be measured only by virtue  of the situation shown by the first semester 1995
data.  There is no luxury – as in Thailand’s example – of “confirming” several years’ trends by use as
well of overlapping data.  All the Thai methodology does is minimise the dramatic successes of SYS.
24. Thailand argues that Article 6.5.1 AD provides that an investigating authority shall
require interested parties providing confidenti al information to furnish non-confidential
summaries thereof, but that Article 6.5.1 does not  require the investigating authorities to
provide those non-confidential summaries to the exporters or to the foreign producers.
(a) How do you react to this assertion by Thailand?
Reply
Thailand’s claim is plainly wrong.  The clear purpose of submission of the non-confidential
summaries called for in Article 6.5.1 is for such summ aries to be provided to other interested parties.
It is only via such non-confidential summaries that other parties may enjoy “a full opportunity for the
defence of their interests” (Article 6.2) and “timely opportunities . . . to see all information that is
relevant to the presentation of their cases, that is non-confidential . . . and to prepare presentations on
the basis of this information” (Article 6.4).  Otherwise, such non-confidential summaries are only
useful in the event of a dispute settlement proceeding.
This reading is confirmed by Article 6.1.2.  This provision would be meaningless if the non-
confidential summaries prepared by one interested party are not to be given to other interested parties
participating in the investigation.  Indeed, as a legal matter, Articles 6.4, 6.5.1, 6.9, and 6.1.2 all
affirm this basic due process requirement.  Poland views the legal relationship among these provisions
as mutually reinforcing.WT/DS122/R
Page 159
(c) In this context, what is the relevance, if any, of Article 6.1.2 AD?  Please explain in
detail.
Reply
As regards Question 24(c), please see Poland’s answer to question 24(a), above.
(d) What is the legal relationship, if any, between Article 6.4, 6.5.1 and 6.9 AD, on the one
hand, and Article 6.1.2 AD, on the other (e.g., does Article 6.4 encompass Article 6.1.2,do they pertain to different things, etc.)?
Reply
As regards Question 24(d), please see Poland’s answer to question 24(a), above.
25. The Panel notes that Poland refers to Article 12 in the context of its claims under
Article 6.
(a) On what basis does Poland invoke this Article, e.g. as context that informs Article 6, or
some other basis?
Reply
Poland believes that Article 12 is context for interpretation of Article 6.
26. We refer to Tables 1-3 attached to the proposed final determination of injury in Exhibit
THAILAND 37.  Please identify the specific assertions in Exhibit THAILAND 37 and Exhibit
THAILAND 46 derived from the data contained in these tables and explain whether and how the data
in the tables support those assertions.
Reply
The only assertions in Exhibit THAILAND 37 that we find can be derived from Tables 1-3 of
that Exhibit are: Point 6 (average CIF import price) – although we note again that these figures do not
correspond with those in Exhibit THAILAND 44; and Point 9 (“domestic consumption has continued
to rise” – assuming one ignores 4th quarter 1995).
The only assertion in Exhibit THAILAND 46 that we find can be derived from Tables 1-3 of
Exhibit THAILAND 46 is Point 2.2 (“Price of Polish imports has always been . . . lower than the
average import price from all other countries”) – although we note again that both the cited figure for
all countries and the cited figure for Poland are much lower than those set forth in ExhibitTHAILAND 44, rendering this chart meaningless.
D. ARTICLE 2 AD
27. Poland argued at the meeting of the Panel that, if either Article 2.2.2(i) or 2.2.2.(ii) is
applied, the methodologies described therein do not ipso facto  yield “reasonable” results in the
sense of Article 2.2 AD and Article VI:1(b)(ii) of GATT 1994, but rather that such results are“presumed” to be reasonable and record evid ence in an investigation can rebut this
presumption.  Would Poland please indicate whether this is a correct understanding of its
position, and if so, elaborate on the legal basis for this argument, including in the light of the
language in the chapeau of Article 2.2.2 that the methodologies set forth in Article 2.2.2 are toWT/DS122/R
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be used “for the purpose of” Article 2.2, which in turn refers to “reasonable” amounts for
profits, inter alia .  In the present dispute, how would Poland argue that the three alternative
profit rates that it has proposed rebut the presumption of reasonableness?  Other than these
proposed alternative profit rates, are there any other factors, elements or considerations that
would establish that Thailand’s calculation of the profit rate was unreasonable?
Reply
The Panel has correctly re-stated Poland’s positio n.  Our view may be summarised as follows:
Article VI(1)(b)(ii) of GATT 1994 and Article 2.2 AD both provide that in constructing normal valuean authority may not include more than a “reasonable” addition for profit.  The ordinary meaning of
the above provisions is clear and applies to all sub-paragraphs of Article 2.2.  Article 2.2.2 sets forth a
number of alternative methodologies for calculation of profit “for the purpose of” Article 2.2.
The meaning of the phrase “for the purpose of” Article 2.2 is not clear from the text, but
Poland believes it is better understood as establishing presumptively “reasonable” methodologies for
purposes of Article 2.2 without limiting the overarching requirement of Article 2.2 that any amounts
added (that is, the results of application of these methodologies) must themselves be “reasonable”.
We note that the second sentence of Article 2.2.2 provides only that the subsequent
methodologies “may” be employed, whereas if use of  such methodologies were required, the second
sentence, like the prior sentence, would have employed the verb “shall”.  Here, we believe, Membersinstead expressed uncertainty as to whether such methodologies would indeed ipso facto  yield
reasonable results.  We believe this is also clear from the requirement of subparagraph (iii), which
expressly provides that even reasonable methodologies may sometimes yield results that are not fairly
usable in constructing value.  Subparagraph (iii) is also instructive because the ceiling it imposes (that
the amount of profit included may not exceed that “normally realised ...”) is arguably stricter than thatof the “reasonableness” standard which otherwise flows from Article 2.2 to each provision thereunder.
This conclusion-- that methodologies may not be applied blindly-- receives further contextual
support from other provisions within Article 2.2.  For example, Article 2.2.2 (first sentence) limits
“actual data” to data objectively “pertaining to production and sales in the ordinary course of trade.”
Thus data that would itself be unrepresentative and therefore yield unrepresentative results shall not
be employed.  Similarly, in order to attempt to achieve such representativeness – that is, to prevent
results which, while arithmetically correct, are not themselves representative or “reasonable” – all
profit amounts calculated under subparagraphs (i) or (iii) must be calculated not on small (and thus
more likely unrepresentative) market segments, but rather more broadly so as to cover all productionand sales “of the same general category of products.” (This contrasts importantly with Article 2.2.2
(first sentence) which allows for comparison within the narrower “like product” category.)4  O f
course, this was not done by Thai authorities.
Even if the DFT’s results had been based on the same general category of products, the
calculation must, for the reasons outlined above, still be examined to determine its reasonableness
under Article 2.2.  As regards the suggestion of a “rebuttable presumption” of reasonableness for
                                                     
4 The use of the methodologies described in Art. 2.2.2 of the AD Agreement to calculate profit is
analogous to the use of "Best Information Available" and should be subject to the same limitations, as set forthin Annex II to the AD Agreement.  Paragraph 3 of Annex II states that "all information [submitted by theparties] which is verifiable, which is appropriately submitted . . . , [and] which is supplied in a timely fashion . .. should be taken into consideration."  Furthermore,  Paragraph 7 of Annex II states that when information for
BIA is drawn from a secondary source, the authorities should "check the independent sources at their disposal . .
. ."  Like the use of BIA, the use of the results of the application of the methodologies under subparagraph's (i)or (iii) of Art. 2.2.2 is not per se  reasonable.  Instead, the reasonableness of those results must be measured in
light of other available data.WT/DS122/R
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these purposes, Poland has made this suggestion in trying to reconcile the apparent preference for use
of the methodologies set forth in Article 2.2.2, with the overarching "reasonableness" mandate of
Article 2.2.  Yet, even such a presumption arguably is not required.
Finally, as regards the proper methodology for assessing reasonableness, we would respond
that national authorities should assess reasonableness in the same way that they assess other issues.
The record in the investigation contained three other profit figures, all closely similar, none even
remotely at the level assumed by the authorities.  Moreover, given the substantial debate on these
issues, including at verification, Thai authorities knew that there were difficulties in proper
comparison of DIN and JIS products, that different production processes were involved, and that thesewere new products occupying a special niche in the Polish domestic market.  These facts required the
DFT to question the appropriateness of such an exorbitant figure. As such, they had actual notice and
even if they had used data on the “same general category of products”, they still would have had to
assess that result objectively in light of other record evidence.
28. Has Poland dropped its argument that JIS H-beams are too dissimilar to DIN H-beams
for the profit on all home-market sales of H-beams to be “reasonable”?  If not, how does Poland
reconcile this with its argument that the Thai authorities should have based the profit amount
on company-wide profit data (4.55%) covering a broad range of products (presumably
including all H-beams, as well as other products).  Please provide the legal basis for your
response, in particular in light of the text of Article 2.2.2.
Reply
No, Poland has not dropped this claim.  Both  JIS and DIN H-Beams are in the “same general
category” of product, but they are not the only products in those categories. Thailand had an
obligation to use production and sales data not just of H-Beams, but more broadly of all products “ofthe same general category” – i.e. “Angles, shapes and sections of iron or non-alloy steel under HS
7216” .  Where, as here, such data was not in the record, we submit that a proper (if admittedly
imperfect) surrogate would be the use of company-wide data which would cover a broader range of
products, including H-Beams. Article 2.2.2 (i) would not allow for a narrower category than the
narrowest “general category”.  The most “general cat egory”  (all products of a company) on the other
hand would satisfy the Article 2.2.2 (i) requirement.
29. Assuming that Thailand was permitted under Article 2.2 and/or Article 2.2.2 AD, to use
the methodology that it used in order to calculate the amount for profit, does Poland dispute the
actual profit calculation (and the figure of 36.3% calculated by Thailand)?
Reply
As a matter of pure arithmetic, the calculation is accurate.
30. At the first meeting of the Panel, Poland indicated that DIN and JIS H-beams could be
considered to be in the “same general category” of products.  How would Poland define this
category, as “all H-beams” or something else?
Reply
Poland believes that the same general category” of products would include all products within
HS 7216, namely “Angles, shapes, and sections of iron or non-alloy steel under HS code 7216”.  DIN
and JIS H-Beams are within that “same general category”, along with other products.WT/DS122/R
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33. The question has been placed before the Panel whether subparagraphs (i) and (ii) of
Article 2.2.2 ADA are “safe havens” whereby applying any one of the methodologies set forth
therein yields a result for profit that is per se  “reasonable” in the sense of Article 2.2 ADA, last
sentence, and Article VI:1(b)(ii) of GATT 1994.  The chapeau of Article 2.2.2 ADA sets forth the
preferred methodology for determining inter alia  the amount of profit in a constructed value
calculation, and states that when such amount “cannot be determined on this basis” it “may be
determined” on the basis of the methodologies in the subparagraphs (i) and (ii).  The use of the
word “may” in this context could be seen as linking the word “reasonable” in Article 2.2 to
subparagraphs (i) and (ii) (which themselves do not contain the word “reasonable”), thereby
introducing a “reasonability” constraint into these subparagraphs.  Please comment.
Reply
Poland has felt it necessary to respond to this question within Poland’s answer to Question 27
above.  As discussed therein, in our Second Written Submission, and at the First Substantive Meeting,Poland agrees with this interpretation of the word “may” in the chapeau of 2.2.2, which we believe
confirms that the “reasonability” test found in Article 2.2 applies throughout the sub-paragraphs of
that provision.  We have suggested the use of a “rebuttable presumption" in order to attempt to
reconcile the requirement of “reasonableness” with the language of Article 2.2.2.
34. In this context, for purposes of argument only, assume for example that application of
the methodology under subparagraph (i) or (ii) of Article 2.2.2 yields a 300 per cent profit, andthat this profit margin is far in excess of the profit margin on the product for the industry as a
whole.  Would the fact that this result was arrived at based on the correct application of
subparagraph (i) or (ii) make it “reasonable” per se ?  Is there any limit on what could be
accepted as “reasonable” results of calculations under subparagraphs (i) and (ii)?
Reply
In Poland’s view, use of a methodology set forth in subparagraph (i) or (ii) of Article 2.2.2
does not yield a result that it per se reasonable.  Such a result would need to be considered in light of
other evidence in the record – including, for sake of argument, evidence of the profit margin on the
product in the same general category under the HS or, failing that, for the industry as a whole – to
determine whether such a figure is reasonable and thus satisfies the requirements of Article 2.2. of the
ADA and Article VI:1 of GATT 1994.
35. Is the phrase “in the ordinary course of trade” as used in Article 2.2.2 relevant to
determining whether there is a reasonability test for calculations of profits under the chapeau of
Article 2.2.2 and/or its subparagraphs (i) and (ii)?  Please explain.
Reply
Yes, the phrase “in the ordinary course of trade” details the fact that statistical “outliers” or
calculations based upon irregular events or product comparisons should not be used for purposes of
the Article 2.2.2 calculations – and surely may not be deemed to yield per se reasonable results.  We
note that the restriction applies not just to any trade, or any course of trade, but only such a course of
trade as is “ordinary”. We discuss this issue more fully in the section on Article 2.2 in our
29 March 2000 Second Written Submission.
E. ARTICLE 3 AD
38. You have argued that Thailand has not considered all relevant factors listed in
Article 3.4 ADA.  Please prepare a table with five columns.  The first column should list theWT/DS122/R
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Article 3.4 factors; the second column should indica te whether or not in your view the factor in
question was “considered” in the investigation; the third column should indicate a citation to
the record document(s) on which you base you r statement that the factor was or was not
“considered”; the fourth column  should indicate whether you believe the evaluation of the
factor in question to be adequate; and the fifth column should indicate the citations to therecord in support of your assertion as to the ad equacy of the evaluation or lack thereof, when
this is relevant.
Reply
Please see the attached Table 1.  We understand the Panel’s question as limiting Table 1 to
those factors expressly listed in Article 3.4 AD.  We submit that that listing does not constitute all
“relevant” factors that the Thai authorities should have evaluated, as set forth herein ( e.g.
Questions 44-45) and in our discussion of Article 3 in Poland’s 29 March 2000 Second Written
Submission.
40. Please comment on the hypothesis that a two-stage analysis of the factors listed in
Article 3.4 ADA is required.  The first stage would be an initial “consideration” to determine
the “relevance” or lack thereof of each listed fact or and an identification of any other non-listed
factors that also were relevant.  The second stage would be a full analysis of all of the factors
that had been identified as relevan t.  In other words, the factors in Article 3.4 would be seen as a
checklist of what would need to be “considered” in respect of whether or  not each factor was
relevant.  If a given factor were deemed not to be relevant, the analysis of that factor could stop
at that point.  Under this hypothesis, the final determination would have to address each factor
in the checklist, and for each of those that ha d been deemed not to be relevant would simply
indicate that this was the case and why.  For ea ch relevant factor, the final determination would
have to indicate why it had been deemed to be relevant and in addition would have to contain afull “evaluation” of it.  (Please note that th e reference to the “final determination” is not
necessarily intended to imply the public notice th ereof, but rather the report compiled by the
investigating authority concerning the investigat ion, which might or might not be the same as
the public notice.)
(a) Please indicate whether you agree or disagree with all or part of this hypothesis and
explain in detail the legal basis for your view.
Reply
As Poland sets forth in detail its Second Written Submission at Section III.B, Poland is
largely in agreement with the view expressed above regarding the Article 3.4 factors.  In Poland’s
view, Article 3.4 is not ambiguous.  It states, in part, that the evaluation by the investigating
authorities “shall include an evaluation of all  relevant economic factors and indices having a bearing on
the state of the industry, including …” (emphasis a dded).  The use of the word “shall” makes clear the
evaluation is mandatory  and the word “all” does not provide for any exceptions.
The required consideration, evaluation and weighting applied to the factors listed in
Article 3.4 constitutes “proper” establishment of the facts only when all factors are considered.  In the
same light, the factors can only be “objectively” evaluated if they are all considered, weighed and
discussed.  Thus, the minimum starting point of an “objective” evaluation is a recognition that when
Article 3.4 explicitly requires examination and evaluation of several specified economic factors(“including . . .”) in making a determination, Thai national authorities should not be permitted to pick
and consider only those factors they find convenient or believe might support their case.WT/DS122/R
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In this regard, Poland would strongly agree with the statement above that the final
determination must address each factor in the checklist.  The consideration must be such that the basis
by which the authorities made their decisions is clear.
The legal basis for Poland’s view is the ordinary  meaning of the terms of Article 3.4 in their
context and in light of the object and purpose of anti-dumping duties, as well as the adopted panel
decision in Mexico-High Fructose Corn Syrup .  There, the panel correctly explained that the text of
Article 3.4 is “mandatory”, with the “language mak[ing]  it clear that the listed factors in Article 3.4 must
be considered in all cases.” Mexico-HFCS  Panel Report at paragraph 7.128 (emphasis added).  The
Mexico-HFCS  panel further explained that “[t]here may be other relevant economic factors in the
circumstances of a particular case, consid eration of which would also be required.” Id. (emphasis
added).  The panel appropriately concludes by explai ning that consideration of each of the Article 3.4
factors “must be apparent in the final de termination of the investigating authority,” Id. (also citing
Article 12.2.2) (emphasis added).
The Mexico-HFCS  panel’s conclusion that all factors must be properly considered finds
additional legal support in light of the change in the relevant text between Article 3.3 in the Tokyo
Round Anti-Dumping Code and the present analogous Article 3.4 Uruguay Round ADA.  While few
changes were made to the text, one change was to delete the words “such as” and insert the word
“including.”
Please see Section III.B. of Poland’s Second Written Submission for detailed additional
discussion of our views on these issues.
(b) If you disagree with this hypothesis, pl ease explain how, without “considering” each
factor, its relevance or irrelevance can be judged.
Reply
Without carefully and thoroughly considering each factor, it is impossible to judge the
relevance of each factor in an objective and unbiased manner.  Careful consideration, of course,
amounts to far more than a conclusory statement alleging the factor was “considered.”
(c) Is it your view that if an examination of se veral factors led to a conclusion of injury, it
would not be necessary to “consider” any of the other factors?  Please explain.
Reply
No.  The language of Article 3.4 does not provide that investigating authorities may pick and
choose among the factors they consider and evaluate.  It states that the examination “shall include an
evaluation of all … including  …”.  To pick and choose is to act without objectivity.  A particular
factor, viewed in isolation, might tend to support a finding of injury.  Yet, that same factor couldproperly be viewed in an entirely different light as a result of consideration of other listed factors.  For
example, “sales” do not exist in isolation from “pro fits” or “market share”.   Only by considering and
carefully evaluating all the factors can authorities properly determine whether “one or several of these
factors necessarily give decisive guidance.”
41. Please describe the nature of the “relevance” of a factor in the context of Article 3.4
ADA. Is a factor “relevant” only when it supports an affirmative finding of injury, or should
“relevance” be judged on a more broad basis, for example in the sense of whether or not a
particular factor is informative as to the “state of the industry”?  Is a factor also “relevant”
when it does not support an affirmative finding of injury?  Please explain in detail.WT/DS122/R
Page 165
Reply
A factor is not “relevant” only  when it supports an affirmative finding of injury – factors are
relevant both when they do and do not support an affirmative finding of injury.  Factors are thus
relevant when, in the words of Article 3.4 they have “a bearing on the state of the i ndustry.”  Poland
notes that according to Article 3.1, a proper determination of injury must be based on “positive
evidence” and involve an “objective examination.”  As Poland discusses at length in its Second Written
Submission, positive evidence involving objective evalua tion requires examination of any and all factors
relevant to the state of the industry and whether it has been injured.  Were relevance viewed only from
one side of the equation, there would be nothing obj ective about the examination.  In the words of the
Mexico-HFCS  panel: “In our view, this [Article 3.4] langua ge makes it clear that the listed factors in
Article 3.4 must be considered in all cases.  Th ere may be other relevant economic factors in the
circumstances of a particular case, consid eration of which would also be required.” Mexico-HFCS Panel
Report at paragraph 7.128.
Please see Section III.B. of Poland’s Second Written Submission for detailed additional
discussion of our views on these issues.
42. What is the significance of the fact that the term “such as” in Article 3.3 of the Tokyo
Round Anti-dumping code was changed to “including” in Article 3.4 of the Uruguay Round
Anti-dumping Agreement?  If no change in  meaning was intended, why was a change in
terminology made?  According to the Concise Ox ford Dictionary (1990 ed.), the verb “include”
means to “comprise or reckon in as part of a whole” or to “enclose”.  The term “such as” means
“like” or “for example”.  Please explain in what sense, if any, these definitions could be viewed
as synonymous.
Reply
A change in meaning was clearly intended and the list provided is no longer merely
illustrative. The Mexico-HFCS  panel’s conclusion that all factors must be properly considered
therefore finds additional support in light of the chan ge in the relevant text between Article 3.3 in the
Tokyo Round Anti-Dumping Code and the present analogous Article 3.4 Uruguay Round ADA.  The
plain meaning of the change deleting the words “such as” and inserting the word “including” is that
while the list of factors to be considered in the Tokyo Round Code could plausibly be considered
illustrative examples (such as . . .), no such freedom exists in Article 3.4 ADA (“all relevant factors
. . . including . . . ”).  As the dictionary definitions above make clear, “such as” is not synonymous
with “including”, and if no change in meaning was intended, there was absolutely no need for the
drafters to change the text.  In Poland’s view, the definitions cannot be viewed as synonymous.
43. Please comment on the use of the word “or” at two places in the list of the factors in
Article 3.4 ADA, as well as on the use of semi-colons between subgroups of factors in that
Article.  In particular, what is the significance,  if any, of the fact that the word “or” appears
only within subgroups of factors which are separated by semi-colons, and not between  those
subgroups?
Reply
The use of “or” in two instances must be viewed in light of the word that precedes the
detailed listing in Article 3.4: “including”.  The dictionary definition of “including” suggests the
containment of something as a constituent, component, or a subordinate part or a larger whole.  Thus,
when the word “including” begins a listing, as in Article 3.4, it suggests the items listed are part of a
larger whole.  In this light, the use of “or” is admittedly perplexing, as it makes less than ideal sense inWT/DS122/R
Page 166
the context in which it is used here.  It appears most likely to be a remnant from the use of “such as”
in the 1979 Anti-Dumping Code.  As noted above, the drafters determined to change “such as” to
“including” in the present text.  What is also clear in Article 3.4 is that the fact that the word “or”
appears only within subgroups of factors which are separated by semi-colons, and not between those
subgroups, eliminates the possibility that the different subgroups of items listed are merelyillustrative.
44. Please identify all of the record docume nts that you consider relevant to the
determination of causation.  Please explain how they support your argument concerning the
adequacy of this determination.
Reply
Poland believes that the only record documents relevant to the determination of causation are
the Final Injury Determination, the Final Injury Information Notice, and Exhibit THAILAND 44.  Asset forth more fully in our discussion of causation in our Second Written Submission, Poland believes
that there is not a single material fact that has been properly or objectively found by the Thai
authorities.  Indeed, in most instances the Thai au thorities have made multiple “findings” with respect
to each “fact”. Indeed, as discussed therein, both the Final Injury Information Notice and, more
importantly the confidential Exhibit THAILAND 44 shatter any contention of Thai authorities
demonstrated injury by reason of imports.
45. We understand Poland to have argued that the question of the Kobe earthquake, and
world supply and other economic conditions for H-beams, were not adequately considered
during in the investigation.  Please indicate wh ich of these factors you believe were or were not
considered.  Please provide relevant citations to  the record.  Please indicate which of these
factors were or were not adequately evaluated in  the investigation.  Please provide relevant
citations to the record.
Reply
The Final Determination shows no consideration of the influence of non-Polish imports, the
level of demand of the local construction industry, the highly aggressive nature of SYS’ entry into the
H-Beam market, domestic industry productivity and cost structure, technology developments, or the
Kobe earthquake.  It does show consideration of mark et realities in SYS export markets, in the Final
Injury Information Notice.
None of these factors was adequately evaluated.  To begin with, it is now plain that prices in
SYS export markets were lower – not higher – than those in Thailand.  (Exhibit THAILAND 44,
paragraph 1.12.6).  It is also clear that SYS had a very high cost of production. For example, Exhibit
THAILAND 44, paragraph 4.8 points to SYS losses “due to operating expenditures that cannot be
reduced.”  Similarly, Exhibit THAILAND 44, paragraph 5 states that “SYS has to bear the costs ofnew entrants which [are], as a rule, high”.  Likewise, it is plain that Thailand should have evaluated
the effect of the global slowdown in construction and global overcapacity, fuelled by head-long rush
of new firms into the H-Beam sector, for in Exhibit THAILAND 44, paragraph 3.3 they had found:
Whereas SYS relied on export for about [ X-Conf .] per cent of its sales, it is much
effected [sic] by the downturn of world market price for H-beams.  This is due to the
fact that there is a slowdown of construction world-wide coupled with the fact thatthe total production capacity far surpassed demand.WT/DS122/R
Page 167
48. Where in the record is the substantiation  for your assertion concerning which producer,
Huta Katowice or SYS, was the price leader dur ing the POI?  Where in the record are the
supporting data relevant to your views concernin g the finding of price suppression/depression?
Reply
In the face of Thailand’s undocumented and unexplained claim that Polish respondents were
the price leaders and had caused price suppression/depression, Poland had pointed the Panel to the
fact that under Table 1 in the Final Injury Inform ation Notice, it was SYS that precipitated the first
decline in prices during the IP (4th quarter 1995).  We had also made use of other non-confidential
data to show that the record did not support the conclusion that Polish prices had forced a decline in
Thai prices to “match” the level of Polish imports.  In particular, and as discussed more fully in our
Second Written Submission concerning Article 3.4 and 3.5, the DIT’s critical finding regarding
causation -- that the “influence of Polish imports” is so complete that SYS sharply reduced its prices
to “match” the level of Polish import prices – cannot be correct.5  This finding of a sharp price decline
is contradicted by the findings in the non-confidential record that SYS entered the market in 1995 at
prices well above those of Polish imports – and that SYS’ prices then rose above 1995 levels during
the IP.6  Moreover, Table 1 contradicts the second vital DIT conclusion regarding causation – that the
“influence of Polish imports” is so complete that average Polish CIF prices and average SYS prices
“move in the same direction”.7  Table 1 shows that plainly this was not so; they do so less than half
the time.  In order to find price leadership and price suppression/depression, an authority must first
establish prices.
Once one turns to the confidential data, several points become clear, as detailed more fully in
Poland’s Second Written Submission.  There is barely a price “found” in the Thai non-confidential
determinations that is supported by the secret data of the DIT.  For example, the Final Injury
Information Notice (at paragraph 6 and the Table entitled “Price Data for H-Beams”) shows Polishprices moving from 8,409 Baht in 1995 down sharply to 7,975 Baht in the IP. Exhibit THAILAND 44
(at paragraph 1.9.2) shows Polish prices (in Baht/metric ton) moving from 8,409 Baht in 1995 up to8,473 Baht in the IP.
8  As regards Thai prices, the Final Determination states that they fell sharply to
“match” Polish prices, and this was perhaps the critical finding on price leadership. However, ExhibitTHAILAND 44, paragraph 1.12.6, states that for the four quarters of the IP, Thai prices were[P+ 3,067.38] Baht, [P+ 2,869.38] Baht, [P+ 1,974.38 ] Baht, and [P+ 1,768.38] Baht.  Two pages
later, at paragraph 1.17.1, the Thai authorities appear to change their mind, providing different figures
for Thai domestic selling prices during the IP – this time the “facts” are purportedly
[P+ 3,002.38] Baht, [P+ 2,869.38] Baht, [P+1,974.38] Baht, and [P+ 1,739.38] Baht.
9  The “finding”
in the Final Injury Determination -- that SYS reduced its prices to “match” the level of Polish imports-- is, using Thailand’s own alleged data, therefore demonstrably pure fiction.
                                                     
5 We note further that in paragraph 2.5 of the Final Determination, the DIT states that SYS was forced
to “match” Polish prices.
6 See, e.g. , Exhibit THAILAND 41 and page 2 (“the complainant entered the Thai market at
significantly higher prices than Polish product . . .) .  Draft Injury Information Notice Table 1 on Average
Quarterly Prices shows upward SYS price movements from that point .
7 Final Injury Determination at 2.2. They move in the same direction in 3Q 1995 and 1Q 1996, but in
opposite directions in 2Q 1995, 4Q 1995, and 2Q 1996.  Similarly, it is not true that Polish imports
“continuously increased” during the IP because figures for “Import from Poland” move up and move down
throughout the period in question. Final Injury Information Notice, Exhibits POLAND 10, 11; THAILAND 37.
8 This figure is repeated in paragraph 1.11 of Exhibit 44.
9 It is unclear why there are different prices listed here than in paragraph 1.12.6.WT/DS122/R
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Moreover the claims of price leadership and depression/suppression by Polish firms run
counter to the express findings of the DIT in Exhibit THAILAND 44 that “there is price stability with
reference to the subject merchandise” and that Polish prices were “stable”.10
Finally, the leading argument supporting these Thai claims was that Thai domestic prices
were much lower than those in SYS export markets, evidencing the pernicious effect of Polish
imports (Final Injury Determination at point 2.4; Final Injury Information Notice at point 10). As
Exhibit THAILAND 44 states, however, [X-Conf .11].
We would respectfully direct the Panel to our Second Written Submission for additional
discussion of these issues.
49. Under what circumstances, or in respect of  what sorts of factors, if any, is it the
responsibility of the investigating authority to seek information concerning the potential effects
of “known” factors other than dumped imports that might be causing injury, and when does theresponsibility fall to the responding party to  bring such issues to the attention of the
investigating authority?  For example, if the importing country is in an economic recession,
certainly the authority and all interested parties will “know” this. Would the authority have the
responsibility on its own initiative to try to identify the specific effects of the recession in the
domestic market for the product under investigation, or would it only have to consider this issue
if it were raised by an interested party?  Would it  make a difference if the factor in question was
not something widely known but rather was known only to the investigating authority and the
domestic industry (i.e., not to the respondent)?  Please explain and provide the legal basis for
your view.
Reply
Consistent with Article 3.1, the investigating authority is required to base all determinations
of injury on positive evidence and an objective  evaluation.  In order for an evaluation to be
“objective”, an investigating authority has the affirmative responsibility to seek all available
information concerning the potential effects of “known” factors other than dumped imports that might
be causing injury.  If it does not, the evaluation cannot possibly be objective.  While a respondingparty would be unwise not to bring such issues to the attention of the investigating authority,
responding parties do not bear the same burden as the investigating authority.
It should be recalled that the investigating authority is the party seeking to invoke the
exception to the norm of using only bound tariff rates – the imposition of anti-dumping duties on theimports of a product from another country.  Members have agreed that anti-dumping measures may be
applied “only under the circumstances provided for in Article VI of the GATT 1994 and pursuant to
investigations initiated and conducted in accordance with the provisions of [the Anti-Dumping]
Agreement.” Article 1 ADA (emphasis added). Anti-dumping duties may be imposed only “where all
requirements for the imposition have been fulfilled,” including a proper determination of both
dumping and injury. Articles 2, 3, 9.1, ADA (emphasis added); Article VI:1, VI:6 GATT 1994.
In addition, as Article 3.5 sets forth, the objective demonstration  that the dumped imports are
causing injury and is the responsibility of the investigating authority.  Foreign respondents may not be
presumed to cause injury and injury may not be found by means of the investigating authority closing
its eyes to all relevant facts.
                                                     
10 Id. at paragraph 5, page 13, paragraph 1.9.2, page 4.
11 Exhibit THAILAND 44, paragraph 1.12.6 (first indent) (emphasis added).WT/DS122/R
Page 169
The example provided by the Panel above illustrates the point.  The authority has the
responsibility on its own initiative to try to identify the specific effects of the recession in the
domestic market for the product under investigation by the explicit text of Article 3.5:  “the authorities
shall also examine any known factors  other than the dumped imports which at the same time are
injuring the domestic industry, and the injuries caused by these other factors must not be attributed to
the dumped imports.”  To be aware of an important factor and to not consider it because it was notraised by an interested party upon whom the inve stigating authority is seeking to impose AD duties
would not be objective and would not
 meet the Article 3.5 standard.
Lastly, Poland would note that Thailand was aware of several factors other than Polish
imports which were not examined, in particular, the pricing conduct of SYS, technology
developments, export performance, domestic industry productivity and the Kobe earthquake.
Please see also Poland’s Second Written Submission.
F. ARTICLE 17.6 AD:  STANDARD OF REVIEW
52. Please comment on the relationship, if any, between Article 17.6 ADA and Article 11
DSU, in particular whether or not these provisions must be read together, drawing on elements
from both except to the extent that they “differ” in the sense of Article 1.2 DSU, in which case
Article 17.6 ADA would prevail.  Please comment on whether you believe this is the correct
approach, and whether you do or do not see such a “difference” between Article 11 DSU andArticle 17.6 ADA.  Please describe any such diffe rence.  In this context, please discuss the
Appellate Body’s statement in Argentina – Footwear Safeguard :
“[F]or all but one of the covered agreements, Article 11 of the DSU sets forth the
appropriate standard of review for panels
1.  The only exception is the Agreement
on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994 , in which a specific provision, Article 17.6, sets out a special standard
of review for disputes arising under that Agreement” (underlining supplied).
______________________
1  See e.g., Appellate Body Report, EC Measures Concerning Meat and Meat Products ("European
Communities – Hormones "), WT/DS26/AB/R, WT /DS48/AB/R, adopted 13 February 1998,
paras. 114-119;  Australia – Salmon , supra , footnote 26, para. 2.67
Reply
Poland has set forth its views regarding Article 17.6 at length in its First and Second Written
Submissions to the Panel.  Poland would, therefore, first respectfully refer the Panel to the fuller
discussion regarding this question that appears in Poland’s Second Written Submission at Section II.
In Poland’s view, there is a strong and necessary relationship between Article 11 DSU and
Article 17.6 ADA.  By the terms of Article 1 DSU, the Anti-Dumping Agreement is a covered
agreement.  Article 1.2 DSU does not provide that Article 17.6 ADA exclusively and totally replaces
Article 11 DSU.  Rather, Article 1.2 DSU notes that “[t]o the extent that there is a difference between
the rules and procedures of this Understanding and the special or additional rules and procedures …
the special or additional rules and procedures in Appendix 2 shall prevail”  (emphasis added).  Thus,
Article 17.6 ADA and Article 11 DSU must be read together, drawing on elements from both except
to the extent that there is a difference, in which case Article 17.6 ADA would prevail.  Poland
believes this to be the correct approach, and Poland does not see a significant or material “difference”between Article 11 DSU and Article 17.6 ADA with regard to the issues in this case.  Certainly no
such differences justify the radical distinction Thailand wishes to draw.WT/DS122/R
Page 170
With regard to factual questions both the DSU and ADA require an “objective” assessment,
with Article 17.6 also noting that the establishment of facts must be “proper” and “unbiased.”  With
regard to legal issues, both the DSU and ADA require a panel to determine conformity of a given
action/practice/law by a Member with the covered agreement, and both require panels to pursue theirinterpretive task in accordance with the “customary rules of interpretation of public international law”
(see Article 3.2 DSU).
The Appellate Body’s statement in Argentina – Footwear Safeguard  acknowledges that,
consistent with Appendix 2 of the DSU, the ADA sets forth what the Appellate Body terms a“special” standard of review.  Poland agrees entirely with the Appellate Body in this regard.  The
Appellate body’s statement does not suggest that Article 17.6 is materially different than Article 11
DSU with regard to the issues that are at the center of this dispute between Poland and Thailand -- it
merely notes a “special” standard.  The Appellate Body’s statement is thus also consistent with
Article 1.2 DSU, which notes that such a “special” standard only prevails “[t]o the extent that there isa difference”.
53. The parties seem to agree that the appropriate standard of review is somewhere between
de novo  review and total deference.  We note that within Article 17.6 itself, the two
subparagraphs arguably could be viewed as establishing different levels of review or deference
pertaining to two different types of issues.  Subparagraph (i) concerns facts and arguably
requires a considerable degree of deference and thus relatively limited review by a Panel.  Bycontrast, subparagraph (ii) concerns issues of law and the question of multiple “permissible”
interpretations of a given provision of the ADA, among which a national investigating authority
is free to choose.  Some commentators believe th at rarely if ever can there be more than one
permissible interpretation of any given treaty pr ovision.  This might arguably mean that the
required degree of deference under (ii) would be less than under (i).    Furthermore, thequestion arises as to when, if at all, the establishment or evaluation of “facts” by an
investigating authority becomes a question of law or legal interpretation under the Anti-
dumping Agreement (e.g., where the issue is whether a certain set of facts satisfies a given treaty
provision).  The question of this “penumbra” between fact and law could be particularly
relevant in the context of the Anti-dumping Agreement.
Reply
As with the previous question regarding Article 17.6, Poland first respectfully refers the Panel
to the lengthy discussion regarding Article 17.6 that appears in Poland’s Second Written Submissionat Section II, as well as that in its First Written Submission at Section III.A.  Some of that discussion
is reiterated below pursuant to the Panel’s requests.
(a) Please comment  on your views as to the nature of the differences between the  two
subparagraphs of Article 17.6 (coverage, degree of deference required, etc.).
Reply
Poland would agree that there exists a bit more latitude with regard to Article 17.6(i) than
17.6 (ii), but Poland would also respectfully suggest that the difference in degree of review is not
substantial. Poland also agrees that the standard in Article 17.6(i) falls between de novo review and
total deference.  The standard in Article 17.6(ii) requires the Panel to determine the proper
interpretation of the relevant provision.
Article 17.6(i) is intended to cover strictly factual questions, such as a claimed pricing level or
the exact amount constituting a cost of production element.  Under Article 17.6(i), the Panel must firstWT/DS122/R
Page 171
determine whether the investigating authorities' establishment of the facts was proper.  Poland
understands that a WTO panel is not in a position to re-determine every factual determination made
by a national authority, and Poland therefore does not suggest that such is their role under
Article 17.6(i).  At the same time, Article 17.6(i) makes clear that in the discharge of its duties, a
panel must perform “an assessment of the facts of the matter.”  Poland submits that in order for any
investigating authorities’ “establishment” of the fa cts to be “proper”, at an absolute minimum those
record facts must first be consistent with one another, and it is a panel’s clear role and duty to
investigate whether this was the case.  Therefore, a national authority cannot be found to haveestablished properly any “fact” when that alleged “fact” is contradicted by another “fact” elsewhere in
the record of the same proceeding.  Such a “fact” is not even established, much less properly so.  Thepanel is responsible for making this determination.
“Proper” establishment of facts also includes several additional requirements which direct the
Panel to examine directly the actions of the national authorities. Facts cannot be properly established
if the respondents in an investigation are not given, inter alia,  the opportunity to provide all relevant
facts, to review the material facts alleged against them, and to correct any mistaken allegations upon
which the authorities plan to base their final determ ination.  Therefore, in addition to the consistency
of the facts “established”, the fact gathering and evaluation procedures employed by the investigating
authorities should be examined by the Panel and are directly relevant to the Panel’s required
assessment of the facts.
For those facts found to have been established properly, consistent with Article 17.6(i), the
Panel must then determine, in light of all available evidence, whether the authorities’ evaluation of the
facts at issue was unbiased and objective
 – that the national authorities dealt with facts without
distortion for institutional feelings, prejudices, or interpretations, and  without being unduly orimproperly influenced or inclined.  The Panel must examine whether they were impartial in what was
done and left undone.  An evaluation is not “objective” unless all  evidence is  considered and then
weighed without any favouritism toward a national producer or industry.  Thus, the baseline of an“objective” evaluation is that when a provision of the Anti-Dumping Agreement, such as Article 3.4,
requires examination and evaluation of several factors in making a determination, the national
authorities should not be permitted to pick and consider only those factors they find convenient or
believe might support their case.  The omission or disregard of factors that an ADA provision requiresauthorities to consider is a prima facie  case of bias in an evaluation.
Article 17.6(ii) requires the Panel to interpret the extent of a Member’s obligations under the
Anti-Dumping Agreement and the consistency of a practice being challenged with those obligations.
The degree of deference called for is therefore approp riately very small.  The Panel should turn first
and foremost to the customary rules of interpretation of public international law, including the Vienna
Convention, Articles 31 and 32.  The point of these interpretive rules is to resolve any ambiguities in a
treaty’s text.  Thus, Poland agrees with the position in the question above that “rarely if ever can there
be more than one permissible interpretation of any given treaty provision.”  In such instances, the
Panel should base its ruling on the consistency of the Member’s practice being challenged with thesole proper interpretation of the relevant ADA provision.
If, and only if, a Panel determines that an Anti-Dumping Agreement provision somehow has
multiple “permissible” interpretations in light of the practice or action being challenged (and Poland
fails to see how this could be the case in the present circumstances before the Panel), then the Panel is
instructed to defer to permissible interpretations consistent with the text of the Anti-Dumping
Agreement.  Provisions of the Anti-Dumping Agreement are not subject to differing multilateralobligations, depending on the Member performing the interpretation of a given provision.  Poland
believes there should be a multilateral understanding of the ADA provision being examined.
Effective panel review of the consistency of a Member’s actions with the text of the Anti-DumpingAgreement otherwise would be rendered impossible.WT/DS122/R
Page 172
(b) Please also describe the standard of review that you believe should apply to issues that
fall within the penumbra between factual and legal issues as described above.  Is it the
standard in 17.6(i), 17.6(ii), or some other standard.  Please explain in detail.
Reply
Please first see detailed description of the components of a proper review immediately above.
Poland’s view is that both 17.6 (i) and 17.6 (ii) are applicable and should be utilised for mixed
questions of fact and law.  To the degree that the question before the Panel relates to the establishment
of a fact, the Panel would first examine whether the fact was properly  established.  If so, the Panel
would next examine if the fact was evaluated  in an objective and unbiased manner. If these conditions
are not satisfied, the inquiry would end there – the legal significance of a “fact” is immaterial if the
“fact” has never been truly established.
If, on the other hand, these conditions are all satisfied, the Panel could then turn to the legal
significance of the fact – e.g., whether the properly established and objectively evaluated fact satisfies
the legal threshold set forth in the ADA.  At this point, the Panel should be guided by Article 17.6 (ii)
and the customary rules of interpretation.
In no instance should any issue that requires evaluation and analysis of a legal issue or claim
be evaluated under Article 17.6 (i), as opposed to 17.6 (ii).
(c) Please identify the standard of review (subparagraph (i), subparagraph (ii) or a
standard of review applicable in the penumbra if different from (i) or (ii)) that you
believe is applicable to each issue before th e Panel in this case, and please explain your
reasoning.
Reply
In the Republic of Poland’s view, Thailand has violated Article VI of GATT 1994 and
Articles 2, 3, 5, and 6 of the Anti-Dumping Agreement.  Each of these provisions is part of a freely
entered international agreement, containing legal  obligations, to which both Poland and Thailand are
parties.  Therefore, all legal determinations by th e Panel with regard to these provisions necessarily
involve Article 17.6(ii).
For the Panel’s benefit, Poland would respectfully first reference the detailed legal claims it
has made in this proceeding.  These claims are set forth in, inter alia,  the Panel’s terms of reference,
Poland’s First and Second Written Submissions, Poland’s First Oral Statement , and Poland’s
responses to Panel Questions 3, 4, 8 and 9.
In summary form, Poland’s claims include the following:
Article 2.2:  that the profit figure used by the Thai authorities was not “reasonable” – a legal
claim involving the application of Article 17.6 (ii);
Article 3.1:  that the Thai authorities did not properly make their injury determination based
on “positive evidence” and an “objective evaluation” of the enumerated factors – a legal claiminvolving the application of Article 17.6 (ii);
Article 3.2:  that the Thai author ities did not properly consider, inter alia,  whether there has
been a “significant” increase in allegedly dumped imports and whether “price depression” or otherWT/DS122/R
Page 173
factors have occurred to a “significant” degree – a legal claim involving the application of
Article 17.6 (ii);
Article 3.4:  that the Thai authorities did not  “evaluate” all “relevant” economic factors and
indices having a bearing on the industry and that Thailand did not adequately evaluate even those itclaimed to examine – a legal claim involving the application of Article 17.6 (ii);
Article 3.5:  that the Thai authorities did not “demonstrate” that the Polish imports are,
through the effects of dumping, “causing injury” within the meaning of the ADA;  that the required
“demonstration” of a “causal relationship” was not based on an examination of “all relevant evidence”before the authorities; that known factors other than the allegedly dumped imports were not properly
examined and that possible “injury” from these othe r factors was illegally attributed to the allegedly
dumped imports – a legal claim involving the application of Article 17.6 (ii);
Article 5.2:  that the SYS application failed to include evidence of (i) “injury” within the
meaning of Article VI of the GATT 1994 as interp reted by the Antidumping Agreement and (ii) a
“causal” link between allegedly dumped imports and the alleged “injury” – a legal claim involving the
application of Article 17.6 (ii);
Article 5.3:  that Thailand failed to examine the accuracy and adequacy of the SYS petition in
order to “determine” whether there was “sufficient” evidence to “justify” the initiation – a legal claim
involving the application of Article 17.6 (ii);
Article 5.5:  that Thailand failed properly to notify the Republic of Poland – what constitutes
proper notification is a legal claim involving the application of Article 17.6 (ii);
Articles 6.4 and 6.5:  that the Thai preliminary, draft final, and final determinations are
opaque, internally inconsistent, and conclusory summaries that fail to offer Polish respondents
“meaningful opportunities . . . to see all information that is relevant to the presentation of their case”
so as to be allowed to make their “presentations on the basis of this information”, as required by
Article 6.4; that when Polish respondents were never informed, or given a copy, of the non-
confidential version of the SYS questionnaire response by Thailand, this violated 6.4 and 6.5 – legalclaims involving the application of Article 17.6 (ii);
Article 6.5.1:  that the Thai summaries provided were not “in sufficient detail to permit a
reasonable understanding of the substance of the information submitted in confidence” – a legal claim
involving the application of Article 17.6 (ii); and
Article 6.9:  that Thailand failed to inform Polish firms of the “essential facts under
consideration which form the basis for the decision whether to apply definitive measures” – a legal
claim involving the application of Article 17.6 (ii).
In the course of ruling on these legal claims, the Panel will be called upon to make an
assessment of the facts of this matter and to determine whether several material “facts” were properly
established and, if so, whether their evaluation by the Thai authorities was then unbiased and
objective.  In these numerous instances, detailed throughout Poland’s written submissions, the Panel
will appropriately be applying Article 17.6 (i).  Thus, for instance, the actual amount or figure of a
given import price will be relevant to the Panel’s evaluation of the legal existence or lack of existence
of price suppression.  The amount is a “fact” and the Panel’s task is first to assess whether it wasproperly established.  If the Thai authorities never established a number, its legal significance comes
into play in the sense that contradictory “facts” or prices are often bound to have legal significance
given the provisions of the ADA.WT/DS122/R
Page 174
Poland respectfully realises that its good faith attempt to answer this question may not
definitively address or resolve every potential issue or circumstance deemed relevant by the Panel to
its deliberations.  It is difficult for Poland to hypothesize or list every factual circumstance or legal
subpoint on which the Panel may want guidance.  Poland therefore stands ready to address any
specific additional questions of the Panel on this issue in subsequent written questions or at theSecond Substantive meeting of the Parties with the Panel.WT/DS122/R
Page 175(TABLE RESPONSE TO QUESTION 38)
INJURY
ACCORDING TO ARTICLE 3.4, AGREEMEN T ON IMPLEMENTATION OF ARTICLE VI
OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE 1994
No. Economic factors and
indices having a bearing
on the state of the industryWas factor “considered” in
the investigation?
YES or NODocument in which factor
“considered”Was evaluation adequate? Document supporting
claim of (in)adequacy
1 2345 6
IX. 
1 Actual and potential decline
in salesYES Allegedly in Final Injury
Information NoticeNo.  No evidence of injury.
SYS sales volume grew by33% in IP versus 1995.Exhibit THAILAND 37
Exhibit POLAND 10(page 2, point 3)WT/DS122/R
Page 176No. Economic factors and
indices having a bearing
on the state of the industryWas factor “considered” in
the investigation?
YES or NODocument in which factor
“considered”Was evaluation adequate? Document supporting
claim of (in)adequacy
2 Actual and potential decline
in profitsNO and YES Allegedly in Final Injury
Information Notice; Line 7
of Table on “Market Data ofH-Beam of Siam Yamato”
has “( )” listed for “Net
Profit (Loss)”.  But no
further “consideration”.No.  Not evaluated
adequately as Final Injury
Information Notice does notset forth clear facts and
reasoning,  and is
contradictory.  Thailand may
claim that evaluation based
on statement on “businessperformance” of SYS for
“1994 and 1995” (point 11).
But the company did not
produce subject merchandise
in 1994.  Never considered/
evaluated SYS business
performance for 1996whatsoever.
(a) Claim of
unprofitability never
considered/
evaluated (i) incontext of new
market entrant in
capital-intensive
industry and (ii) in
light of fact thatreturn on investment
was clearly
improving – much
closer to
profitability in IPthan in 1995, a
remarkable
economic feat for
new entrant
(a) .Exhibit THAILAND 37
Exhibit POLAND 10,
point 11
Failure to address these
factors set forth by Polish
respondents insubmissions to Thai
authorities.  Exhibit
THAILAND 35, pages 2-
5; Exhibit THAILAND
40, pages 2-4; Exhibit
THAILAND 40.
See “Actual and potential
decline in return on
investments” below.WT/DS122/R
Page 177No. Economic factors and
indices having a bearing
on the state of the industryWas factor “considered” in
the investigation?
YES or NODocument in which factor
“considered”Was evaluation adequate? Document supporting
claim of (in)adequacy
3 Actual and potential decline
in outputYES X.  ALLEGEDLY IN
FINAL INJURY
INFORMATIONNOTICENo.  No Evidence of injury.
SYS output increased by
13% in IP versus 1995.Exhibit THAILAND 37
Exhibit POLAND 10,
page 1, point 2
Exhibit THAILAND 21
SECTION C,
page 1
4 Actual and potential decline
in market shareYES Allegedly in Final Injury
Information NoticeNo.  No evidence of injury.
SYS market share grewduring the IP as compared to
1995 – although Thailand
now claims, after the fact
and contrary to record
evidence, that any increase,while admitted, was not as
great as previously
calculated, due to
“typographical error”.  Clear
that market share of IP
versus pre-IP would have
skyrocketed, since SYS hadmore than 55% of domestic
market within 16 months of
selling first H-Beam.Exhibit THAILAND 37
Exhibit POLAND 10,chart entitled “Market
Data of H-Beam of Siam
Yamato”.
5 Actual and potential decline
in productivityNO Not applicable. No consideration or
evaluation whatsoever.Not applicable.WT/DS122/R
Page 178No. Economic factors and
indices having a bearing
on the state of the industryWas factor “considered” in
the investigation?
YES or NODocument in which factor
“considered”Was evaluation adequate? Document supporting
claim of (in)adequacy
6 Actual and potential decline
in return on investmentsYES Allegedly in Final Injury
Information NoticeNo.  Record does not contain
any clear evaluation.
Appears to have beenerroneously treated as same
issue as profitability and not
separately evaluated.
Possible Thai claim that
evaluation might have beenbased on “business
performance” of SYS for
“1994 and 1995”.  But the
company did not produce
subject merchandise in 1994.
Never considered/ evaluated
SYS business performancefor 1996.
Thailand never
considered/evaluated this
factor (I) in context of newmarket entrant in capital-
intensive industry and (ii) in
light of fact that
performance was clearly
improving – closer toprofitability in IP than in
1995.Exhibit THAILAND 37
Exhibit POLAND 10,
point 11 and chart entitled“Market Data of H-Beam
of Siam Yamato”.
Failure to address these
factors set forth by Polishrespondents in
submissions to Thai
authorities.  Exhibit
THAILAND 35, pages 2-
5; Exhibit THAILAND
40, pages 2-4; Exhibit
THAILAND 40.WT/DS122/R
Page 179No. Economic factors and
indices having a bearing
on the state of the industryWas factor “considered” in
the investigation?
YES or NODocument in which factor
“considered”Was evaluation adequate? Document supporting
claim of (in)adequacy
7 Actual and potential decline
in utilization of capacityYES Final Injury Information
NoticeNo.  No evidence of injury.
Capacity utilization
increasing.  Actual capacityutilization grew from 64.4%
in 1995 to 72.9% in IP by
Thailand’s own claim.Exhibit THAILAND 37
Exhibit POLAND 10;
chart entitled “MarketData of H-Beam of Siam
Yamato”.
Exhibit THAILAND 21
SECTION C,page 2
XI. Factors affecting domestic
pricesYES Final Injury Information
NoticeNo.  Record does not contain
any clear evaluation.  Claims
existence of price
suppression, price
depression, price
undercutting allegedlysupported by Table 1.  But
Table 1 does not support
those claims.  “Finding”
repeated in Final Injury
Determination without
further support.Exhibit THAILAND 37
Exhibit POLAND 10,
point 7
Exhibit THAILAND 46,
Exhibit POLAND 13,
point 2.3
9 The magnitude of the margin
of dumpingNO Not applicable No.  No consideration or
evaluation.Not applicable
10 Actual and potential
negative effects on cash flowYES Allegedly in Final Injury
DeterminationNo.  No evaluation or
positive evidence
whatsoever.  Listed in Final
Determination without any
evaluation as an effect of
SYS decreasing prices to
Polish import levels – a
critical  (and false) claimregarding causationExhibit THAILAND 46,
Exhibit POLAND 13,
point 2.3WT/DS122/R
Page 180No. Economic factors and
indices having a bearing
on the state of the industryWas factor “considered” in
the investigation?
YES or NODocument in which factor
“considered”Was evaluation adequate? Document supporting
claim of (in)adequacy
11 Actual and potential
negative effects on
inventoriesYES Allegedly in Final Injury
Information NoticeNo.  No evidence of injury;
inventory fell from 100 in
1995 to 81 in IP, even whileoutput was rising.Exhibit THAILAND 37
Exhibit POLAND 10,
chart entitled “MarketData of H-Beam of Siam
Yamato”.
12 Actual and potential
negative effects on
employmentYES Allegedly in Final Injury
Information NoticeNo.  No evidence of injury.
Employment grew from 100
in 1995 to 110 in IP (even
greater percentage growth
likely if compare pre-IP withIP).Exhibit THAILAND 37
Exhibit POLAND 10,
chart entitled “Market
Data of H-Beam of Siam
Yamato”.
Exhibit THAILAND 21,
SECTION A,
page 9
13 Actual and potential
negative effects on wagesNO Not applicable No consideration or
evaluationNot applicable
14 Actual and potential
negative effects on growth
of the industryYES Allegedly in Final Injury
Information NoticeNo.  No evidence of injury.
Two new Thai producers
were entering the marketwith enormous combined
production capacity of 13
million tons.  This factor
was not evaluated by Thai
authorities other than to statethat Thai market share/sales
must be preserved and
expanded.Exhibit THAILAND 37
Exhibit POLAND 10;
point 15WT/DS122/R
Page 181No. Economic factors and
indices having a bearing
on the state of the industryWas factor “considered” in
the investigation?
YES or NODocument in which factor
“considered”Was evaluation adequate? Document supporting
claim of (in)adequacy
15 Actual and potential
negative effects on ability to
raise capitalNO Not applicable No.  No consideration or
evaluation; if anything, large
new market entrantsevidence easy access to
capital.Not applicable
16 Actual and potential
negative effects on
investmentsNO Not applicable No.  No consideration or
evaluation; if anything, large
new market entrants
evidence easy access to
investment.Not applicableWT/DS122/R
Page 182
RESPONSE OF THE REPUBLIC OF POLAND
TO QUESTIONS OF THAILAND
I. PRELIMINARY OBJECTIONS
1. In Poland’s view, do the following articles of the Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994 (the “Anti-DumpingAgreement”) and GATT 1994 contain one distinct obligation or more than one distinct
obligation?
a. Article 2 of the Anti-Dumping Agreement;
b. Article 3 of the Anti-Dumping Agreement;c. Article 5 of the Anti-Dumping Agreement;
d. Article 6 of the Anti-Dumping Agreement; and
e. Article VI of GATT 1994.
Reply
Please see Poland’s response to Question 1 from the Panel, including paragraph (c) thereof.
2. In its Oral Statement, Poland contends that it is not obligated to comply with Article 6.2
of the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”)
as interpreted by the Appellate Body in Korea - Dairy Products .  Poland’s position is apparently
based on the fact that the Appellate Body’s in terpretation was issued after Poland submitted its
request for establishment of a Panel.  Based on Poland’s interpretation of its obligations under
Article 6.2 of the DSU:
a. Does Poland agree that Thailand could not have violated Articles 2 or 3 of the Anti-
Dumping Agreement based on Poland’s proposed  interpretations of these articles, given
that such interpretations we re not known to Thailand at the time of the investigation?
b. Does Poland agree that Thailand could not have violated Article 3.4 based on the
interpretation of this article by the panel in Mexico - HFCS , given that this
interpretation was issued after the Thai authorities completed the investigation?
c. Does Poland agree that Thailand is only ob ligated to implement any decision of the
Panel in this case in future anti-dumping investigations because Thailand would not
have had the benefit of the Panel’s (or the Appellate Body’s) interpretations of many of
the provisions in the Anti-Dumping Agreement  at the time of the investigation regarding
H-beams from Poland?
Reply
We do not agree with these assertions or with the characterization of Poland’s claims arising
from the Appellate Body’s ruling in Korea – Dairy Products.
3. Poland contends that it presented its claim under Article 5 of the Anti-Dumping
Agreement with sufficient specificity because it as serted that the authorities decided to initiate
the investigation without evidence of injury or causation in the application.WT/DS122/R
Page 183
a. Does Poland agree that even this level of detail was not included in its request for
establishment of a panel?
b. In its request for establishment of a panel or in its First Written Submission, did Poland
discuss any other aspects of the chapeau  of Article 5.2 of the Anti-Dumping Agreement
or identify sub-paragraphs (i), (ii), (iii), or (iv) of Article 5.2?
c. Did the Polish respondents during the investigation or did Poland at any time request or
otherwise obtain a translation of the Thai language portions of the non-confidential
version of the application?
Reply
We believe our written submissions and oral statements speak for themselves.  Please see,
e.g., Poland’s response to Questions 1-4 from the Panel.  If by Question (c), Thailand is implying that
the non-confidential version of the application, THAILAND Exhibit 1, contains required evidence of
injury and causation, we look forward to Thailand’s providing such a translation to Poland and the
Panel.
4. Poland contends that it presented its claim under Article 3 of the Anti-Dumping
Agreement with sufficient specificity.  Thailand’s position is that the only purported claim
raised by Poland under Article 3.4 of the Anti-Dumping Agreement is that “[t]he Thaiauthorities chose not to present evidence regarding  profits, losses, profitability or cash flow.”
Poland’s First Written Submission at para. 74.  According to its final comments to the Panel,
Poland indicates that Thailand is improperly relying on a single sentence read out of context.
a. Does Poland agree that it did not reference paragraph 4 of Article 3 or any specific
factor therein in its request for establishment of a Panel?
b. Could Poland identify the paragraphs in its First Written Submission where it identified
specific factors under paragraph 4 of Article 3 and alleged that the Thai authorities
failed to consider or evalua te such identified factors?
Reply
We believe that our written submissions and oral statements speak for themselves.
5. Does Poland agree that it did not reference the failure of the Thai authorities to examine
“other factors” under Article 3.5 of the Anti-Dumping Agreement in its request for
establishment of a panel?
Reply
No, we would not agree with this characterization.
II. DUMPING
6. Can Poland confirm the answer it provided during the oral hearing that JIS
specification H-Beams and DIN specification H-Beams fall within the “same general category ofproducts”?WT/DS122/R
Page 184
Reply
Yes, JIS specification H-Beams and DIN specification H-Beams fall within the same general
category of products, but are not the only items within that general category.
7. The factual record indicates that Huta Katowice is earning large profits on domestic
sales of H-beams in Poland.
a. Does Poland consider that Huta Katowice is making an unreasonable profit on sales of
H-beams in the Polish domestic market?
b. If not, why is the profit calculated based on actual data for domestic sales of H-beams
then unacceptable for use in calculating a constructed value for anti-dumping purposes?
Reply
Poland does not have available to it the evidence needed to make such a determination in the
abstract.  Please see Poland’s response to Questions 27-30, 33-35 from the Panel.
8. How does Poland propose that investigating authorities decide whether a particular
level of profit is reasonable or unreasonable?
Reply
Poland believes that investigating authorities have an obligation to reach proper
determinations based on objective examination of the evidence in the record of an investigation.
Please see also Poland’s response to Questions 27-30, 33-35 from the Panel, as well as discussion ofthis issue in Poland’s Second Written Submission.
III. INJURY
9. As described in the factual record of the in vestigation, there is only one Thai domestic
producer and only one Polish producer.  These two producers each supplied confidential
information in their respective questionnaire responses.  Are the non-confidential tables
reported in the injury disclosure to the Polish  respondents the only basis on which Poland
contends that the Thai authoritie s did not use actual information?
Reply
No, Poland is contending that the Thai injury analysis was replete with false and internally
inconsistent data which cannot support a determination of injury by reason of Polish imports.  The
new THAILAND Exhibit 44 has only made this situation worse.  The misleading tables are only oneexample of this outcome-determinative technique.  We note further that the Polish respondents were
never even given copies of the SYS non-confidential questionnaire response, and that the SYS
response, now THAILAND Exhibit 21, also contains quite different data than was relied on by Thai
authorities.
10. Poland asserts that Thailand failed to consider the Kobe earthquake as an “other
factor” potentially causing injury to the domestic industry under Article 3.5 of the Anti-Dumping Agreement.WT/DS122/R
Page 185
a. In addition to the phrase in footnote 1 of Hogan & Hartson’s letter in Exhibit
THAILAND - 40, could Poland identify in the record of the investigation where the
respondents referred to the Kobe earthquake as an “other factor”?
b. Does Poland contend that consideration of the effects of the Kobe earthquake are
required in addition to consideration of the effects of world market conditions on world
market prices?  If so, how should the specific effects of an earthquake in Japan on global
prices of H-beams be assessed by investigating authorities in Thailand and where was
the need for further specificity in examining this factor raised on the record of the
investigation?
Reply
Please see Poland’s response to Questions 44-45 from the Panel.
11. Does Poland agree that Thailand’s compliance with Article 12 of the Anti-Dumping
Agreement is outside the Panel’s terms of reference?
Reply
Please see Poland’s response to Question 25 from the Panel.WT/DS122/R
Page 186
ANNEX 1-6
SECOND ORAL STATEMENT OF THE REPUBLIC OF POLAND
(12 April 2000)
INTRODUCTION
1. Mr. Chairman, Members of the Panel. The Panel has already had the opportunity to hear
extensive argument on this case from the Republic  of Poland, the Kingdom of Thailand, and the Third
Parties.  It is not our intention today, you will be pleased to know, to belabour points already
discussed at length.  Our oral statement will c oncentrate on a number of key issues.  In doing so,
Poland will take the opportunity to reply to some of the more egregious assertions by Thailand in its
Second Written Submission, and in particular, its Responses to Questions from ourselves and thePanel.
2. In addressing these issues, it is important, Poland submits, to take stock of where we all find
ourselves in this proceeding.  Given Thailand’s four-page Second Submission, it would appear that
Thailand understands that, after release of Thailand Exhibit 44, Thailand’s claims to have conducted a
proper and objective investigation have effectively been shattered.  The record now contains three or
sometimes more findings as to critical facts – with every inadequacy now becoming a “typographicalerror” or a regrettable mis-translation that fails to capture “the true and full meaning of the Thai
language version.
1   As it can no longer truly argue about substance, Thailand seeks to defend its
interests only as regards procedure.  It thus seeks to ignore the actual course of these proceedings, and
its earlier candid statements that it understood (even though it completely mischaracterized) several of
the claims against it.2  Now Thailand wants to take back its previous admissions and has retreated to
claiming, each time with increasing vehemence, that it simply cannot understand the claims presented
by Poland.  These allegations come of course after attempts to supply data on an ex parte  basis to the
Panel, with attendant delays that Thailand, quite remarkably, now seeks to blame on Poland.3  These
allegations come after Thailand has sought – and failed -- to distance itself from the very “secret” data
it gave so reluctantly to Poland and Third Partie s. These allegations come after Thailand even now
discovers new, extra-record “data” allegedly from secret committee meetings that it believes will
salvage the unsupported “findings” of its national authorities.  Rather than admitting the obvious –
that Thailand has long had actual notice of Poland’s claims in this matter – Thailand simply seeks to
bring these proceedings to a screeching halt, ignoring all it deems inconvenient.  To Poland, this
attitude is quite reminiscent of the conduct of the Thai national proceedings herein at issue.  To thePanel, a party’s apparently determined effort to frustrate dispute settlement should be met with firm
rebuke.
3. The issues that Poland will address today are:
• the repeated Thai attempts to thwart this proceeding despite the clear and detailed Thai knowledge
of each claim by Poland;
• the Thai claim that Article 17.6 ADA mandates the near total deference preferred by the Thai
authorities;
                                                     
1 Second Submission of the Kingdom of Thailand at paragraph 7.
2 See, e.g.,  First Written Submission of the Kingdom of Thailand at paragraph 75.
3 Second Submission of the Kingdom of Thailand at paragraph 6.WT/DS122/R
Page 187
• the inconsistency of the Thai injury determination with the plain standards and requirements set
forth in Articles 3.1, 3.2, 3.4 and 3.5 ADA;
• the Thai authorities use of a profit figure in calculating dumping that was clearly in violation of
Article 2.2 ADA;
• the Thai initiation of an anti-dumping investigation without substantiation by “relevant evidence”
of either injury or causation, as required by Articles 5.2 and 5.3 and without proper notice to theGovernment of Poland, under Article 5.5; and
• the Thai authorities’ refusal to respect basic th e due process requirements set forth in Article 6
ADA.
I. POLAND’S CLAIMS ARE PROPERLY BEFORE THE PANEL
4. We would like to begin by addressing Thailand’s allegation that none of Poland’s claims is
properly before the Panel.  The Thai allegation has been made in two parts – first, in its First Written
Submission, seeking a preliminary ruling as regards Article 5 and 6 and then, remarkably, in the
closing statement at the end of the First Substantive Meeting, when Thailand added an additional
request for a “preliminary” ruling as regards Poland’s claims under Articles 2 and 3.
5. Thailand’s allegations misconstrue Article 6.2 of the Dispute Settlement Understanding (the
“DSU”) and the teachings of the Appellate Body in Korea –Dairy Products
4, as well as  the recent
panel report in Mexico – High Fructose Corn Syrup. In making its allegations, Thailand seeks to re-
write applicable law and impose its own views as to mandatory contents of a Request forEstablishment.  In this effort, Thailand urges the Panel to ignore the Appellate Body’s clear teachings
–that the sufficiency of a Request must be viewed in light of attendant circumstances, including
whether a respondent has actually suffered meaningful prejudice in its ability to defend its interests in
the course of a panel proceeding.
5 To Thailand, this requirement is irrelevant, and it has treated its
burden of demonstrating prejudice accordingly.  In so doing, Thailand regrettably ignores the text of
Poland’s Request, as well as all relevant events both before and after that filing.  These events, of
course, include the issues raised in the investigation, in the Request for Consultations, duringconsultations, in Poland’s First Written Submission and First Oral Statement, and during nearly two
days of discussion of these issues with the Panel, as well as in Poland’s lengthy 29 March filings.
Despite its protestations at this juncture, it is beyond dispute that Thailand has long had actual
knowledge of the exact nature of Poland’s claims and, we submit, has in no meaningful respect been
prejudiced in “its ability to defend itself in the course of Panel proceedings."
6
6. Poland’s responses to Thailand’s allegations have been set forth in considerable detail in ourSecond Written Submission and Responses to Questions from the Panel.  Rather than re-state those
responses at this stage, Poland would like to focus the Panel’s attention on a few essential elements of
the applicable Appellate Body and panel reports.  This approach strikes us as more beneficial thanpresenting just our own views on what applicable  standards perhaps ought to be imposed by the
Appellate Body.
7. In Korea – Dairy Products,  the Appellate Body made plain that the sufficiency of a Request for
Establishment shall be viewed “in light of the attendant circumstances”, taking into account “whether
                                                     
4 Report by the Appellate Body on Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products, WT/DS98/AB/R, 14 December 1999 (“Korea  – Dairy Products”).
5 Thailand's 29 March 2000 Response to Questions from the Panel at 14.
6 Korea – Dairy Products  at paragraph 131.WT/DS122/R
Page 188
the ability of the respondent to defend itself was prejudiced, given the actual course of the panel
proceedings . . . .".7   In this regard, the Appellate Body has established an objective test – whether the
respondent, in view of such attendant circumstances, has actually “been misled as to what claims were
in fact being asserted against it as respondent”.
8. Thailand appears to argue that Poland has merely listed Articles of the Anti-Dumping
Agreement and that this is never sufficient for meeting the Article 6.2 DSU standard for due process.
This is an incorrect reading of Korea  – Dairy Products  in the context of, and given the realities of,
this proceeding.  The Appellate Body has never held that an express listing of all numerical sub-
provisions of a particular article of a covered agreement is a sine qua non for a proper request for
establishment of a panel under Article 6.2 DSU.  Such a requirement would put form over substance.
Rather, the Appellate Body has made plain that there may be instances where such a “mere listing” is
sufficient, and there may be other circumstances where it may not.  This would depend on the facts of
each case – but would not, as argued by Thailand, depend on whether the Request also includes a
detailed listing of all “facts and circumstances regarding the substance of a dispute,” a standard thatThailand has lifted from the Mexico – HFCS report, but regrettably taken wholly out of context.
9. Poland suggests that, after so much hyperbole, it would be worthwhile to focus the Panel’s
attention on the precise language of the Appellate Body.  First, because prejudice, if any, is to be
judged on a “case-by-case basis"
8  in light of “actual” circumstances, it shall be judged objectively.  A
respondent’s subjective claims, regardless of the intensity or repetition of that party’s rhetoric, shall
not be given weight.
10. Second, as prejudice shall be viewed in light of “attendant circumstances” as they exist “in the
course of the Panel’s proceedings”, any lack of precision is susceptible to prospective cure by a
complainant.  This consideration of attendant circumstances and the opportunity to cure any
imprecision would logically appear to be even more compelling at the early stages of a proceeding,when the prospect of actual “prejudice” is all the more remote.  The unwillingness of a party to
consider events before and after a Request has been filed should not affect a panel’s assessment of
whether alleged imprecision has indeed been remedied by actual events.
11. Third, an examination of “prejudice” should include an examination of intent – whether a
complainant has sought to “mislead” another party -- which, in part, requires one to examine the
clarity of any now-applicable requirements at the time the Request was originally submitted.
12. Finally, the Article 6.2 DSU requirements must be read in the context of dispute settlement as a
whole, inter alia , “to secure a positive solution to a dispute” (Article 3.7 DSU) so as to provide
“predictability” in the multilateral trading system and “clarify the existing provisions” of covered
agreements (Article 3.2 DSU).  Overly strict interpretations of provisions designed to ensure due
process rights of all parties would themselves impermissibly burden dispute settlement procedures
and frustrate Members’ intent to secure a “positive solution to a dispute.”  The WTO is not, as
Thailand would have it, a common law court.  In this regard, Thailand repeatedly muddles thedistinction between a party’s statement of its claims and its subsequent arguments regarding those
claims.  Under Thailand's interpretation of the Article 6.2 requirements, a Request would approach a
first written submission.  That plainly is not what the Members had in mind.
13. In light of these considerations, Poland submits that Thailand’s objections to the Request should
be rejected for at least four reasons.  First, Poland’s claims are set forth in sufficient clarity to satisfy
the terms of Article 6.2 DSU, particularly in light of the attendant circumstances in this case,including Thailand’s actual notice of Poland’s claims.  Second, any lack of clarity in the Request has
                                                     
7 Id. at paragraphs 124, 127.
8 Id. at paragraph  127.WT/DS122/R
Page 189
been cured by Poland’s later actions.  Third, Poland has never intended to mislead Thailand in these
proceedings.  Fourth, Thailand has not demonstrated, based on “supporting particulars"9, that it has
sustained any meaningful prejudice as a result of the imprecision it now alleges. We wish to address
these issues seriatim.
14. The terms of Poland’s Request for Establishment have been quoted and requoted by the parties.
They have been parsed by Poland in response to detailed questions of the Panel.  Each of these
paragraphs goes beyond the type of “mere listing” of the United States in Korea – Dairy Products .
We find Thailand’s claims particularly shocking in this regard as concerns Poland ’s Article 2 and 3
claims, which are, we submit, hinged on express language reflecting the relevant sub-paragraphs ofthose Articles  We note that (at page 25) Thailand, at least as regards Article 3, appears to admit as
much.  We have discussed this reality in detail in Response to Question 6 of the Panel.
15. Of course, even if the Panel were to determine otherwise – and, we note, notwithstanding
Thailand’s claims to the contrary -- the Appellate Body has made plain that a panel must look beyondthe four corners of the Request and consider attendant circumstances in order to ensure that the DSU’s
“due process objectives” are, in fact, accomplished.
10 Attendant circumstances include events both
before the Request and those afterwards. Poland notes that its Request provides that further factual
background regarding Poland’s claims is set forth in the Request for Consultations, which provides
greater detail regarding the violations that occurred in the underlying Thai investigation.  We have
also provided in Exhibit POLAND 19 the document read to Thailand during those consultations,
which details Poland’s claims in full, listing sub-provisions  of the relevant Articles, and otherwise,
once again, giving actual notice to the respondent of the claims here in dispute.   This all occurred
prior  to the Request and it is therefore plain why Thailand does not dispute that it had actual notice of
Poland’s claims.  Instead, it tries to take refuge in its own view of what must be expressed in a
Request itself.
16. Thailand similarly ignores the fact that this panel proceeding relates squarely to the actual
subject matter of the Thai investigation, in which each of Poland’s claims previously were made
directly to Thai authorities.  Again, this fact distinguishes the current dispute from many that may
come before a panel, and is important in placing the Appellate Body’s words in their proper context.
As set forth in Poland’s Responses to Questions from the Panel, Thai authorities have known formany years of Poland's concerns regarding the Kafka-esque nature of the Thai investigation and the
lack of any required basis for imposition of anti-dumping duties on Polish firms.  Pursuant to this
inquiry, Thailand’s impassioned pleas ring particularly hollow. It is perhaps important to briefly
summarize the Polish concerns once again.
17. As regards Poland’s Article 5 ADA claims, it is  plain that, from the middle of 1996, Poland has
complained to Thai authorities about the lack of evidence of injury or causation in the SYS petition,
the failure of Thai authorities to examine the suff iciency of that petition before they initiated this
investigation, and the failure of Thailand to give proper notice to Poland before initiation of this
investigation.
11  Relevant parts of the Panel record include paragraphs 86-90 of Poland’s First Written
Submission, paragraphs 9, 52-57, and 69, new Exhibits POLAND 17 and 18, attached to our Second
Written Submission, and Exhibit THAILAND 14. Poland’s Article 5 claims also were the subject of
substantial comment by Poland during the ‘Quest ion and Answer’ portions of the Panel’s First
Substantive Meeting.
18. As regards Poland’s Article 6 claims, from early 1997, Poland has complained to Thai
authorities about the incomprehensibility of the non-confidential summaries that were supplied and
                                                     
9 Id. at paragraph 131.
10 Korea – Dairy Products  at paragraph 126;  see also id.  at 123-31.
11 See Poland's 29 March 2000 Response to Question 4 from the Panel.WT/DS122/R
Page 190
about the failure of Thai authorities to explain their evaluation, if any, of relevant evidence.12   Now
that we know that such a document exists, we also  are complaining of Thailand’s failure to provide
Polish respondents the non-confidential summary of the SYS questionnaire response, Exhibit
THAILAND 21, during the investigation. Poland’s Article 6 claims are set forth in paragraphs 91-95
of Poland’s First Written Submission, paragraphs 58-65 of Poland’s First Oral Statement, Poland’sConcluding Statement, Exhibits POLAND 14, 15 , and 16, and THAILAND 27.  Poland’s Article 6
claims also were the subject of substantial comment by Poland during the ‘Question and Answer’
portions of the Panel’s First Substantive Meeting.
19. As regards Poland’s Article 2 claims, from the time of the preliminary determination in
January 1997, Poland has complained to Thai authorities about the use of an “unreasonable” amount
of profit in its constructed value calculation of normal value.
13  We would, for example, encourage the
panel to read paragraph 3 of Exhibit POLAND 19, the document read to Thailand during those
consultations, discussing Poland’s claim that “according to article 2.2 of the Agreement [normal
value] has not been calculated in the proper way.” Poland’s Article 2 claims are set forth in Poland’sFirst Written Submission ( i.a., paras. 77-84), Poland’s First Oral Statement ( i.a., paras. 43-51),
Poland’s oral responses to questions from the panel, Polish respondents briefs during the
investigation, where Article 2 and its sub-provisions are quoted, cited, and relied upon.  These are
found in the record as THAILAND Exhibits 35 and 40.
20. Finally, and most importantly, as regards Poland’s Article 3 claims, from the time of the
preliminary determination in January 1997, Poland has complained to Thai authorities about the lackof evidence to support a determination of injury by reason of Polish imports, the incoherence and
internal inconsistency of the non-confidential documents supplied, and the failure of Thai authorities
to explain their evaluation, if any, of relevant evidence.
14  These complaints have now proven
prescient, as Exhibit THAILAND 44 demonstrates. We would, once again, encourage the panel to
read paragraphs 1 and 2 of Exhibit POLAND 19, the document read to Thailand during those
consultations.  These paragraphs detail Poland’s Article 3 claim, cite expressly to sub-paragraphs 3.1,
3.2, and 3.4, and discuss causation – “there was no negative impact of Polish imports on the
Complainant’s economic position.” We further encourage the Panel to review  Polish respondents
briefs in the investigation where Articles 3.1, 3.2, 3.4, and 3.5 were quoted, cited, and relied on. We
note that Poland’s Article 3 claims are set forth in Poland’s First Written Submission ( i.a., paras. 47-
76), Poland’ s First Oral Statement ( i.a., paras. 26-42), and Poland’s oral responses to questions from
the panel.  After review of these materials, it is remarkable to us that Thailand still claims that the
“facts and circumstances” surrounding this claim remain unknown to it.
21. Based on the foregoing realities, this panel must view this issue in light of the circumstances of
a case “in line with the letter and spirit of Article 6.2.”  In this regard, we submit, the Appellate Body
has made plain that even temporary uncertainty, if indeed objectively based, may be cured by a
party’s subsequent actions – this is the meaning of the edict that prejudice is to be viewed in light ofthe “actual course of the panel proceedings”.  We submit that any uncertainty on the part of Thailand
has long been cured by Poland’s First Written Submission, First Oral Statement and Concluding
Statement, answers to quite detailed questions from the Panel during the First Substantive Meeting,
Poland’s Second Written Submission, and Responses to Questions from the Panel.  For Thailand to
claim otherwise has, in our view, begun to border on the disingenuous, but this is, of course, for the
Panel to decide.
22. Now, turning to the third element, we submit that  part of this examination is an examination of
intent – whether a complainant has sought to “mislead” another party -- which, in part, requires one to
                                                     
12 Id.
13 Id. at  Question 9.
14 Id.WT/DS122/R
Page 191
examine the clarity of any now-applicable requirements at the time the Request was originally
submitted. There has been no attempt by Poland to mislead or otherwise deprive Thailand of its due
process rights in this regard.
23. Further, as we have mentioned previously, the Korea – Dairy Products standard was announced
two months after the Request for Establishment herein at issue.  We do not claim, as Thailand
remarks, that these requirements are inapplicable to Poland; rather, we have claimed that the clarity of
such obligations is an element in the totality of th e circumstances that must be examined by the panel.
In this same regard, and as mentioned in our Second Submission, we believe the Panel should
examine Thailand’s understanding of the pleading requirements prior to Korea –Dairy Products.
Despite all the hyperbole to date and undoubtedly, still to come over the next two days, the reality is
that Thailand’s Requests in both the United States –Shrimp and Colombia—Polyester Filament15
disputes were no more expansive than the Request of Poland herein at issue.  Thailand obviously
believed those Requests to be sufficiently precise.
24. Finally, we would like to turn to the issu e of what prejudice Thailand may actually have
suffered in this matter.  Thailand, of course, claims that it is not required to make any showing of
prejudice, but, we submit, the Appellate Body ha s opined otherwise. The Appellate Body has made
clear that actual prejudice, not imprecise claims thereof, is a necessary prerequisite for the sweeping
ruling Thailand is now seeking.  The burden is on Thailand to “demonstrate” by means of “
supporting particulars” how it has sustained any prejudice – let alone a degree of prejudice that would
justify the sweeping action it now seeks.  We note at the outset that neither one of Thailand’s
Requests for Preliminary Ruling contained any claim of actual prejudice, let alone the
“demonstration” based on “supporting particulars” mandated by the Appellate Body.  Then, in its
Response to the Panel’s Questions, Thailand makes vague claims about delay in beginning
unspecified translations or “locating” appropriate personnel. These vague claims hardly amount to a
demonstration of supporting particulars and are essentially minor and quite temporary in nature. Nordoes mischaracterization of third-party comments lend weight to these allegations.
16  Simply put,
Thailand has failed to meet that burden of proof on this matter.
25. We would like to add one further point before moving on to the substance of this case.
Thailand ’s burden of proof should be particularly high with respect to Thailand’s allegations ofprejudice arising from Poland’s claims under Articles 2 and 3.  These allegations were raised only in
Thailand’s closing statement to the Panel, long after Thailand’s other Article 6.2 DSU allegations and
long after Poland and the third parties had a timely opportunity to comment.  The implication
therefore is that somehow Poland’s claims were sufficiently precise until 7 March, but then became
less clear to Thailand.  This is simply not objectively true and, in any event, effectively rendersgroundless Thailand’s claim to have suffered prejudice before 7 March as regards Poland’s Article 2
and 3 claims.  We note, for example, that during the first meeting with the Panel, Poland responded
orally to very precise questions from Thailand and the Panel regarding its claims under these
provisions.  Yet Thailand simply ignores the clarifications it sought and received from Poland.
Thailand’s intentional attempt to foster confusion where there is clarity is no substitute for ademonstration, based on supporting particulars, of actual prejudice.
                                                     
15 WT/DS180/1, 8 September 1999.
16 Thailand intimates that the EC supports its position with respect to Articles 2 and 3, when these
claims were nowhere discussed by the EC.WT/DS122/R
Page 192
II. ARTICLE 17.6 ADA LENDS NO SUPPORT TO THE THAI ATTEMPT TO
PRECLUDE ANY MEANINGFUL REVIEW BY THE PANEL OF THAILAND’S
ILLEGAL ACTIONS
26. After the first meeting with the Panel and the Second Written Submissions of the parties, there
is little remaining ambiguity regarding the Thai view of Article 17.6 ADA.  As explained briefly
below, Poland’s believes the professed Thai understanding of Article 17.6 to be little more than an
attempt to avoid, at all costs, meaningful review of Thailand’s actions.  Because Thailand’s view of
Article 17.6 finds no support in the text of the provision itself, nor in the jurisprudence of WTO
panels or the Appellate Body, that view should be firmly and thoroughly rejected.
27. As Poland has set forth both in its written and oral comments, the standard in Article 17.6(i)
may be said properly to fall between de novo review and total deference, while the standard in
Article 17.6(ii) requires the Panel to determine the proper interpretation of the relevant provision and
then apply it to the circumstances being challenged.
28. Poland understands Article 17.6(i) as intended to cover strictly factual questions, such as a
claimed pricing level.  Under Article 17.6(i), the Panel must first determine whether the investigating
authorities' establishment of the facts was proper.  Poland understands that a panel is not in a position
to re-determine every factual determination made by a national authority, and Poland has notsuggested that such is their role.  At the same time, Article 17.6(i) makes clear that in the discharge of
its duties, a panel must perform “an assessment of the facts of the matter.”
29. While Thailand seeks to empty that “assessment” of any meaning, Poland submits that in orderfor any investigating authorities’ “establishment” of the facts to be “proper”, at an absolute minimum
those record facts must first be consistent with one another, and it is a panel’s clear role and duty to
investigate whether this was the case.  Therefore, a national authority cannot be found to have
established properly any “fact” when that alleged “fact” is contradicted by another “fact” elsewhere in
the record of the same proceeding (as is repeatedly the case in the present dispute).  Such a “fact” is
not even established, much less properly so.  The panel is responsible for making this determination
and Thailand’s after-the fact “explanations” or “clarifications” of contradictory record assertions
should be flatly rejected under Article 17.6.
30.  “Proper” establishment of facts also includes several additional requirements conveniently
ignored by Thailand, which also require the Panel to examine directly the actions of the national
authorities. Facts cannot be properly established if the respondents in an investigation are not given,
inter alia,  the opportunity to provide all relevant facts in their possession, to review the material facts
alleged against them, and to correct any mistaken allegations upon which the authorities plan to base
their final determination.  Therefore, in addition to  the consistency of the facts “established”, the fact
gathering and evaluation procedures employed by the investigating authorities should be examined by
the Panel and are directly relevant to the Panel’s required assessment of the facts.  In the present
dispute, several material facts were never evaluated and there is no clear record regarding thosecursorily examined, even in light of the purported new web of secret Thai “findings” and
“determinations” never disclosed, summarized or even referenced during the national proceeding.
31. For those facts that have been established properly, consistent with Article 17.6(i), the Panel
must then determine, in light of all available evid ence, whether the authorities’ evaluation of the facts
at issue was unbiased and objective
.  The Panel must examine whether the national authorities were
completely impartial in what was done and left undone. An evaluation is also not “objective” unless
all evidence is considered and then weighed without any favouritism toward a national producer or
industry.  Thus, the baseline of an “objective” evaluation is that when a provision of the Anti-
Dumping Agreement, such as Article 3.4, requires examination and evaluation of several factors in
making a determination, the national authorities are not permitted to consider only those factors theyWT/DS122/R
Page 193
find convenient or believe might support their case.  The omission or disregar d of factors that an ADA
provision requires authorities to consider is a prima facie  case of bias in an evaluation.  In this regard,
Thailand fundamentally misunderstands the text of Article 17.6(i) when it asserts that the complaining
Member must somehow always prove absolute “bias”  or “subjectivity” by some other means (which
is never explained by Thailand).  It is the Panel’s  duty to determine whether the investigating
authority acted in an unbiased and objective manner.
32. Article 17.6(ii) requires the Panel to interpret the extent of a Member’s obligations under the
Anti-Dumping Agreement and the consistency of a practice being challenged with those obligations.
The degree of deference called for is therefore appropriately very small.  The text of 17.6(ii) is plain:the Panel should turn to the customary rules of inte rpretation of public international law as set forth in
Articles 31 and 32 of the Vienna Convention and apply them.  As Poland has noted several times, the
essential point of these interpretive rules is to reso lve any ambiguities in a treaty’s text.  Thus, there
will seldom, if ever, be more than one permi ssible interpretation of any given ADA provision.
(Thailand does not substantively rebut this point— it merely pleads that there somehow must  be
multiple permissible interpretations, without ever providing an example of even one.)  If, and only if,
a Panel determines that an Anti-Dumping Agreem ent provision somehow has multiple “permissible”
interpretations in light of the practice or action bein g challenged, then the Panel is instructed to defer
to permissible interpretations consistent with the text of the Anti-Dumping Agreement.
33. Poland’s views regarding Article 17.6(ii) are based on the text of the provision, its context, and
the conviction that text (“ shall  interpret…”) requires the Panel  to use the customary rules of
interpretation precisely because there is a proper multilateral understanding of each ADA provision.
Proper understanding of the ADA does not vary depending on the Member performing the
interpretation of a given provision.  Lastly, as we have already explained, Poland does not view
Article 17.6 as materially different than Article 11 DSU with regard to the issues that are at the centre
of this dispute between Poland and Thailand.
34. Thailand’s professed views stand in sharp contrast to the above.  In a tone that has become
regrettably familiar, Thailand claims deference for all its factual “findings”, practices, and legal
interpretations.  Given the generous opportunity to amend its earlier statement that the Panel may
somehow only consider “obligations” “as modified ” or “defined” by Article 17.6, Thailand instead
forges ahead with its prior view, informing the Pane l that “the substantive and procedural obligations
of a Member … are as such not the object of these proceedings.”17  Indeed, in the Thai view,
“[a]lthough the Panel could examine whether Thailand has complied with a particular substantive
obligation, such exercise would seem academic”.18   Thailand never explains where it finds support
for this radical proposition other than its own unders tandable desire to avoid any review.  Consistent
with past Thai practice regarding this assertion, Thailand cites not one Panel or Appellate Body
decision, because not one tribunal has ever endorsed this unique Thai view.
35. When Poland, a Third Party or the Panel raises a question regarding Thai practice, the Thai
response has become predictable.  Rather than provide rebuttal, Thailand claims the question is“unfair and prejudicial”. And, anticipating that the Panel will indeed perform the required
examination of the record of the Thai investigation, Thailand has now supplied several post hoc
explanations of the facial contradictions on the record of its authorities.  From the perspective of a
standard of review, it urges the Panel to adopt thes e after-the-fact revisions without question, despite
the fact they are found nowhere on the original record and were unknown to the Polish side.  At one
point Thailand goes so far as to rewrite its own alleged pricing data, claiming that the patently
obvious contradictions vanish once Thailand is permitted to create a new chart comparing pricing
                                                     
17 See Response of Thailand to Question 50 from the Panel.
18 Id.WT/DS122/R
Page 194
during one period by SYS with pricing during a different period  by Polish producers!19 This is, at
best, unfortunate, and the degree to which Thailand now attempts to rewrite even its own alleged
“secret”  record is alarming.
36. In short, Thailand understandably fears any substantive review whatsoever of either its factual
determinations or the consistency of its actions with the legal requirements of the ADA.  In one
concession, Thailand informs the Panel that while it admits that the Thai authorities (and we quote)
“may be substantively obligated to provide a correct establishment of the true facts,” even this
obligation “is not subject to Panel review.”20  Thailand’s seeks to create a major distinction between
the “correct” establishment of the facts and the “proper” establishment of the facts.  Poland sees nosuch distinction and respectfully requests that the Panel reject Thailand’s attempt to have the Panel
ignore the several contradictory sets of Thai assertions.  By no plausible definition or standard of
review can any such Thai assertions be considered “facts” that were “properly” or “correctly”
established.
37. Similarly, the Panel should reject the Thai distortion of Article 17.6(ii) ADA.  Here, Thailand
now claims that 17.6(ii) somehow stands for the pr oposition that the Panel must deem all Thai actions
“permissible” because (and we quote) it would be “odd” to assert that the customary rules of
interpretation set forth in the Vienna Convention can play a substantive role in “always, or even
regularly” resolving any ambiguity in relevant provisions.
21  As we have explained, the notion that the
provisions of the Anti-Dumping Agreement are subject to differing multilateral obligations,
depending on the Member performing the interpretation of a given provision, is incorrect.  Theunsubtle Thai attempt to dismiss the customary rules of interpretation set forth in the Vienna
Convention as of any import should also be rejected.
38. In sum, in the present case facts were not properly established by the Thai authorities – indeed
Thailand appears to be establishing and revising them to this very day.  Even those few facts properly
established were not evaluated in an objective and unbiased manner.  Furthermore, the Thai practices
in this case are not consistent with the correct in terpretation of the relevant Anti-Dumping Agreement
provisions at issue.  These provisions do not admit of more than one correct interpretation regarding
the Thai practices in this case and the Thai view that that Members have two independent sets of
“obligations” -- substantive obligations under the Anti-Dumping Agreement (which remarkably haveno meaning) and unexplained  obligations “modified” by Article 17.6 – is simply wrong.
39. As a result, the Panel should not accord deference to the Thai actions at issue herein.   The
Panel should read and utiliz e Article 17.6 ADA and Article 11 DSU together, with Article 17.6 ADA
applying only in the very limited instances when it may differ with Article 11 DSU.   Neither
Article 11 DSU nor Article 17.6 ADA provides Thai authorities the deference they demand in this
case.
III.  THE THAI DETERMINATION OF INJURY WAS FLATLY INCONSISTENT WITH
THE STANDARDS SET FORTH IN ARTICLE VI GATT 1994 AND ARTICLES 3.1,
3.2, 3.4 AND 3.5 ANTI-DUMPING AGREEMENT
40. We would like now to discuss Poland’s Article 3 claims, which are the heart of our complaint.
41. First, Thailand apparently has now abandoned any substantive defence of its authorities injury
“finding” .  This is the only conclusion that can be drawn from Thailand’s four-page Second
Submission.  The Thai injury determination goes completely without mention.  In addition, while
                                                     
19 Compare, for example, Thailand Exhibit 44, the Th ai public record, and the newest Thai explanation
set forth in response to question 48 from the Panel.
20 Response of Thailand to Question 50 from the Panel.
21 Response of Thailand to Question 52(a) from the Panel.WT/DS122/R
Page 195
Thailand’s underlying administrative record already was replete with contradictions, Thailand now
manages to contradict even its own submissions in this dispute.  For example, whereas Thailand (at
paragraph 75) claimed in its First Written Submission to the Panel that Thailand “was able to identify
six purported ‘claims’ under Article 3 of the Anti-Dumping Agreement,” it now inexplicably asserts
(at paragraph 6 of its Second Submission) that Poland failed to set forth any Article 3 claims.22  We
view this approach as inconsistent with the dispute settlement process.
A. THAILAND'S DETERMINATION OF INJURY WAS NOT BASED ON "POSITIVE
EVIDENCE" AND AN "OBJECTIVE EXAMINATION" OF THE FACTS, IN VIOLATION
OF ARTICLE 3.1 AND 3.2
42. Poland believes that the requirements of Articles 3.1 and 3.2 are clear and well settled.
Article 3.1 explicitly states that a proper determination of injury must be based on “positive evidence”
and “an objective examination” of the facts, including both (a) the volume of allegedly dumpedimports and their effect on prices for the domestic like product, as well as (b) the impact of the
imports on the domestic industry.  Furthermore, Article 3.2 requires the investigating authority toconsider, inter alia,  whether the increase in dumped imports, and the effect of those imports on
domestic prices, were "significant."  Thailand's determination of injury in this case was not based on
either "positive evidence" or an "objective examin ation" of these factors, and Thailand completely
failed to consider the significance of increased imports or price effects.
43. Poland submits that a proper Determination of Injury, based on "positive evidence" and an
"objective examination of the facts," cannot possibly be made in the presence of inconsistent and
directly contradictory data regarding volume of imports and prices.  That is, "positive evidence" bydefinition necessarily precludes the existence of in formation that flatly contradicts the information
upon which the determination was based.  In its First and Second Written Submissions, Poland has
described a litany of failures by the Thai authorities with respect to the requirements of Article 3.1, as
well as a stunning list of contradictory legal and factual statements.
44. Thailand continues to claim that it “disclosed to interested parties all non-confidential
information that was considered in reaching its final determination,” However, Thailand now admits
that its real decisions in this investigation were based on secret data of which there is no record or
meaningful summary in the investigation.  This "secret data" was only recently provided to Poland
after a Thai attempt at a prohibited ex parte  communication with the Panel.  Given the extent of the
glaring inconsistencies and contradictions contained in this secret data, it is not surprising that
Thailand attempted to hide it from Poland.  These contradictions render dubious each of the factual
findings required under Article 3.1.
1. Volume of Dumped Imports
45. The first factor that the investigating au thorities must consider, in accordance with
Article 3.1, is the volume of imports.  Again, Article 3.1 requires that the examination of this factor be
objective and based upon positive evidence.  In addition, Article 3.2 further provides that the
investigating authority must consider whether there was a "significant increase in dumped imports,
either in absolute terms or relative to production or consumption in the importing member."
46. In purported support of its Final Injury Determination (at paragraph 2.1), Thailand cites the
“fact” that the level of Polish imports into Thailand had “continuously increased” and that Polish
imports captured an increasing share of the Thai market.  It is readily apparent, however, from
Thailand's own documents that this finding of increased imports is not supported by positive
evidence.  When Poland raised questions regarding the validity of the Thai import data at the
                                                     
22 First Written Submission of Thailand at paragraph 75;  Second Written Submission of Thailand at
paragraph 6.WT/DS122/R
Page 196
beginning of the investigation23,  Thai officials dismissively asserted that these sharp differences were
“accounted for by shipments on the high seas."24
47. The “high seas” were not responsible for the realities of what took place here.  To the contrary,
the new “secret” Thai data show that Thailand’s “determinations ” were based on nothing more than ahopeless jumble of numbers.  Exhibit 44 states that total imports in 1994 equalled those in 1995, but
also that imports “ shrunk continuously” during this time.
25   While it is admitted that SYS output,
sales, market share, etc., grew markedly in the IP,  Exhibit 44 states that imports in the IP equalled
domestic demand.26   Exhibit 44 further states that Polish imports “skyrocketed” to [I + 12,445] MT,
but that Poland held 25.3 per cent (47,435 MT) of a total market of 187,490 MT.27 Some Exhibit 44
data claim to show that domestic demand contracted sharply.28  Yet the same exhibit also states that
domestic demand increased [D*] per cent in the IP, and paragraph 1 of the Final Injury Information
Notice states that “during the period of investigation, the consumption of H-Beams in Thailandincreased by 4 per cent from 1995.”
48. Thailand's data regarding Poland's share of the Thai market is similarly contradictory.   WhileThailand's Final Injury Determination claimed that Polish market share had risen from 24 per cent to
26 per cent in the IP, all “evidence” in the record showed the rise to be from 24.2 per cent to 25.3 per
cent.  And now, based on a new “secret” committee report never before revealed to anyone, Thailand
again claims a typographical error and submits a third alleged figure.
49. In sum, Thailand’s findings concerning Polish import volumes are nothing more than
unsupportable numbers placed on a sheet of paper.  Such confusing and inconsistent numbers cannot
possibly be characterised as "positive evidence" and the Thai examination of those numbers clearly
was not "objective," in violation of Article 3.1.
50. Further, Thailand clearly failed to comply with Article 3.2's requirement that it consider
whether the increase in imports had been "significant".   Thailand repeatedly claimed in its First
Written Submission that the Thai authorities “clearly” considered whether volume increases were
“significant” and whether price depression or price suppression was “significant”.
29  However, the
Thai determinations do not contain any such statements or provide any such evidence whatsoever.
Furthermore, as Poland and other Members have noted, Thai law at the time was inconsistent with the
Anti-Dumping Agreement and did not even require any such findings of significance.
2. Effect of Dumped Imports on Prices
51. Next, Article 3.1 requires investigating authorities to examine "the effect of the dumped imports
on prices in the domestic market for like products."   Furthermore, Article 3.2 requires the authorities
to consider whether the dumped imports had resulted in "significant price undercutting" or price
depression in the domestic market.
                                                     
23 See, e.g.,  Letter of Stalexport, dated 2 February 1997, page 1-2, points 1,3, Exhibit THAILAND 26;
Letter from Huta Katowice, dated 13 February 1997, page 2, point 9; Exhibit THAILAND 27; Brief of Polish
Respondents, dated 9 March 1997, page 3 and footnote 2, Exhibit THAILAND 35.   See also  Poland's
29 March 1998 Response to Question 9 from the Panel.
24 Proposed Final Determination, point 9.1, page 7 (Exhibit POLAND 10; Exhibit THAILAND 37).
25 Exhibit 44, paragraph 1.8.1.
26 Id. at paragraphs 1.7, 1.8.1 (both were said to equal 187,490 MT in the IP).
27 Id. at paragraph 1.8.2.
28 Paragraph 1.7 of Exhibit 44 shows domestic demand for H-Beams falling from [D-8,927] MT in
1995 to 187,490 MT in the IP.
29 See, e.g.,  First Written Submission of Thailand at paragraphs 82, 87, and 94.WT/DS122/R
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52. The cornerstone of Thailand's alleged injury determination was its finding that the prices of
Polish imports harmed the domestic market.  Thailand's Final Injury Determination implies that the
influence of Polish imports was so dramatic that average CIF Polish import prices and average SYS
prices “move in the same direction” (paragraph 2.2), that SYS had to reduce its prices sharply to
“match” Polish prices (paragraph 2.5) and that SYS “has no choice but to decrease its price to thelevel of Polish imports” (paragraph 2.3).
53. According to Thailand's own documents, however, none of these findings is correct.  In fact,
these findings are repeatedly contradicted by evidence on the non-confidential record – and shattered
by the new “confidential” information in Exhibit THAILAND 44.  One glaring example of suchinconsistencies demonstrates the magnitude of these problems.  In three places, the Thai authorities
provide three completely different figures for the same purported fact regarding import pricing.  The
public Draft Final Injury Notice (at par. 6 and in the Table "Price Data of H-Beams") states that
average CIF import prices were 8,754 Baht during the investigation period.  Yet in the secret
Exhibit 44, at paragraph 1.9.1, the Thai authorities state that average CIF import prices were9,462 Baht during the investigation period.  Later in the same exhibit (this time at paragraph 4.6),
Thailand states that the average CIT import price was 10,782 Baht.  Needless to say, such
contradictions in the data regarding import prices are indicative of a serious problem—it is simply
impossible to make a proper examination and evaluation of possible injury without accurate data on
import prices.  Similar inconsistencies can be found throughout the Thai documents in this case.
54. As Poland explained in detail in its Second Written Submission, an examination of Thailand's
documents reveal, among several others, the following inconsistencies and contradictions:
• While Thailand's Final Injury Determination publicly determined that Polish prices went down in
the IP,  the Thai secret data showed that Polish prices went up;
• Thailand claimed publicly to have determined that Thai prices went down sharply to “match” the
level of Polish prices, when Thai secret data showed they went down only slightly and remained
thousands of Baht per metric ton higher than al leged Polish prices throughout the IP.  Further,
while Thailand publicly claimed that Polish firms were the price leaders in the Thai market,
Table 1 to Thailand's Final Injury Notice reveals th at SYS precipitated the first decline in  prices
during the IP (the 4th quarter of 1995);
• Thailand claimed publicly to have determined that Polish prices and Thai prices “move in the
same direction”,  when Thai secret data showed they do not.  This inconsistency is only confirmedby the tortured explanation of its authorities’ logic now submitted to the Panel, including an
attempt, again using a secret committee report, to justify mismatching data across relevant time
periods.  But even the public data on the record -- Table 1 of the Final Injury Notice -- show that
Thai and Polish prices moved in the same direction less than half the time;
• Thailand claimed publicly to have determined that Polish prices “influence” SYS prices, when
Thai secret data showed they were both stable;
• Thailand claimed in the Final Injury Determination that the low prices of Polish imports forced
SYS to lower domestic prices to the point that its export prices were higher than domestic prices,
while Thailand's secret documents show that SYS had a stated policy of exporting at a price
below its domestic price.
55. Furthermore, Thailand again violated Article 3.2 in failing to make any findings regarding the
significance of any alleged price undercutting.  As stated above, this failure is not surprising, given
that Thai law, in conflict with the Anti-Dumping Agreement, did not even require such a finding.WT/DS122/R
Page 198
56. We thus submit that Thailand’s Final Injury Determination was not based on “positive
evidence” or an “objective examination” of the reco rd in this proceeding.  Indeed, "positive evidence"
cannot exist in the face of pervasive contradictions and inconsistencies in the data relied upon.  The
“evidence” set forth in the Final Determination was unsupported by the record, contradicted by
“secret ” facts, or otherwise meaningless given the methods of comparison employed.  In addition, theinjury Thailand claimed to exist was not properly determined to be “significant” and “material” as
required by the Agreement.
B. THAILAND HAS A FUNDAMENTAL MISUNDERSTANDING OF THE
REQUIREMENTS SET FORTH IN ARTICLE 3.4 ANTI-DUMPING AGREEMENT ANDHAS NOW CONCEDED ITS AUTHORITIES IGNORED SEVERAL REQUIRED
FACTORS
57. Poland’s views regarding the inconsistency of Thai actions with Article 3.4 ADA have most
recently been set forth at great length in Pola nd’s Second Written Submission and our answers to the
Panel’s questions.  Therefore, we will not repeat each point here, but instead, focus on some of the
new Thai claims in its answers to (and revealing refusals to answer) the Panel’s questions.
58. While in its First Written Submission Thailand made clear that it misunderstood the
requirements of Article 3.4 ADA, the willingness of the Thai authorities to violate the basic precepts
of Article 3.4 is illustrated with even greater clarity by the new Thai responses to the Panel’s
questions regarding Article 3.
59. For example, in its First Submission, Thailand claimed to have considered and evaluated all
relevant factors, when several factors were not even so much as mentioned in its analysis.
30  While
this was perplexing, the Thai response to a recent question from the Panel clarifies that, in fact,
Thailand did nothing of the sort.   Thailand now concedes, by its refusal to respond in a meaningfulmanner to the Panel, that its authorities simply ignored several required factors.
31  Indeed, given the
opportunity by the Panel to identify evidence contradicting Poland’s (correct) claim that “all relevant
economic factors and indices were not examined”32 Thailand has refused to identify even a single
instance where it performed the mandated evaluation.  While the Panel’s simple request was
straightforward, Poland is not surprised by Thailand’s heated refusal to provide the evidencerequested, given that no such evidence exists.  Indeed, even for the mandatory Article 3.4 factors
deemed worthy of a simple brief reference by the Thai authorities, Thailand appears to believe that a
conclusory statement without any supporting evidence suffices for the evaluation required by
Article 3.4 ADA.  Poland, as it has explained previously, strongly disagrees.
60. Thailand’s newest legal views regarding Article 3.4 find the same degree of support as its
factual claims: none.  Angered that its actions are now (for the first time) being appropriately
reviewed by an independent tribunal, Thailand informs the Panel that “the only question for the Panelis whether … the authority conducted the referenced evaluation."
33  It offers no credible basis for this
assertion beyond its own apparent desire.  Thailand next asserts that “interpretation of Article 3.4 isnot relevant” to Poland’s claims, as Poland has not “proved” that a “factor was or was not evaluated”
by Thailand to Thailand’s apparent satisfaction.
34 In Thailand’s view, it is thus Poland’s duty to
conclusively prove (to Thailand!) that a factor was not evaluated, while Thailand feels free to hide
“secret” documents for years which contain the alleged basis for all its decisions.  Thankfully, thisunique Thai version of due process is not found in the Anti-Dumping Agreement and should thus be
rejected by the Panel.
                                                     
30 See First Written Submission of Thailand at paragraphs 97-106.
31 See Response of Thailand to Question 39 from the Panel.
32 First Written Submission of Poland at paragraph 74.
33 Response of Thailand to Question 40(a) from the Panel.
34 Id.WT/DS122/R
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61. One final new Thai assertion in response to the Panel’s questions must also be noted.  Thailand,
by necessity, disagrees with the two-stage analysis of the Article 3.4 factors set forth by the Panel in
question 40.  Thailand never considered or evaluated several factors, much less explained them in its
determination, so it seeks refuse for its illegal conduct by professing that the ADA contains no suchrequirements.  But Thailand also cannot explain how it is possible, without carefully and thoroughly
considering each factor, for its authorities to judge the relevance of each factor in the required
objective and unbiased  manner.  Thailand’s answer to this problem illustrates the degree to which it
views itself as unencumbered by any sense of fairness or the fundamental requirements of the Anti-
Dumping Agreement:
Thailand considers that it is solely for the Thai authorities, not for a panel, to judge
whether certain factors as relevant or not.  … Thus, in accordance with the text of
Article 3.4 … the Panel is to review only whether the authority has or has not
conducted an examination in which it evaluated factors.  The factors examined arethose that the authority itself considers relevant and such consideration is not subject
to a panel’s review.
35
62. As Thailand made clear to Polish respondents during the course of its national proceeding, itnow makes clear to the Panel that the mysterious and contradictory decisions of the Thai authorities
must never be questioned.  Thailand will not brook any dissent or tolerate any substantive review of
their attempts to protect SYS from fair competition.  In this light, Thailand’s open admission that “it is
imperative that the domestic industry’s market share be preserved and expanded” becomes  all themore understandable.
36
63. Poland’s view of Article 3.4 is quite different than that of Thailand.  In our view,  Article 3.4
provides guidance with regard to the proper factors that must be considered and evaluated in
determining the impact imports have on the domes tic industry, with Article 3.4 stating that the
evaluation by the investigating authorities “shall include an evaluation of all relevant economic
factors and indices having a bearing on the state of the industry,” including the now well-known list
of several factors.37  While Thailand now claims for the first time that Article 3.4 somehow only
includes four factors (despite the transparent listing of several more) it offers no rational or persuasive
explanation for its new view, instead preferring to claim that the deliberate choice of new language bythe drafters (“including” instead of “such as”) is meaningless.
64. Poland’s view again differs respectfully from that of Thailand.  We believe that the required
consideration, evaluation and weighting applied to the factors listed in Article 3.4 constitutes a
“proper” establishment of the facts only when all factors are considered.  In the same light, the factors
can only be “objectively” evaluated if they are all considered, weighed and discussed.  Thus, the
minimum starting point of an “objective” evaluation is a recognition that when Article 3.4 explicitlyrequires examination and evaluation of several specified economic factors (“including . . .”) in making
a determination, Thai national authorities should not be permitted to pick and consider only those
factors they find convenient or believe might sup port their case.
65. The omission or disregard of factors that Article 3.4 requires to be considered is a prima facie
case of bias in an evaluation, and this is exactly what has happened in the present situation.  If all
factors are not carefully considered, there is no “objective” means by which to judge the degree to
                                                     
35 Response of Thailand to Question 40(b) from the Panel.
36 Final Injury Determination, at page 2, paragraph 2.5.  Likewise, in the Final Injury Information
Notice (at page 3, paragraph 16), the Thai authorities wrote that SYS "must maintain and increase its market
share." (emphasis added).
37 Emphasis added.WT/DS122/R
Page 200
which a factor may be more or less relevant to the determination being made.  Furthermore, as the text
of Article 3.4 makes clear, all listed factors are presumed to be relevant unless shown and explained to
be otherwise.  Therefore, if national authorities deem a listed factor somehow not relevant to their
determination, they must explain why (in a rational manner consistent with other facts/evidence in the
investigation) in the text of their final determination.
66. While Thailand ignores the now-adopted panel decision in Mexico—High Fructose Corn
Syrup, it also speaks directly to the requirements of Article 3.4.38  T h e  Mexico-HFCS  panel’s
completely rejects the Thai position now urged before the present panel.  The text of Article 3.4 is
“mandatory”, with the “language mak[ing] it clear that the listed factors in Article 3.4 must be
considered in all cases."39  The panel further explains that “[t]here may be other relevant economic
factors in the circumstances of a particular case, consideration of which would also be required."40
The panel concludes by explaining that consideration of each of the Article 3.4 factors “must be
apparent in the final determination of the investigating authority,"41 and that other panels have made
clear in similar contexts that “while the authorit ies may determine that some factors are not relevant
or do not weigh significantly in the decision, the au thorities may not simply disregard such factors,
but must explain their conclusion as to the lack of relevance or significance of such factors."42
Thailand’s view of this adopted decision: silence.
67. In sum, in order for an investigating authority’s actions to be consistent with Article 3.4, theinvestigating authority must consider all of the enum erated factors as well as their relevance, clearly
explain on the record in the final determination available to the parties which factors, if any, are not
relevant and the precise objective reason(s) this is the case in the context of all evidence, and then
carefully and fully evaluate and explain each remaining listed factor, as well as any other factors
before it that bear on the state of the domestic industry.  Each factor in Article 3.4 must be addressed
in order for the fact-finding portion of this endeavour to be objective and unbiased.
68. In the present case, Thailand failed in each and every one of these requirements.  No objective
reader could consider the Thai final injury determination to have met the requirements of Article 3.4
or to be a proper explanation of the Thai author ities' consideration, evaluation and weighing of the
mandatory Article 3.4 factors.  Thailand failed to establish properly the material facts (as several
contradict one another), it failed to evaluate them in an unbiased and objective manner (as severalwere ignored), and it failed to meet the legal standard set forth in Article 3.4 requiring evaluation of
all relevant economic factors and indices.
C. THAILAND FAILED TO ESTABLISH A CAUSAL CONNECTION BETWEEN DUMPED
IMPORTS AND INJURY TO THE DOMESTIC INDUSTRY, IN VIOLATION OFARTICLE 3.5
69. Even if Thailand had properly established that its domestic industry had suffered injury—which
it plainly did not—Thailand still was required under Article 3.5 to establish that such injury was
caused by the allegedly dumped imports .   In considering this causal relationship, Article 3.5 requires
the investigating authorities to examine "all releva nt evidence before the authorities,”  including "any
known factors other than the dumped imports which at the same time are injuring the domestic
industry."  The provision specifically states that "the injuries caused by these other factors must not be
attributed to the dumped imports.”
                                                     
38 Mexico – High Fructose Corn Syrup,  at paras. 7.128-7.131.
39 Id. at paragraph 7.128 (emphasis added).
40 Id. (emphasis added).
41 Id. (also citing Article 12.2.2) (emphasis added).
42 Id. at 7.129WT/DS122/R
Page 201
70. Poland has repeatedly challenged Thailand's determination of causation under Article 3.5 in two
respects.  First, as set forth in Poland's First and Second Written Submissions, the evidence relied
upon by Thailand fails to establish any causal connection between Polish imports and any alleged
injury to the Thai industry.  Second, Poland has repeatedly asserted that Thailand failed to consider
other important factors besides Polish imports that may have contributed to the condition of the Thaiindustry.
71. At the outset, we note that Thailand has stubbornly refused to provide substantive responses to
questions from the Panel and Poland with respect to its Article 3.5 causation determination.  Instead,
Thailand has repeatedly stated that Poland had failed to assert "specific claims" regarding Article 3.5.Poland submits that Thailand is simply wrong on this account.   Poland has clearly and repeatedly
articulated its Article 3.5 claims and Thailand has simply chosen to ignore them.   This panel must not
permit a party to remain wilfully ignorant of clearly stated claims against it.
72. First, Poland has explained that Thailand's Article 3.5 injury determination is improper under
Article 3.5 because, inter alia ,  there is no positive evidence in the record to support that
determination.  Thailand's causation determination allegedly relies upon its "findings" regarding the
influence of Polish imports on prices and the quantity of Polish imports.  With respect to prices,
Thailand determined (1) that SYS reduced its prices  to match the level of Polish Prices;  (2) that
Polish prices and Thai prices moved in the same direction; and (3) that Polish firms were the price
leaders in the Thai market.
73. None of these findings, however, is supported by  the evidence in the record.  Again, a review of
the non-confidential data in the Thai Final Inju ry Notice and the Thai secret data in Exhibit
THAILAND 44 and elsewhere reveals a dizzying list of inconsistencies and contradictions in the
evidence allegedly considered by Thailand:  DIT publicly determined that Polish prices fell, when
they actually rose.  DIT publicly determined that Thai prices fell sharply when Thai prices were“stable”.  DIT publicly determined that Polish prices “influence[d]” Thai prices, causing SYS to have
to “match” Polish import prices, when that was not true – Thai prices were and remained much
higher.  It found that Polish and Thai prices “mov e in the same direction”, when that was not true.
DIT publicly determined that Polish import volumes surged, when Thai secret data are
incomprehensible and support no such determination.  DIT publicly determined that domestic demandrose 4 per cent, when Thai secret data show both that it rose [D*] per cent, but also that it fell.  DIT
publicly determined that Polish market share had risen from 24 per cent to 26 per cent in the IP, when
all “evidence” in the record showed the rise to be from 24.2 per cent to 25.3 per cent.  DIT publicly
determined that SYS’ domestic prices were lower than SYS’ export prices when Thai secret data
declare the opposite -- that SYS’ domestic prices were higher than SYS’ export prices.  In sum, and
given the Thais' secret finding of “price stability with reference to the subject merchandise”43,
Exhibit 44 separates the state of the domestic industry from any activities of Polish importers and
offers no meaningful basis for any of Thailand's conclusions regarding whether any “injury” was
indeed caused by reason of Polish imports.
74. Thailand also attempted to show causation by reason of the quantity of imports from Poland.  It
inexplicably bases its conclusion (at paragraph 8 of the Final Injury Information Notice) on
examination of only two quarters of the IP, during which Thailand claims that Polish imports led to
either decreased sales or decreased output by SYS.  There are several obvious problems with this
conclusion.  First, Thai authorities fail to explain their own record evidence directly contradicting
their conclusion regarding decreased sales or output.  At the same time that one of their charts
purports to show decreased sales and output, Thai  authorities also acknowledged that SYS market
share tripled and that production quantity rose  over 10 per cent (while inventories decreased). In
addition, the other two quarters not referenced by Thailand -- and the IP as a whole -- tell a very
                                                     
43 Exhibit 44, paragraph 5, page 13.WT/DS122/R
Page 202
different story than Thailand alleges.  But even the two quarters examined do not support the claim:
in each of those two quarters, SYS sharply raised its prices from previous levels, and, not surprisingly,
faced market resistance.44
75. As this discussion demonstrates,  Thailand clearly did not fully consider all  relevant data, asrequired by Article 3.5.  For if it had, Thailand could not possibly have concluded, on the basis of that
evidence, that Polish imports caused any injury to the Thai industry.
76. Second, Poland asserts that Thailand failed to consider whether any injury to the Thai industry
was caused by factors other that Polish imports.   The Final Determination shows no examination ofthe influence of non-Polish imports, the level of demand of the local construction industry, the highly
aggressive nature of SYS’ entry into the H-Beam market, domestic industry productivity and cost
structure, technology developments, market realities in SYS export markets, or the Kobe earthquake.
The Final Injury Determination also shows no exam ination of why these factors were outweighed by
any other factors elsewhere in the record.
77. In its written submissions and its responses to the Panel, Thailand has argued that it has no
obligation to consider "other factors" in its causation analysis unless those factors are specifically
raised by the interested parties.   As stated in Poland's responses to the Panel's questions, Poland
disagrees.   In order for an evaluation to be “objective” and based upon "positive evidence, as required
by Article 3.1, an investigating authority has the affirmative responsibility to seek all available
information concerning the potential effects of “known” factors other than dumped imports that might
be causing injury.  While a responding party would be unwise not to bring such issues to the attention
of the investigating authority, they do not bear the sa me burden as the investigating authority.   Thus,
Thailand failed to consider numerous factors other than Polish imports in reaching its causation
determination, violation of Article 3.5.
78. Even if Thailand is correct that investigating authorities are only obligated to consider those
factors that are brought to their attention by the parties, the record clearly shows that Thailand failed
to consider certain factors related to causation that Poland repeatedly raised.  For example, Poland
argued that Thai authorities must consider the disruption to world steel supplies due to the Kobe
earthquake and the resulting effect on world market prices.  The impact of the Kobe earthquake wasraised by Polish respondents at the oral hearing in Bangkok, during verification, and in the
respondents’ 13 May 1997 submission (Exhibit THAILAND 40).   Thus, even under Thailand's own
interpretation of Article 3.5, its authorities should have considered the economic effects of the Kobe
earthquake in this case.
79. Furthermore, Thailand's secret data indicates that its authorities clearly were aware of the
impact of changes in the global  steel market upon its domestic industry.   In Exhibit 44, the DIT
wrote:
Whereas SYS relied on export for about [X-Conf.]  per cent of its sales, it is much
effected [sic] by the downturn of world market price for H-beams.  This is due to the
fact that there is a slowdown of construction world-wide coupled with the fact that
the total production capacity far surpassed demand.
Given this obvious awareness of the impact of global market conditions, it is not clear why Thai
authorities failed to consider this issue in the Final Injury Notice.
                                                     
44 See table entitled “Average Quarterly Price” attached to Final Injury Information Notice, Exhibits
POLAND 10, 11.WT/DS122/R
Page 203
80. Similarly, during the Thai investigation, Polish respondents made arguments to Thai authorities
regarding the status of SYS as a new market entrant and the inevitable high start-up costs associated
with entry into a capital-intensive industry.  SYS had been selling steel for only a matter of months
during the time period at issue.  In addition to a high cost structure, SYS was an untested market
entrant with no track record among customers.  Notably, there are no meaningful cost of productiondata on the record of the investigation and Thailand has failed to submit such data to the Panel.
Indeed, Thailand has even blacked out the cost of production data from the Thai secret Exhibit 44.
Poland cannot speculate as to why Thailand has refused to release such outdated information, but
glimpses of a possible motive remain in Exhibit 44.  For example, paragraph 4.8 points to SYS losses
“due to operating expenditures that cannot be reduced.”  Similarly, paragraph 5 states that “SYS hasto bear the costs of new entrants which [are], as a rule, high”.  It is thus clear that SYS, like any new
entrant in its position, had high costs and high operating expenditures that it could not reduce.    SYS
could not reasonably expect to recover fully alloca ted costs in a few calendar quarters, and thus the
company was a victim of its own unrealistic expect ations.   Thai authorities, however, failed to
examine these factors in their determination.
45   Simply put, the Thai authorities were not objective
when they blamed imports for SYS’ failure to recove r all costs in such a short period of time, thereby
denying the most basic marketplace realities.
81. In sum, Thailand failed to comply with the requirements of Article 3.5 in making its causation
determination.  The evidence in the record does not support Thailand's finding that Polish imports
caused any injury to the Thai industry.   Furthermore, Thailand failed to consider a number of relevant
factors known to have an effect on the Thai industry.   For these reasons, Thailand's examination wasnot objective and  based upon positive evidence.
IV.    THAILAND USED AN UNREASONABLE PROFIT FIGURE IN ITS NORMAL
VALUE CALCULATION, IN VIOLATION OF ARTICLE 2 ADA
82. We wish to turn now to the issue of the calculation of the dumping margin in this case.  Poland
has argued that Thailand’s calculation of its anti-dumping margin did not comply with the
requirements of Article VI (1)(b)(ii) of GATT 1994 and Article 2.2 of the Anti-Dumping Agreement,
both of which mandate that only an objectively “reasonable” amount for profit may be added when
normal value is calculated based on the cost of production and other expenses.
83. The issue has arisen in this proceeding whether the “reasonableness” requirement of Article 2.2
is somehow limited by the language of Article 2.2.2 thereunder.
84. While Article 2.2.2 establishes “reasonable” methodologies “for purposes of” Article 2.2, we
believe it is clear that Members understood that such methodologies may, in some cases, yield
unreasonable results – which, pursuant to Article 2.2, are not to be employed in constructing normal
value.  We note that the second sentence of Article 2.2.2 provides only that the subsequent
methodologies “may” be employed, whereas if use of  such methodologies were required, the second
sentence, like the prior sentence, would have employed the verb “shall”.  Here, we believe, Membersinstead expressed their conviction that such methodologies may not always yield reasonable results.
We believe this is clear also from the requirement of subparagraph (iii), which expressly provides that
even reasonable methodologies may sometimes yield results that are not fairly usable in constructing
value.  Subparagraph (iii) is also instructive becau se the ceiling it imposes (that the amount of profit
included may not exceed that “normally realised . . .”) is arguably stricter than that of the
“reasonableness” standard which otherwise flows from Article 2.
                                                     
45 See Polish respondents' submissions, Exhibits THAILAND 35, 40.WT/DS122/R
Page 204
85. This conclusion -- that methodologies may not be applied blindly  -- receives further contextual
support from other provisions within Article 2.2.  For example, Article 2.2.2 (first sentence) limits
“actual data” to data objectively “pertaining to production and sales in the ordinary course of trade”
(emphasis added).  Thus data shall not be employed concerning “extra-ordinary” sales --  as such datawould themselves be unrepresentative and therefore yield unrepresentative results.  Similarly, in orderto attempt to achieve such representativeness – that is, to prevent results which, while arithmetically
correct, are not themselves representative or “reasonable” – all profit amounts calculated under
subparagraph (i) must be calculated not on small (and thus more likely unrepresentative) market
segments or on “like products”, but rather more broadly so as to cover all production and sales “of the
same general category of products” (emphasis added).
86. As Poland has explained previously, the Thai authorities have failed to comply with this
requirement under Article 2.2.2. They utilized the wrong sales and production data when applying the
methodology set forth in Article 2.2.2(i), that is, they used data on H-Beams only.  Thailand had an
obligation to use production and sales data not just of H-Beams, but more broadly of all products “ofthe same general category”  – of which the narrow est grouping would be “Angles, shapes and sections
of iron or non-alloy steel under HS 7216”.46   This requirement is expressly provided in
Article 2.2.2(i) to avoid what occurred in this case – ‘calculation’ and use of a profit figure well above
what even the petitioners claimed was reasonable.
87. We recall that Thailand used a profit rate of 36.3  per cent in its final calculations.  This figure
was more than five times the maximum “reasonable” amount of profit (7 per cent) that had been
alleged  by SYS in its anti-dumping petition, more than six times the figure (6 per cent) used by SYS
in its suggested calculation of normal value, and  more than eight times the profit margin (4.55 per
cent) for Huta Katowice verified by Thai authorities and shown in the company’s most recent annual
income statement that was before the DFT.47  In arriving at a profit rate of 36.3 per cent, Thai
authorities claimed to be using the alleged profits from the sales in Poland of DIN products – the verysales that Thai authorities had conclusively rejected for purposes of a normal value comparison of like
products. But data for the broader “same general category of product” were not employed.  Indeed,the only evidence collected by Thai authorities and thus in the record concerning any “general
category” of product is the 4.55 per cent profit figure for all steel products made by Huta Katowice.
Moreover, Thai authorities also neglected the verified fact that Huta Katowice used differentproduction processes in making these two products and that DIN-specification H-Beams are a special
niche product, newly on the Polish market and not meaningfully produced or sold within the ordinary
course of trade.
88. Thus, even if the results had been based on the same general category of products, the result
arrived at by the Thai authorities still had to be examined to determine its reasonableness under
Article 2.2. The record in the investigation contained three other profit figures, all closely similar,
none even remotely at the level assumed by the authorities.  Moreover, given the substantial debate on
these issues, including at verification, Thai authorities knew that there were difficulties in proper
comparison of DIN and JIS products and that different production processes were involved, and thesefacts also required the DFT to question the appropriateness of such an exorbitant figure. The Thai
authorities had an obligation to examine the record in  its entirety and to use a profit figure properly
supported by the record evidence.
                                                     
46 We view Thailand’s contrary comments on this point (at paragraph 73 of its First Written
Submission) as ignoring the plain language of Article 2.2.2.
47 In its application for relief (at page 12, point 27), SYS informed the DFT that the “reasonable profit
rate” in the steel industry was between five and seven per cent. Huta Katowice’s 1995 income statement, whichwas also properly before the DFT, shows that the company’s 1995 profit margin was 4.55 per cent.WT/DS122/R
Page 205
89. In sum, the methodology of subparagraph (i) was not correctly employed in this instance.  It
yielded a profit amount that is grossly disproportionate to other evidence of reasonable profit
contained in the DFT record.  Indeed, petitioners have admitted as much.  In the face of such
evidence, Thailand has done precisely what a WTO Member may not -- it has constructed value using
an unreasonable profit amount. It is clear that if any of the profit figures in the DFT record had indeedbeen used, the Polish respondents would not have been found to be dumping, based on Thailand’s
own calculations.  The result has been to penalize the Polish firms impermissibly.
V. INITIATING AN INVESTIGATION WITHOUT RATIONAL BASIS AND WITHOUT
REQUIRED NOTICE VIOLATES ARTICLE 5 OF THE ANTI-DUMPINGAGREEMENT
90. We would like now to turn to Poland’s claims under Article 5 of the Anti-Dumping Agreement.
Poland claims that Thailand failed to comply with the requirements of Articles 5.2, 5.3 and 5.5 in
initiating its anti-dumping investigation of Poland.
91. Article 5.2 Anti-Dumping Agreement requires that an anti-dumping petition include evidence of
all of the following:  (1) dumping, (2) injury, and (3) causation- that is, evidence of a causal link
between the dumped imports and injury to the domestic injury.  The provision states that “[s]impleassertion, unsubstantiated by relevant evidence, cannot be considered sufficient to meet the
requirements” for initiating an investigation.
92. Similarly, Article 5.3 Anti-Dumping Agreement further requires that “authorities shall examine
the accuracy and adequacy of the evidence provided  in the application to determine whether there is
sufficient evidence to justify the initiation of an investigation.”
93. These requirements are plain.  There must exist sufficient, relevant evidence to initiate an anti-
dumping investigation. Such relevant evidence must be presented concerning dumping, injury, and
causation.  Simple assertions on any of these three points renders a petition insufficient for purposes
of initiation.  Authorities have an obligation to conduct an objective examination of the “accuracy and
adequacy” of evidence presented before they may initiate an investigation.
94. Poland wishes immediately to draw the Panel's attention to Thailand's responses to the Panel's
specific questions regarding Poland's Article 5 claims.  Those responses demonstrate that Thailand
has no defence to the Article 5 claims.   The Panel's Questions 13 through 16 specifically asked
whether, in the view of the parties, the petition and the notice of initiation contained the required dataand analysis on dumping, injury and causal link.  The Panel also asked for specific references torelevant parts of the petition and notice of initiation.  In response to all four of these questions,
Thailand was not able to provide a single reference to supporting data.  Instead, Thailand defiantly
stated that its "authorities examined the applic ation and determined that it contained sufficient
evidence of dumping, injury and a causal link to justify the initiation of the investigation."  One can
only assume from this response that Thailand is admitting its inability to  identify any specific
evidence in the petition and notice.  If any such evidence were presented in those documents,
presumably Thailand would have brought it to the attention of the panel.
95. The record of the Thai investigation demonstrates that the initiation application of the
petitioner, Siam Yamato Steel Co, Ltd., did not contain sufficient evidence to satisfy any of the three
requirements under Art. 5.2.   First, the petition provided nothing more than raw numerical data to
support the allegation of dumping.  The petition therefore offers nothing more than "simple assertion"with respect this element and is consequently who lly insufficient.  Second, the application appears to
contain no evidence of injury whatsoever. Third, the petition provided no
 evidence of a causal link
between the between the allegedly dumped imports of  respondents and the alleged injury suffered by
SYS, the domestic producer.  Thus, the petition completely fails to address these latter twoWT/DS122/R
Page 206
requirements. We submit that conclusory statements in a notice of initiation are no substitute for the
basic requirement that a petition contain requisite evidence supporting initiation.  We invite the Panel
to examine the petition of SYS (Thailand Exhibit 1) for evidence of injury and causation.  If deemed
insufficient on any of these three points, then Thailand violated Articles 5.2 and 5.3 of the ADA.
96. In addition, Thai authorities failed to comply with the requirements of Article 5.3 of the Anti-
Dumping Agreement by initiating this investigati on without determining that the evidence in the SYS
petition was “sufficient” in terms of both scope and accuracy to justify the initiation of this
investigation.  No authority should be deemed to have met its Article 5.3 obligations where a petition
lacks any one of the three basic requirements for initiation, much less all three.  Authorities have aplain obligation to conduct an objective examination of the “accuracy and adequacy” of evidence
before they may initiate an investigation.
97. We wish to discuss one further claim with respect to Article 5.  Thailand had a responsibility
under Article 5.5 of the Anti-Dumping Agreement to notify Poland regarding filing of the petition inthis investigation.   In violation of Thailand’s obligations, such notice was not properly or timely
provided, as discussed at length previously.
VI. DENYING FUNDAMENTAL INFORMATION TO A MEMBER VIOLATES
ARTICLE 6
98. In its First and Second Written Submissions and in its First Oral Statement, the Republic of
Poland detailed the Thai authorities’ violation of Article 6 by their denial to Polish firms of the
opportunities mandated under Article 6 for fair review of evidence.  As Polish respondents stated in
the investigation, “a party has no opportunity to properly defend itself if it does not have access to the
proof and evidence by which a foreign government proposes to foreclose future sales in its territory.
Transparency is lost, and respondents appropriately believe that conclusions were pre-ordained,regardless of actual evidence.”  Such was the situation in this case.
99. Poland has raised its Article 6 claim with respect to Thailand's preliminary, draft final, and final
determinations.  As discussed above, none of these documents offers Poland the required explanation
of Thailand's basis for its conclusions.  In each of these documents, Thailand fails to discuss itsevaluation of the factors supporting its determination, or to explain why certain purported facts
outweighed the authorities’ own recognition that “most evidence” showed the absence of injury.
When Poland brought this deficiency to the attention of the Thai authorities, Thailand responded by
“expressing surprise” rather than offering meaningful disclosure.    Thailand has violated Article 6 in
at least three regards.
100. First, Thailand has failed to offer Poland “meaningful opportunities . . . to see all information
that is relevant to the presentation of their case” so  as to be allowed to make their “presentations on
the basis of this information”, as required by Article 6.4.  We submit that it would indeed have been
“practicable” for Thailand to do so, at the very least by providing Poland with coherent non-confidential summaries of submitted information.  We note, for example, that Polish respondents were
never even informed of, much less given a copy of, the non-confidential version of the SYS
questionnaire response.  Similarly, Poland was never provided a legally adequate copy of any petition,
as the non-confidential summary fails to meet the requirements of Article 5.3 AD.   We further note
that the Final Injury Determination was based not on detailed findings of fact, but on “draft”,
“preliminary”, or “secret” findings, many of which contradict statements found in the Final Injury
Determination.
101. Second, Poland submits that the non-confidential summaries provided by Thailand failed to
meet the requirements of Article 6.5.1 because they were internally inconsistent, conclusory, and
opaque.  We note that such summaries must provide “sufficient detail to permit a reasonableWT/DS122/R
Page 207
understanding of the substance of the information submitted in confidence.”  Thailand did not satisfy
this requirement here.  Tossing out labels such as “price suppression” and “price undercutting” –
especially when contradicted by the very evidence on which such conclusions are said to be based –
cannot be said to meet this requirement.  In response to this claim, Thailand has argued that while
Article 6.5.1 requires interested parties to furnish non-confidential summaries of their submissions tothe investigating authorities, those authoritie s have no obligation to provide the summaries to
exporters or foreign producers.   Poland submits that Thailand is plainly wrong on this issue. Indeed,
such summaries are submitted to authorities precisel y so that they can then be provided to other
interested parties.  The provision of these summaries is consistent with Article 6.4, which requires that
interested parties shall receive timely opportunity to review all non-confidential information material
to their claims.  The receipt of these non-confidential summaries is no mere formality; rather, it is
fundamental to due process rights enshrined in the Agreement.  Basic procedural fairness requires that
respondents be given timely access to any relevant data or analysis, so they may present their defence
or request correction of errors by the investigating authority.
102. Finally, Poland submits that Thailand has violated Article 6.9 by failing to inform Polish firms
of the “essential facts under consideration which form the basis for the decision whether to apply
definitive measures”.   While Thai authorities invited comments from Polish respondents on proposed
definitive determinations, the authorities did not su fficiently disclose the factual basis for those
determination.  Further, Thailand did not disclose such facts “in sufficient time for the parties to
defend their interests” within this investigation.  In this regard, we would emphasize that at no point
during the investigation did the Thai authorities provide the respondents, inter alia , a specification, or
a proper weighing, of all relevant economic factors used as the basis for the final injury determination
by the Thai Department of International Trade.  Fo r example, the Thai authorities failed to identify
any rational basis for using overlapping 12-month periods for comparison in the final determination.
And the “disclosure” that took place at the e nd of the investigation amounted to no more than
referencing early “draft” or “preliminary” materials in the administrative record (now contradicted byother record facts), as well as materials submitted by the Polish respondents themselves.  Because the
Thai documents were replete with inconsistencies, Polish firms were denied the “essential facts”
underlying the Thai determinations.
103. Indeed, when the Polish respondents asked for such a disclosure on 20 June and again on
23 June 1997, they were informed by the Thai Ministry of Commerce that no disclosure would
follow.
48   Rather, the Thai authorities expressed “surpr ise” at this request, suggesting the Polish firms
should be content with what had been supplied previously, and referring Polish respondents back to
preliminary or draft  materials in the administrative files in this case.  No reasons were given for the
rejection of relevant arguments made by the Polish firms.  Basic procedural fairness requires that the
respondents should have been given timely access to any relevant data or analysis, so they could
present their defence or request correction of any errors by the investigating authority.  Rather, they
were off-handedly referred back to preliminary or draft  statements in the record, as detailed above,
which did not support the decision that was taken.
CONCLUSION
104. Mr. Chairman, Members of the Panel, the Republic of Poland submits that this dispute
involves several of the most important precepts of the Anti-Dumping Agreement.  We hope that this
oral presentation has assisted in clarifying any issues that remained unclear from our earlier
submissions and statement.  If there are any issues which the Panel considers not entirely clear or if
                                                     
48 Exhibits POL-14, 15, and 16.WT/DS122/R
Page 208
there are any points made by Thailand, which the Panel considers we have not answered, we will be
very happy to do so in reply to questions.  Thank you for your kind attentionWT/DS122/R
Page 209
ANNEX 2-1
FIRST WRITTEN SUBMISSION OF THAILAND
(14 February 2000)
TABLE OF CONTENTS
Page
I. INTRODUCTION ................................................................................................................. ........... 210
II. THAILAND REQUESTS A PRELIMINARY RULING BASED ON  POLAND’S FAILURE
TO PRESENT PRECISE CLAIMS................................................................................................ 211
III. POLAND FAILED TO SET FORTH THE COMPLETE AND ACCURATE FACTUAL
RECORD OF THE INVESTIGATION.......................................................................................... 212
A. D OMESTIC INVESTIGATING AUTHORITIES ........................................................................................... 212
B. F ACTUAL RECORD OF THE INVESTIGATION ......................................................................................... 212
IV. POLAND FAILED TO SET FORT H THE CORRECT STANDARD OF REVIEW
APPLICABLE UNDER THE ANTI-DUMPING AGREEMENT ............................................... 215
V. THAILAND ACTED CONSISTENTLY WI TH ARTICLE 2 OF THE ANTI- DUMPING
AGREEMENT...................................................................................................................... ............ 219
A. T HE DUMPING CALCULATION ISSUE : POLAND ’S CLAIM ..................................................................... 219
B. T HE AGREEMENT ’S REQUIREMENTS FOR CALCULATING PROFIT ........................................................ 220
C. T HE THAI INVESTIGATING AUTHORITY ’S CALCULATION OF PROFIT ................................................... 220
VI. THAILAND ACTED CONSISTENTLY WI TH ARTICLE 3 OF THE ANTI-DUMPING
AGREEMENT ...................................................................................................................... ............ 223
A. T HAILAND BASED ITS FINAL DETERMINATION OF INJURY ON “POSITIVE EVIDENCE ” CONSISTENT
WITH  ARTICLE 3.1 OF THE ANTI-DUMPING AGREEMENT . ................................................................... 224
B. T HAILAND ’S FINAL DETERMINATION OF INJURY INVOLVED AN OBJECTIVE EXAMINATION OF THE
IMPACT OF DUMPED IMPORTS FROM POLAND ON THE THAI DOMESTIC INDUSTRY CONSISTENT WITH
ARTICLE  3.1 OF THE ANTI-DUMPING AGREEMENT .............................................................................. 225
C. THAILAND COMPLIED WITH ARTICLE 3.2 OF THE ANTI-DUMPING AGREEMENT IN ITS EXAMINATION
OF THE VOLUME AND PRICE EFFECTS OF DUMPED IMPORTS . .............................................................. 226
1. The Thai investigating author ities considered whether there had been a significant increase
in dumped imports. ............................................................................................................. ................ 226
2. The Thai investigating authoritie s considered whether there had been significant price undercutting
or a depression of  prices (or restraint of price in creases) to a si gnificant degree............................. 226
D. THAILAND COMPLIED WITH ARTICLE 3.4 OF THE ANTI-DUMPING AGREEMENT BY EVALUATING ALL
RELEVANT FACTORS , INCLUDING PROFITS , LOSSES , PROFITABILITY AND CASH FLOW...................... 228
E. T HAILAND COMPLIED WITH ARTICLE 3.5 OF THE ANTI-DUMPING AGREEMENT BY DEMONSTRATING
THAT DUMPED IMPORTS WERE CAUSING INJURY TO THE DOMESTIC INDUSTRY ................................. 229
F. T HAILAND COMPLIED WITH ARTICLE 3.5 OF THE ANTI-DUMPING AGREEMENT BY EXAMINING
KNOWN FACTORS OTHER THAN DUMPED IMPORTS THAT MAY HAVE CAUSED INJURY TO THE
DOMESTIC  INDUSTRY . ........................................................................................................................ 230
VII. THAILAND ACTED CONSISTENTLY WI TH ARTICLE 5 OF THE ANTI-DUMPING
AGREEMENT...................................................................................................................... ............ 231
A. I NITIATION ............................................................................................................................... ........... 231
B. N OTICE OF THE ACCEPTANCE OF A PROPERLY DOCUMENTED APPLICATION ....................................... 232WT/DS122/R
Page 210
VIII. THAILAND ACTED CONSISTENTLY WITH ARTICLE 6 OF THE ANTI-DUMPING
AGREEMENT...................................................................................................................... ............ 232
A. A RTICLE 6.4 ............................................................................................................................ ............ 233
B. A RTICLE 6.5.1 .......................................................................................................................... ........... 233
C. A RTICLE 6.9 ............................................................................................................................ ............ 234
IX. CONCLUSION .................................................................................................................. ............... 234
TABLE OF EXHIBITS .............................................................................................................. .... 235
I. INTRODUCTION
1. As the detailed factual record demonstrates, Thailand’s investigating authorities expended
significant resources in their first anti-dumping case to ensure that the investigation conformed to all
of the substantive and procedural requirements of the Anti-Dumping Agreement.  Moreover, Poland
has failed to satisfy its burden to demonstrate that Thailand violated Article VI of GATT 1994 or theAgreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the
“Anti-Dumping Agreement”).
2. Thailand took significant steps beyond those required under the Anti-Dumping Agreement to
ensure that interested parties and the Government  of Poland were provided with all information
necessary to defend their interests.  Poland seems to agree with this contention, given that it has not
raised any claims regarding Thailand’s notifications of the initiation, preliminary determination, or
final determination under Article 12 of the Anti-Dumping Agreement.  Moreover, Poland has not
raised any claims regarding the consistency of th e preliminary determination imposing a provisional
measure, given the absence of any claim under Article 7 of the Anti-Dumping Agreement and thefailure to even allege “significant impact” of such measure as required under Article 17.4 of the Anti-
Dumping Agreement.
3. Thailand has prepared two versions of its First Written Submission, a Confidential Version
and a Non-Confidential Version.  The Confidential Version was submitted to the Panel only and
contains nine Exhibits designated as CONFID ENTIAL. The Non-Confiden tial Version was submitted
to both the Panel and the Parties to this dispute and does not contain the confidential Exhibits.Thailand considered that this approach was necessary to balance its obligation to protect confidential
information submitted during the investigation by both Thai and Polish companies with its right to
defend itself in this proceeding.
1
4. In accordance with Article 17.7 of the Anti-Dumping Agreement, Thailand respectfullyrequests that the Panel not disclose the Exhibits de signated as CONFIDENTIAL to Poland or to Third
Parties without formal authorisation from Thailand.  As specified in Appendix 2 of the Understanding
on Rules and Procedures Governing the Settlement of Disputes (“DSU”), Article 17.7 of the Anti-
Dumping Agreement is a special or additional rule of dispute settlement.  Under Article 1.2 of the
DSU, such special or additional rules of dispute settlement prevail over conflicting rules of the DSU.Accordingly, to the extent that any rules of the DSU conflict with Article 17.7 of the Anti-Dumping
Agreement and would require disclosure of the confidential exhibits, Article 17.7 prevails and
obligates the Panel to maintain the confidentiality requested by Thailand.  Thailand would, of course,
be willing to discuss the adoption of additional Panel working procedures that would allow Parties
access to the confidential exhibits under certain circ umstances, provided that such procedures would
guarantee protection of this confidential information.  These procedures should also safeguard this
                                                     
1 Thailand notes that Article 17.5(ii) of the Anti-Dumping Agreement obligates a panel to examine an
anti-dumping matter based upon "the facts made available in conformity with the appropriate domesticprocedures to the authorities of the importing Member.”WT/DS122/R
Page 211
confidential information from disclosure in subsequent WTO proceedings, including those before the
Appellate Body.
II. THAILAND REQUESTS A PRELIMINARY RULING BASED ON  POLAND’S
FAILURE TO PRESENT PRECISE CLAIMS
5. Poland’s request for establishment of a panel and its First Written Submission only contain
sweeping allegations, not precise claims sufficient to present the problem clearly.  This “shotgun” or
“fishing expedition” approach to pleading seriously prejudices Thailand’s right of defence in this
proceeding.
6. At this stage in the proceeding, Thailand requests that the Panel issue a preliminary ruling
dismissing Poland’s purported claims under Articles 5 and 6 of the Anti-Dumping Agreement based
on Poland’s violation of its obligations under Articl e 6.2 of the DSU.  According to the Appellate
Body, Article 6.2 of the DSU requires that the complainant identify the “claims” in its request forestablishment of a panel with sufficient clarity to present the problem clearly.
2  The Appellate Body
has emphasised that the listing of articles of covered agreements allegedly violated may not satisfy the
standard “where the articles listed establish not a single, distinct obligation, but rather multiple
obligations.3  Articles 5 and 6 of the Anti-Dumping Agreement contain a multitude of procedural and
evidentiary obligations relating to the conduct of an anti-dumping investigation.  Accordingly, by, in
effect, merely listing Articles 5 and 6 without adding additional detail, Poland has failed to comply
with the standard set forth under Article 6.2 of the DSU.
7. The Appellate Body also seems to require that  a Member alleging that its procedural rights
under the DSU have been violated must also demonstrate that it sustained prejudice through the
presentation of “supporting particulars.4  In this case, Poland has presented no legal or factual basis
whatsoever for its claimed violations of Articles 5 and 6.  As a result, Poland has denied Thailand itsright to present an effective defence to purported “claims” under Articles 5 and 6 in its First Written
Submission.  Essentially, Poland has removed one complete stage of Thailand’s defence and has
eliminated any opportunity for Third Parties to respond to these “claims”.
5  Therefore, Poland’s
violation of Article 6.2 of the DSU has already seri ously prejudiced Thailand ’s right to present a
defence, and the Panel should dismiss these “claims”.
8. Without prejudice to the Panel’s response to Thailand’s request for a preliminary ruling,
Thailand will attempt to respond in its First Written Submission to all of the purported “claims” raised
by Poland.  However, Thailand respectfully urges the Panel to monitor carefully the serious prejudice
to Thailand’s defence caused by Poland’s approach and to apply the burden of proof in a manner thatensures that Poland makes its own case to the Panel.
                                                     
2 See Report of the Appellate Body, Korea - Definitive Safeguard Measure on Imports of Certain Dairy
Products , WT/DS98/AB/R, para. 124 (14 Dec. 1999) (“ Korea - Dairy Products ”).
3  Id.
4 Id. at para. 131.
5 In other words, because of Poland’s imprecise pleading, Thailand is prevented in its First Written
Submission from presenting any defence to Poland’s purported claims under Articles 5 and 6, and Third Partiesare similarly prevented from addressing Poland’s purported claims in third party submissions.  To the extent thePanel allows Poland to revise its claims during any subsequent stage of the pro ceeding, Thailand’s opportunity
to defend itself and strengthen such defence over the course of the Panel’s proceedings is severely prejudiced
because its opportunities to present its defence are li mited and no longer include the critical First Written
Submission.  For Third Parties, their opportunity to address any revised claims would be completely eliminated.WT/DS122/R
Page 212
9. Thailand reserves its right to raise additional procedural objections under Article 6.2 of the
DSU and under general principles of due process with respect to other purported “claims” raised by
Poland.
III. POLAND FAILED TO SET FORT H THE COMPLETE AND ACCURATE FACTUAL
RECORD OF THE INVESTIGATION
A. DOMESTIC INVESTIGATING AUTHORITIES
10. The Ministry of Commerce conducted the anti-dumping investigation on H-beams from
Poland.  Within the Ministry of Commerce, the dome stic investigating authorities that were involved
in this case included the Department of Business Economics (“DBE”), the Department of Foreign
Trade ( “DFT”), and the Department of Internal Trade (“DIT”).
11. The DBE conducted the investigation into whether the application contained sufficient
evidence to justify initiating the investigation.  The DBE then provided recommendations to the
Committee to Consider Procedures for the Im position of Special Duty on Products which are
Imported into Thailand at Unfair Prices and for the Imposition of Special Duty on Products (the “CPS
Committee”).  The CPS Committee considered DBE’s recommendations and decided whether to
accept or reject them, in whole or in part.
12. The DFT conducted the preliminary and final dumping investigation, and the DIT conducted
the preliminary and final injury investigation.  DFT and DIT submitted reports and recommendations
to the Committee on Dumping and Subsidy (the “CDS Committee”).  The CDS Committee
considered each department’s recommended determinations and decided whether to approve or reject
them.
13. All of these government entities constitute the Thai investigating authorities for purposes of
the anti-dumping investigation on H-beams from Poland.
B. FACTUAL RECORD OF THE INVESTIGATION
14. The Thai investigating authorities took exceptiona l steps to ensure that it established the facts
of the case properly and evaluated the facts in a fair and objective manner.  Poland’s presentation of
the factual record presents a one-sided, incomplete, and biased view of the record of the investigation.
Thailand describes below the more complete record of  the investigation to ensure that the Panel has
all of the information necessary to evaluate the co nsistency of the Thai authorities’ actions with the
Anti-Dumping Agreement.  To provide a more readil y accessible record of the investigation for the
Panel, for other parties to this dispute, and for the WTO professional staff, Thailand has incorporated
Poland’s exhibits, where appropriate, into its volume of exhibits.
15. On 21 June 1996, Siam Yamato Steel Co. Ltd. (“SYS”) filed an application for the imposition
of anti-dumping duties on, inter alia , H-beam steel products.  The non-confidential version of the
application is attached as THAILAND - 1.
16. On 17 July 1996, officials from the DBE met with Mr. Michal W. Byczkowski, Commercial
Counsellor, Embassy of Poland, at the DBE where he was informed that Thailand had received a
properly documented anti-dumping application.  See THAILAND - 14 (POLAND - 4).
17. On 30 August 1996, the Director-General of the DBE and Chair of the CPS Committee sent a
letter to Mr. Michal W. Byczkowski (Commercial Counsellor of Poland), Huta Katowice, Stalexport,
GSE General Steel Export, and Duferco  transmitting the notice of initiation.  See THAILAND - 2
(POLAND - 1) (letter to Huta Katowice only).WT/DS122/R
Page 213
18. On 17 September 1996, the DFT transmitted to Huta Katowice, Stalexport, GSE General
Steel Export, and Duferco a number of items. See THAILAND - 3 (POLAND - 2) (letter to Huta
Katowice only).  These items included: (1) the notice of initiation, (2) the Department of Foreign
Trade Statement (THAILAND - 5 (POLAND - 3)), (3) Exporters/Producers Questionnaire(THAILAND - 4), and (4) formatted diskette for the questionnaire response.
19. On 17 September 1996, the DFT sent a letter to the Government of Poland explaining the
initiation of the investigation.  See THAILAND - 5 (POLAND - 3).  Enclosures to the letter included:
(1) the notice of initiation, (2) the exporter questionnaire, and (3) a copy of the non-confidentialcomplaint.  DFT asked the Government of Poland to assist interested parties in responding to the
questionnaire, identified Huta Katowice as a known exporter, and indicated that Huta Katowice was
being sent the enclosures directly.  The deadline for questionnaire responses was set at 37 days after
the questionnaires were released, i.e., 24 October 1996.
20. On 27 September 1996, Huta Katowice wrote to the DFT requesting an extension of 30 days
to the deadline to respond to the questionnaire.  See THAILAND - 6.
21. On 3 October 1996, the DFT granted Huta Katowice an extension of 15 days to the deadline
for responding to the questionnaire.  See THAILAND - 7.  Accordingly, Huta Katowice was given 52
days to respond to the questionnaire.
22. On 10 October 1996, Huta Katowice wrote a letter to the DBE and DFT raising some issues
relating to its ability to submit information in defence of its interests.  See THAILAND - 8.  On
11 October 1996, DFT promptly responded and indicated that  “all points raised will be taken in to
due account during the course of the investigation.”  See THAILAND - 9.
23. On 16 October 1996, Stalexport sent DFT portions of its questionnaire response.  See
THAILAND - 10 (cover letter only).  On 29 October 1996, DFT sent a fax to Stalexport indicating
that its response was incomplete (no sections A, C, E, or I and missing parts of sections D, F, and G)
and requesting additional information by 8 November 1996, thereby granting an additional 10 days to
respond.  See THAILAND - 11.  On 6 November 1996, Stalexport sent the DFT additional
information in response to its request.  See THAILAND - 12 (cover letter only).
24. On 18 October 1996, the Government of Poland requested consultations with the Government
of Thailand under Article 17.2 of the Anti-Dumping Agreement.  See THAILAND - 13.  On
14 November 1996, the Permanent Representative of Thailand to the WTO provided a detailedanswer.  See THAILAND - 14 (POLAND - 4).
25. On 4 November 1996, DIT sent SYS a copy of the producer’s injury questionnaire.  See
THAILAND - 15.   The deadline for responding to the questionnaire was 9 December 1996, 30 days
after DIT transmitted the questionnaire.  On 5-6 November 1996, DIT sent the importers’questionnaire to 43 importers.  See THAILAND - 16.  On 14 November 1996, the DIT sent a letter to
three trade associations and requested that the relevant questionnaires be transmitted to other
producers, importers, and users unknown to DIT.  See THAILAND - 17.
26. On 8 November 1996, Huta Katowice filed its dumping questionnaire response with DFT.
See THAILAND - 18 (confidential version); THAILAND - 19 (non-confidential version).
27. On 6 December 1996, SYS filed its confidential injury questionnaire response with DIT.  See
THAILAND - 20.  On 20 January 1997, SYS filed the non-confidential version of its response.  See
THAILAND - 21.WT/DS122/R
Page 214
28. On 27 December 1997, Thailand imposed provisional anti-dumping measures.  On
20 January 1997, DFT transmitted to Huta Katowice and Stalexport three documents relating to the
preliminary determination.  See THAILAND - 22 (letter to Huta Katowice only).  These documents
included: (1) Ministry of Commerce Notification Regarding Imports (No. 118) (THAILAND - 23
(POLAND - 5)); (2) Ministry of Commerce Noti fication Regarding Anti-Dumping Duty Levied
(THAILAND - 24 (POLAND - 5)); and (3) DFT Notification Regarding the Preliminary
Determination of Dumping (No. 1) with the at tached Preliminary Determination of Injury
(THAILAND - 25 (POLAND - 5)).
29. On 7 February 1997, Stalexport sent a letter to the DFT commenting on the preliminary
determination and requesting a hearing and disclosure of information.  See THAILAND - 26.  On
13 February 1997, Huta Katowice sent a letter to the DFT posing nine questions regarding the
preliminary determination and requesting a hearing and disclosure of information.  See THAILAND -
27.  On 19 February 1997, DFT sent letters to Stalexport and Huta Katowice informing them that
disclosure information was being sent by regist ered delivery, that the hearing was tentatively
scheduled for 6 March 1997, and that DFT may need to conduct an on-the-spot investigation to verify
information.  See THAILAND - 28 (POLAND - 7).
30. On 20 February 1997, DFT sent disclosure information to Huta Katowice and Stalexport.
The confidential dumping disclosure sent to Huta  Katowice included eight points of explanation and
three annexes relating to the summary of calculation, profitability calculation, and weighted average
export price.  See THAILAND - 29 (confidential); THAILAND - 30 (non-confidential version). The
confidential dumping disclosure sent to Stalexport included 3 detailed points of explanation and two
annexes relating to the summary of calculation and weighted average export ex-factory price.  See
THAILAND - 31 (confidential); THAILAND - 32 (non-confidential version).  Poland only included a
portion of the relevant dumping disclosures in Exhibit POLAND - 7 of its First Submission and
provided no explanation for its omissions.  On 27 February 1997, the DFT also faxed to both parties’disclosure information relating to the preliminary injury determination.  See THAILAND - 33
(POLAND 8).
31. On 4 March 1997, the Washington, D.C. law firm of Hogan & Hartson (on behalf of Huta
Katowice and Stalexport) requested an extension of time to file the written submission for the hearing.See THAILAND - 34.  On 9 March 1997, the law firm filed detailed comments on the preliminary
determination of injury and dumping.  See THAILAND - 35.
32. On 13 March 1997, DFT conducted a hearing for interested parties to present their views.  A
summary of the hearing was released on 28 March 1997.  See THAILAND - 36 (POLAND - 9).
33. On 1 May 1997, DFT transmitted to Huta Katowice, Stalexport, SYS and the Government of
Poland copies of the proposed final determination of dumping and injury.  See THAILAND - 37
(POLAND - 10).  Under the same cover, DFT transmitted confidential disclosure of findings to Huta
Katowice. See THAILAND - 38 (confidential); THAILAND - 39 (non-confidential version)
(POLAND - 11 partial).  The disclosure included information on cost of production, discounts, the
dumping calculation, normal value, ex-factory price, and the profitability calculation.  Again, Poland
failed to include all of the disclosure information in Exhibit POLAND - 11 of its First Written
Submission and failed to provide an y explanation for such omissions.
34. On 13 May 1997, Hogan & Hartson filed detailed comments on behalf of Huta Katowice and
Stalexport regarding the proposed final determination.  See THAILAND - 40.  On 19 May 1997, DFT
transmitted its response to the comments received from Hogan & Hartson.  See THAILAND - 41
(POLAND - 12).  On 19 May 1997, DFT also transmitte d its response to the comments received from
SYS regarding the proposed final determination.  See THAILAND - 42.WT/DS122/R
Page 215
35. Prior to the CDS Committee meeting scheduled for 26 May 1997, both the DFT and the DIT
transmitted a confidential report and supporting documentation to the Committee for its consideration
and approval regarding the final dumping and injury determinations.  See THAILAND - 43 and
THAILAND - 44.
36. On 4 June 1997, DFT transmitted to interested parties and to the Embassy of Poland
documents relating to the final determination of dumping and injury, including the 26 May 1997
notification of definitive anti-dumping duty levied on the subject merchandise (THAILAND - 45
(POLAND - 13)) and the notification of the 30 May 1997 final determination (THAILAND - 46
(POLAND - 13)).
37. On 20 June 1997, Stalexport sent a letter to DFT commenting on the final determination and
requesting disclosure of additional information.  See THAILAND - 47 (POLAND - 14).  On
23 June 1997, Huta Katowice also sent a letter to DFT commenting on the final determination and
requesting additional information.  See THAILAND - 48 (POLAND - 15).  On 7 July 1997, DFTresponded to the letters.  See, e.g.,  THAILAND - 49 (POLAND - 16).
38. As the above discussion indicates and as Thailand’s exhibits reflect, the Thai investigating
authorities engaged in a comprehensive anti-dumpi ng investigation regarding imports of H-beams
from Poland.  The authorities fully considered all of the information presented by interested parties
and fully notified and explained its decisions to these parties and to the Government of Poland, to the
extent permitted by WTO rules regarding confidentiality.  In each and every aspect of the case, theauthorities were in full compliance with the procedural and substantive requirements of Article VI of
GATT 1994 and the Anti-Dumping Agreement.
IV. POLAND FAILED TO SET FORTH THE CORRECT STANDARD OF REVIEW
APPLICABLE UNDER THE ANTI-DUMPING AGREEMENT
39. Article 17.6 of the Anti-Dumping Agreement provides the standard of review that the Panel
must apply in assessing the determinations of the Thai investigating authorities in this case, and
Poland’s related allegations. Thailand considers it worth noting that Article 17.6 of the Anti-Dumping
Agreement is intended to provide for considerably more deference to the factual and legaldeterminations of a Member’s domestic authorities than the general standard of review under
Article 11 of the DSU.
40. Past GATT and WTO practice consistently provides that a panel must not conduct a de novo
review of a Member authorities’ factual determinations, e.g., regarding the requirements applicable in
the context of safeguards, subsidies or general exceptions.
6  Of course, this principle also applies a
fortiori  under Article 17.6 of the Anti-Dumping Agreement.
41. Article 17.6 of the Anti-Dumping Agreement provides:
"In examining the matter referred to in paragraph 5:
(i) in its assessment of the facts of the matter, the panel shall determine whether the
authorities' establishment of the facts was proper and whether their evaluation of
                                                     
6 See, e.g., Report of the Appellate Body, EC Measures Concerning Meat and Meat Products
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, para. 117 (adopted 13 Feb. 1998) (“ EC - Hormones ”); Report
of the Panel, Guatemala – Anti-Dumping Investigation Regarding Portland Cement From Mexico , WT/DS60/R,
para. 7.57 (19 June 1998) (“ Guatemala - Cement (Panel )”); Report of the Appellate Body, Argentina –
Safeguard Measures on Imports of Footwear , WT/DS121/AB/R, paras. 118-121 (14 Dec. 1999); Report of the
Panel, Argentina – Safeguard Measures on Imports of Footwear , WT/DS121/R, para. 8.117 (25 June 1999)
(citing further panel reports in para. 8.118).WT/DS122/R
Page 216
those facts was unbiased and objective.  If the establishment of the facts was proper
and the evaluation was unbiased and objective, even though the panel might have
reached a different conclusion, the evaluation shall not be overturned;
(ii) the panel shall interpret the relevant pr ovisions of the Agreement in accordance with
customary rules of interpretation of public international law.  Where the panel finds
that a relevant provision of the Agreement admits of more than one permissible
interpretation, the panel shall find the author ities' measure to be in conformity with
the Agreement if it rests upon one of those permissible interpretations."
42. In paragraphs 42 to 46 of its First Written Submission, Poland failed to set forth the correct
standard of review applicable to WTO anti-dumping proceedings. First, Poland overlooked the fact
that in most instances in the present dispute Article 17.6 (i), not Article 17.6 (ii), is the standard to be
applied to the Thai authorities’ examinations and determinations. Second, Poland misconstrues both
Article 17.6 (ii) and the specific provisions in Arti cles 2, 3, 5 and 6 of the Anti-Dumping Agreement
when it asserts that all of the latter do not admit of more than one "permissible interpretation". Of
course, to assert that these articles do not permit more than one interpretation would presuppose that
one has first engaged in a thorough and detailed interpretation of each word or rule contained in those
articles based on customary rules of treaty interpretation. Thailand fails to see that Poland has, or even
could have possibly, done so.
43. It is undisputed that the specific provisions of the Anti-Dumping Agreement ( inter alia
Articles 2, 3, 5 and 6) define the Members’ international obligations.  However, both the Panel and
the Parties must consider those obligations exclusively through the lens of Article 17.6 of the Anti-
Dumping Agreement.  Article 17.6 of the Anti-Dumping Agreement alone defines the scope of those
obligations for all purposes of these proceedings. The question whether Thailand has fulfilled its
obligations under the specific provisions is not before the Panel. Rather the subject matter in dispute
here is whether Thailand has fulfilled its obligations as defined, or modified, by Article 17.6 of the
Anti-Dumping Agreement.
44. Turning to the interpretation and application of Article 17.6 of the Anti-Dumping Agreement,
the essence of paragraph (i) of Article 17.6 has been summarized as follows:
"This provision [....] encapsulates a notion developed in several panel reports that
when a panel examines the factual conclusions of national investigating authorities it
should act as a 'review body', and should not substitute its own factual assessment for
that of the authorities unless the latter is seriously flawed[...]. The 1998 Cement panelexpressed this standard by saying that an assessment should be respected if it was one
that could have been reached by a reasonable, unprejudiced person.7  (Emphasis
added)
45. Thus, the question to be answered is whether the decisions by the Thai investigating
authorities in this case could have been made by a reasonable, unprejudiced person.8  Thailand
respectfully submits that Poland has failed to discharge its primary obligation under the burden of
proof to even establish a prima facie case to the contrary, as demonstrated in further detail below.9
                                                     
7 Edmond McGovern, International Trade Regulation (Issue 7, February 1999), § 12.141.
8 Both GATT and WTO panels have consistently applied the standard of a “reasonable, unprejudiced
person.” See, e.g., United States - Measures affecting Import of Softwood Lumber from Canada , SCM/162, para.
335, BISD40S/358, adopted 27-28 October 1993 (“ US - Softwood Lumber ”); and most recently Mexico – Anti-
Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States, WT/DS132/R, para. 7.57
(28 Jan. 2000) (“ Mexico - HFCS ”).
9 Thailand notes that in paragraph 48 of Poland’s First Written Submission, Poland states that “anti-
dumping duties are an exception to the otherwise applicable  freedom to trade between WTO Members.”  In fact,WT/DS122/R
Page 217
46. Thailand notes that the first requirement under Article 17.6 (i) is tha t the authorities properly
establish the facts. However, this requirement canno t be entirely disassociated from the second part of
the standard in Article 17.6(i), i.e., an “unbiased and objective evaluation”.  Together these
requirements form a standard designed to prevent arbitrariness, bad faith, bias and undueprotectionism, while permitting, and thereby promoting, Members’ unbiased, good faith exercise of
their right to apply anti-dumping duties.
47. The requirement that facts be properly established seeks to ensure procedural fairness, in
particular that all interested parties are given proper hearing.
10  Thailand notes that its authorities have
in all instances ensured that the process of the establishment of the relevant facts respects all interests
concerned, as amply demonstrated in the factual record.  Poland has clearly failed to discharge its
burden of proof to even establish a prima facie  case to the contrary.
48. The first sentence of Article 17.6 (i) also imposes the requirement that authorities perform an
“unbiased and objective evaluation” of the facts.11  The interpretation of this requirement, which
forms the cornerstone of the deferential standard established under Article 17.6 (i) of the Anti-
Dumping Agreement, has been partly refined by recent panel practice. The requirement contains two
elements to be established, or rather, two flaws to be avoided or rectified through panel review:
(1) bias on the part of the investigating authorities; and (2) subjectivity or, rather, “un-objectivity” in
the conclusions reached. Beyond pure allegations, Poland has failed to establish a prima facie  case of
either bias or subjectivity. Therefore, Thailand respectfully submits that the panel is bound underArticle 17.6(i) of the Anti-Dumping Agreement to accept the determinations of Thai investigating
authorities as consistent with Thailand’s WTO obligations.
49. Recent panel practice has concentrated primarily on the first, personal element.   In this
regard, the panel in US – DRAMs  articulated the following test:
“[...] Korea’s claim would require us to determine whether [...] an unbiased and
objective investigating authority could properly have found that the Flamm study did
not “reasonably reflect the costs associated with the production and sale” of
DRAMs.."
12
50. Again, the key question that a panel must ask itself when reviewing a determination by
national authorities, therefore, is whether an unbiased and objective authority could  have reached the
conclusions reached by the authorities in the case.13  Thailand notes that this test is both personal and
                                                                                                                                                                    
the Members’ right to impose anti-dumping duties under Article VI of GATT 1994 and the Anti-Dumping
Agreement forms part of the carefully constructed balance of rights and obligations that make up the WTO free-
trade regime.  In any event, the characterisation of these rights and obligations does not change the fact that the
burden of producing evidence of a violation rests at all times with Poland.  See EC - Hormones  at para. 104.
10 See Edmond McGovern, International Trade Regulation (Issue 7, February 1999), § 12.141.
11 Thailand notes that the specific provisions of the Anti-Dumping Agreement themselves first require
an objective and unbiased assessment by the investigating authorities of which data are necessary, required anduseful in light of the specific object and purpose of the investigation and, in particular, the individual aspects of
the case. Thailand finds it useful to recall, in this context, that, of course, the question of what exactly
constitutes the proper establishment of the facts in a gi ven case is also a matter of interpretation of those
provisions one by one. The proper establishment of the facts thus cannot be dissociated from both thepermissible interpretation (Article 17.6 (ii)) of the provisions defining the factual bases and their objective andunbiased evaluation.
12 Report of the Panel, United States - Anti-Dumping Duty on Dynamic Random Access Memory
Semiconductors (DRAMs) of One Megabit or above from Korea , WT/DS99/R, para. 6.67 (29 January 1999)
(“US - DRAMS”) (the panel applied the same test in paras. 6.72 and 6.76).
13 The recent panel in Mexico – HFCS, at paras. 7.95 and 7.98,  applied the same test in the context of
the initiation of an Anti-Dumping investigation.  See also  Guatemala-Cement  (Panel) at  para. 7.57. AlthoughWT/DS122/R
Page 218
negative, reflecting the essence of the deferential standard of review imposed by Article 17.6 (i) of the
Anti-Dumping Agreement. Thailand respectfully submits, positively, that its authorities clearly acted
without bias.
51. Moreover, it is not Thailand’s burden to prove that it acted without bias.  As the panel in US –
DRAMs  noted, the burden of proof is, of course, on the claimant  to establish the bias of the
investigating authorities. Thailand notes, as did the panel in US – DRAMs14 that the Appellate Body
stated in EC - Hormones  that:
"[t]he initial burden lies on the complaining party, which must establish a prima facie
case of inconsistency with a particular provision of the SPS Agreement  on the part of
the defending party, or more precisely, of its SPS measure or measures complained
about.  When that prima facie  case is made, the burden of proof moves to the
defending party, which must in turn counter or refute the claimed inconsistency."15
52. The panel in US – DRAMs applied this to the test set out above and concluded:
“we consider that Korea has failed to ‘establish a prima facie  case’ that an objective
and impartial investigating authority could not properly have found that the study did
not ‘reasonably reflect the costs associated with the production and sale’ of
DRAMs.16 (Emphasis added)
53. In its First Written Submission, Poland fails to allege bias on the part of the Thai investigating
authorities and fails to present any evidentiary basis for bias to the extent such allegation can beinferred from its submission.  As a result, Poland has clearly not made out a prima facie case of bias.
54. With regard to the “objective evaluation” criterion, Thailand recalls one commentator’s
statement that:
"The last of the new criteria - an objective evaluation - seems to allow the possibility
that the substance of the authorities' fact ual conclusions, rather than the procedures
which they have followed, could lead to them being condemned. In other words, a
panel might decide that the conclusions were so clearly wrong that they could not
have been based on an objective evaluation.17  (Emphasis added)
55. Again, it is important to point out the purely negative nature of the test to be applied and the
consequences for the burden of proof.  It is clear that Poland has failed to present a prima facie case
that the authorities lacked objectivity, much less a prima facie case that the authorities’ conclusions
“were so clearly wrong that they could not have been based on an objective evaluation”.
56. Finally, Thailand wishes to draw the Panel’s attention again to Article 17.6 (ii) of the Anti-
Dumping Agreement, that provides for substa ntive deference to a Member’s permissible
interpretations of the Anti-Dumping Agreement. Although Thailand is fully aware that in many
                                                                                                                                                                    
both panels were addressing the substantive requirements  relating to the assessment of “sufficient evidence” for
initiation, it is clear that the differing thresholds for initiation and preliminary or final determinations ofdumping, injury and causal link do not warrant a different approach to the authorities’ act of evaluation insofaras the standard of review is concerned.
14 US - DRAMS at para. 6.68.
15 EC - Hormones at para.98.
16 US - DRAMS at para. 6.69.
17 Edmond McGovern, International Trade Regulation, para. 12.141.WT/DS122/R
Page 219
instances the application of customary rules of interpretation of public international law may lead to
only one “permissible” interpretation under this provision, in many other cases multiple permissible
interpretations will exist.
57. Thailand submits that where interpretation of applicable provisions of the Anti-Dumping
Agreement was necessary in the processes of initiation, investigation, determination and imposition of
measures, the Thai authorities have developed and consistently acted based on permissible
interpretations to which the Panel should defer under Article 17.6 (ii) of the Anti-Dumping
Agreement.  Article 17.6(ii) applies to all provisions of the Anti-Dumping Agreement, including
provisions for determining dumping, injury and causation under Articles 2 and 3.  Because the Thaiinvestigating authorities’ interpretations of law were “permissible”, and the authorities otherwise
adhered to Thailand’s international obligations in the application of anti-dumping rules, Thailand
considers that the Panel should defer to the author ities’ determination on the record in this case.
V. THAILAND ACTED CONSISTENTLY WITH ARTICLE 2 OF THE ANTI-
DUMPING AGREEMENT
58. Poland’s only claim with respect to the calculation of the dumping margin in this case is that
the Thai investigating authorities violated Articles 2.2 and 2.2.2 of the Anti-Dumping Agreement by
improperly calculating profit for constructed value purposes in its final determination of dumping.
A. THE DUMPING CALCULATION ISSUE: POLAND’S CLAIM59. The Polish respondent argued against the use of home-market sales prices of H-beams sold as
a basis for calculating constructed value.  According to the respondent:
“[S]ales in the Polish market of products sold in Thailand do not reach the 5 per cent
standard for any product size, which means that the Polish market sales of those
products are not a viable comparison for Thai market sales;”
“[t]here are no sales in the Polish market of products that can be called 'similar' for
these purposes.  The reason is that the remainder of the Huta Katowice division's
sales in the Polish market is comprised of products that are produced according to asystem of standards that is entirely different from standards for products sold in the
Thai market.  Thai market products are manufactured according to standards
established by the Japanese Institute of Standards ('JIS') .. . . .  While a few products
sold in Poland are manufactured to JIS specifications . . . , most are manufactured
according to a completely different system, the HE specifications established by theGerman standards authority Deutsche Industria Normen (‘DIN’).
18
60. The Thai investigating authority accepted the claim of the respondent that domestic sales ofthe like product were below the 5 percent standard. Accordingly, to determine a dumping margin it
used “the cost of production in the country of origin plus a reasonable amount for administrative,
selling and general costs and for profits” (“constructed value”), as authorised by Article 2.2 of theAnti-Dumping Agreement.  The use of constructed value is not open to question.  In paragraphs 82 to
84 of its First Written Submission, Poland only contends that the Thai investigating authority did not
determine a “reasonable profit” for the constructed value calculation.  As explained below, the profit
margin used by the Thai investigating authority was reasonable and was that actually realised on
domestic sales that may be considered, at the very least, the same general category of products.
                                                     
18 Huta Katowice Questionnaire Response, response to question C.3 (THAILAND - 19).WT/DS122/R
Page 220
B. THE AGREEMENT’S REQUIREMENTS FOR CALCULATING PROFIT
61. The general requirement of Article 2.2 is that the profit must be “reasonable,” and, if possible,
the profit calculation must be based on “actual data pertaining to production and sales in the ordinary
course of trade of the like product by the exporter or producer under investigation.”  If profit cannotbe determined on this basis, it may be based on any of the following:
“(i) the actual amounts incurred and realised by the exporter or producer in question in
respect of production and sales in the domestic market of the country of origin of the
same general category of products;
(ii) the weighted average of the actual amounts incurred and realised by other exporters
or producers subject to investigation in respect of production and sales of the like
product in the domestic market of the country of origin;
(iii) any other reasonable method, provided that the amount for profit so established shall
not exceed the profit normally realised by other exporters or producers on sales of
products of the same general category in the domestic market of the country of
origin.”
C. THE THAI INVESTIGATING AUTHORITY’S CALCULATION OF PROFIT
62. The products covered by the investigation were set forth clearly in the questionnaire provided
to the respondent producer Huta Katowice:
“The product concerned by this proceeding is angles, shapes and sections of iron or
non-alloy steel H sections, classified under HS code 7216.33.0005."
19
63. The respondent producer fully complied with the instructions to report all of its sales of the
covered product in the Polish market and to Thailand.  Accordingly, the Thai investigating authority
had a complete database consisting of all home-market sales of H-beams by Huta Katowice, and a
complete database consisting of all sales to Thailand of H-beams by Huta Katowice.20
64. Having accepted the claim of the Polish respondent that the sales of H-beams in the homemarket were not sufficiently comparable to the H-beams sold to Thailand to permit a proper
comparison based on the 5 percent standard, the Thai investigating authority proceeded to use the data
presented to it by the respondent to calculate constructed value.  The Thai investigating authority used
all reported home-market sales of H-beams to calculate the reasonable amount of profit.  Thus, it
could not have inflated Huta Katowice’s home market H-beam profit artificially, as might occur if
only a portion of the home-market sales database had been used.
65. Thus, Poland’s claim that the DFT’s use of a 36.3 percent profit margin for Huta Katowice
was an “assumption"21  is clearly incorrect.  The 36.3 percent was the product of a calculation made in
accordance with the requirements of the Anti-Dumping Agreement based on Huta Katowice’s own
data, and was not an assumption.
66. The respondent and Poland have taken the position that the home-market sales were not
sufficiently comparable for the preferred “price-to-price” calculation of Article 2.1.  It does  not
                                                     
19 Producers/Exporters Questionnaire at 1 (THAILAND - 4).
20 Huta Katowice Questionnaire Response, Section C (THAILAND - 18).
21 First Written Submission, Republic of Poland, para. 83.WT/DS122/R
Page 221
follow from that fact, however, that such sales are not sales of the “same general category of
products.”
67. Thus, Poland has combined one true statement and one false statement in a compound
proposition in its First Written Submission when it claims that “for price comparison purposes, the
DFT admitted [that the questionnaire response data on Polish and Thai domestic sales] were not
properly comparable and not within the ‘same general category of products’.".22   To the contrary, the
DFT accepted Poland’s strenuous argument that the Polish and Thai sales were not comparable for
purposes of Article 2.1.  The DFT then found, quite properly and completely contrary to the baseless
claim made by Poland, that the Polish and Thai H-beams indeed were of the “same general categoryof products.”  It is entirely consistent with the requirements of the Anti-Dumping Agreement to
conclude that products are not comparable for purposes of Article 2.1, and also to conclude that the
data for sales and production of such products do provide a proper basis for a profit calculation under
Article 2.2, because such products belong to the “same general category of products.”
68. The sales reported by Huta Katowice clearly belong to the “same general category of
products.”  They were all sales of H-beams.
23   The Thai investigating au thority determined that this
was a general category of product to which the sales t o Thailand belonged.24
69. Poland appears to argue that DIN H-beams a nd JIS H-beams are not like products and that
they also do not fall within the “same general category of products.”  There is certainly no basis for
the claim that they are not the “same general category of products” as the products sold to Thailand.They are, after all, all “iron or non-alloy steel H-sections, classified under the HS code
7216.33.0005”, and that certainly is a correct description of one “general category of products” towhich the products sold to Thailand belong.
70. In addition, although the Polish respondent and Poland made much of the alleged
incomparability of JIS-specification-produced H-beams and DIN-produced H-beams, the Thai
investigating authority discovered that Huta Katowice maintained only a single set of cost of
production data for H-beams, undifferentiated as between H-beams made to JIS standards and H-
beams made to DIN standards.  The Thai investigating authorities explained that:
The questionnaire requested Huta Katowice to separate cost of production for each
type of the product concerned as considered relevant.  It is Huta Katowice’s proposal
that the cost of production need not distinguish between different types (DIN, JIS,
etc.) and could essentially be based on cost per metric tonne.  This proposal by Huta
Katowice was considered acceptable as it was also proposed by other interestedparties.
25
71. Indeed, the Thai investigating authority determined that the profitability of home-market salesof products identical to those sold to Thailand was “virtually the same” as the overall profitability of
                                                     
22 Poland’s First Written Submission at para. 15; see also  Huta Katowice Questionnaire Response,
response to question C.3 (THAILAND - 18).
23 The unadopted Report of the Panel in EC – Antidumping Duties on Audio Tapes in Cassettes
Originating in Japan , ADP/136 (1995) ( EC – Audio Cassettes) ,  para. 394, stated that this in effect meant
“products of the same general category as the like product ”. See McGovern, International Trade Regulation, p.
12.23-4 (1999).
24 See Proposed Final Determination, section 6 (THAILAND - 37).
25 Responses to the issue[s] raised by the Polish pr oducers/exporters to the draft final determination, at
4 (THAILAND - 41).WT/DS122/R
Page 222
all home-market sales of H-beams.26   This is further (albeit unnecessary) confirmation that the JIS-
specification and DIN-specification H-beams all belong to the same general category of products.
72. Poland’s argument reduces to an assertion that it was entitled to have the Thai authorities use
an extremely broad definition of “general category  of products” – company-wide profit for this huge
integrated producer making a vast variety of steel products besides H-beams -- as the basis for
determining profit.27  Thailand respectfully submits that Article 2.2.2(i) does not provide for any
particular breadth of definition of “same general category of products.” Rather, the Anti-Dumping
Agreement leaves the decision to use a narrower general category (like, for example, the category
“hominid” for human beings) rather than a broader general category (like, for example, the category
“mammal” or “animal” for human beings) to the reasonable discretion of the investigating authorities.
73. In fact, even if there were some limit to the reasonable discretion of administering authorities
implicit in Article 2.2.2(i), that limit would militate  toward requiring the administering authorities to
use a narrower , rather than a broader , "general category of products" to calculate profit. Broader and
broader categories will encompass products less and less ”like” the products for which a profit is
sought to be calculated.  As a result, the broader the general category definition, the greater the
                                                     
26 See Proposed Final Determination, section 6.3 (THAILAND - 40).  Indeed, in light of these facts, it
would have been reasonable for the Thai investigating authority to have found that all the H-beams sold in thePolish home market were in fact like products, not merely products belonging to the same general category of
products as the like products.  In that case, the Thai investigating authority’s calculation using all reported
home-market sales of H-beams would have been properly characterised as the calculation of profit based on the“actual data pertaining to production and sales in the ordinary course of trade of the like product by the exporteror producer under investigation”--which is the preferred method under Article 2.2.2 for calculating profit in thesituation when home market sales “do not permit a proper comparison”  per the introductory paragraph of
Article 2.2.  As provided in the introductory paragraph of Article 2.2 of the Anti-Dumping Agreement, in fact,
the Polish respondent vastly overstated the differences between DIN-specification and JIS-specification H-beams.  The chemical and metallurgical properties of  these products are comparable and substitutable.  Of
course, regardless of whether the database used by the Thai investigating authority was comprised entirely of“like products” or of the “same general category of products,” the results would be the same, and the profit thuscalculated was reasonable.
27 See Poland’s First Written Submission at paras. 15 and 82. In paragraph 82 of its First Written
Submission, Poland also alleges that Thailand rejected two other "reasonable" methods for calculating profit.First, "the typical JIS product profit claimed in the Thai petition" clearly is not the kind of profit figure thatwould be applied except in the situation where the invest igating authority lacked any other data to make any of
the profit calculations set forth in Article 2.2.2 and, therefore, had to rely on "facts available," as provided forunder Article 6.8. In other words, use of the typical JIS product profit surmised by the Thai petitioner in its
petition would come only as a last resort.  Because the authority had data supplied to it by the respondent on the
same general category of products, it was not necessary to rely on "facts available" -- which, it turns out, are not
accurate facts.  In fact, Huta Katowice is making much higher profits on H-beams than the petitioner surmisedbased on the limited information known to it at the time the application was filed.  In addition, as pointed outabove, it was appropriate for the Thai investigating authority to use all JIS and DIN sales in the home market tocalculate profit, because they all do belong to the same general category of products; besides that, the Thai
authority specifically confirmed that the profit margin for the JIS home-market sales was commensurate with
the average profit margin for JIS and DIN combined. See, e.g., THAILAND - 41 at 3-4.  Second, as for Poland's
proposal that "the profit rates from Huta Katowice sales of truly like products in third countries" be used inpreference to constructed value, Article 2.2 does not ex press a preference for third-country sales of the like
products over "the cost of production in the country of origin plus a reasonable amount for administrative,
selling and general costs and for profits" (constructed value) -- the choice to use one or the other in Article 2.2 is
expressed in the disjunctive.  It is not surprising in the least that this choice should be given to the investigatingauthorities.  After all, there may be cases in which a producer enjoying a monopoly in its protected market isselling at uniformly dumped prices everywhere in the world except in its home market; if there were arequirement to use third-country like product sales in preference to constructed value, such universal dumpers
could easily escape determinations of dumping -- that is, as long as they followed the maxim, "dump equally in
all foreign markets."WT/DS122/R
Page 223
likelihood that the profit calculation will be inaccurate.  This conclusion follows from the hierarchy of
methodologies found in Article 2.2.2.  The preferred methodology is to use the narrowest category,
sales of the like product  made by the particular producer.  If that cannot be achieved, then
Article 2.2.2(i) authorizes the use of a somewhat broa der universe of data to calculate profit – profit
made by that producer for the “ same general category of products” as the like product.  Article2.2.2(ii) authorizes a broader definition still if the other methods cannot be used.  At the apogee of
permissible methodologies is Article 2.2.2(iii), which provides for the use of “any other reasonable
method” of calculation of profit made by other exporters or producers of the same general category.
The Thai investigating authority’s calculation fell well within the outermost orbits of these authorised
profit calculation methodologies.  The profit calculated was, in short, reasonable, as required byArticle 2.2.
74. Poland has not pointed to any fact on the record that would establish that the Thai authorities
acted unreasonably in considering that all H-beam s sold in Poland belong to the same general
category as the H-beams sold to Thailand.  Moreover, Poland has not pointed to any fact on the recordshowing that Huta Katowice reported home-market sales of other H-beams that the DFT failed to
include in its profit calculation.  Poland's argument with regard to the Thai authorities’ dumpingcalculation claims incorrectly that the profit was sheer  “assumption”, and claims incorrectly that
Poland was entitled to have profit calculated on an exceptionally broad “general category of products”
-- a category so broad that it would mask the very high profit at which Huta Katowice sells H-beams
in its home market compared to the profit at which it sells H-beams to Thailand.  Poland’s argument is
that the monopoly profits being extracted by Huta Katowice to finance its dumped sales to Thailandshould be diluted by Huta Katowice’s lesser profit performance for other products that are less like
the H-beams sold to Thailand and the H-beams sold in the home market.  Poland’s argument clearly
should be rejected.
VI. THAILAND ACTED CONSISTENTLY WITH ARTICLE 3 OF THE ANTI-
DUMPING AGREEMENT
75. Based on Poland’s request for establishment of a panel and its First Written Submission,
Thailand is only able to identify six purported “claims” under Article 3 of the Anti-Dumping
Agreement.  Poland claims that:
(a) Thailand violated Article 3.1 of the Anti-Dumping Agreement because its final determination
of injury was not based on positive evidence. See Poland’s First Written Submission at
para. 71.
(b) Thailand violated Article 3.1 of the Anti-Dumping Agreement because its final injury
determination of injury did not involve an objective examination of the impact of dumped
imports from Poland on the Thai domestic industry. See Poland’s First Written Submission at
para. 71.
(c) Thailand violated Article 3.2 of the Anti-Dumping Agreement by finding material injury
without considering (1) whether there was a significant increase in dumped imports from
Poland and (2) whether (a) there was significant price undercutting or (b) a depression of
prices (or restraint of a price increase) to a significant degree. See Poland’s First Written
Submission at para. 72.
(d) Thailand violated Article 3.4 of the Anti-Dumping Agreement by failing to evaluate profits,
losses, profitability or cash flow as relevant economic factors and indices having a bearing on
the state of the industry. See Poland’s First Written Submission at para. 74.WT/DS122/R
Page 224
(e) Thailand violated Article 3.5 of the Anti-Dumping Agreement by failing to demonstrate that
the Polish imports are causing injury. See Poland’s First Written Submission at para. 75.
(f) Thailand violated Article 3.5 of the Anti-Dumping Agreement by failing to examine other
factors that may be causing injury to the domestic industry, including the pricing conduct ofSYS, technology developments, export perfor mance, domestic industry productivity, or the
Kobe earthquake.  See Poland’s First Written Submission at para. 75.
76. The remainder of Poland’s submission makes sweeping assertions about violations of the
Agreement without presenting any factual or legal basis for such assertions.  Thailand is unable andunwilling to respond to these vague assertions contained in Poland’s First Written Submission.
77. Thailand also notes that Poland complains throughout its First Written Submission that the
Thai authorities did not provide sufficient disclosure of the information on which its determinations
were based.
28  To the contrary, Thailand disclosed to interested parties all non-confidential
information that was considered in reaching its final determination and then, unlike the practice in
other Members, took the additional step of attemptin g to summarise confidential information that was
considered in its injury analysis.29  Thailand considers that its investigating authority struck a
reasonable and responsible balance between illegitimately disclosing highly confidential information
(which would violate Article 6 of the Anti-Dumping  Agreement) and providing no information at all.
In this regard, Thailand notes that with only one complaining party and two respondents, its
authorities were faced with the formidable challenge of balancing the required confidentiality with the
obligation to disclose the essential facts under consideration.  Thailand respectfully requests that the
Panel consider Thailand’s position regarding these conflicting obligations in assessing whether it
complied with its obligations under Article 3.
A. THAILAND BASED ITS FINAL DETERMINATION OF INJURY ON “POSITIVE
EVIDENCE” CONSISTENT WITH ARTICLE 3.1 OF THE ANTI-DUMPING
AGREEMENT.
78. In paragraph 71 of its First Written Submission, Poland apparently claims that Thailand
violated Article 3.1 of the Anti-Dumping Agreement by failing to base its final injury determinationon “positive evidence”.  However, Poland has provided no specific legal or factual basis to support
this purported claim, much less even alleged that Thailand failed to establish the facts properly or was
biased or subjective in its consideration of evidence.  Accordingly, Poland has failed to satisfy its
burden of proof, and the Panel should reject Poland’s purported claim.
79. In any event, Article 3.1 of the Anti-Dumping provides, in relevant part, that “[a]
determination of injury for purposes of Article VI of GATT 1994 shall be based on positive
evidence.”  Absent any specific basis on which to respond to Poland’s purported claim, Thailand
considers that a significant amount of “positive
30 evidence on which the final injury determination is
                                                     
28 In, inter alia , paragraphs 2, 19, 24, 29, and 66, Poland alleges that the Thai investigating authorities
did not rely on actual data in making their determination.  This is obviously not the case, as evidenced by thetext of the notices, letters, and disclosures provided to in terested parties.  Moreover, as discussed in more detail
below, the relative figures included in the charts must necessarily have been derived from actual, albeit
confidential, data.
29 For example, in the United States, confidential information reported in tables would be replaced with
“*****”.  Thailand merely tried to provide both a textual and data summary of the confidential informationconsidered in making its final determination.
30 “Positive” is defined as “dealing only with matters of fact; practical; not speculative or theoretical.”
The Shorter Oxford English Dictionary  at 1634 (1973).WT/DS122/R
Page 225
based is contained in the record of the investigation and is reported in the respective notices, letters,
and disclosures provided to interested parties.  See Section III above.31
80. In paragraphs 2, 17, 19, and 22, Poland alleges that Thailand inappropriately relied on
“overlapping time periods” in conducting its injury investigation, although it never alleges the precisearticle that such an approach would violate. Poland appears to contend that because some of the
periods examined happen to overlap with each other, some intellectual error -- which Poland has
failed to specify -- was committed by the Thai inves tigating authority.  Thailand wishes to make clear
that there were no mismatching of periods used in examining data -- that is, the Thai investigating
authority did not, for instance, compare import data of Time X to domestic sales data of Time Y as ifTime Y were Time X.  To the contrary, all comparisons were of the "apples-to-apples" variety.  The
fact that some periods examined overlapped with other periods examined is of no moment
whatsoever, and there is nothing intellectually susp ect about it.  A reasonable investigating authority
might, for example, examine calendar year data for 1998, 1999 and 2000, and also data for July 1999-
June 2000.  The fact that the periods calendar year 2000 and July 1999 -- June 2000 overlap does notvitiate the investigating authorities’ analysis.  In f act, it may strengthen it in terms of confirming the
persistence of trends over time.
32
B. THAILAND’S FINAL DETERMINATION OF INJURY INVOLVED AN OBJECTIVE
EXAMINATION OF THE IMPACT OF DUMPED IMPORTS FROM POLAND ON THE
THAI DOMESTIC INDUSTRY CONSISTENT WITH ARTICLE 3.1 OF THE ANTI-
DUMPING AGREEMENT.
81. In paragraph 71 of its First Written Submission, Poland apparently claims that Thailand
violated Article 3.1 of the Anti-Dumping Agreement because its final injury determination did not
involve an objective examination of the impact of dumped imports from Poland on the Thai domestic
industry.  However, Poland provides no evidence to support any claim that Thailand’s investigatingauthority was not objective in its examination of the consequent impact of dumped imports.  Thus,
Poland has failed to satisfy its burden of proof with respect to whether Thailand conducted an
“objective” examination, and the Panel should reject Poland’s claim.  Regarding whether the Thai
authorities conducted the requisite “examination” under Article 3.1, Thailand addresses this claim in
the context of Poland’s purported claim under Article 3.4 of the Anti-Dumping Agreement.
                                                     
31 Thailand notes that several of DIT’s documents contain inadvertent typographical or translation
errors.  First, in paragraph 16 of DIT’s draft information used for the final injury determination (THAILAND -37), the reference to SYS beginning operations in “March of 1995” should read “January of 1995”, as suggestedin Section C of SYS’ questionnaire response (THAILAND - 21) and confirmed in paragraph 1.10.1 of DIT’sconfidential report to the CDS Committee (THAILAND - 44).  Second, in the chart for Market Data of H-Beamof Siam Yamato in the same document (THAILAND - 37), the reference to “19.8” for 1995 market share should
read “49.8”, as stated in the disclosure for the prel iminary determination (THAILAND - 33) and in paragraph
1.13.1 of DIT’s confidential report to the CDS Committee (THAILAND - 44). Finally, in paragraph 2 of thefinal determination of injury, the reference to “threat” is an incorrect translation of the Thai language version ofthe determination.  The term “threat” is not included in the final determination, as evidenced by the Thailanguage version included in THAILAND - 44.  As a result, Poland’s arguments in paragraphs 2, 3, and 19
regarding the use of only 10 months of data for 1995, its arguments in paragraphs 3, 64, and 68 of its submission
regarding SYS “tripling” its market share and its refere nce in footnote 64 to a “threat” determination are all
without merit.
32 In other words, the use of overlapping periods amounts to adding a constant, or averaging in a
constant, to the two numbers being compared.  This constant is the value for the period of the overlap.  Althoughthis changes the two numbers that are being compared, it does so in a predictable way.  The authorities can just
as easily make an assessment based on overlapping numbers as on non-overlapping numbers.WT/DS122/R
Page 226
C. THAILAND COMPLIED WITH ARTICLE 3.2 OF THE ANTI-DUMPING AGREEMENT
IN ITS EXAMINATION OF THE VOLUME AND PRICE EFFECTS OF DUMPED
IMPORTS
1. The Thai investigating authorities consid ered whether there had been a significant
increase in dumped imports
82. In paragraph 72 of its First Written Submission, Poland contends that Thailand violated
Article 3.2 of the Anti-Dumping Agreement because the Thai authorities gave “no consideration” to
whether there was significant increase in imports.  Article 3.2 provides that “[w]ith regard to thevolume of dumped imports, the investigating authorities shall consider whether there has been a
significant increase in dumped imports, either in absolute terms or relative to production or
consumption in the importing Member”.  The record of the investigation clearly shows that the Thai
investigating authorities considered whether there had been a significant increase in dumped imports
in absolute terms.
83. First, paragraph 4 of “Information used in The Determination” contained in the Draft
Information Used for the Final Injury Determination by the DIT attached to the Proposed Final
Determination (the “Draft Information”) (THAILAND - 37) states that “[d]uring the period of
investigation, Total H-beams imported to Thailand decreased at 8% from 1995 while imports from
Poland increased 10%.”
84. Second, on page 2 of its response to issues raised by respondents (THAILAND - 41), DFT
states under the heading “ Quantity of imports from Poland” that “Polish imports increased
consistently prior to and during the investigation period.”
85. Third, on pages 3-4 and 10 of its confidential report to the CDS Committee (THAILAND -
44), DIT again sets forth the information collected on the increase in imports from Poland and
indicates that they had risen “substantially”.
86. Fourth, in paragraph 2.1 of the final injury determination, the Thai authorities state that “[t]he
import volume of subject merchandise from Poland has continuously increased when the total importsdeclined.  When compared Polish imports with al l other imports, Polish imports had increased from
31 per cent in 1994, to 48 per cent in 1995, to 57 per cent during the POI.”
87. It is clear that the Thai authorities “considered” whether there had been a significant increase
in dumped imports in absolute terms. Accordingly,  Thailand acted consistently with its obligation
under the first sentence of Article 3.2 of the Anti-Dumping Agreement.
2. The Thai investigating authorities consider ed whether there had been significant price
undercutting or a depression of prices (or restraint of price increases) to a significant
degree
88. In paragraph 72 of its First Written Submission, Poland claims that Thailand violated
Article 3.2 of the Anti-Dumping Agreement by failing to consider properly the effect of dumped
imports on prices.  Article 3.2 provides:
“With regard to the effect of the dumped imports on prices, the investigating
authority shall consider whether there has been a significant price undercutting by thedumped imports as compared with the price of a like product of the importing
Member or whether the effect of such imports is otherwise to depress prices to a
significant degree or prevent price increases, which otherwise would have occurred toWT/DS122/R
Page 227
a significant degree. No one or several of these factors can necessarily give decisive
guidance.” (Emphasis added. )
89. The Thai investigating authority did consider, using confidential information on the record,
whether the dumped Polish imports were significantly underselling the Thai products and/or whether
the effect of dumped Polish imports was to cause price suppression or depression.
90. First, paragraph 7 of the Draft Information (THAILAND - 37) states that “[i]f [one] compares
between selling prices of H-beams of Siam-Yamat o Steel Co., Ltd. and the import price from Poland,
it can see the circumstance of price undercutting.  Siam Yamato Steel Co., Ltd. made the decision to
discount the price for maintaining and expanding the market share, so that the volume of sale will be
efficient for the factory production and to achieve economy of scale.  Thus, this leads to the situation
[of] price depression, and price suppression.”
91. Second, on page 1 of its response to issues raised by respondents (THAILAND - 41), DFT
states that “[i]n summary, the Thai Investigating Authorities reiterate that . . . significant price-undercutting was established resulting in price depression and price suppression. ”
92. Third, on pages 4-5 and 10 of its confidential report to the CDS Committee (THAILAND -
44), DIT sets forth the confidential pricing information and discusses the consistent price underselling
by the dumped imports.
93. Fourth, in paragraph 2.2 of the final injury determination (THAILAND - 46), the Thai
authorities state that “[p]rice of Polish imports has always been lower than that of Siam Yamato and
lower than the average import price from all other countries.”  In paragraph 2.3, the authorities state
that “the domestic industry has no choice but to decrease its price to the level of Polish imports.  This
has resulted in price undercutting and suppression including the fact that the Thai domestic industry is
unable to increase its price to recover its costs in a reasonable period of time.  This, in turn, haseffected cash flow. ”
94. Therefore, it is also clear that the Thai authorities “considered” whether there had been
significant price undercutting or whether the effects of the dumped Polish imports was price
depression or suppression to a significant degree. Accordingly, Thailand acted consistently with itsobligation under the second sentence of Article 3.2 of the Anti-Dumping Agreement.
95. In making its allegations with respect to price comparisons, Poland has confused the public
version of the chart provided by the Thai authorities (THAILAND - 37) with the actual confidential
pricing data examined during the investigation. Th e Thai investigating authority provided the public
version of its pricing chart in order to provide Poland with reference information, without at the same
time divulging confidential information in violation of Article 6.5 of the Anti-Dumping Agreement.
Although Poland correctly observes that one cannot determine from the public version of this chart
alone which products were undersold, this observation assumes, incorrectly, that this chart exists in a
vacuum.  When read in light of statements appearing elsewhere in the record, however, a reader canreadily grasp the pattern of underselling by the dumped Polish imports.
96. In order for a comparison of relative price trends to be meaningful, the price relationship
between the compared products must, of course, be pr ovided.  That is to say, it must be clear which
product is priced higher.  The Thai authorities provided this price relationship context in their Final
Injury Determination: the “[p]rice of Polish imports has always been lower than that of [SYS]"..
33
The relative price relationship, therefore, is such th at the “100” starting reference for Polish H-beams
necessarily is lower than the “100” reference for Th ai H-beams.  And, in any case, the clarity of the
                                                     
33 Final Injury Determination, para. 2.2 (THAILAND - 46).WT/DS122/R
Page 228
public summary of confidential information is irrelevant to the viability of the injury determination
made by the Thai investigating authority based on its examination of all relevant factors based on
confidential information.
D. THAILAND COMPLIED WITH ARTICLE 3.4 OF THE ANTI-DUMPING AGREEMENT
BY EVALUATING ALL RELEVANT FACTORS, INCLUDING PROFITS, LOSSES,
PROFITABILITY AND CASH FLOW
97. In paragraph 74 of its First Written Submission, Poland apparently claims that Thailand
violated Article 3.4 of the Anti-Dumping Agreement by “cho[osing] not to present evidence regardingprofits, losses, profitability or cash flow.”  To the contrary, the record of the investigation
demonstrates that the Thai authorities evaluated these factors.
98. First, paragraph 11 of Draft Information (THAILAND - 37) states that “[t]he Department of
Internal Trade considered the business performa nce of the domestic industry by examining the
financial report and cost of production of Siam Yamato Co. Ltd., from the years of 1994 and 1995.”
As reflected in the table attached to the Draft Information, it looked specifically at confidential
information regarding  “Net Profit (Loss)”.
99. Second, on page 1 of its response to issues raised by respondents (THAILAND - 41), DFT
states that “[t]he complainant suffered significant fi nancial losses which are directly attributable to the
dumping prices of the Polish exporters concerned.”
100. Third, on pages 3 and 11-12 of its confidential report to the CDS Committee (THAILAND -
44), DIT states that it used SYS ’ audited financial statement and balance sheet to assess the state of
the domestic industry and discusses the financial loss attributable to the prices at which the dumped
Polish imports are sold in the Thai market.
101. Fourth, as stated above, in paragraph 2.3 of the final injury determination (THAILAND - 46),
the Thai authorities state that “the domestic industry has no choice but to decrease its price to the level
of Polish imports.  This has resulted in price undercutting and suppression including the fact that the
Thai domestic industry is unable to increase its price to recover its costs in a reasonable period oftime.  This, in turn, has effected cash flow.”
102. Therefore, the Thai authorities clearly evaluated profits, losses, profitability and cash flow
consistent with its obligations under Article 3.4 of the Anti-Dumping Agreement.
103. In paragraph 74 of its First Written Submission, Poland also contends that “[e]very Article 3.4
factor examined by Thailand and on which the Thai authorities claimed to rely unambiguously
supports a finding of no injury.”  Other than the factors identified above, Poland does not appear to
claim that Thailand failed to evaluate other relevant factors.  Rather, Poland simply disputes the
weight accorded by the Thai authorities to each of the factors that it evaluated during theinvestigation.  Moreover, as discussed in Section IV above, Poland has failed to satisfy its burden of
proof to present prima facie  evidence that the Thai authorities were biased or subjective in their
evaluation of all relevant factors.
104. As demonstrated above, the significant market penetration of Polish H-beams, coupled with
significant underselling showed that the Thai industry was suffering material injury.  Poland attempts
to avoid this reality by focusing on, and at times misconstruing, the other factors considered by theThai authorities.
34  Again, it must first be recalled that the injury determination entails a balancing
                                                     
34 For example, Poland argues that Thai capacity utilisation would have to be lower than it was in order
to sustain an injury finding.  See Poland’s First Written Submission at para. 22. This proposition, however, isWT/DS122/R
Page 229
process.  As a result, the import volumes and the low, dumped prices cannot be ignored despite
attempts to distract attention away from these factors.
105. In concentrating on the factors that the Thai au thorities accorded less weight in the balance of
their investigation, Poland seems to argue that all fa ctors would have to indicate injury in order for an
injury finding to be sustainable.  This obviously is false. The Anti-Dumping Agreement only requires
investigating authorities to consider  all relevant factors.
106. Poland effectively argues that an industry needs to be “mortally wounded” in order to be
“materially injured.”  In fact, an industry may be in a state of relative health and still be sufferingmaterial injury.  The H-beams in question are commodity products such that even a small price
differential can divert sales to the lowest-priced producers.  Thus, when significant volumes of
dumped imports are introduced into a market, an authority could reasonably find that such imports
were causing material injury to the domestic industry because of price undercutting and consequent
price suppression and depression.
35
E. THAILAND COMPLIED WITH ARTICLE 3.5 OF THE ANTI-DUMPING AGREEMENT
BY DEMONSTRATING THAT DUMPED IMPORTS WERE CAUSING INJURY TO THE
DOMESTIC INDUSTRY
107. In paragraph 75 of its First Written Submission, Poland apparently claims that Thailand
violated Article 3.5 of the Anti-Dumping Agreement by failing to demonstrate that “the Polishimports are causing injury.”  However, Poland has provided no specific legal or factual basis to
support this purported claim, much less even alleged that Thailand failed to establish the facts
properly or was biased or subjective in its consideration of evidence.  Accordingly, Poland has failed
                                                                                                                                                                    
not correct.  Any producer, and particularly a new producer, might rationally decide to respond to the dumping
by matching the dumper’s low prices while preserving capacity utilisation.  The result would be material injuryexperienced as price suppression and/or  price depression, rather than material injury experienced as idling of
capacity.  A domestic producer clearly does not need to suff er all indicia of material injury before a reasonable
investigating authority can legitimately find that the domestic industry is suffering material injury by reason of
dumped imports.
35 In paragraphs 2, 3, 22, 32, 49, 64, 67, 74, and 76 of its First Written Submission, Poland contends
that the following statements by the Thai investigating authorities are in some unspecified way improper:
“Though most evidences of domestic injury indicate a positive performance of the company,
but [SYS] began its operation in [January] of 1995.  Hence, to gain the benefit of the economy of scale,
the company must maintain and increase its market share”  (THAILAND - 37)
“The mere fact that the production and sales of the domestic industry has increased cannot be
the sole indicators that the domestic industry has suffered no injury from Polish imports.  In this earlystage, it is possible that economy of scale is yet to  be reached.  Therefore, it is imperative that the
domestic industry’s market share be preserved and expanded to attain the sale level in keeping with its
production at a level that it can continue to be in  business.  This was done by decreasing its prices to
match that of the Polish imports, resulting in the fact that the price then became lower than it shouldhave been.  As a result, timely co st recovery has not been attained.”
These statements, translated from the Thai language, simply highlight the fact that the Thai
investigating authorities in this specific case were required to determine whether this particular domestic
industry consisting of a single company that entered the market in January 1995 was suffering material injury asa result of dumped Polish imports.  The Thai investigating authority considered that although certain factorsmay have showed an improving trend, as can be expected for a new entrant in an untapped domestic market, thedumped Polish imports were causing material injury because of the effect of, inter alia , price undercutting on
the financial state of the company and its ability to stay in business. Moreover, Poland ignores the level at which
these factors should have been, absent the effects of dumped Polish imports.WT/DS122/R
Page 230
to satisfy its burden of proof, and the Panel should reject Poland’s purported claim under Article 3.5.
See Section IV above.
108. In any event and in the absence of any specific basis on which to respond to Poland’s
purported claim, Thailand considers that the record of the investigation demonstrates the causal linkbetween the dumped Polish imports and the material injury to the domestic industry as reported in the
respective notices, letters, and disclosures provided to interested parties. It is clear that the Thai
investigating authority determined that the sustained pattern of underselling of commodity-product
imports dumped at the rate of 27.78 percent, leading to price depression and suppression, coupled
with the exceptionally high market share taken by the dumped imports, was causing material injury tothe Thai industry, and that such a determination was eminently reasonable in the circumstances.
Injury determinations where the dumping margin is in the single digits, the margin of underselling is
lower, the market penetration is significantly less, and the products are not commodity products
(which compete primarily based on price) are commonplace -- and are reasonable.  Poland simply
wants to re-balance the relevant factors and to trivialise those factors that are most indicative ofmaterial injury.  That is not the role of the Panel, however.  The role of the Panel is to review whether
a reasonable investigating authority could have balanced the relevant economic factors in a such way
that it could have reached the conclusions on injury and causation that this investigating authority in
fact did reach.  Thailand respectfully submits that its investigating authority's determinations on injury
and causation meet this standard (the standard of Article 17.6(i)) with ease, given the facts before the
Thai investigating authority.
F. THAILAND COMPLIED WITH ARTICLE 3.5 OF THE ANTI-DUMPING AGREEMENT
BY EXAMINING KNOWN FACTORS OTHER THAN DUMPED IMPORTS THAT MAY
HAVE CAUSED INJURY TO THE DOMESTIC INDUSTRY
109. In paragraph 75 of its First Written Submission, Poland claims that Thailand violated
Article 3.5 of the Anti-Dumping Agreement because the Thai authorities failed to examine factors
other than the dumped imports that may be injuring the domestic industry, including the pricing
conduct of SYS, technology developments, export performance, domestic industry productivity, or the
Kobe earthquake.  In relevant part, Article 3.5 provides:
“The authorities shall also examine any known factors other than the dumped imports
which at the same time are injuring the domestic industry, and the injuries caused by
these other factors must not be attributed to the dumped imports.  Factors which may
be relevant in this respect include, inter alia , the volume and prices of imports not
sold at dumping prices, contraction in demand or changes in the patterns of
consumption, trade-restrictive practices of and competition between the foreign and
domestic producers, developments in technology and the export performance and
productivity of the domestic industry.”  (Emphasis added)
110. Thus, Article 3.5 obligates an investigating authority to examine only those other factors that
(1) are known and (2) are, at the same time, injuri ng the domestic industry.  If these conditions are
satisfied, the injuries caused by these “other factors” must not be attributed to the dumped imports.
Article 3.5, however, does not require that the authority examine all relevant other factors, but merely
contains a list of factors that “may be relevant.”
111. In paragraphs 9 and 15 of its Draft Information (THAILAND - 37), the Thai investigating
authority examined information relating to world-wide demand for H-beams and potential tradeWT/DS122/R
Page 231
restrictive practices of and competition between the foreign and domestic producers.36  These factors
were “known” but were not considered to be injuring the domestic industry.
112. On page 2 of DFT’s response to issues raised by respondents  (THAILAND - 41), DIT
examined other factors that were made “known” to it by respondents, including imports from otherthird countries, general economic development, technology developments, and trade restrictive
practices.  These factors were again found not to be injuring the domestic industry.
113. In section 3 and in paragraph 4.7 of its confidential report to the CDS Committee
(THAILAND - 44), DIT presented factual information relating to global market conditions in the steelindustry and concluding that the events of the world market unlikely affected SYS performance due to
the continued increase in domestic demand.
114. Finally, in paragraph 2.4 of the final injury determination (THAILAND - 46), the Thai
authorities discuss their examination of global demand (on which the Kobe earthquake would have aneffect).  The authorities state that
“Siam Yamato Steel has entered the market when the global and domestic demand
were high.  Later, the global demand had contracted but domestic demand still
expanded.  Together with the fact that during the POI, over 40 per cent of sales were
from export, therefore, the global demand for H-beams cannot be a cause of injury to
the company during the POI.”
115. Thus, Thailand examined factors other than the dumped Polish imports that were known to it
and found in each case that they were not causing injury to the domestic industry.  The Thai
investigating authorities were not obligated to seek out “other factors” on their own initiative and
were not obligated to examine “other factors” not made known by interested parties during the course
of the investigation.
37  Moreover, Poland has provided no evidence that its determinations regarding
the relevant other factors to examine and its evaluation of whether such factors were causing injury
was biased or subjective.  Accordingly, the Panel should reject Poland’s claims under Article 3.5 of
the Anti-Dumping Agreement.
VII. THAILAND ACTED CONSISTENTLY WITH ARTICLE 5 OF THE ANTI-
DUMPING AGREEMENT
A. INITIATION
116. In paragraph 89 of its First Written Submission, Poland asserts that the Thai authorities did
not have sufficient evidence to justify the initiation of an investigation under Article 5 of the Anti-
Dumping Agreement. This broad allegation is completely unsubstantiated and is included in a single
paragraph of Poland’s submission. Therefore, Thailand is in the untenable position of having
absolutely no basis on which to respond to Poland’ s purported “claim”.  Thailand respectfully urges
the Panel to issue a preliminary ruling dismissing Poland’s “claims” under Article 5 of the Anti-Dumping Agreement based on the arguments presented in Section II above.
117. Alternatively, Thailand respectfully requests that the Panel carefully evaluate the serious
prejudice that is likely to result if Poland presents a more specific claim during the rebuttal stage of
                                                     
36 See Paragraphs 9 and 15 of “Information used in The Determination” contained in the Draft
Information Used for the Final Injury Determination by the DIT attached to the Proposed Final Determination
(THAILAND - 37).
37  See United States - Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic
Salmon from Norway, ADP/87, paras. 547 and 550 (adopted 27 Apr. 1994).WT/DS122/R
Page 232
the proceeding.  At such time, Thailand’s ability to respond will be limited to the final oral hearing,
and third parties will have no opportunity to respond.
118. Without prejudice to the above, Thailand emphasises that it complied with both Articles 5.2
and 5.3 of the Anti-Dumping Agreement in initiating  the investigation. The authorities examined the
application and determined that it contained sufficient evidence of dumping, injury and a causal link
to justify the initiation of the investigation on H-b eams, but that insufficient evidence was presented
to justify initiating an investigation on I-Beams and U-Beams.  See THAILAND - 1 to - 5 (except 4).
B. NOTICE OF THE ACCEPTANCE OF A PROPERLY DOCUMENTED APPLICATION119. In Paragraph 90 of its First Written Submission, Poland claims that Thailand violated its
obligation under Article 5.5 of the Anti-Dumping Agreem ent.  Article 5.5 states that "[a]fter receipt of
a properly documented application and before proceeding to initiate an investigation, the authorities
shall notify the government of the exporting Member concerned".
120. On 21 June 1996, Thailand received an anti-dumping application from SYS.  See
THAILAND - 1.  On 17 July 1996, the DBE met with Mr. Michal Byczkowski, the Commercial
Counsellor of the Republic of Poland in the Kingdom of Thailand.  During that meeting, the DBE
notified Mr. Byczkowski that a properly documented anti-dumping application had been received.
The DFT reminded the Government of Poland regarding this meeting in a letter from the DFT to the
Embassy of Poland.  See THAILAND - 14.  On 30 August 1996, Thailand initiated the investigation.
See THAILAND - 2.  By notifying Poland less than one month after the receipt of the application and
six weeks before the decision to initiate the investigation, Thailand clearly complied with its
obligations under Article 5.5 of the Anti-Dumping Agreement.
38
VIII. THAILAND ACTED CONSISTENTLY WITH ARTICLE 6 OF THE ANTI-
DUMPING AGREEMENT
121. In its First Written Submission, Poland alleged that Thailand has violated the procedural and
evidentiary requirements provided in Article 6 of the Anti-Dumping Agreement. Poland merely
asserted in its First Written Submission that the Thai authorities did not disclose information used forits final determination and that these actions were inconsistent with Articles 6.4, 6.5.1 and 6.9 of the
Anti-Dumping Agreement (paragraph 92 of Poland First Written Submission).  Because of these
sweeping assertions, Thailand is again in the untenable position of having absolutely no basis on
which to respond to Poland’s arguable “claims”.  Thailand respectfully urges the Panel to issue a
preliminary ruling dismissing Poland’s “claims” under Article 6 of the Anti-Dumping Agreementbased on the arguments presented in Section II above.
122. Alternatively, Thailand respectfully requests that the Panel carefully evaluate the serious
prejudice that is likely to result if Poland presents a more specific claim during the rebuttal stage of
the proceeding.  At such time, Thailand’s ability to respond will be limited to the final oral hearing,and third parties will have no opportunity to respond.
123. In any event, Thailand clearly complied with its obligations during the entire investigation by
providing all interested parties timely opportunities to examine relevant information and to defend
their interests.
                                                     
38 Thailand notes that at its meeting on 29-30 April 1997, the Ad Hoc Group on Implementation of the
Committee on Anti-Dumping Practices (the “Ad Hoc Gr oup”) discussed the confusion over the “practical
mechanics” of notification under Article 5.5 of the Anti-Dumping Agreement, including “who should benotified, where, and how.”  See G/ADP/AHG/R/2 at 2 (7 July 1997).WT/DS122/R
Page 233
A. ARTICLE 6.4
124. In paragraph 92, Poland contends that Thailand violated Article 6.4 of the Anti-Dumping
Agreement because “interested parties could not see the relevant information.” Absent more precise
pleading, Thailand cannot respond in more detail to Poland’s purported “claim” and can only reiteratethat the Thai authorities provided interested partie s, whenever practicable, timely opportunities to see
all information that was not confidential.   Thailand  refers the Panel to the exhaustive factual record
set forth in Section III above.
B. ARTICLE 6.5.1125. In paragraph 92, Poland claims that Thaila nd violated Article 6.5.1 of the Anti-Dumping
Agreement by failing to provide interested parties with a proper non-confidential summary.
126. Article 6.5.1 provides that the investigating authorities shall require interested parties
providing confidential information to furnish non-c onfidential summaries thereof. It does not require
the investigating authorities to provide those non-c onfidential summaries to the exporters or to the
foreign producers.  Thus, Poland’s claim is based on a misinterpretation of Article 6.5.1.
127. As discussed in Section III, the Thai investigating authorities required interested parties to
submit non-confidential versions of, for example, the application and questionnaire responses.  This
requirement was set forth in section 9.1, paragraph 2 of the Notification of the Ministry of Commerceon the Imposition of Anti-Dumping and Countervailing Duties B.E. 2539 (1996).  Thus, there is no
question that Thailand was in full compliance with Article 6.5.1 of the Anti-Dumping Agreement.
128. Poland faults Thailand for rejecting respondents’ requests to disclose confidential information
submitted in this investigation.
39   Respondents, however, had no entitlement under WTO law to
receive such confidential data.  Moreover, Thailand stresses that its investigating authorities were
bound by Article 6.5 of the Anti-Dumping Agreement to maintain the strict confidentiality of
information submitted by both the petitioner and respondents in this investigation. Article 6.5 of the
Anti-Dumping Agreement provides that confidential  information “shall not be disclosed without
specific permission of the party submitting it.”  While this provision provides little practical guidanceto investigating authorities, Thailand considers its basic premise to be quite clear: absent a submitting
party’s consent, confidential information must not be disclosed.
129. In October 1996, the WTO Committee on Anti-Dumping Practices identified a range of
topics that required attention in the context of anti-dumping practice.  These topics were referred tothe Ad Hoc Group for discussion and consideration of possible recommendations to the Committee.
Members were invited to comment on these topics , including Topic #1: Treatment of confidential
information in anti-dumping investigations.
40  The Anti-Dumping Committee and Ad Hoc Group’s
initiatives represent an institutional attempt to fo rmulate more specific rules with respect to the
treatment of confidential information.  Unti l the Anti-Dumping Committee, or the WTO as an
organisation, provides additional rules in this area, governments must simply follow the dictates of
Article 6.5 and refrain from disclosing confidential information.
                                                     
39 See Poland’s First Written Submission at para. 92.
40 Many WTO Members, including Thailand, submitted materials in response to the Anti-Dumping
Committee’s solicitation of papers and proposals.  See, e.g., G/ADP/AHG/W/25 (9 Oct. 1997).WT/DS122/R
Page 234
C. ARTICLE 6.9
130. Poland claims that Thailand violated Article 6.9 of the Anti-Dumping Agreement by failing to
inform certain interested parties of the essential facts under consideration which formed the basis for
the decision whether to apply definitive measures.
131. The factual record shows that the following information used in the final determination were
provided to the interested parties :
- Proposed final dumping determination and draft information used for the final injury
determination (THAILAND - 37);
- Confidential disclosure of the final dumping calculation (THAILAND - 38);- Letter responding to the issues raised by the Polish producers/exporters to the draft
final determination (THAILAND - 41);
- The final determina tions of dumping and injury (THAILAND - 46).
132. Thailand considers that the information included in the above-listed documents contained all
"essential" non-confidential information taken into consideration in forming the basis for the decision
whether to apply definitive measures.
41
IX. CONCLUSION
133. Based on the above, Thailand respectfully requests that the Panel find that Thailand acted
consistently with its obligations under Article VI of GATT 1994 and the Anti-Dumping Agreement.
                                                     
41 The Ad Hoc Group also discussed the nature of the obligations under Article 6.9 of the Anti-
Dumping Agreement, including what constituted the essential facts subject to the required disclosure and howand when such disclosure should be made.  See G/ADP/AHG/R/2 at 2 (7 July 1997).  The Group “recognized
that the particular investigative and decision-making pro cess in different Members’ systems led to differences in
how this obligation was met.”  Id.  Moreover, some Members maintained that “the Article 6.9 requirement was
less extensive than the requirement for explanations in the public notices issued under Article 12.”  Id. at 3.  As
stated in Section I of this submission, Thailand’s compliance with Article 12 of the Anti-Dumping Agreement isoutside the Panel’s terms of reference.  In any even t, the Ad Hoc Group could not reach any conclusions on
these important interpretative issues and reverted the topic for discussion at a later date.  Id.WT/DS122/R
Page 235
TABLE OF EXHIBITS
EXHIBIT NO. DOCUMENT DESCRIPTION DATE
THAILAND - 1 Application filed by Siam Yamato Steel Co. Ltd.
(“SYS”) (non-confidential version)21 June 1996
THAILAND - 2
(POLAND - 1)Letter from DBE to Huta Katowice transmitting
public notice of initiation30 August 1996
 THAILAND - 3
(POLAND - 2)Letter from DFT to Huta Katowice transmitting
notice of initiation, DFT Statement, questionnaire,
and diskette17 September 1996
 THAILAND - 4 Producers/Exporters Questionnaire
THAILAND - 5
(POLAND - 3)Letter from DFT to the Government of Poland (the
Department of Foreign Trade Statement) discussing
the initiation and transmitting the notice o f
initiation, the questionnaire, and a copy of the
application17 September 1996
THAILAND - 6 Letter from Huta Katowice to DFT requesting an
extension to the deadline for filing its questionnaire
response27 September 1996
 THAILAND - 7 Letter from DFT to Huta Katowice granting a 15-
day extension to the deadline for filing its
questionnaire response3 October 1996
 THAILAND - 8 Letter from Huta Katowice to DBE and DFT
regarding the ability to submit information10 October 1996
 THAILAND - 9 Facsimile from DFT to Huta Katowice 11 October 1996
THAILAND - 10 Cover letter from Stalexport to DFT transmitting
portions of questionnaire response16 October 1996
THAILAND - 11 Fax from DFT to Stalexport informing of a
deficient questionnaire response and requesting
additional information by 8 November 1996(CONFIDENTIAL ) 29 October 1996
THAILAND - 12 Cover letter from Stalexport to DFT transmitting
certain additional information6 November 1996
THAILAND - 13 Letter from the Permanent Representative of Poland
to the WTO to the Permanent Representative o f
Thailand to the WTO requesting consultationsunder Article 17.2 of the Anti-Dumping Agreement18 October 1996
THAILAND - 14
(POLAND - 4)Letter from the Permanent Representative o f
Thailand to the WTO to the Permanent
Representative of Poland responding to the 18
October 1996 letter and commenting on informaldiscussions held regarding the investigation14 November 1996
 THAILAND - 15 Cover letter and injury questionnaire from DIT to
SYS4 November 1996
THAILAND - 16 Cover letter (and list of importers) from DIT to 43
importers transmitting importers’ questionnaire
(Thai language version only) and Importers’
Questionnaire5-6 November 1996
THAILAND - 17 Cover letter from DIT to three trade associations
transmitting questionnaires and requesting that they
be forwarded to unknown producers, importers,
and/or users (Thai language version only)14 November 1996WT/DS122/R
Page 236
THAILAND - 18 Dumping questionnaire response from Huta
Katowice ( CONFIDENTIAL )8 November 1996
THAILAND - 19 Dumping questionnaire response from Huta
Katowice (non-confidential version)8 November 1996
 THAILAND - 20 Injury questionnaire response from SYS
(CONFIDENTIAL - Section F.3 (Cost o f
Production by Sizes) and attachment G-2
(Operating Result Comparison) removed)6 December 1996
THAILAND - 21 Injury questionnaire response from SYS  (non-
confidential version)20 January 1996
THAILAND - 22 Letter from DFT to Huta Katowice transmitting
three documents relating to the preliminary
determination20 January 1997
THAILAND - 23
(POLAND - 5)Ministry of Commerce Notification Regarding
Imports (No. 118)27 December 1996
 THAILAND - 24
(POLAND - 5)Ministry of Commerce Notification Regarding
Anti-Dumping Duty Levied on Angles, Shapes and
Sections of Iron or Non-Alloy Steel: H-Section
Originating In or Exported From the Republic o f
Poland27 December 1996
THAILAND - 25
(POLAND - 5)DFT Notification Regarding the Preliminary
Dumping Determination on Angles, Shapes and
Sections of Iron or Non-Alloy Steel: H-Section
Originating In or Exported From the Republic o f
Poland (No. 1) (Preliminary Determination o f
Injury attached)20 January 1997
 THAILAND - 26 Letter from Stalexport to DFT commenting on the
preliminary determination and requesting a hearing
and disclosure of information7 February 1997
 THAILAND - 27
(POLAND - 6)Letter from Huta Katowice to DFT posing nine
questions regarding the preliminary determination
and requesting a hearing and disclosure o f
information13 February 1997
THAILAND - 28
(POLAND 7)Letters from DFT to Stalexport and Huta Katowice
informing them that disclosure information was
being sent by registered delivery, that the hearing
was tentatively scheduled for 6 March 1997, and
that DFT may need to conduct an on-the-spot
investigation to verify information19 February 1997
THAILAND - 29
(POLAND - 7 partial)Disclosure to Huta Katowice of information on
which the preliminary determination of dumping
was based ( CONFIDENTIAL )20 February 1997
THAILAND - 30
(POLAND - 7 partial)Disclosure to Huta Katowice of information on
which the preliminary determination of dumping
was based (non-confidential version)20 February 1997
THAILAND - 31
(POLAND - 7 partial)Disclosure to Stalexport of information on which
the preliminary determination of dumping was
based ( CONFIDENTIAL ) 20 February 1997
THAILAND - 32
(POLAND - 7 partial)Disclosure to Stalexport of information on which
the preliminary determination of dumping was
based (non-confidential version)20 February 1997WT/DS122/R
Page 237
THAILAND - 33
(POLAND - 8)Disclosure of non-confidential information on
which the preliminary determination of injury was
based27 February 1997
THAILAND - 34 Letter from Hogan & Hartson to DFT requesting an
extension to the deadline for filing its written
comments on the preliminary determination4 March 1997
 THAILAND - 35 Letter from Hogan & Hartson to DFT commenting
on the preliminary determination9 March 1997
THAILAND - 36
(POLAND - 9)Summary of the hearing held by the DFT on 13
March 199728 March 1997
THAILAND - 37
(POLAND - 10)Proposed final determinations of dumping and
injury1 May 1997
THAILAND - 38
(POLAND - 11 partial)Disclosure of findings for Huta Katowice
(CONFIDENTIAL )
 THAILAND - 39
(POLAND - 11 partial)Disclosure of findings for Huta Katowice (non-
confidential version)
THAILAND - 40 Letter from Hogan & Hartson to DFT providing
detailed comments on behalf of Huta Katowice and
Stalexport regarding the proposed final
determination13 May 1997
THAILAND - 41
(POLAND - 12)Letter from DFT to Hogan & Hartson responding to
the comments received on the proposed final
determination19 May 1997
THAILAND - 42 Letter from DFT to SYS responding to the
comments received on the proposed final
determination ( CONFIDENTIAL )19 May 1997
THAILAND - 43 DFT’s report to the CDS Committee on the final
determination of dumping ( CONFIDENTIAL )21 May 1997
THAILAND - 44 DIT’s report to the CDS Committee on the final
determination of injury ( CONFIDENTIAL -
reference in para. 1.15 to SYS production costs
removed)
THAILAND - 45
(POLAND - 13)Ministry of Commerce Notification Regarding
Anti-Dumping Duty Levied on Angles, Shapes and
Sections of Iron or Non-Alloy Steel: H-Section
Originating In or Exported From the Republic o f
Poland (No. 4)26 May 1997
THAILAND - 46
(POLAND - 13)DFT Notification Regarding the Final
Determination on Angles, Shapes and Sections o f
Iron or Non-Alloy Steel: H-Section Originating In
or Exported From the Republic of Poland (No. 2)
(including the final injury determination)30 May 1997
THAILAND - 47
(POLAND - 14)Letter from Stalexport to DFT providing comments
and requesting additional disclosure of information20 June 1997
THAILAND - 48
(POLAND - 15)Letter from Huta Katowice to DFT providing
comments and requesting additional disclosure o f
information23 June 1997
 THAILAND - 49
(POLAND - 16)Letter from DFT to Huta Katowice responding to
its 23 June letter7 July 1997WT/DS122/R
Page 238
ANNEX 2-2
THAILAND'S OPENING STATEMENT (1st Meeting)
(7 March 2000)
1. Mr. Chairman, distinguished Members of the Panel, professional staff, it is an honour and a
pleasure to appear and speak before you today.   My name is Thawatchai Sophastienphong, and I amDeputy Director-General of the Department of Business Economics for Thailand’s Ministry of
Commerce.
2. On behalf of the Royal Government of Thailand, I would like to express my appreciation for
your willingness to spend valuable time assisting Thailand and Poland in reaching a settlement to thisdispute.  I will present brief opening remarks and then will introduce my colleague to present
Thailand’s detailed Oral Statement.
3. As an initial matter, I would like to note that the detailed factual record that Thailand
provided in its First Written Submission demonstrates that Thailand complied with each and every
obligation under Article VI of GATT 1994 and the WTO Anti-Dumping Agreement.  Thailand isready and willing to defend against any challenge to th is investigation in accordance with the rules set
forth in the WTO’s Dispute Settlement Understanding.
4. Thailand reiterates, however, that a positive solution to this dispute must be based on the
application of the principles of due process and fairness that are embodied in the DSU. Thailand
considers that Poland failed to comply with its obligations under the DSU since the very beginning of
this dispute.  By doing so, Poland has severely prejudiced the ability of Thailand to defend its
interests, and Third Parties have also raised concerns.
5. First, Poland presented an extremely vague and imprecise request for establishment of a
panel.  Because this request failed to present the problem clearly, Poland violated its obligations underArticle 6.2 of the Dispute Settlement Understanding.  This violation has caused the adoption of
imprecise terms of reference.  Moreover, from the start of this dispute and as a direct result of
Poland’s violation, Thailand and, according to their submissions, both the United States and the EC as
Third Parties have been unable to identify the precise claims against Thailand.  Under the Anti-
Dumping Agreement, where each article contains numerous distinct obligations, Poland’s violationseverely prejudices the rights of Thailand to present its defence and the rights of Third Parties to
defend their interests.
6. Second, in its First Written Submission, Poland again failed to present any precise claims.  As
a result, Thailand was left to speculate as to the legal and factual basis on which Poland actually reliedin asserting that Thailand violated the Anti-Dumping Agreement.  In its Third Party Submission, the
EC even stated that “the lack of sufficient clarit y in the Polish request for the establishment of the
panel has been aggravated by the fact that Poland has failed to state clearly its claims even in its First
Written Submission.”  The United States similarly stated that “ in several instances, the precise claims
of Poland are sufficiently vague to make comment difficult.”
7. Finally, Poland has failed to present a prima facie  case on any of its purported claims based
on the applicable standard of review.  Thailand (a nd the Panel) should not now be forced to make
Poland’s case for it by presenting, or being effectiv ely forced to present, more and more information,
argument, and questions in the absence of any prima facie  case.  Under such circumstances, Poland
would be allowed to continue its “fishing expedition” and would simply launch a new round of vagueWT/DS122/R
Page 239
and imprecise assertions about the investigation during subsequent stages of this proceeding.  In so
doing, Thailand’s defence would be completely undermined and Third Parties, of course, would no
longer be participating in the proceeding.
8. Based on Poland’s violation of Article 6.2 of the DSU and as stated in its First Written
Submission, Thailand requests a preliminary ruling dismissing Poland’s purported claims under
Articles 5 and 6 of the Anti-Dumping Agreement.  Poland’s vague approach to pleading is especially
prejudicial for these two articles and has completely foreclosed any opportunity for Thailand to
present a defence.
9. Thailand respectfully requests that the Panel issue a preliminary ruling immediately in order
to avoid Thailand expending additional scarce resources.   The Panel’s rejection of Poland’s purported
“claims” at this stage in the proceeding would reaffirm that all WTO Members must adhere to
procedural obligations under the DSU and the Anti-D umping Agreement and that failure to do so will
have actual consequences.
10. With respect to Poland’s other purported claims, Thailand reserves its right to raise additional
procedural objections in order to protect its rights under the DSU.
11. Before closing, Thailand is especially appreciative of the Panel’s work in facilitating a
resolution to the difficult issue of confidentiality of submissions. Thailand only submitted the
confidential information in order to provide the Pa nel and the Parties with the complete factual record
of the investigation.  Thailand would like to make clear that it will only be relying on the confidential
information to the extent that Poland has presented a prima facie  case of a violation.  As stated in its
First Written Submission and repeated earlier, however, Thailand considers that Poland has failed to
set forth any precise claims and has failed to present a prima facie  case of a violation under the
applicable standard of review. Thus, Thailand need not rely on the confidential information.
Importantly, the Panel should not allow Poland to co nduct a further “fishing expedition” based on the
confidential information in order to fabricate claims that have never before been raised.
12. I now turn to Mr. Kajit who will present Thai land’s detailed Oral Statement.  Thank you.WT/DS122/R
Page 240
ANNEX 2-3
FIRST ORAL STATEMENT OF THAILAND
(1st Meeting)
(7 March 2000)
I. INTRODUCTION
1. Good Morning.  Mr. Chairman, distinguished Members of the Panel, it is indeed a pleasure to
meet old colleagues, particularly yourself Mr. Chairman, and it is an honour to appear and speak
before you today.
2. Before reviewing Thailand’s substantive arguments and trying to respond to the assertions
made by the Republic of Poland, which we consider to be imprecise, I would like to draw the
attention of the Panel to the detailed factual record of the anti-dumping investigation in this case.  It
shows the significant steps taken by the Thai investigating authorities to ensure that all interested
Parties, including the Government of Poland, were provided with the information necessary to defend
their interests. It also demonstrates that during the entire investigation, the authorities complied witheach and every requirement under Article VI of GATT 1994 and the Anti-Dumping Agreement.
3. As stated in the Opening Remarks, Thailand finds itself in an extremely difficult situation. It
is challenged not by Poland’s substantive arguments, but rather by the necessity to respond to
unsupported assertions and imprecise claims. As demonstrated to the Panel, neither Thailand norThird Parties have a clear understanding of Poland’s charges in this case. Thus, without having any
indication as to the precise basis for Poland’s grievances, Thailand remains unable to fully defend its
interests in this proceeding.
4. In this Oral Statement, I will first summarise Thailand’s request for a preliminary ruling based
on Poland’s violation of Article 6.2 of the DSU.  Second, I will discuss the applicable standard of
review under Article 17.6 of the Anti-Dumping Agreement.  Finally, I will address separately
Thailand’s response to Poland’s purported claims under Articles 2, 3, 5 and 6 of the Anti-Dumping
Agreement.
II. THAILAND REQUESTS A PRELIMINARY RULING BASED ON POLAND’S
FAILURE TO PRESENT PRECISE CLAIMS.
5. Mr. Thawatchai, the leader of my delegation, presented the Panel with Thailand’s request for
a preliminary ruling based on, among other things, Poland’s violation of Article 6.2 of the DSU.Thailand’s First Written Submission contains Thailand’s detailed arguments that I would like to
summarise for the benefit of the Panel as follows.
6. Article 6.2 of the DSU imposes obligations on a complaining Member with respect to the
specificity of its request for establishment of a panel.  The obligations under Article 6.2 are extremely
important because the request for establishment of a panel must (a) define a panel’s terms of reference
and (b) inform the defending Member and other potentially interested Members of the legal basis ofthe complaint.
7. Under such article, the request for establishment of a panel must be “sufficient to present the
problem clearly.”  In Korea - Dairy Products , the Appellate Body found that the mere listing of treatyWT/DS122/R
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articles may not be satisfactory to meet the standard of Article 6.2.  This is especially true when the
listed articles contain numerous obligations.
8. As the EC stated in its Third Party Submission, “[i]n its request for establishment of a panel,
Poland has merely listed the articles claimed to have been violated by Thailand, without taking intoaccount the fact that each of the articles listed, i.e. Article VI of GATT 1994, Articles 2, 3, [], 5 and 6
of the ADA are all composed of many paragraphs, each of them setting out distinct obligations.”
Therefore, based on the Appellate Body’s interpretation, Poland has clearly violated Article 6.2 of the
DSU with respect to its purported claims under, among possible others, Articles 5 and 6 of the Anti-
Dumping Agreement.
9. The Appellate Body in Korea - Dairy Products  also appeared to impose a requirement that
the Member alleging a procedural violation must show that it sustained prejudice.  Thailand considers
that a Member should not be effectively rewarded for violating a procedural obligation through the
adoption of an “effects” test (where none exists fo r substantive violations).  In any event, however,
Thailand has in its First Written Submission and in its Opening Remarks demonstrated that it has
already been denied the opportunity to respond fully to Poland’s complaint in the first stage of this
proceeding.  The denial of this opportunity has seriously prejudiced Thailand’s ability to defend its
interests.  As they indicated in their Third Party Submissions, both the EC and the United States also
appear to state that their rights to participate and defend their interests fully in these proceedings have
similarly been prejudiced.
10. In accordance with its Opening Remarks to this hearing and its First Written Submission,
Thailand would like to reiterate its request for a preliminary ruling dismissing Poland’s purported
claims under Articles 5 and 6 of the Anti-Dumping Agreement.
11. If the Panel refuses to issue a preliminary ruling in this case under Article 6.2 of the DSU,
Thailand will be left with absolutely no guidance as to how to approach the subsequent stages of this
proceeding.  The Panel’s refusal to make a ruling could be interpreted to mean that Poland has
sufficiently identified its “claims” in its request fo r establishment of a panel.  Moreover, it could mean
(1) that Poland would be free to make arguments based on any distinct obligations under the
numerous subparagraphs and sub-subparagraphs of Articles 5 or 6 and (2) that the Panel will reviewand consider these arguments in determining whethe r Thailand violated its obligations under the Anti-
Dumping Agreement.
12. To defend its interests, Thailand would be forced to assume that Poland will at some stage of
the proceeding, possibly even at the last meeting of the Panel, make an argument with respect to each
and every one of these distinct obligations.  As a result, Thailand would have to speculate now as to
what each and every argument may be and provide an appropriate response.  If it waits until thearguments are made, it may be too late to respond.  Certainly, the due process protections of the DSU
do not mean that Thailand must now demonstrate its compliance with, at least, the approximately 38
subparagraphs and sub-subparagraphs of Articles 5 and 6 of the Anti-Dumping Agreement.  ThePanel should prevent this situation and the prejudicial consequences that may result by issuing a
preliminary ruling immediately.
13. In any event, Thailand reserves its right to raise additional procedural objections under
Article 6.2 of the DSU and under general principles of due process with respect to other purported
“claims” that Poland has already raised or may fabricate as these proceedings progress.
14 Without prejudice to its position under Article 6.2 of the DSU, Thailand now turns to address
some of the specific issues that seem to underlie the present dispute.WT/DS122/R
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III. THE CORRECT APPLICATIO N OF THE STANDARD OF REVIEW
DEMONSTRATES THAT POLAND HAS FAILED TO MAKE ITS CASE.
15. I will now discuss the special standard of review applicable to WTO panel review of anti-
dumping cases under Article 17.6 of the Anti-Dumping Agreement.  Thailand considers it essentialthat the Panel interpret this special standard of review correctly.
16. In Thailand’s view, Poland has the burden of proof as a matter of law throughout this dispute
to demonstrate that Thailand has violated its obligations under Article VI of GATT 1994 and the
Anti-Dumping Agreement.  As a matter of process, Poland must first present a prima facie  case of a
violation under the applicable standard of review in order to trigger any obligation by Thailand torespond.  Based on Article 17.6(i) of the Anti-Dumping Agreement, Poland must establish a prima
facie  case that:
(a) the Thai investigating authorities did not properly establish the facts;
(b) the Thai investigating authorities acted with bias; or
(c) the conclusions reached by the Thai investigating authorities, that is, the
determinations of dumping, injury and causation, are so clearly wrong that they could
not have been reached in an objective evaluation.
Poland has failed to present the required case and has, in most instances, failed to even make the
requisite allegations.   Therefore, Thailand respectfully submits that Poland’s failure to establish a
prima facie  case under the applicable standard of review should end the Panel’s review.
17. Notably, Thailand should not be forced, and the Panel should not on its own accord, make
Poland’s case for it.  Moreover, Thailand should not be forced to wait until the last stage of these
proceedings for Poland to clarify its vague and imprecise claims.  At that stage, Poland may indeed set
forth a recognizable claim, but it will then be too late for Thailand to respond and the Third Parties
will have long since lost an opportunity to protect their interests.
18. Finally, recalling Article 17.6 (ii), Thailand considers that the factual record demonstrates that
the Thai investigating authorities have done their utmost to make sure that they adhered both to the
letter and the spirit of the rules set out in the Anti-Dumping Agreement. They have adopted
permissible interpretations of the pertinent provisions wherever such interpretations were not clear
and obvious from the outset. It is the function of Article 17.6 (ii) to ensure that interpretations reached
by national authorities, whenever they are permissible, are respected and upheld by the panel, even ifthe panel would have reached a different interpretation.
19. We ask the Panel to consider whether the interpretation acted upon by the Thai investigating
authorities cannot, that is under no reasonable application of the customary rules of treaty
interpretation, be considered a permissible one. Of course, Thailand is fully aware that often the
application of those customary rules of treaty interpretation will lead to only one conclusion or
interpretation.  However, this is clearly not always the case.
20. Thailand will now address the particular substantive issues of this case, insofar as it was
possible to discern any purported “claims” from Poland’s First Written Submission.
IV. THAILAND ACTED CONSISTENTLY WITH ARTICLE 2 OF THE ANTI-
DUMPING AGREEMENT
21. I will now turn to Poland’s assertions under Article 2 of the Anti-Dumping Agreement.
Poland’s only purported claim is whether the Thai investigating authorities determined the appropriateWT/DS122/R
Page 243
amount of profit in calculating constructed value. Thailand submits that Poland appears to
misunderstand the provisions of Article 2.2 and Article 2.2.2.
22. Under Article 2.2 of the Anti-Dumping Agreement, Thailand determined that H-beams sold
in the home market were not sufficiently comparable  to H-beams sold in Thailand in order to permit a
proper comparison. This determination was based on the information provided by Polish respondents
and was in accordance with their request. Based on this determination, Thailand decided to use
constructed value to calculate a dumping margin.  Poland has not challenged this decision.
23. As Thailand states in its First Written Submission, the general requirement of Article 2.2 is
that the amount of profit used for constructed value must be “reasonable.”  Article 2.2.2 specifies the
manner by which an amount for profit must be calculated. This provision provides only one
alternative setting any limit whatsoever on the magnitude of profit that may be used, that is, under
Article 2.2.2(iii).
24. Article 2.2.2 provides that the profit amount for constructed value purposes must be
calculated, if possible, using “actual data pertaining to production and sales in the ordinary course of
trade of the like product by the exporter or producer under investigation.”  The Thai investigating
authorities considered that profit could not be calculated on this basis.  Poland has not challenged this
decision.
25. Article 2.2.2 then provides three alternative methods to calculate profit for constructed value.
Article 2.2.2(i) provides that the amount of profit may be calculated on the basis of “actual amounts
incurred and realised by the exporter or producer in question in respect of production and sales in the
domestic market of the country of origin of the same general category of products.”  In accordance
with the Thai authority’s instructions, the Polish respondents reported sales and production
information for all H-beams, including the JIS-sp ecification H-beams predominantly sold in Thailand
and the DIN-specification H-beams predominantly sold in Poland.  Based on the calculation method
under Article 2.2.2(i), the Thai investigating authorities used all reported home-market sales and
production cost information for the “same general category of products”, that is, all H-beams, tocalculate the reasonable amount of profit.  Thus, the Thai authorities calculation was entirely
consistent with the Anti-Dumping Agreement.
26. The Third Parties that addressed this issue agreed with Thailand’s interpretation.  For
example, the United States stated that Poland’s interpretation of these provisions of Article 2 “is based
on an incomplete and selective reading of these provisions” and “imposes a limitation on the amount
for constructed value profit where no such requirement exists under the Agreement.”
27. In its Third Party Submission, the European Communities concludes “that the Thai
investigating authorities established the amount for profit included in the constructed normal value in
conformity with Article 2.2.2 and, therefore, that Poland’s claim under this heading should be rejected
by the Panel.”  The EC also states that Poland’s contention “that DIN H-beams and JIS H-beamscannot be considered to be the ‘same general category of products’” is “plainly wrong”.
28. Indeed, Thailand considers that all of Poland’s contentions relating to the calculation of profit
are “plainly wrong.”  Moreover, Poland has not established, nor even alleged, a prima facie  case of a
violation under the applicable standard of review.  Accordingly, the Panel should find that Thailand
calculated the profit in accordance with  Article 2 of the Anti-Dumping Agreement.
V. THAILAND ACTED CONSISTENTLY WITH ARTICLE 3 OF THE ANTI-
DUMPING AGREEMENT.
29. I will now address Poland’s assertions relating to Article 3 of the Anti-Dumping Agreement.WT/DS122/R
Page 244
30. Based on Poland’s request for establishment of a panel and its First Written Submission,
Thailand has only been able to identify six purported “claims” under Article 3 of the Anti-Dumping
Agreement.  To the extent that these purported claims could even be considered identifiable, however,
they are clearly unsubstantiated by facts on the record of this investigation.  Moreover, Poland hasotherwise failed to present a prima facie  case of a violation based on the applicable standard of
review.
31. Thailand will now briefly summarise its response to each of the six purported claims it has
identified in Poland’s First Written Submission.
32. First, Poland apparently claims that Thailand violated Article 3.1 of the Anti-Dumping
Agreement because its final determination of injury was not based on positive evidence. Poland has
not provided a specific legal or factual basis to support this purported claim.  Neither has Poland
alleged that Thailand failed to establish the facts properly or was biased or subjective in consideringevidence. With these two points in mind, it is clea r that Poland has failed to satisfy its burden of
proof.  Thus, the Panel should reject Poland’s purported claim.
33. Absent any specific basis on which to respond to Poland’s purported claim, Thailand can only
reference the full record of positive evidence on which the final injury determination was based,
including that reported in the respective notices, letters, and disclosures provided to interested parties.
34. At several points in its First Written Submission, Poland seems to allege that Thailand
inappropriately relied on “overlapping time periods” in conducting its injury investigation.  Poland
has not, however, identified the precise WTO rule that such an approach would violate.  Instead,
Poland appears to contend that because some of the periods examined overlap with each other, some
unspecified intellectual error was committed by the Thai investigating authority.
35. Thailand wishes to make clear that all comparisons were of the "apples-to-apples" variety.
The fact that some periods examined overlapped with other periods examined is of no relevance
whatsoever.  A reasonable investigating authority mi ght, for example, examine calendar year data for
1998, 1999 and 2000, and also data for July 1999 to June 2000.  The fact that the periods calendaryear 2000 and July 1999 to June 2000 overlap does not invalidate the investigating authorities’
analysis.  In fact, it may strengthen it in terms of confirming the persistence of trends over time.
36. Poland’s second purported claim is that Thailand violated Article 3.1 of the Anti-Dumping
Agreement because its final determination of injury  did not involve an objective examination of the
impact of dumped imports from Poland on the Thai domestic industry.
37. Poland provides no evidence to support any claim that Thailand’s investigating authorities
were not objective in their examination of the consequent impact of dumped imports.  Thus, Poland
has failed to satisfy its burden of proof with respect to whether Thailand conducted an “objective”examination, and the Panel should reject Poland’s claim.
38. Third, Poland apparently claims that Thailand violated Article 3.2 of the Anti-Dumping
Agreement by finding material injury without considering (1) whether there was a significant increase
in dumped imports from Poland and (2) whether there was (a) significant price undercutting or (b) a
depression of prices (or restraint of a price increase) to a significant degree.
39. The record of the investigation clearly s hows that the Thai investigating authorities
considered whether there had been a significant increase in dumped imports in absolute terms.WT/DS122/R
Page 245
40. For example, in the record of the investigation,  the Thai investigating authorities have stated,
among other things:
- “During the period of investigation, Total H-beams imported to Thailand decreased at
8 per cent from 1995 while imports from Poland increased 10 per cent;”  and
- “Polish imports increased consistently prior to and during the investigation period;”
and
- “Polish imports [have] risen substantially;” and- “The import volume of subject merchandise from Poland has continuously increased
when the total imports declined.  When compared Polish imports with all other
imports, Polish imports had increased from 31 per cent in 1994, to 48 per cent in
1995, to 57 per cent during the POI.”
41. Based on the record of the investigation, therefore, Thailand clearly acted consistently with its
obligation under the first sentence of Article 3.2 of the Anti-Dumping Agreement.
42. Poland also seems to claim that Thailand violated Article 3.2 of the Anti-Dumping
Agreement by failing to consider properly the effect of dumped imports on prices. The Thai
investigating authority did consider, using confid ential information on the record, whether the
dumped Polish imports were significantly underselling the Thai products and/or whether the effect of
dumped Polish imports was to cause price suppression or depression.
43. For example, in the record of the investigatio n, the investigating authorities have stated the
following, among other things:
- “[i]f [one] compares between selling prices of H-beams of Siam-Yamato Steel Co.,
Ltd. and the import price from Poland, it can see the circumstance of price
undercutting;”  and
- “[i]n summary, the Thai Investigating Author ities reiterate that . . . significant price-
undercutting was established resulting in price depression and price suppression;”
and
- “[p]rice of Polish imports has always been lower than that of Siam Yamato and lower
than the average import price from all other countries;” and
- “the domestic industry has no choice but to decrease its price to the level of Polish
imports.  This has resulted in price undercutting and suppression . . . .”
44. Therefore, contrary to Poland’s allegations, it is clear that the Thai authorities “considered”
whether there had been significant price undercutting or whether the effects of the dumped Polish
imports was price depression or suppression to a significant degree.
45. Thailand notes that Poland correctly observed that one cannot determine solely from the
public version of the charts in the factual record which products were undersold. However, this
observation assumes, incorrectly, that these charts exist in a vacuum.  Reading the document in light
of related statements on the record, one can readily grasp the pattern of underselling by the dumped
Polish imports.WT/DS122/R
Page 246
46. Poland’s fourth purported claim relating to Article 3 of the Anti-Dumping Agreement is that
Thailand violated Article 3.4 by “cho[osing] not to present evidence regarding profits, losses,
profitability or cash flow.” To the contrary, the re cord of the investigation demonstrates that the Thai
authorities evaluated these factors.
47. For example, the investigating authorities have stated, among other things, the following in
the record:
- “[t]he Department of Internal Trade considered the business performance of the
domestic industry by examining the financial report and cost of production of SiamYamato Co. Ltd., from the years of 1994 and 1995”; and
- “[t]he complainant suffered significant financial losses which are directly attributable
to the dumping prices of the Polish exporters concerned;” and
- “the domestic industry has no choice but to decrease its price to the level of Polish
imports.  This has resulted in price undercutting and suppression including the fact
that the Thai domestic industry is unable to increase its price to recover its costs in a
reasonable period of time.  This, in turn, has effected cash flow.”
In addition, the investigating authorities specif ically referred to “Net Profit (Loss)” in
its table disclosed to interested parties.
48. In light of these facts, it is clear that the Thai authorities evaluated profits, losses, profitability
and cash flow consistent with their obligations under Article 3.4 of the Anti-Dumping Agreement.
49. In paragraph 74 of its First Written Submission, Poland also contends that “[e]very Article 3.4
factor examined by Thailand and on which the Thai authorities claimed to rely unambiguouslysupports a finding of no injury.”  Other than the factors identified above, Poland does not appear to
claim that Thailand failed to evaluate other relevant factors.  Rather, Poland simply disputes the
weight accorded by the Thai authorities to each of the factors that it evaluated during the
investigation.  Moreover, Poland has failed to satisfy its burden of proof to present prima facie
evidence that the Thai authorities were biased or subjective in their evaluation.
50. Poland’s fifth purported claim is that Thailand violated Article 3.5 of the Anti-Dumping
Agreement by failing to demonstrate that the Polish imports are causing injury.
51. Poland has provided no specific legal or factual basis to support this purported claim.  In
addition, Poland has not even alleged that Thailand failed to establish the facts properly or was biased
or subjective in its consideration of evidence.  Accordingly, Poland has failed to satisfy its burden of
proof, and the Panel should reject Poland’s purported claim under Article 3.5.
52. In any event and in the absence of any specific basis on which to respond to Poland’s
purported claim, Thailand considers that the record of the investigation demonstrates the causal link
between the dumped Polish imports and the material injury to the domestic industry as reported in the
respective notices, letters, and disclosures provided to interested parties.
53. Finally, Poland apparently claims that Thailand violated Article 3.5 of the Anti-Dumping
Agreement by failing to examine “other factors” that may be causing injury to the domestic industry.
54. Article 3.5 obligates an investigating authority to examine only those other factors that (1) are
known and (2) are, at the same time, injuring the domestic industry.  If these conditions are satisfied,WT/DS122/R
Page 247
the investigating authorities are obligated to attr ibute the injury caused by these so-called “other
factors” to the dumped imports.
55. The record of the investigation demonstrates that the Thai investigating authority examined
information relating to the following other factors made “known” to it:
- imports from third countries;- potential trade restrictive practices of and competition between the foreign and
domestic producers;
- technology developments; and- global and domestic industry and market conditions.
The investigating authorities found that these factors were not causing injury to the domestic industry.
56. As the facts on the record demonstrate, therefore, Thailand examined factors other than the
dumped Polish imports that were known to it.  It found in each case that these factors were not
causing injury to the domestic industry.  The Thai investigating authorities were not obligated to find
“other factors” on their own initiative.  In addition, the Thai authorities were not obligated to examine
“other factors” not made known during the course of the investigation.
57. Thailand reiterates that Poland has provided no evidence that the Thai investigating
authorities’ consideration of relevant other factors or its evaluation of whether such factors were
causing injury was biased or subjective.  Poland simply disagrees with the Thai investigating
authorities conclusions reached in its evaluation of such factors.
58. In view of these arguments, Thailand submits that the Panel should reject Poland’s purported
claim under Article 3.5 of the Anti-Dumping Agreement.
VI. THAILAND ACTED CONSISTENTLY WITH ARTICLES 5 AND 6 OF THE ANTI-
DUMPING AGREEMENT.
59. Finally, I will discuss Thailand’s response to Poland’s assertions relating to Articles 5 and 6
of the Anti-Dumping Agreement.
60. In its request for establishment of the panel, Poland did not present any legal or factual basis
for Thailand’s alleged violations of Articles 5 and 6 of the Anti-Dumping Agreement.  As discussed
earlier, Poland’s failure amounts to a clear violation of Article 6.2 of the DSU.   Thailand reiterates its
request that the Panel issue a preliminary ruling dismissing Poland’s purported claims under
Articles 5 and 6 of the Anti-Dumping Agreement.
61. Without prejudice to its request for a preliminary ruling, Thailand considers that it complied
with both Articles 5.2 and 5.3 of the Anti-Dumping Agreement in initiating the investigation. The
Thai investigating authorities ex amined the application and determined that it contained sufficient
evidence of dumping, injury and a causal link to justify the initiation of the investigation on H-beams.
62. In addition, by notifying Poland less than one month after the receipt of the anti-dumping
application and six weeks before the decision to initiate the investigation, Thailand clearly complied
with its obligations under Article 5.5 of the Anti-Dumping Agreement.WT/DS122/R
Page 248
63. Thailand also cannot accept Poland’s allegations that Thailand violated the procedural and
evidentiary requirements under Article 6 of the Anti-Dumping Agreement. As the detailed factual
record demonstrates, Thailand complied with each and every procedural and evidentiary obligation
under Article 6 during the entire investigation. In f act, the factual record show s that prior to issuing
their final determination, the Thai authorities provided the respondents with more than ampleopportunities to examine the information on which the final determination was based and to defend
their interests.
64. Finally, I would like to re-emphasise that the Thai investigating authorities complied with
their obligations under Article 6.5.1 of the Anti-Dumping Agreement.  The authorities required andreceived from both the Thai petitioner and the Polish respondents non-confidential summaries of
confidential information.   Poland is simply mistaken when it asserts that this provision also requires
the investigating authorities to provide those non-conf idential summaries to exporters or to the foreign
producers.  Thailand notes, however, that such summaries were nonetheless available upon request.
65. Poland has no basis to fault Thailand for refusing to disclose confidential information
submitted by all interested parties during the investigation. In fact, under WTO rules in general and
Article 6.5 of the Anti-Dumping Agreement in particular, neither Thai nor Polish interested parties
had an entitlement to receive confidential data. Article 6.5 clearly states that confidential information
“shall not be disclosed without specific permission of the party submitting it”. The investigating
authorities received confidential information from both the Thai petitioner and the Polish respondents.
Thailand decided not to disclose any of this information in order to avoid the risk of putting any of theinterested parties at a significant competitive disadvantage. Where possible, however, non-
confidential summaries were provided to interested parties.
VII. CONCLUSION
66. In conclusion, Mr. Chairman and distinguished Panel Members, based on the aforementioned
and without prejudice to its request for a preliminary ruling, Thailand respectfully requests that the
Panel find that it acted consistently with its obligations under Article VI of GATT 1994 and the Anti-
Dumping Agreement.WT/DS122/R
Page 249
ANNEX 2-4
THAILAND'S CLOSING STATEMENT
(8 March 2000)
1. Mr. Chairman, distinguished Members of the Panel, professional staff, Thailand appreciates
this opportunity to present its closing remarks.  We consider that the meeting has been very useful andthat it has assisted Thailand in clarifying certain issues.  Other issues, however, remain matters of
concern to my government.  At this stage, I will only be making brief remarks and consider that our
focus should now turn to responding to the ques tions of the Panel and Poland and to preparing our
rebuttal.
2. As a preliminary matter, Thailand notes that the actions of Poland in presenting its case have
caused an unfortunate but necessary focus on procedural issues in this dispute.  Thailand’s intent in
submitting the detailed record of the investigation was to highlight the extreme care with which it
conducted each and every aspect of its investigation.  Thailand, however, still finds that its ability to
defend this record based on the rules of the DSU has been severely prejudiced.  Thailand fears that
this prejudice will continue during subsequent stages of this proceeding.  As indicated by the Panel,
Poland has the burden of proof in this case.  As a result, Thailand should not be forced to demonstrate
compliance with each and every distinct obligation under the Anti-Dumping Agreement.  The proper
approach for Thailand is to respond only to each specific claim of Poland.  The absence of such
specific claims has genuinely caused Thailand confusion as to how to defend this case.
3. Notably, Thailand is raising procedural concerns to safeguard its rights regarding how to
defend the substance of the investigation.  The provisions of the DSU as interpreted in relevant WTO
practice reflect important due process rights that must be enforced.  This enforcement is critical to
preserve the actual and perceived fairness of the WTO’s dispute settlement system.
4. On other matters, Thailand first notes that it understands, although respectfully disagrees
with, the Panel’s basis for refusing to make an  immediate preliminary ruling based on Article 6.2 of
the DSU.  Thailand, however, understands that the Panel will address Thailand’s preliminary
objections in its final report.
5. Although Thailand understands the Panel’s decision, it considers that such decision means
that Thailand will now have to suffer additional prejudice through the remainder of these proceedings
and will have to expend scarce resources to defend imprecise claims.
6. Thailand notes, for example, that it remains unclear regarding the precise nature of Poland’s
claims under Article 5 and 6 of the Anti-Dumping Agreement.  Since September 1996, Poland hadbefore it the notice of initiation, the DFT’s Statement, and the non-confidential application.  In
Thailand’s view, Poland certainly could have articulated claims more precisely based on this
information.  Its failure to do so and its clear violation of Article 6.2 of the DSU should not be
rewarded, and the serious prejudice to Thailand’s defence should not be ignored.
7. Thailand now understands that it must provide additional information to the Panel and the
Parties in order for the Panel to consider Poland’s sweeping claims under Article 5 of the Anti-Dumping Agreement.  If it fails to provide this in formation, Thailand runs the risk that the Panel will
find a violation based on Poland’s sweeping allegations.  Thailand reiterates that it will be submitting
this information without any idea as to Poland’s specific claims.  Moreover, Thailand fears thatWT/DS122/R
Page 250
Poland will present precise claims only when Thailand has absolutely no opportunity to address them
with any degree of precision.
8. With respect to Article VI of GATT 1994 and Articles 2 and 3 of the Anti-Dumping
Agreement, Thailand considers that it is suffering serious prejudice in attempting to respond toPoland’s vague and imprecise claims.  As a result, Thailand requests that the Panel determine whether
Poland complied with Article 6.2 of the DSU with respect to purported claims under Article VI of
GATT 1994 and Articles 2 and 3 of the Anti-Dumping Agreement.
9. Thailand will address this request in more detail on rebuttal.  In any event, however, Poland’s
failure to comply with Article 6.2 of the DSU has tainted these entire proceedings from the outset.
Poland followed its imprecise request for establishment of a panel with a first written submission that
makes sweeping allegations.  In a good faith effort to respond, Thailand addressed those purported
claims that it could identify.  Poland has not provided any further elaboration on its claims.
10. During the hearing, the Panel appeared to embrace Poland’s sweeping allegations.  For
example, the Panel has requested that the Partie s catalogue where the investigating authorities
considered and evaluated each of the factors under Article 3.4 of the Anti-Dumping Agreement.
11. As it stated during the hearing, Thailand considers that this extremely broad legal and factual
issue is simply not relevant to the case before the Panel.  Poland’s only purported claim is that
Thailand did not present evidence regarding four specif ic factors.  In its other assertions with respect
to, for example, Thailand’s alleged failure to evaluate all relevant factors, Poland does not identify
any specific factor whatsoever.
12. Thailand understands from their comments yesterday that the Panel has not pre-judged any
aspect of the case.  As it stated during the hearing, however, Thailand would like to reiteraterespectfully its concern that the Panel not make Poland’s case for it.  Thailand considers that if
Poland’s claims had been clear from the outset and if Poland had simply articulated precise claims as
required under the DSU, Thailand would have understood the case against it and could have
responded from the beginning to Poland’s precise claims.
13. Thailand looks forward to providing detailed discussion in its rebuttal on these and other
substantive and procedural issues impacting Thailand’s defence.
14. Again, I would like to thank the Panel and the professional staff for taking the time to assist
Thailand and Poland in achieving a resolution to this dispute.  I would also like to thank Poland and
Third Parties for their active participation in this proceeding.  Thank you.WT/DS122/R
Page 251
ANNEX 2-5
SECOND WRITTEN SUBMISSION OF THAILAND
(29 March 2000)
TABLE OF CONTENTS
Page
I. INTRODUCT ION ...........................................................................................................252
II. THAILAND REQUESTS THAT THE PANEL DISMISS POLAND’S
COMPLAINT IN IT S ENTIR ETY................................................................................252
III. THAILAND REQUESTS THAT TH E PANEL LIMIT ITS FINDINGS
TO THE MATTER BEFORE IT, INCLUDING THE CLAIMS
PROPERLY PRESENTE D, IF ANY.............................................................................252
IV. THAILAND IS UNABLE TO ASSESS WHETHER THE CONFIDENTIAL
INFORMATION ON THE RECORD IS OR IS NOT RELEVANT TO
RESPOND TO POLAND’ S COMPLAINT ..................................................................252
V. THAILAND REQUESTS THAT THE PANEL CONSIDER THAT
THE ENGLISH LANGUAGE TRANSLATIONS OF THAI DOCUMENTS
DO NOT ENTIRELY REFLECT THE MEANING OF THE THAI
LANGUAGE VE RSIONS...............................................................................................253
VI. THAILAND OBJECTS TO PROVIDING TRANSLATIONS OF
DOCUMENTS THAT POLAND SHOULD HAVE TRANSLATED
PRIOR TO PRESENTING  ITS COMP LAINT............................................................253
VII. CONCLUSION ………………………………................................................................253
TABLE OF EXHIBITS .............................................................................................................. ..254WT/DS122/R
Page 252
I. INTRODUCTION
1. Thailand is only able to provide a brief rebuttal and refers the Panel to its detailed responses
to the questions from the Panel and from Poland.  As discussed in response to Questions 2 (b) and
7 (b), Thailand does not consider that it has any further basis on which to present any defence, giventhat Poland has not clarified any of its purported claims, has not provided any support for the
assertions that it has made, and has, in fact, caused additional confusion during the First Oral Hearing
as to the nature of its complaint.  Thailand’s continued inability to respond in a meaningful and
substantive manner as a result of Poland’s actions has seriously prejudiced Thailand’s ability to
defend itself and has undermined its due process rights.
2. As a result, this rebuttal will be limited to brief comments regarding the current status of this
dispute and Thailand’s views regarding the Panel’s review.
II. THAILAND REQUESTS THAT THE PANEL DISMISS POLAND’S COMPLAINT IN
ITS ENTIRETY
3. In the prior stages of this proceeding, Thailand has requested that the Panel dismiss Poland’s
complaint based on Poland’s violation of Article 6.2 of the DSU.  In its responses to Questions 1 to 9
from the Panel, Thailand has provided a reasonable interpretation of the obligations under Article 6.2
of the DSU in the context of anti-dumping cases and has presented a compelling case that such
interpretation is critical to preserving fairness and due process rights for defending Members and thirdparties.  In accordance with Thailand’s interpretation and based on the facts presented, Thailand
respectfully reiterates its request that the Panel dismiss Poland’s complaint in its entirety.
III. THAILAND REQUESTS THAT THE P ANEL LIMIT ITS FINDINGS TO THE
MATTER BEFORE IT, INCLUDING THE CLAIMS PROPERLY PRESENTED, IFANY
4. As discussed in response to the Panel’s questions, Thailand is concerned that in certain
instances the Panel appears to be asking questions unrelated to the claims actually presented by
Poland.  Thailand recalls the Panel’s statement during the First Oral Hearing that it has not reached aconclusion regarding any issues before it.  Thailand would simply like to note that it remains
concerned that the Panel may be overstepping its authority by addressing certain issues that are
outside the scope of the matter before it and that the Panel should limit its findings only to the claims
properly presented by Poland, if any.  Thailand recognises that the Panel may raise arguments at any
time to clarify the claims that it considers Poland to have raised.  However, it would be beyond thePanel’s mandate to raise claims, or arguments relating to such claims, that Poland has not presented in
its request for establishment of a panel.
IV. THAILAND IS UNABLE TO ASSESS WHETHER THE CONFIDENTIAL
INFORMATION ON THE RECORD IS OR IS NOT RELEVANT TO RESPOND TOPOLAND’S COMPLAINT
5. During the First Oral Hearing, Thailand understands that the Panel asked whether Thailand
considered that the confidential information submitted prior to the Hearing was relevant to its defence.
To clarify and/or confirm its response, Thailand considers that it remains unable to assess whether the
confidential information on the record is or is not relevant to respond to Poland’s complaint because,
in Thailand’s view, Poland has failed to properly set forth any precise claims.  However, Thailandconsiders that the confidential data is necessary to support the affirmative final determination in the
underlying anti-dumping investigation.WT/DS122/R
Page 253
6. Thailand would also like to remind the Panel that any limitations on Poland’s ability to
respond to the confidential information submitted by Thailand is irrelevant to Poland’s failure to
comply with Article 6.2 of the DSU or to specify its precise claims.  This data was not necessary for
Poland to set forth precise claims in its request for establishment of a panel or in its First Written
Submission.  Moreover, Thailand submitted but did not rely on the confidential data in its FirstWritten Submission and thus it was not relevant up to and including the First Oral Hearing.  In
addition, Thailand did not object to any delay in the timing of the First Oral Hearing.  Rather, the
Panel decided not to grant Poland’s request.  Finally, as the Panel may recall, it was Poland that
waited for over two weeks to agree to a settlement that would have simply allowed all parties access
to the confidential information.
V. THAILAND REQUESTS THAT THE PANEL CONSIDER THAT THE ENGLISH
LANGUAGE TRANSLATIONS OF THAI DOCUMENTS DO NOT ENTIRELY
REFLECT THE MEANING OF THE THAI LANGUAGE VERSIONS
7. Thailand notes that a significant amount of the data, reports, notices, and analysis was
prepared in the Thai language.  Although unofficial English language translations were prepared with
care, these translations often do not reflect the true and full meaning of the Thai language version.
Thailand respectfully requests that the Panel take th is into consideration in examining the Thai and
English versions of the documents on the record and in reviewing Thailand’s clarifications of certain
translations.
VI. THAILAND OBJECTS TO PROVIDING TRANSLATIONS OF DOCUMENTS THAT
POLAND SHOULD HAVE TRANSLATED PRIOR TO PRESENTING ITS
COMPLAINT
8. Finally, Thailand considers that its authorities are not obligated to translate each and every
document that is on the record of an investigation or that is provided to interested parties.  Interested
parties in anti-dumping cases (and WTO Members) must take responsibility on their own behalf to
make translations of relevant documents or to retain local counsel to assist with ensuring a full
defence.  In its letter provided as THAILAND - 34,  the legal counsel for the Polish respondents
indicates that it retained such local counsel.  The respondent’s legal counsel is also advising Poland’sdelegation in this dispute and thus could have presumably used the same local counsel.
9. Accordingly, there is no justification for Poland not obtaining translations of, for example, the
non-confidential version of the application prior to submitting its request for establishment of a panel
and prior to its First Written Submission in order to support its purported claims.  Thailand objects toPoland’s approach and urges the Panel to question Poland’s decision to present vague and imprecise
claims rather than cite relevant information available to it.
10. Nevertheless, Thailand has provided the translations requested by the Panel, although it
remains uncertain whether they are or are not relevant to defending Poland’s purported claims.Thailand respectfully requests that the Panel not reward Poland’s approach and penalise Thailand for
its good faith provision of information.  So doing would send a dangerous message to all Members
that co-operation in providing evidence to a panel where the relevancy of such evidence is unclear
may have serious adverse consequences.
VII. CONCLUSION
11. Based on the above, Thailand respectfully requests that the Panel find that Thailand acted
consistently with its obligations under Article VI of GATT 1994 and the Anti-Dumping Agreement.WT/DS122/R
Page 254
TABLE OF EXHIBITS
EXHIBIT NO. DOCUMENT DESCRIPTION DATE
THAILAND - 50 Request for Establishment of a Panel in Mexico -
Anti-Dumping Investigation of High-Fructose
Corn Syrup (HFCS) from the United States
(WT/DS132/2)14 October 1998
THAILAND - 51 Pre-application letter from Santi Chankonrawee,
Managing Director, SYS to H.E. Minister ofCommerce9 January 1996
THAILAND - 52 Application filed by Siam Yamato Steel Co. Ltd.
(CONFIDENTIAL - information on cost of
production removed)21 June 1996
THAILAND - 53 Application filed by Siam Yamato Steel Co. Ltd.
(non-confidential version with translation)21 June 1996
THAILAND - 54 Internal DBE document providing preliminary
assessment of the application and requesting more
informationJuly 1996
THAILAND - 55 Tables submitted to CPS Committee by DBE
regarding pre-initiation allegations of injury and
causation ( CONFIDENTIAL )
THAILAND - 56 Memorandum from Chutima to Director-General,
DBE18 July 1996
THAILAND - 57 Letter from Mr. Amnuay Yossuk, Thailand Deputy
Minister of Commerce to H.E. Mr. Maciej Lesny,
Undersecretary of State, Ministry of Foreign
Economic Relations, Republic of Poland9 October 1996
THAILAND - 58 Draft Recommendation Concerning the Timing of
the Notification under Article 5.5
(G/ADP/AHG/W/49)4 August 1998
THAILAND - 59 Summary Report of the Meeting of the Ad Hoc
Group on Implementation of the Committee on
Anti-Dumping Practices, 26-27 October 1998,Note by the Secretariat (G/ADP/AHG/R/5)10 February 1999
THAILAND - 60 Summary Report of the Meeting of the Ad Hoc
Group on Implementation of the Committee on
Anti-Dumping Practices, 29-30 April 1997, Note
by the Secretariat (G/ADP/AHG/R/2)7 July 1997
THAILAND - 61 Summary Report of the Meeting of the Ad Hoc
Group on Implementation of the Committee on
Anti-Dumping Practices, 27-28 April 1998, Note
by the Secretariat (G/ADP/AHG/R/4)4 August 1998
THAILAND - 62 Letter from DFT to Hogan & Hartson responding
to the comments received on the proposed finaldetermination (more legible) (same as
THAILAND - 41)19 May 1997
THAILAND - 63 Thai language page of the Final Determination
with highlighted portion referring to “material
injury”30 May 1997WT/DS122/R
Page 255
THAILAND - 64 DIT’s report to the CDS Committee on the final
determination of injury ( CONFIDENTIAL  -
reference in para. 1.15 to SYS production costs
removed) (Thai language version)
THAILAND - 65 Draft Information Used for the Final Injury
Determination (Thai language version)1 May 1997
THAILAND - 66 Table reported to CDS for consideration containing
correct figures for SYS sales and total imports
(CONFIDENTIAL )
THAILAND - 67 Table reflecting the confidential information
provided to the CDS Committee on averagequarterly prices and the non-confidential
information provided to respondents
(CONFIDENTIAL )
THAILAND - 68 Attachment G-2 to SYS’ Confidential
Questionnaire Response (with most raw data
relating to production costs removed)
(CONFIDENTIAL )
THAILAND - 69 Copies of invoices for sales of Polish imports in
Thailand ( CONFIDENTIAL )WT/DS122/R
Page 256
ANNEX 2-6
RESPONSES BY THAILAND TO THE PANEL’S AND
POLAND'S QUESTIONS FROM THE FIRST MEETING
(29 March 2000)
THAILAND'S RESPONSES TO THE PANEL'S QUESTIONS
A. REQUESTS BY THAILAND FOR RULINGS UNDER ARTICLE 6.2 DSU
1. Request with respect to Articles 5 and 6 AD
1. We note the following passage from the Appellate Body Report in the Korea – Dairy
Safeguard  case:
“… There may be situations where the simple listing of the articles of the
agreement or agreements involved may, in the light of attendant circumstances,
suffice to meet the standard of clarity in  the statement of the legal basis of the
complaint.  However, there may also be  situations in which the circumstances
are such that the mere listing of treaty articles would not satisfy the standard of
Article 6.2.  This may be the case, for instance, where the articles listed establish
not one single, distinct obligation, but rather multiple obligations.  In such a
situation, the listing of articles of an agreement, in and of itself, may fall short of
the standard of Article 6.2.”1  (emphasis in original)
(a) How is the phrase "in the light of attendant circumstances" in the above passage to be
interpreted, both in general, and in the cont ext of the present dispute?  What relevance,
if any, could this phrase have in this particular case.  Are there any "attendant
circumstances" in this case that might be  relevant to the request by Thailand for a
ruling under Article 6.2 DSU with respect to Articles 5 and 6 AD?  Please explain indetail.
Prior to addressing the Panel’s specific questions, it is useful to set forth Thailand’s view of
the correct interpretation of the obligations imposed on complaining Members in bringing complaints
and the rights of responding Members and third party Members in responding to such complaints.
First, in WTO proceedings, the complainant must define the “measure” and the precise
“claims” that compose the “matter” in dispute.  According to the Appellate Body,
“[A]ll claims must be included in the request for establishment of a panel in order to
come within a panel’s terms of reference, based on the practice of panels under the
GATT 1947 and in the Tokyo Round Codes.  That past practice required that a claim
had to be included in the documents referred to, or contained in, the terms of
reference in order to form part of the ‘matter’ referred to a panel for consideration.
Following both this past practice and the provisions of the DSU, in European
Communities - Bananas , we observed that there is a significant difference between
the claims identified in the request for establishment of a panel, which establish thepanel’s terms of reference under Article 7 of the DSU, and the arguments  supporting
                                                     
1 WT/DS98/AB/R, para. 124.WT/DS122/R
Page 257
those claims, which are set out and progressively clarified in the first written
submissions, the rebuttal submissions and the first and second panel meetings with
the parties as a case proceeds.”2 (Emphasis in original)
Thus, all “claims” must be set forth in the complainant’s request for establishment of a panel.  Of
course, parties to the dispute (and a panel) can present “arguments” based on these claims at laterstages of the proceedings.
Second, Article 6.2 of the DSU requires that the complainant “provide a brief summary of the
legal basis of the complaint sufficient to present the problem clearly.”  The Appellate Body has
interpreted this language to mean that, again, the request for establishment of a panel must contain the“claims” on which the matter is based.
3
Third, in Korea - Dairy Products , the Appellate Body found that the mere listing of articles
may not be sufficient to satisfy the requirements of Article 6.2 of the DSU to “present the problem
clearly” and, therefore, may not be sufficient to define the “claims” on which the matter is based.  TheAppellate Body considered that this could especially be the case where an article contained more than
one distinct obligation.  Thailand notes that this interpretation is consistent with past GATT practice
in which a panel stated:
“Depending on the circumstances, there could be more than one legal basis for
alleging a breach of the same provision of the Agreement and that, accordingly, a
claim in respect of one of these would not also constitute a claim in respect of theother.  A separate and distinct claim would be required.”
4
Therefore, the central question is what is the level of detail required for a complainant to identify its“claims” in a request for establishment of a panel in order to “present the problem clearly”.  In
Thailand’s view, the test is whether, in settin g forth the “claims”, the complainant has identified
(1) the precise obligation allegedly violated and (2) the facts and circumstances on which the allegedviolation is based.  This test is simple, is in accordance with past practice, especially in the anti-
dumping area, and achieves the object and purpose of the provision by, inter alia , preserving due
process for both the respondent and third parties.
Interpreting a “claim” to mean more than just the listing of an article allegedly violated is
consistent with past GATT and WTO practice and with common sense generally.  Common sense
would dictate that simply stating that the final anti-dumping measure violates, for example, Article 3
of the Anti-Dumping Agreement provides absolutely no meaningful guidance whatsoever.  It is
critical for a complainant in an anti-dumping case to identify the precise obligation within Article 3
that was violated and to present additional facts or circumstances.  This is especially the case wherethe relevant article contains numerous distinct obligations.
                                                     
2 Report of the Appellate Body, India - Patent Protection for Pharmaceutical and Agricultural
Chemical Products , WT/DS50/AB/R, para. 88 (adopted 16 Jan. 1998), quoted in  Report of the Appellate Body,
EC Measures Concerning Meat and Meat Products (Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, para. 156
(16 Jan. 1998).
3 See, e.g., Report of the Appellate Body, Guatemala - Anti-Dumping Investigation Regarding Portland
Cement from Mexico , WT/DS60/AB/R, para. 69 (2 Nov. 1998) (“Article 6.2 of the DSU requires that  both the
‘measure at issue’ and the ‘legal basis for the complaint’ (or the ‘claims’) be identified in a request for the
establishment of a panel”).
4 EC - Imposition of Anti-Dumping Duties on Imports of Cotton Yarn From Brazil , ADP/137, para. 445
(adopted 4 July 1995).WT/DS122/R
Page 258
Past GATT practice in anti-dumping and countervailing duty cases has consistently provided
that the mere listing of articles is insufficient to set forth claims with the proper degree of specificity.5
Moreover, the Panel in Mexico - HFCS  stated that
“The United States’ request for establishment in this case does not merely list the
articles alleged to have been violated.  The request also sets forth facts and
circumstances describing the substance of the dispute.  In our view, the request is
sufficiently detailed to set forth the legal basis of the complaint so as to inform the
defending Member, Mexico, and potential third parties of the claims made by the
United States.”6 (Emphasis added)
Thus, in Mexico - HFCS , the Panel determined that the United States had identified its “claims” with
sufficient specificity to inform the defending party and third parties because it listed the articles
allegedly violated and set forth facts and circumstances describing the substance of the dispute, i.e.,
the facts and circumstances on which the alleged violations are based.  The U.S. request in Mexico -
HFCS  is provided in THAILAND - 50.7
The interpretation of “claims” as requiring an identification of the precise obligation allegedly
violated and the facts and circumstances on which the alleged violation is based also upholds the
object and purpose of Article 6.2 of the DSU and the general due process protections of the DSU.
The Appellate Body has often described the object and purpose of both the request for establishment
of a panel under Article 6.2 of the DSU and the panel’s terms of reference.  For example, the
Appellate Body in EC - Bananas  stated:
As a panel request is normally not subjected to detailed scrutiny by the DSB, it is
incumbent upon a panel to examine the request  for the establishment of the panel very
carefully to ensure its complia nce with both the letter and the spirit of Article 6.2 of the
DSU.  It is important that a panel request be sufficiently precise for two reasons:  first,
it often forms the basis for the terms of refe rence of the panel pursuant to Article 7 of
the DSU;  and, second, it informs the defending party and the third parties of the legal
basis of the complaint.8
In Brazil - Desiccated Coconut , the Appellate Body stated the following regarding a panel’s
terms of reference:
A panel's terms of reference are important for two reasons.  First, terms of reference
fulfil an important due process objective -- they give the parties and third parties
sufficient information concerning the claims at issue in the dispute in order to allow
                                                     
5 See United States - Anti-Dumping Duties on Imports  of Fresh and Chilled Atlantic Salmon from
Norway , ADP/87, paras. 333-335 (adopted 26 April 1994);  United States - Countervailing Duties on Imports of
Fresh and Chilled Atlantic Salmon from Norway , SCM/153, paras. 208-214 (adopted 27 April 1994);
European Communities  - Imposition of Anti-Dumping Duties on Imports of Cotton Yarn from Brazil , ADP/137,
paras. 438-466 (adopted 4 July 1995);  EC - Anti-Dumping Duties on Audiotapes in Cassettes Originating in
Japan , ADP/136, para. 295 (28 April 1995 (not adopted)).  The Appellate Body in Brazil  - Desiccated Coconut
cited the cases under the Tokyo Round Anti-Dumping Code favourably in stating that a Complaining Party mustprecisely identify the claims in its request for establishment of a Panel.  (WT\DS22\AB\R (21 February 1997))
6 Mexico - Anti-Dumping Investigation on High Fructose Corn Syrup (HFCS) from the United States ,
WT/DS132/R, para. 7.15 (28 Jan. 2000).
7 Thailand considers that the U.S. request is still inadequate to identify certain “claims” because it
discloses only one of the two necessary components.
8 Report of the Appellate Body, European Communities - Regime for the Importation, Sale and
Distribution of Bananas , WT/DS27/AB/R, para. 142 (adopted 25 Sept. 1997).WT/DS122/R
Page 259
them an opportunity to respond to the compla inant's case.  Second, they establish the
jurisdiction of the panel by defining the precise claims at issue in the dispute.9
Thus, the above interpretation of Article 6.2 of the DSU satisfies the object and purpose of defining a
panel’s terms of reference, including the precise claims at issue in the dispute, and of providing
sufficient information to the respondent and third parties in order for them to defend their interests.
Importantly, the above interpretation would also prevent intentional or inadvertent
manipulation and abuse of panel procedures by the co mplainant, as well as the resulting prejudice to
the respondent and third parties.  For example, if a complainant is permitted to merely list the articles
in its request for establishment of a panel, then its “claims” would consist only of alleged violations ofsuch articles.  All subsequent submissions could ar guably be considered “arguments” relating to the
“claims” set forth in the request for establishment of a panel.
In the extreme case, after identifying a particular article in a request for establishment of a
panel, the complainant could wait until the last possible moment ( i.e., the final oral hearing) and then
introduce an “argument” that the defending Member violated an obligation in a particular paragraph
or subparagraph of the referenced article.  In such case, the particular obligation would have never
before been referenced prior to the final oral he aring.  For example, a complainant could identify
Article 5 of the Anti-Dumping Agreement in its request for establishment of a panel and then raise
“arguments” under paragraph 8 of Article 5 at the final oral hearing.  Assuming these “arguments”
presented a prima facie  case, would a panel be obligated to find in favour of the complainant?  How
would the respondent or third parties challenge such a decision?  There must be a check on thepotential for this abuse, whether in the extreme case cited above or in less extreme instances. By
enforcing the letter and spirit of Article 6.2 of the DSU in accordance with Thailand’s interpretation
above, a panel would provide a simple, but critical, check on the potential for abuse of the dispute
settlement process.
In the case against Thailand, Poland has intentionally or inadvertently engaged in the abuse
described in the previous paragraph.  It listed Article VI of GATT 1994 and Articles 2, 3, 5 and 6 of
the Anti-Dumping Agreement in its request for establishment of a panel.  In its subsequent
submissions, it has failed to articulate any precise claims ( i.e., the precise obligations allegedly
violated and the facts and circumstances on which the alleged violation is based) that would provideThailand or Third Parties with any idea of how to respond.  Now, it is conceivable that Poland could
make “arguments” or “claims” or “allegations” with sufficient clarity in its written rebuttal (filed
simultaneously with Thailand’s rebuttal) for Thailand to identify the claims against it.  Assuming this
is the case, however, Thailand will have only one opportunity to respond to Poland’s claims (at the
final oral hearing) and Third Parties will have no opportunity.   This situation is extremely unfair andis seriously prejudicial to Thailand and to Third Parties.
Thailand considers that clarifying this interpretative question would appropriately address the
prejudice in this case and would also provide critical guidance in future cases by ensuring more
predictability and less waste of resources.  Absent protection from imprecise pleading, defendingMembers will become more and more disenfranchised with a system in which they are never given a
clear indication of the case against them.  Without more discipline, Members will be forced either (1)
to assume the burden to prove that each and every action and decision is consistent with the
agreement and risk that in a highly complex case it will fail to satisfy this burden or (2) to suffer the
adverse consequences of having limited or no opportunity to respond to claims that are only made
precise and cognisable at the end of the proceeding .  The Panel should continue the Appellate Body’s
work in preventing Members from being forced to make such choices.
                                                     
9 Brazil - Desiccated Coconut  at 21.WT/DS122/R
Page 260
With respect to the Panel’s specific question and in accordance with the above interpretation,
Thailand considers that the language “in light of attendant circumstances” was introduced by the
Appellate Body to account for the situation wh ere the two components of a “claim” are understood
from the listing of the relevant article and the identifi cation of the specific measures at issue.  In such
instances, the listing of the relevant article identifies the precise obligation allegedly violated, becausethe article consists of only one distinct obligation.  The identification of the specific measures at issue
provides the facts and circumstances on which the alleged violation is based, because the measuresinvolve, for example, the application of various laws and regulations applicable to the importation of a
particular good or service.
This phrase is not relevant to this particular case because there are no attendant circumstances
that would justify finding that the mere listing of articles in an anti-dumping case was sufficient to
satisfy the requirements of Article 6.2 of the DSU.  First, as the Appellate Body has confirmed, anti-
dumping cases are confined to three possible measures under Article 17.4 of the Anti-Dumping
Agreement--application of definitive anti-dumping duties, acceptance of price undertakings, orprovisional measures.
10  The predominant number of cases will actually relate to one particular
measure only, the final measure imposing definitive dumping duties.  Thus, the identification of the
anti-dumping measure at issue does not provide any indication of the facts and circumstances on
which the alleged claims challenging that measure are based.  In this case, Poland simply identified
the imposition of definitive anti-dumping duties with no further description of the measure, and thus,
the facts and circumstances on which Poland bases its claims cannot be understood from the
identification of the specific measure at issue.
Second, articles in covered agreements that gove rn the activities of domestic authorities in
conducting investigations do not normally contain only one distinct obligation.11  As a result, simply
listing an article does not allow a Member to identify the precise obligation allegedly violated.  As
explained in response to part (c) below, Poland listed articles in GATT 1994 and the Anti-DumpingAgreement that contain numerous distinct obligations.  Therefore, Thailand would contend that
neither Thailand, Third Parties, nor the Panel have been able to identify the precise obligations that
Poland is alleging that Thailand violated.
                                                     
10 In Guatemala - Cement , the Appellate Body stated:
“Furthermore, Article 17.4 of the Anti-Dumping Agreement  specifies the types of
‘measure’ which may be referred as part of a ‘matter’ to the DSB.  Three types of anti-dumping measure are specified in Article 17.4:  definitive anti-dumping duties, the acceptance
of price undertakings, and provisional measures.  According to Article 17.4, a ‘matter’ may be
referred to the DSB only if  one of the relevant three anti-dumping measures is in place.  This
provision, when read together with Article 6.2 of the DSU, requires a panel request in adispute brought under the Anti-Dumping Agreement  to identify, as the specific measure at
issue, either a definitive anti-dumping duty, the acceptance of a price undertaking, or aprovisional measure.  This requirement to iden tify a specific anti-dumping measure at issue in
a panel request in no way limits the nature of the claims  that may be brought concerning
alleged nullification or impairment of benefits or the impeding of the achievement of anyobjective in a dispute under the Anti-Dumping Agreement .”
WT/DS60/AB/R, para. 79 (2 Nov. 1998).
11 See, e.g., Korea - Dairy Products ; United States - Anti-Dumping Duties on Imports of Fresh and
Chilled Atlantic Salmon from Norway , ADP/87, paras. 333-335 (adopted 26 April 1994);  United States -
Countervailing Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway , SCM/153, paras. 208-
214 (adopted 27 April 1994);  European Communities  - Imposition of Anti-Dumping Duties on Imports of
Cotton Yarn from Brazil , ADP/137, paras. 438-466 (adopted 4 July 1995);  EC - Anti-Dumping Duties on
Audiotapes in Cassettes Originating in Japan , ADP/136, para. 295 (28 April 1995 (not adopted)).WT/DS122/R
Page 261
(b) Does Poland's request for establishment “merely list” Articles 5 and 6 AD, or does it go
beyond a “mere listing”?
Poland’s request for establishment of a panel states:
“The principal measures to which Poland objects are:
• Thai authorities initiated and conducted this investigation in
violation of the procedural and evidentiary requirements of
Article VI of GATT 1994 and Articles 5 and 6 of theAntidumping Agreement.”
12
Thailand considers that Poland has provided only a mere listing of Articles 5 and 6 and has not
identified any paragraphs or subparagraphs of Article 5 or 6.  Therefore, Poland has not identified the
precise obligation allegedly violated and has provided absolutely no other facts or circumstances onwhich the alleged violations are based.
(c) Do Articles 5 and 6 AD each establish one single, distinct obligation or rather multiple
obligations? What is the basis for your response?
Articles 5 and 6 of the Anti-Dumping Agr eement provide numerous distinct obligations.
Virtually every paragraph (and subparagraph if applicable) of Articles 5 and 6 contains at least one
distinct obligation and often more than one.  Thailand considers that the test is whether a Panel would
find a violation of Article 5 or 6 based on the vi olation of a particular paragraph, subparagraph, or
provision within a paragraph or subparagraph.
The following are examples of a few of the distinct obligations under Article 5.  A Panel
could find:
- that a Member violated Article 5.2(i) by initiating an investigation based on an application
that did not include information reasonably available to the applicant regarding a complete
description of the allegedly dumped product;
- that a Member violated Article 5.2(i) by initiating an investigation based on an application
that did not include information reasonably available to the applicant regarding the names of
the country or countries of origin or export in question;
- that a Member violated Article 5.2(i) by initiating an investigation based on an application
that did not include information reasonably available to the applicant regarding the identity of
each known exporter or foreign producer;
- that a Member violated Article 5.2(i) by initiating an investigation based on an application
that did not include information reasonably available to the applicant regarding a list of
known persons importing the product in question;
- that a Member violated Article 5.3 by initiating an investigation without examining the
accuracy of the evidence regarding dumping;
- that a Member violated Article 5.3 by initiating an investigation without examining the
accuracy of the evidence regarding injury;
                                                     
12 WT/DS122/2, 2 (15 Oct. 1999).WT/DS122/R
Page 262
- that a Member violated Article 5.3 by initiating an investigation without examining the
accuracy of the evidence regarding causal link;
- that a Member violated Article 5.3 by initiating an investigation without examining the
adequacy of the evidence regarding dumping;
- that a Member violated Article 5.3 by initiating an investigation without examining the
adequacy of the evidence regarding injury;
- that a Member violated Article 5.3 by initiating an investigation without examining the
adequacy of the evidence regarding causal link;
- that a Member violated Article 5.3 by initiating an investigation without properly determining
that there was sufficient evidence of dumping to justify initiation of the investigation;13
- that a Member violated Article 5.3 by initiating an investigation without properly determining
that there was sufficient evidence of injury to justify initiation of the investigation;14
- that a Member violated Article 5.3 by initiating an investigation without properly determining
that there was sufficient evidence of a causal link to justify initiation of the investigation;15
- that a Member violated Article 5.5 by publicising the application prior to a decision to initiate
the investigation; or
- that a Member violated Article 5.5 by failing to give proper notice.16
The same analysis can be applied to Article 6, where virtually every paragraph contains at least one,
and in most cases more than one, distinct obligation.  Thailand would be pleased to provide a list of
all of the distinct obligations under Articles 5 and 6 upon request, but considers that its response
above has demonstrated that Articles 5 and 6 each establish multiple obligations.
2. We note the following passage from the Appellate Body Report in the Korea – Dairy
Safeguard  case:
"… whether the mere listing of the articles claimed to have been violated meets
the standard of Article 6.2 must be ex amined on a case-by-case basis.  In
resolving that question, we take into  account whether the ability of the
respondent to defend itself was prejudiced, given the actual course of the panel
proceedings, by the fact that the pane l request simply listed the provisions
claimed to have been violated."17
(a) What is the meaning of the phrase "given the actual course of the panel proceedings" in
the above passage?  Would it, for example, permit the subsequent "remedying" of apossibly insufficient panel request in the cour se of the panel proceedings?  How is this
                                                     
13 See Report of the Panel, Guatemala - Cement , at para. 7.67.
14 See Report of the Panel, Guatemala - Cement , at para. 7.77.
15 See Report of the Panel, Guatemala - Cement , at para. 7.78.
16 See Report of the Panel, Guatemala - Cement , at para. 7.39. Thailand also notes that a WTO panel
found that Mexico acted consistently with Articles 5.2, 5.3 and 5.8 of the Anti-Dumping Agreement after
examining whether the investigation conformed with some of the obligations listed above.  See Mexico - HFCS
at para. 8.1.
17 WT/DS98/AB/R, para. 127.WT/DS122/R
Page 263
phrase to be interpreted and applied in the pr esent case in respect of the request for a
ruling under Article 6.2 relating to Articles 5 and 6 AD?  Please explain in detail.
As an initial matter, Thailand considers that there may be some confusion as to where a
finding of prejudice is relevant.  First, after determining that the content of the relevant panel requestfails to satisfy Article 6.2 of the DSU, is a finding of prejudice a necessary secondary step for finding
a violation of Article 6.2 of the DSU?  The Panel in Mexico - HFCS  appears to apply this form of the
prejudice analysis by first finding that the request “sets out claims with sufficient specificity to present
the problem clearly” and then finding that “Mexico’s assertions as to the effect of the alleged
inadequacies . . . do not, in our view, rise to the level of demonstrating that Mexico’s rights of defencein this panel proceeding were affected, given the course of the panel proceeding.”  Mexico - HFCS  at
para. 7.17.
Alternatively, is the showing of prejudice rele vant to determining whether the mere listing of
articles is sufficient to present the problem clea rly? Under this approach, prejudice must be shown as
a component of determining whether the content of a particular request should have been more
detailed in order to satisfy the requirements under Article 6.2 of the DSU.  The Appellate Body in
Korea - Dairy Products  appears to mix this approach and the former by first citing the EC - Computer
Equipment  case (“[a]s the ability of the European Communities to defend itself was not prejudiced by
a lack of knowing the measures at issue, we do not believe that the fundamental rule of due process
was violated by the Panel”) and then issuing its own finding (“we take into account whether the
ability of the respondent to defend itself was prejudiced, given the actual course of the panelproceedings, by the fact that the panel request simply listed the provisions claimed to have been
violated”).
18  In effect, however, any distinction between the two approaches is irrelevant because
both readings impose a direct condition of prejudice on a finding that a Member violated Article 6.2
of the Anti-Dumping Agreement.
In accordance with the interpretation provided in response to Question 1 from the Panel, the
main question should be whether the complainant has complied with Article 6.2 of the DSU by indeed
identifying the precise obligations allegedly violated and by providing sufficient facts and
circumstances on which the alleged violations are based.  Determining whether proper identification
has been made and whether sufficient facts and circumstances have been presented is a question that apanel can objectively assess under Article 11 of the DSU.
In Thailand’s view, if the Panel decides to apply any “prejudice” or “effects” test, it should
apply an extremely low threshold in determining wh ether a Member has been prejudiced or adversely
impacted as a result of a violation of the DSU.  In  fact, Thailand considers that, as with violations of
other covered agreements, a violation of the DSU shou ld establish an irrebuttable presumption that the
affected Member has suffered prejudice.
Article 3.8 of the DSU states:
In cases where there is an infringement of the obligations assumed under a covered
agreement, the action is considered prima facie  to constitute a case of nullification or
impairment.  This means that there is normally a presumption that a breach of the
rules has an adverse impact on other Members parties to that covered agreement, and
in such cases, it shall be up to the Member against whom the complaint has been
brought to rebut the charge.
Article 1.1 defines “covered agreements” to include the agreements listed in Appendix 1 of
the DSU.  Notably, the DSU itself is listed in Appendix 1.  Therefore, if a Member violates a
                                                     
18 Korea - Dairy Products  at paras. 126 and 127.WT/DS122/R
Page 264
provision of the DSU, there is a presumption that su ch violation will have an adverse impact on other
Member parties to the DSU.
One commentator has written that Article 3.8 of the DSU
“suggests that the presumption of nullification and impairment is rebuttable and that
the demonstration of an absence of an ‘adverse impact’ is sufficient.  However, there
is no case of a successful rebuttal of the presumption in the history of the GATT, and
. . . GATT panels have also systematically rejected as insufficient the demonstration
of an absence of a trade impact.”19
WTO panels and the Appellate Body have affirmed that it is unnecessary to examine whether a
violation of a substantive provision of a covered agreement has caused adverse trade effects and that a
violation of a covered agreement is irrebuttably presumed to have such effects.20
The same analysis should apply to violations of procedural provisions, whether included in
the DSU or another covered agreement.  In Guatemala - Cement , the Panel rejected the argument that
a violation of the notification obligation under Ar ticle 5.5 of the Anti-Dumping Agreement must also
involve an evaluation of whether the violation caused adverse effects or prejudice to the affected
Member.  The Panel stated:
In our view, having found that Guatemala failed to notify the Government of Mexico
in a timely fashion, we need not determine that the failure to carry out an obligationhad particular or demonstrable adverse trade effects in order to find that the benefits
accruing to Mexico under the ADP Agreement were nullified or impaired.  Rather, to
the extent that the presumption of nullification or impairment may be rebutted in the
case of the breach of a procedural obligation, it would be incumbent on the Member
that has breached the obligation to demonstrate that its failure to respect theobligation could not have had any effect on the course of the investigation in
question.  In this case, the procedural obligation breached was the requirement to
notify the exporting Member prior to proceeding to initiate an anti-dumping
investigation.  A key function of the notification requirements of the ADP Agreement
is to ensure that interested parties, including Members, are able to take whatever steps
they deem appropriate to defend their interests.  Where a required notification is not
made in a timely fashion, the ability of the interested party to take such steps isvitiated.  We cannot now speculate on what steps Mexico might have taken had it
been timely notified, and how Guatemala might have responded to those steps. Thus,
while it is possible that the investigation would have proceeded in the same mannerhad Guatemala timely notified Mexico before proceeding to initiate the investigation,
we cannot say with certainty that the course of the investigation would not have been
different.  Under these circumstances, we cannot conclude that Guatemala has
rebutted the presumption that its failure to carry out its obligation under Article 5.5
consistent with the ADP Agreement nullified  or impaired benefits accruing to Mexico
under that Agreement.
21  (Footnote omitted; emphasis added).
One GATT panel also discussed this issue in the context of the request for establishment of a
panel and stated:
                                                     
19 Frieder Roessler, The Concept of Nullification and Impairment in the Legal System of the World
Trade Organization , in International Trade Law and the GATT/WTO Dispute Settlement System  125, 127
(Ernst-Ulrich Petersmann ed., 1997).
20 See, e.g., EC - Bananas  at para. 253.
21 Guatemala - Cement  at para. 7.42.WT/DS122/R
Page 265
“[w]e could not understand the basis on which a Panel could after the fact consider
whether certain claims might have been resolved in previous stages of the dispute
settlement process had those claims been raised during those stages of the process.
Nor would a Panel after the fact have a basis on which to consider whether the rights
of third parties to protect their interests through participation in the Panel processwere jeopardized by the failure of a complainant to raise a claim at the time it
requested the establishment of a Panel."
22
In Thailand’s view, therefore, the Panel should apply an irrebuttable presumption as to whether aprocedural violation has caused adverse effects or prejudice on the ability of an affected Member to
defend their interests.  Moreover, in accordance with the Panel’s findings in Guatemala - Cement ,
Thailand considers that whether it has been prejudiced by Poland’s violation of Article 6.2 of the DSU
should not be relevant to the Panel’s determination whether Poland did or did not violate such
provision.  Finally, Thailand notes that the content of the request for establishment of a panel is
explicitly regulated by Article 6.2 of the DSU, and thus is not a matter left to the discretion afforded
to panels under Appendix 3 of the DSU.
In accordance with and without prejudice to the interpretation above, Thailand considers that
the language “given the actual course of the panel proceeding” would only authorise a panel to accept
the mere listing of a particular article as sufficient if absolutely no prejudice was possible during the
course of the proceedings.  This would be the case only where (1) a panel found that the complainant
had failed to present a prima facie  case and thus the adequacy of the defence was irrelevant or (2) a
panel did not reach the claims under the listed articles because it decided the case solely on claimsproperly described in the request.
In any other situation, a panel would have no basis to determine whether the parties could
have resolved the claims at an earlier stage, whether the responding Member could have presented a
more persuasive defence, or whether third parties could have contributed information, argument orevidence that would have changed the outcome of the case.  Thus, this language does not permit
“remedying” an insufficient panel request during the course of the proceeding.  The only remedy is
for the complainant to begin the process over agai n, assuming it considers that such an action would
be fruitful as required under Article 3.7 of the DSU.
Accordingly, the language “given the actual course of the panel proceedings” will only be
relevant to this case if the Panel determines that Poland has failed to present a prima facie  case of a
violation under Articles 5 or 6 of the Anti-Dumping Agreement or otherwise decides not to reach
these purported claims.
 (b) How, specifically, has Thailand been prejudiced – in the sense of not having a full
opportunity for defence of its interests or in some other sense -- by Poland's panel
request relating to Articles 5 and 6 AD in these Panel proceedings up to and including
the first substantive meeting?
Without prejudice to its position in Question 2(a) above, Thailand has been seriously
prejudiced as a result of Poland’s mere listing of the articles allegedly violated in its request for
establishment of a panel.
First, prior to Poland’s filing of its First Written Submission, Thailand could not identify and
therefore could not understand the claims against it.  As a result, Thailand could not take any steps to
prepare its defence, such as collecting sufficient factual information, making sufficient and precise
                                                     
22 EC - Anti-Dumping Duties on Audiotapes in Cassettes Originating in Japan , ADP/136, para. 301
(28 April 1995 (unadopted)).WT/DS122/R
Page 266
translations given the significant volume of complex documents in the Thai language, and locating
key individuals from the relevant authorities to assist in explaining decisions and methodologies.
Thailand notes that three different departments of the Thai Ministry of Commerce were involved in
this investigation and that the entire structure and responsibility for anti-dumping cases has changed
since the time of the investigation on H-beams from  Poland.  Thailand also could not assess whether it
was more or less in Thailand’s interest to seek a potential settlement given that it had no indication of
the relative strength or weakness of Poland’s case and considered that it had conducted the
investigation entirely in accordance with its WTO obligations.
Third Parties appeared to have similar difficulty understanding the complaint.  In paragraph 8
of its Third Party Submission, the EC stated that
“[f]ollowing Poland’s failure to present its claims clearly the EC, as a third party, has
not been able to know the legal basis of the complaint until it has received the First
Submission by Poland.  This has impaired the EC’s ability to exercise to the fullestextent its procedural rights in this proceeding.”
In addition, although not presuming to speak for them, Thailand suspects that other Members had a
difficult time determining whether they had a substantial trade interest in the matter under Article 4.11
of the DSU.  If they had known the potential scope of this case, additional Members may have joined
the dispute as third parties.  The important point is  that the Panel has no way to determine, and cannot
expect Thailand to demonstrate, that one or more other Members would have joined the dispute had
Poland complied with Article 6.2.
Second, in its First Written Submission, Poland made sweeping allegations and arguments
regarding Articles 5 and 6, but failed to provide any more detail as to the precise claims at issue.  As a
result, Thailand was prejudiced because it was unable to exercise its right to defend itself fully or todefend itself in any reasonable manner whatsoever in its First Written Submission.  Thus, Poland’smere listing of articles caused Thailand to lose its first opportunity to present a defence.
Thailand also notes that it considered requesting a delay in these proceedings in order to take
the steps discussed above to respond to Poland’s case.  However, it decided against the proposition
because Thailand still had no conception of the case against it.
Third, both the EC and the United States as Third Parties indicated that they were unclear
regarding Poland’s case and that this lack of clarity adversely affected their ability to defend their
interests in this dispute.  In fact, in paragraph 9 of its Third Party Submission, the EC expressly stated
that
“The lack of sufficient clarity in the Polish request for the establishment of the panel
has been aggravated by the fact that Poland has failed to state clearly its claims even
in its First Written Submission, to the extent that the EC still has doubts on the scope
and legal basis of certain Polish claims.”
As a result of this lack of clarity, the Third Parties were unable to address fully Poland’s purported
claims.  Thus, Thailand is convinced that the Third Parties were prejudiced in their ability to defend
their interests.  In addition, Thailand was prejudiced because it was denied input from Third Parties
that may have assisted in its defence, and the Panel was denied input that may have lent support to
Thailand’s case.
Fourth,  because the Third Parties were unable to respond fully to Poland’s claims and
because the third party submissions were the only “new” submissions in the panel proceeding,
Thailand was left with very little additional legal argument or factual information on which to base itsWT/DS122/R
Page 267
First Oral Statement, and as a result, its First Oral Statement essentially just repeated the defence
provided in its First Written Submission.  Therefore, Poland’s mere listing of articles resulted in
Thailand also losing any meaningful opportunity to respond in its First Oral Statement.
Fifth, in its First Oral Statement, Poland provided no additional specificity for its purported
claims, added further confusion, and even appeared to change the basis for its purported claims.
• With respect to paragraph 5 of Article 5, Poland initially asserted only that “notice was not
properly or timely provided.”  Poland’s First Written Submission at para. 90.  Now, Poland seemsto contend that, in fact, the content is the only basis for its purported claim and that written notice
is required.  Thailand would have addressed this issue in more detail in its First WrittenSubmission and in its First Oral Statement had it been aware of Poland’s precise claim.
Moreover, the Third Parties and perhaps additional third parties would have wanted to contribute
their views on this issue, as evidenced by  the debate on it within the Ad Hoc Group on
Implementation of the Committee on Anti-Dumping Practices.
• With respect to its other purported claims under Article 5, Poland continues to merely assert that
the application contained no evidence of injury or causal link. Poland still fails to refer to theinitiation notice or the DFT Statement.  During the hearing, Poland did raise the non-confidential
application for the first time.   However, it just restated that it contained no evidence without
referring to any specific subparagraph in the An ti-Dumping Agreement that describes the type of
evidence that an application must contain.  Moreover, Poland did not refer to any of the Thailanguage portions of the non-confidential application and has never, as far as Thailand is aware,
requested or obtained a translation of this version of the application.  Thus, Poland still provides
(1) no indication as to the precise obligation allegedly violated (Article 5.2 chapeau ,
subparagraphs (i) to (iv) of Article 5.2, or Article 5.3 (accuracy, adequacy, and/or sufficiency))
and (2) no facts or circumstances on which the alleged violation is based.
• With respect to paragraph 4 of Article 6, Poland has still not identified any specific information or
data that was not provided.
• Under Article 6.5.1, Poland now appears to change the basis for its purported claim.  In paragraph
92 of its First Written Submission, it alleged a violation of Article 6.5.1 because “parties were not
provided with a proper non-confidential summary”.  In paragraph 61 of its First Oral Submission,
Poland now contends that “the internally inconsistent, conclusory, and opaque nature of the non-
confidential summaries that were provided do not meet the requirements of Article 6.5.1.”Thailand is confused regarding the basis for Poland’s purported claim and does not know if the
most recent version refers to the non-confidential summaries provided by interested parties in the
investigation or to the Thai authorities’ non-confidential summaries provided to interested parties.
Thailand also does not know the specific non-confidential summary or summaries to which
Poland now refers.  Thailand fears that when this becomes clear, it will be too late to offer a fulland meaningful response in accordance with its rights under the DSU.
• With respect to paragraph 9 of Article 6, Thailand still does not know the basis for Poland’s
purported claim.  Poland has pointed to no “essential facts” that it was not provided and onlyindicates that Thailand did not provide a specification or a proper weighing of all relevant
economic factors.  Is this the only “essential fact” that Poland considers was not provided?  DoesPoland mean the factors in Article 3.1 of the Anti-Dumping Agreement or those in Article 3.4?
Facts regarding what particular factor were not disclosed?
Finally, because of the simultaneous filing of rebuttal submissions, Thailand has no further basis to
present its defence, other than in response to the questions from the Panel.  Thus, Poland’s actionshave removed this third and next-to-last opportunity for Thailand to defend itself.WT/DS122/R
Page 268
All of the above prejudice is caused, inter alia , by the uncertainties that flow directly from
Poland’s approach of merely listing Articles 5 and 6 of the Anti-Dumping Agreement.  Moreover, as
evidenced by Poland’s approach under Article 6.5.1, it is unclear whether Poland may at rebuttal
develop new claims under previously mentioned or even completely different paragraphs.  Forexample, in response to the Panel’s questions, will Poland now raise a claim that Thailand acted
inconsistently with Article 6.1.2?
Thailand notes that this case is easily distinguishable from Mexico - HFCS , because the
request in Mexico - HFCS  did not merely list the articles allegedly violated.  See THAILAND - 50.
According to the Panel, the request in Mexico - HFCS  also described the facts and circumstances on
which the alleged violations were based.
23  Moreover, Mexico appears to have conceded that it was
not prejudiced following the filing of the U.S. First Written Submission.24  Finally, third parties did
not express uncertainty as to the nature of the U.S. claims.25
In this case, Poland merely listed Articles 5 and 6 and did not provide any additional facts or
circumstances.  Thailand has demonstrated that Poland’s listing of the articles or otherwise its
violation of Article 6.2 have caused prejudice prior to the filing of Poland’s First Written Submission
and at every stage thereafter.  Finally, Third Parties have expressly indicated their uncertainty as to
the precise nature of Poland’s case and the difficulty that this has caused in defending their interests.
As a corollary to the above, Thailand considers that it is prejudiced by the fact that Poland’s
violation of Article 6.2 of the DSU has resulted in the Panel asking a significant number of questions
that seek clarification of Poland’s case at this late stage or otherwise address issues that do not seem
to fall within the “matter” in dispute.  For example, in Questions 3, 8 and 13 to 16, the Panel asks
Thailand to either set forth its views of Poland’s allegations or demonstrate compliance with each and
every aspect relating to, for example, its complia nce with Article 5 of the Anti-Dumping Agreement.
Thailand considers that it only has the burden to respond to claims properly raised by Poland,
including exclusively those claims that identify with specificity the precise obligation allegedly
violated and the facts and circumstances on which the alleged violation is based.
3. Up until this point in the Panel proceedings , what are the specific allegations raised by
Poland and the specific paragraphs of Articles 5 and 6 AD under which Poland has raised these
allegations?  Please identify any relevant parts of the Panel record.
Thailand considers that the Panel’s request for Thailand to specify Poland’s claims is highly
unusual and suggests that such claims have never been presented with any degree of clarity. As it hasrepeatedly stated, Thailand does not understand the claims against it and considers that requiring
Thailand to speculate as to such claims would be unfair and prejudicial.
4. The Panel notes that evidence in the record (Exhibit THAILAND –14/Exhibit
POLAND-4) shows that the issue of notification under Article 5.5 AD was raised by Polandduring the course of the anti-dumping investigation.  Is this relevant to the request by Thailand
for a preliminary ruling to dismiss Poland’s claims under Articles 5 and 6 AD for lack of
specificity under Article 6.2 DSU?  Please explain in detail.  Were other issues that have been
raised by Poland in these Panel proceedings under Articles 5 and 6 AD raised by the Polish
exporters during the course of the anti-dumping investigation?  If so, please describe in detail
and indicate where this is reflected in the record.
                                                     
23 See Mexico - HFCS  at para.7.15.
24 Id. at para. 7.16.
25 Id. at footnote 533.WT/DS122/R
Page 269
The fact that the issue of Article 5.5 of the Anti-Dumping Agreement (or any issue under
Articles 5 or 6 of the Anti-Dumping Agreement) was or was not raised during the underlying
investigation is completely irrelevant to the lack of specificity under Article 6.2 of the DSU.  As
discussed above, the requirement for specificity in the panel request is intended to (1) define the
panel’s terms of reference and (2) inform the defending Member and third parties regarding the caseagainst them.
First, the fact that an issue was raised during the investigation would not provide any degree
of certainty as to the Panel’s terms of reference.  Given the listing of articles by Poland, would this
approach mean that the Panel has authority to review each and every issue raised during the course ofthe investigation?  Certainly, such an approach w ould lead to extremely imprecise terms of reference
and to abuse by complainants in bringing cases to WTO panels.
Second, the fact that an issue was raised to one particular Department in a highly complex
investigation that concluded several years ago does not provide Thailand with any meaningful noticeregarding the actual claims that it must defend now in this dispute before the Panel.  Since the
completion of the investigation, Thailand has restructured its administrative approach to conducting
investigations, and personnel that worked on the Polish H-beam investigation have not necessarily
remained with the Government or with the same department within the Government.  In addition,
given the multitudes of issues raised over the course of the investigation and given the mere listing of
articles by Poland, Poland’s actual claims before the Panel would remain unclear, because neither the
precise obligation allegedly violated nor specific facts and circumstances on which the allegedviolation is based would be provided. Thus, the fact that respondents raised issues during the
investigation would not give the defending Member any meaningful notice or any information
regarding the claims against it.
Third, the identification of an issue during the investigation would provide third parties with
absolutely no information regarding the complaint and absolutely no means for determining if they
have a substantial interest in the case under Article 4.11 of the DSU.
Fourth, the Panel’s proposed linking of issues identified during the investigation with lack of
specificity under Article 6.2 of the DSU raises serious questions.  For example, at what level of detailmust they be raised?  In what venue must the issue be raised?  Is it sufficient to raise it before the
authority in writing?  Is it sufficient to raise it befo re the authority orally?  Must the issue be raised in
an appeal to domestic courts?  The Panel’s question even seems to suggest that there may be an
obligation to raise all issues that may be subject to WTO dispute settlement before the authorities of
the investigating Member.  In other words, would the linking of the two effectively result in requiringthat respondents exhaust all administrative and judicial remedies prior to seeking WTO review?
Finally, because it does not know nor understand the issues raised by Poland in these Panel
proceedings, it is unable to determine whether Polish respondents did or did not raise such issues
during the investigation.  Moreover, as demonstrated above, Thailand considers that whether or notissues were raised should be considered irrelevant to the specificity of a request under Article 6.2 of
the DSU.
2. Request with respect to Articles  2 and 3 AD and Article VI GATT 1994
5. In para. 8 of its closing statement at the first substantive meeting of the parties with the
Panel on 8 March 2000, Thailand states that it "con siders that it is suffering serious prejudice in
attempting to respond to Poland's vague and imprecise claims" with respect to Article VI of
GATT 1994 and Articles 2 and 3 of the Anti-Dumping Agreement and "requests that the Panel
determine whether Poland compli ed with Article 6.2 of the DSU with respect to purported
claims under Article VI of GATT 1994 and Articles 2 and 3 of the Anti-Dumping Agreement".WT/DS122/R
Page 270
 (b) What relevance, if any, is there in the fact that this request by Thailand under Article
6.2 DSU concerning Articles 2 and 3 AD and Article VI GATT 1994 occurred at this
point in the Panel proceedings?
The timing of Thailand’s request during the First Oral Hearing is completely irrelevant to
whether Poland did or did not violate its obligations under Article 6.2 of the DSU.  Thailand has
engaged in these procedures in good faith in an effort to resolve the dispute as required under
Article 3.10 of the DSU.  In so doing, Thailand made an effort to identify the purported claims that
Poland raised in its First Written Submission.  Despite Thailand’s repeated indications in its FirstWritten Submission that it did not understand the claims against it under Article VI of GATT 1994
and Articles 2 and 3 of the Anti-Dumping Agreement, however, Poland failed to confirm that the
purported claims identified by Thailand were the precise claims raised.
26  Moreover, during the First
Oral Hearing, Poland seemed to raise claims based on different obligations and different facts and
circumstances.  Thus, in order to protect its rights, Thailand was forced to object when it becameaware that its good faith assessment of Poland’s purported claims was inaccurate and/or incomplete.
Notably, the DSU does not indicate the appropriate stage in a proceeding at which time a
defending Member or third parties should raise alleged violations of due process rights under the
DSU.  Thailand raised its concerns regarding the specificity of pleading in its First Written
Submission and made its request for a finding regarding compliance with Article 6.2 of the DSU prior
to the rebuttal stage of the proceeding.  Thus, Poland had (and has) more than adequate time torespond.
Finally, if the Panel issues a finding that a defending Member must raise objections under
Article 6.2 of the DSU only in its First Written Submission, it will send the clear message that
defending Members should not take any good faith steps to identify the claims against it beforeimmediately asserting a procedural objection. Thailand considers that creating such a disincentive to
engage in good faith efforts is inconsistent with the letter and spirit of Article 3 of the DSU.
6. We refer to the passage from paragraph 124 of the Appellate Body Report in Korea –
Dairy Safeguard cited in question 1 above.
 (a) Are there any "attendant circumstances" in this case that might be relevant to the
request by Thailand for a ruling under Article 6.2 DSU with respect to Articles 2 and 3
AD and Article VI GATT 1994?  Please explain in detail.
In accordance with the interpretation provided in response to Question 1(a), the phrase
“attendant circumstances” is not relevant to this particular case, and there are no attendant
circumstances that would justify finding that the mere listing of articles in an anti-dumping case was
sufficient to satisfy the requirements of Article 6.2 of the DSU.  This analysis and interpretation
applies to Thailand’s view that Poland violated Article 6.2 of the DSU in its request for establishmentof a panel with respect to Articles VI of GATT 1994 and Articles 2, 3, 5, and 6 of the DSU.
(b) Does Poland's request for establishment “merely list” Articles 2 and 3 AD and Article
VI GATT 1994, or does it go beyond a “mere listing”?
Poland’s request for establishment of a pa nel merely lists Article VI of GATT 1994 and
Articles 2 and 3 of the Anti-Dumping Agreement.  The relevant portion of Poland’s request states:
                                                     
26 Paragraph 9 of Thailand’s First Written Submission stated that “Thailand reserves its right to raise
additional procedural objections under Article 6.2 of the DSU and under general principles of due process withrespect to other purported ‘claims’ [, i.e., purported claims under Article VI of GATT 1994 and Articles 2 and 3
of the Anti-Dumping Agreement]raised by Poland.”WT/DS122/R
Page 271
“Thailand has imposed definitive antidumping duties on imports of H-beam steel
products originating in Poland in contravention of the basic procedural and
substantive requirements of Article VI of the General Agreement on Tariffs and
Trade 1994 (GATT 1994) and of the Antidumping Agreement.  The principalmeasures to which Poland objects are:
• Thai authorities have made a determination that Polish imports caused injury
to the Thai domestic injury, in the absence of, inter alia , “positive evidence”
to support such a finding and without th e required “objective examination” of
enumerated factors such as import volume, price effects, and the consequentimpact of such imports on the domestic industry, in contravention of Article
VI of GATT 1994 and Article 3 of the Antidumping Agreement;
• Thai authorities have made a determination of dumping and calculated an
alleged dumping margin in violation of Article VI of GATT 1994 and Article
2 of the Antidumping Agreement;”
As stated in its interpretation in response to Question 1(a), Thailand considers that a “claim” must
consist of both the precise obligation allegedly violated and facts and circumstances on which the
alleged violation is based.  For Articles VI of GATT 1994 and Articles 2 and 3 of the Anti-Dumping
Agreement, Poland simply lists the article allegedly violated.  It does not identify any paragraphs,
subparagraphs, or other distinct obligations within those articles and/or provide any facts or
circumstances whatsoever regarding the basis for its alleged violations.
The only more detailed reference of any kind is a repetition of the “enumerated factors” in
paragraph 1 of Article 3.  Thus, at a minimum, Poland may arguably have identified the precise
obligations under paragraph 1 of Article 3.  However, as noted above for all articles, it failed to
provide any facts or circumstances whatsoever on wh ich its alleged violation of Article 3.1 is based.
Thailand notes that Poland did not provide any reference to obligations under Articles 3.2, 3.4, or 3.5
of the Anti-Dumping Agreement, any reference to the distinct obligations under Article 2.2 of theAnti-Dumping Agreement, or any reference to the distinct obligations contained in Article VI of
GATT 1994.
(c) Do Articles 2 and 3 AD and Article VI GATT 1994 each establish one single, distinct
obligation, or rather multiple obligations ?  What is the basis for your response?
Article VI of GATT 1994 and Articles 2 and 3 of the Anti-Dumping Agreement provide
numerous distinct obligations.  Moreover, virtually every paragraph (and subparagraph if applicable)
of Article VI of GATT 1994 and Articles 2 and 3 of the Anti-Dumping Agreement contain at least
one distinct obligation and often more than one.  This amounts to a minimum of 42 distinctobligations.
Thailand considers that the test is whether a Panel would find a violation of Article VI of
GATT 1994 or of Article 2 or 3 based on the violation of a particular paragraph, subparagraph, or
provision within a paragraph or subparagraph.  For example, in Mexico - HFCS , the Panel concluded:
“Mexico’s inadequate consideration of the impact of dumped imports on the domestic
industry, its determination of threat of material injury on the basis of only a part of
the domestic industry’s production, that sold in the industrial sector, rather than on
the basis of the industry as a whole, and its inadequate consideration of the potential
effect of the alleged restraint agreement in its determination of likelihood ofWT/DS122/R
Page 272
substantially increased importation are not consistent with the provisions of
Articles 3.1, 3.2, 3.4, 3.7 and 3.7(i) of the AD Agreement.”
Thus, a Panel has already concluded that Article 3 of the Anti-Dumping Agreement contains at least 5
distinct obligations under paragraphs 1, 2, 4, and 7.
At the Panel’s request, Thailand would be pleased to provide a detailed list of each and every
distinct obligation under Article VI of GATT 19 94 and Articles 2 and 3 of the Anti-Dumping
Agreement.  However, Thailand considers that its response above has demonstrated that the
referenced articles each establish multiple obligations.
7. We refer to the passage from paragraph 127 of the Appellate Body Report in Korea –
Dairy Safeguard cited in question 2 above.
(a) How is the phrase "given the actual course of the panel proceedings" to be interpreted
and applied in the present case in respect of the request by Thailand for a ruling underArticle 6.2 relating to Articles 2 and 3 AD and Article VI GATT 1994?
In accordance with and without prejudice to the interpretation in response to Question 2(a)
above, Thailand considers that the language “given the actual course of the panel proceeding” would
only authorise a panel to accept the mere listing of a particular article as sufficient if absolutely no
prejudice was possible during the course of the proceedings.  This would be the case only where (1) a
panel found that the complainant had failed to present a prima facie  case and thus the adequacy of the
defence was irrelevant or (2) a panel did not reach the claims under the listed articles because it
decided the case solely on claims properly described in the request.
In any other situation, a panel would have no basis to determine whether the parties could
have resolved the claims at an earlier stage, whether respondent could have presented a morepersuasive defence, or whether third parties could have contributed information, argument or evidence
that would have changed the outcome of the case.  Thus, this language does not permit “remedying”
an insufficient panel request during the course of the proceeding.  The only remedy is for the
complainant to begin the process over again, assuming it considers that such an action would be
fruitful.
Accordingly, the language “given the actual course of the panel proceedings” is only relevant
to this case if the Panel determines that Poland has failed to present a prima facie  case of a violation
under Article VI of GATT 1994 or Article 2 or 3 of the Anti-Dumping Agreement or otherwise
decides not to reach these purported claims.
(b) How, specifically, has Thailand been prejudiced – in the sense of not having a full
opportunity for defence of its interests or in some other sense -- by Poland's panel
request relating to Articles 2 and 3 AD and Article VI GATT 1994 in these Panel
proceedings up to and including the first substantive meeting?
Without prejudice to its position provided in response to Question 2 (a) above, Thailand has
been seriously prejudiced as a result of Poland’s mere listing of the articles allegedly violated in its
request for establishment of a panel.  The prejudice described in response to Question 2 (b) similarly
results for the purported claims under Article VI of GATT 1994 and Articles 2 and 3 of the Anti-
Dumping Agreement.  This includes (1) the inability to effectively prepare following the request for
establishment of a panel by taking steps to collect sufficient factual information, make sufficient andprecise translations given the significant volume of complex documents in the Thai language, and
locate key individuals from the relevant authorities to assist in explaining decisions and
methodologies; (2) the prejudice highlighted by Third Parties, including the EC’s reference withWT/DS122/R
Page 273
respect to purported claims under all listed articles; (3) the denial of Thailand’s right to fully defend
itself in its First Written Submission; (4) the absence of full input from Third Parties regarding the
relevant claims; (5) the denial of Thailand’s right to fully defend itself in its First Oral Statement; and
(6) the denial of Thailand’s right to fully defend itself in its Rebuttal Submission due to the continued
lack of clarity of Poland’s claims.
In its First Oral Statement, Poland has still not provided any specificity for its purported
claims regarding, inter alia :
• With respect to Article 3.1, Poland has not identified with any degree of specificity the precise
findings on which it contends that Thailand failed to base its decision on positive evidence.
Simply providing a general discussion of Poland’s views regarding what decision the authorities
should have reached based on the record evidence does not provide any guidance.  During these
proceedings, Poland has never clearly stated a claim, for example, that “Thailand violated Article
3.1 of the Anti-Dumping Agreement by making an affirmative determination of injury that was
not based on positive evidence because the authority failed to collect data on the volume of Polishimports.”  Moreover, Poland has not even referenced the applicable standard of review.
• In its Question 3 to Thailand, in paragraph 53 of its First Written Submission, in paragraph 39 of
its First Oral Statement and in its Concluding Statement to the First Oral Hearing, Poland appearsto contend that the Thai authorities violated Articles 3.1, 3.2 and/or 3.4 because they did not find
that the impact of dumped imports on the domestic industry was “significant” and thus could nothave found that such impact was “material”.  Articles 3.1, 3.2 and/or 3.4 do not impose such a
requirement with respect to the impact of dumped imports on the domestic industry.  Therefore,
Thailand is unclear whether Poland has in fact presented any claim regarding whether the Thai
authorities properly evaluated the consequent impact of the dumped imports on the domestic
industry.
• With respect to Article 3.4, Poland has stated:
- “Thai authorities have made a determination that Polish imports caused injury . . .
without the required ‘objective examination’ of enumerated factors such as import
volume, price effects, and the consequent impact of such imports on the domestic
industry.”  See Poland’s request for establishment of a panel.
- “Undisputed evidence on the record demonstrates that SYS’s production, capacity
utilisation, employment, sales (both domestic and overseas), and market share all
increased in the IP.” See First Written Submission at para. 64 (emphasis in original).
- “Every factor examined by Thailand and on which the Thai authorities claimed to
rely unambiguously supports a finding of no injury.  The Thai authorities chose not to
present evidence regarding profits, losses, profitability or cash flow.”  See  First
Written Submission at para. 64.
Thus, prior to the First Oral Statement, Poland only questioned how the Thai authorities weighed
the factors that it examined under Article 3.4 and claimed that the authorities “chose not to
present evidence” regarding four specific factors.  In its First Oral Statement and in response to
the U.S. submission, Poland now contends that th e Thai authorities did not consider and evaluate
the factors under Article 3.4.  However, Poland did not identify a single factor that was or was
not considered or evaluated.  In its Question 38, the Panel is asking Poland to provide anindication of the specific factors that the Thai authorities did or did not consider.  Thailand
considers that Poland was obligated in its request for establishment of a panel to identify, at a
minimum, Article 3.4 and identify specific factors that were not considered.  The fact that it willWT/DS122/R
Page 274
not do so, in all likelihood, until its Rebuttal Submission means that Thailand still has no basis to
respond, except for its good faith attempt to show where evidence was provided regarding four
factors listed in Poland’s First Submission.  Thailand considers that it should not have the burden
of demonstrating that it considered and evaluated each and every factor under Article 3.4 before
Poland has even identified a specific factor that raises an alleged violation. Finally, Poland hasnot even referenced the applicable standard of review.
• With respect to Article 3.5, Thailand notes that Poland appears now to only raise questions
regarding the consideration or lack thereof of the impact of the “massive Kobe earthquake thatdisrupted steel supplies throughout Asia in this period.”  See First Oral Statement at para. 39.
Given the continued absence of any other informa tion, evidence, or argument provided regarding
Poland’s assertions in paragraph 75 of its First Written Submission, Thailand is confused as to
whether Poland continues to have questions regarding the “other factors” listed in its First Written
Submission.
The prejudice to Thailand’s case is caused, inter alia , by the uncertainties that flow directly
from Poland’s approach of merely listing Article VI of GATT 1994 and Articles 2 and 3 of the Anti-
Dumping Agreement.  Moreover, as evidenced by the Panel’s approach with respect to Article 3.4 of
the Anti-Dumping Agreement, it is apparent Poland may at rebuttal develop new claims regarding
whether Thailand did or did not consider or evaluate specific factors not previously identified.
As noted in response to Question 2 (b) above, Thailand considers that this case is easily
distinguishable from Mexico - HFCS , because the request in Mexico - HFCS  did not merely list the
articles allegedly violated.  See THAILAND - 50.  According to the Panel, the request in Mexico -
HFCS  also described the facts and circumstances on which the alleged violations were based.
27
Moreover, Mexico appears to have conceded that it was not prejudiced following the filing of the U.S.
First Written Submission.28  Finally, third parties did not express uncertainty as to the nature of the
U.S. claims.29
In this case, Poland merely listed Article VI of GATT 1994 and Articles 2 and 3 of the Anti-
Dumping Agreement and did not provide any additional facts or circumstances.  Thailand has
demonstrated that Poland’s listing of the articles or otherwise its violation of Article 6.2 have caused
prejudice prior to the filing of Poland’s First Written Submission and at every stage thereafter.Finally, Third Parties have expressly indicated their uncertainty as to the precise nature of Poland’s
case and the difficulty that this has caused in defending their interests.
As a corollary to the above, Thailand considers that it is prejudiced by the fact that Poland’s
violation of Article 6.2 of the DSU has resulted in the Panel asking a significant number of questionsthat seek to identify Poland’s claims at this late stage.  In question 38 to Poland, the Panel states
“[y]ou have argued that Thailand has not considered all relevant factors listed in Article 3.4 ADA.”
The Panel then asks for information to support this “argument” and provides a structure under which
Poland can identify any factors that the Thai authorities have or have not considered or evaluated.
In the next question directed to Thailand, the Panel begins with the clause “[t]o the extent that
you feel that it is significant to your case” and then asks for the same information.
30  T h a i l a n d
considers it highly prejudicial that the same clause was not used in asking the question to Poland, that
the Panel assumed the role of clarifying Poland’s claims at this late date, and that the Panel is making
Thailand decide whether responding to the Panel’s methodology for identifying Poland’s “claims” is
                                                     
27 See Mexico - HFCS  at para.7.15.
28 Id. at para. 7.16.
29 Id. at footnote 533.
30 Thailand notes that a similar approach is taken wi th respect to Poland’s purported claims relating to
causation under Article 3.5 of the Anti-Dumping Agreement.  See Questions 46 and 47 from the Panel.WT/DS122/R
Page 275
or is not significant to its case.  If Poland had complied with the DSU, Thailand would not be in a
position to guess whether it would need to respond.
8. Up until this point in the Panel proceedings , what are the specific allegations raised by
Poland and the specific paragraphs of Articles 2 and 3 AD and Article VI GATT 1994 underwhich Poland has raised these allegations?  Pl ease identify any relevant parts of the Panel
record.
Thailand considers that the Panel’s request for Thailand to specify Poland’s claims is highly
unusual and suggests that such claims have never been presented with any degree of clarity. As it hasrepeatedly stated, Thailand does not understand the claims against it and considers that requiring
Thailand to speculate as to such claims would be unfair and prejudicial.
9. Were the issues under Articles 2 and 3 AD and Article VI GATT 1994 raised by Poland
in these Panel proceedings raised by the Polish exporters during the course of the anti-dumpinginvestigation?  If so, please describe in detail and indicate precisely where this is reflected in the
record.   Is this relevant to the request by Tha iland for a preliminary ruling to dismiss Poland’s
claims under Articles 2 and 3 AD and Article VI GATT 1994 for lack of specificity under
Article 6.2 DSU?  Please explain in detail.
The fact that any issue under Article VI of GATT 1994 or Articles 2 or 3 of the Anti-
Dumping Agreement was or was not raised during the underlying investigation is completelyirrelevant to the lack of specificity under Article 6.2 of the DSU.
As stated in Thailand’s Response to Question 1(a) from the Panel, the requirement for
specificity in the panel request is intended to (1) define the panel’s terms of reference and (2) inform
the defending Member and third parties regarding the case against them.  This object and purpose isnot satisfied and is, in fact, severely undermined by an approach that links raising issues during the
domestic investigation to the specificity of a request for establishment of a panel in a WTO dispute
settlement proceeding. Thailand repeats below the basis for this position as provided in its Response
to Question 4 from the Panel.
First, the fact that an issue was raised during the investigation would not provide any degree
of certainty as to the Panel’s terms of reference.  Given the listing of articles by Poland, would this
approach mean that the Panel has authority to review each and every issue raised during the course of
the investigation?  Certainly, such an approach w ould lead to extremely imprecise terms of reference
and to abuse by complainants in bringing cases to WTO panels.
Second, the fact that an issue was raised to one particular Department in a highly complex
investigation that concluded several years ago does not provide Thailand with any meaningful notice
regarding the actual claims that it must defend in the dispute before the Panel.  Since the completion
of the investigation, Thailand has restructured its administrative approach to conductinginvestigations, and personnel that worked on the Polish H-beam investigation have not necessarily
remained with the Government or with the same  department within the Government. In addition,
given the multitudes of issues raised over the course of the investigation and given the mere listing of
articles by Poland, Poland’s actual claims before the Panel would remain unclear, because neither the
precise obligation allegedly violated nor specific facts and circumstances on which the alleged
violation is based would be provided. Thus, the fact that respondents raised issues during the
investigation would not give the defending Member any meaningful notice or any informationregarding the claims against it.WT/DS122/R
Page 276
Third, the identification of an issue during the investigation would provide third parties with
absolutely no information regarding th e complaint and absolutely no means  for determining if they
have a substantial interest in the case under Article 4.11 of the DSU.
Fourth, the Panel’s proposed linking of issues identified during the investigation with lack of
specificity under Article 6.2 of the DSU raises serious questions.  For example, at what level of detail
must they be raised?  In what venue must the issue be raised?  Is it sufficient to raise it before the
authority in writing?  Is it sufficient to raise it befo re the authority orally?  Must the issue be raised in
an appeal to domestic courts?  The Panel’s question even seems to suggest that there may be an
obligation to raise all issues that may be subject to WTO dispute settlement before the authorities of
the investigating Member.  In other words, would the linking of the two effectively result in requiring
that respondents exhaust all administrative and judicial remedies prior to seeking WTO review?
Finally, because it does not know nor understand the issues raised by Poland in these Panel
proceedings, it is unable to determine whether Polish respondents did or did not raise such issuesduring the investigation.  Moreover, as demonstrated above, Thailand considers that whether or not
issues were raised should be considered irrelevant to the specificity of a request under Article 6.2 of
the DSU.
B. ARTICLE 5 AD
10. In the view of the parties, in light of the panel report in Mexico – HFCS, what
documents in the record are rele vant to the Panel's examination of Poland's claims concerning
the contents of the petition and the sufficiency of evidence to justify the initiation of the
investigation?
Thailand considers that Poland has not made any “claims” in accordance with its obligations
under the DSU.  Therefore, Thailand does not consider that any documents “are relevant to the
Panel’s examination of Poland’s claims.”
The information and evidence relevant to the Thai authorities’ decision to initiate the
investigation are, inter alia :
- Letter from SYS to the Minister of Commerce providing pre-application information
regarding injury caused by dumped Polish H-beams (THAILAND - 51);
- The confidential version of the application, including periodic provision of additional
information in response to the concerns of the authorities (THAILAND - 52);
- The non-confidential version of the application, including periodic provision of additional
information in response to the concerns of  the authorities (THAILAND - 1; THAILAND - 53
(translation));
- Internal DBE document providing preliminary assessment of the application and requesting
more information (THAILAND - 54);
- Documents relating to the consideration of  the petition by the CPS Committee at two
meetings in August 1996 (THAILAND - 55 (tables on injury and causation only));
- The notice of initiation (THAILAND - 2); and
- The DFT Statement (THAILAND - 5).WT/DS122/R
Page 277
13. Did the petition contain data on dumping, injury and a causal link?  Did the petition
contain analysis concerning each of the factors on which data w ere provided?   Please explain in
detail, citing specific parts of Exhibit THAILAND-1, where relevant.
As stated throughout this proceeding, Thailand considers that Poland has not set forth its
claims in accordance with the DSU.  Thailand does not have the burden of proof in this dispute and
need not demonstrate compliance with each and every aspect of Article VI of GATT 1994 and the
Anti-Dumping Agreement.  Accordingly, Thailand simp ly reiterates that the authorities examined the
application and determined that it contained sufficient evidence of dumping, injury and a causal link
to justify the initiation of the investigation on H-beams from Poland. Thailand respectfully refers thePanel to the evidence contained in the documents listed in its response to Question 10.
14. Does Article 5.2 require that an application contain analysis or is numerical data
enough?  Please explain, and indicate the relevan ce, if any, of the panel report in Mexico-HFCS.
As stated throughout this proceeding, Thailand considers that Poland has not set forth its
claims in accordance with the DSU.  Thailand does not have the burden of proof in this dispute and
need not demonstrate compliance with each and every aspect of Article VI of GATT 1994 and the
Anti-Dumping Agreement.  Accordingly, Thailand simp ly reiterates that the authorities examined the
application and determined that it contained sufficient evidence of dumping, injury and a causal link
to justify the initiation of the investigation on H-beams from Poland. Thailand respectfully refers the
Panel to the evidence contained in the documents listed in its response to Question 10.
15. Please indicate where in the notice of initiation (or any other documents) it is
demonstrated that the application contained evidence of dumping, injury and causal link within
the meaning of Article 5.2 AD.
As stated throughout this proceeding, Thailand considers that Poland has not set forth its
claims in accordance with the DSU.  Thailand does not have the burden of proof in this dispute and
need not demonstrate compliance with each and every aspect of Article VI of GATT 1994 and the
Anti-Dumping Agreement.  Accordingly, Thailand simp ly reiterates that the authorities examined the
application and determined that it contained sufficient evidence of dumping, injury and a causal linkto justify the initiation of the investigation on H-beams from Poland.  Thailand respectfully refers the
Panel to the evidence contained in the documents listed in its response to Question 10.
16. Please indicate how the Thai authorities ex amined "the accuracy and adequacy of the
evidence provided in the application to determine whether there is sufficient evidence to justify
the initiation" of the investigat ion within the meaning of Articl e 5.3 AD, and identify the record
document(s) relevant to this examination.
As stated throughout this proceeding, Thailand considers that Poland has not set forth its
claims in accordance with the DSU.  Thailand does not have the burden of proof in this dispute andneed not demonstrate compliance with each and every aspect of Article VI of GATT 1994 and the
Anti-Dumping Agreement.  Accordingly, Thailand simp ly reiterates that the authorities examined the
application and determined that it contained sufficient evidence of dumping, injury and a causal link
to justify the initiation of the investigation on H-beams from Poland. Thailand respectfully refers the
Panel to the evidence contained in the documents listed in its response to Question 10.
17. To the extent that Thailand considers that it may be relevant to respond to Poland's
allegation in paragraph 89 of its first written submission
31, please provide an English language
                                                     
31 Paragraph 89 of Poland's first written submission r eads, in part:  "[f]irst…the application contained
no evidence  of injury.  Second, the application completely fa iled to offer any reasonable factors explaining howWT/DS122/R
Page 278
translation of the headings to the tables forming part of the petition (Exhibit THAILAND-1), as
well as any narrative sections of that Exhibit that remain exclusively in the Thai language.
The translated non-confidential application is contained in THAILAND - 53.  Thailand
remains uncertain regarding whether this application is or is not relevant to respond to Poland’sallegations, because Poland’s allegations remain vague and imprecise.  As stated in part V of its
Rebuttal, Thailand considers that Poland had the obligation to translate this document and to use it
and/or other record documents to articulate precise claims under Article 5 of the Anti-Dumping
Agreement.  The Panel should not reward Poland’s failure to do so and penalise Thailand for
supplying evidence in good faith.
18. In its first written submission (para. 90), Poland alleges that notification under Article
5.5 AD was "not properly or timely provided" by Thailand.  In its oral statement at the first
meeting (para. 57), Poland "recognise[d] that this claim is based on a disagreement with the
Thai authorities as to the content of discussions held on the 17
th of July 1996 between the DFT
and our Government's Commercial Counsellor in Bangkok".
 (a) Under what circumstances and for what stated purpose was Poland invited to the
meeting by Thailand?
Prior to 17 July 1996, Mr. Michal W. Byczkowski (Commercial Counsellor of Poland)
telephoned Ms. Chutima Bunyapraphasara (Director of the Multilateral Trade Division) to seekclarification regarding an article appearing in “Metal Bulletin”.  The article apparently reported that
SYS had requested that the Government of Thailand investigate dumped steel products from Poland.
See Memorandum from Chutima to Director General, DBE reporting on the meeting (THAILAND -
56).  During the telephone conversation, both parties agreed to meet at the DBE on 17 July in order to
verify the facts of the matter relating to the possible initiation of an anti-dumping investigation.
(b) What occurred at this meeting?  A re there any documents (other than Exhibit
POLAND-4/THAILAND-14) including any invitation to and/or written record of, that
meeting that would indicate to the Panel the nature and content of the meeting?  If so,
please indicate where these are in the record, or provide them to the Panel.
During the meeting, Ms. Chutima informed Mr. Byczkowski that “the Thai steel company has
filed an application requesting the Thai Government to investigate the dumped steel products from
Poland.” Ms. Chutima also informed him that “the matter was under consideration whether the
Company had enough information for the Committee to initiate the investigation.”  Mr. Byczkowskithen suggested to take into consideration during any investigation whether trading firms were the
cause of alleged dumping.  This account of the meeting is taken from Ms. Chutima’s 18 July 1996
report to the Director-General of DBE provided as THAILAND - 56.  The exhibit includes an
unofficial English translation, and the Thai language version shows the initials and thanks from the
Director-General.
In addition, on 9 October 1996, Mr. Amnuay Yossu k, the Deputy Minister of Commerce, sent
a letter to H.E. Mr. Maciej Lesny, the Undersecretary of State, Ministry of Foreign Economic
Relations, Republic of Poland.  In paragraph 2.1, the letter states that
“[t]he Polish Government representatives HAD been notified of the petition PRIOR
to the initiation of the case in full compliance with Article 5.5.  I specifically refer tothe meeting held at the Department of Business Economics on 17 July, 1996.  The
                                                                                                                                                                    
the condition of SYS, the domestic producer, had worsened.  Lastly, no causal link between allegedly dumped
imports and alleged injury was provided."WT/DS122/R
Page 279
Polish delegation, headed by Mr. Michal W. Byzkowski, was fully informed of the
situation current at the time.”
The letter of 9 October 1996 is attached as THAILAND - 57.  Given the letters sent directly to the
Government of Poland (THAILAND - 14 and THAILAND - 57), Thailand is suspicious as to why
Poland did not even acknowledge this meeting in its First Written Submission, thereby preventing
Thailand from presenting a more detailed response to Poland’s purported claims based on Poland’s
views of such meeting.  This action suggests that Poland is intentionally, rather than inadvertently,
manipulating the procedures to deny Thailand a full opportunity to defend itself.
(d) How does Thailand feel that the meeting of  17 July 1996 complied with the requirements
of Article 5.5 pertaining to both the form a nd timing of the notification referred to in
that provision?
Thailand provides a response without prejudice to its position that none of Poland’s claims
under Article 5 are properly before the Panel.  With respect to timing, in its First Written Submission,Thailand notified Poland less than one month after the receipt of the application and six weeks before
the decision to initiate the investigation.  The Draft Recommendation Concerning the Timing of the
Notification under Article 5.5 issued by the Ad Hoc Group on Implementation of the Committee on
Anti-Dumping Practices (the “AHG”) states  that the notification should be made
“as soon as possible after the receipt by the investigating authorities of  a properly
documented application, and as early as possible before any decision is takenregarding initiation of an investigation on the basis of that properly documented
application.”
32
The timing of Thailand’s notification was clearly within this window.  Moreover, Poland has neverclaimed that Thailand issued its notice late, but rather contends that Thailand provided no notification
at all.
With respect to content, Thailand considers that the language of Article 5.5 is extremely
vague and, in fact, gives no indication as to what should be notified between the two specified events.
The Panel in Guatemala - Cement  even noted “that the Agreement does not specify the contents of
that notice.”33  In addition, as evidenced in the Oc tober 1998 minutes of the AHG, WTO Members
remain substantially divided as to what the content of the notification should be.  See
G/ADP/AHG/R/5, paras. 17 and 18 (10 February 1999) (attached as THAILAND - 59).
As shown in the report of the meeting (THAILAND - 56), Thailand indicated that an
application had been received and that the authorities were considering whether it contained sufficientinformation to justify initiation.  Importantly, the re port of the meeting also evidences that Poland was
given the opportunity to comment and did so prior to any decision to init iate the investigation.
Accordingly, Thailand considers that the content of its notification satisfied the requirements of
Article 5.5.  Moreover, it is Poland that must demonstrate that the notification failed to satisfy such
requirements, and it has failed to do so.
19. In its oral statement at the first meeting (para. 57), Poland states that "Article 5.5 is
meant to require written "notice" to the govern ment of the exporting government concerned".
 (b) How do you react to Poland's assertion that Article 5.5 AD requires written notice?
                                                     
32 See THAILAND - 58.
33 Guatemala - Cement  at footnote 225.WT/DS122/R
Page 280
Thailand considers that Poland has not even attempted to justify its position and that the Panel
should reject this interpretation.  The text of Article 5.5 of the Anti-Dumping Agreement does not
specify whether such notice must be written or oral.  This is in contrast to the fact, for example, that
an application must be “written” under Article 5.1 of the Anti-Dumping Agreement.
In its meeting in April 1997, the AHG was still debating the “practical mechanics” of
notification under Article 5.5, including “who should be notified, where, and how.”34 The minutes of
the AHG meeting one year later in April 1998 stated:
“The ‘how’ of the Article 5.5 notification was also discussed, including such
questions as whether an oral notification, or a note verbale , would be adequate, and
who should receive the notification.  In this regard, it was noted that the lack of
diplomatic or other representation in some Members’ capitals might explain why such
notifications were not always received.  Several Members suggested that a list of
contact points for this purpose would be useful.”35
The fact that the AHG established such an indicative list means that the Members consider that
Article 5.5 can be satisfied with oral notification.36
Finally, Thailand considers that its interpretation that notification under Article 5.5 of the
Anti-Dumping Agreement may be written or oral is certainly a permissible interpretation that the
Panel should accept in accordance with Article 17.6(ii) of the Anti-Dumping Agreement.
20. The Panel notes that Poland refers to Article 12 AD in connection with its Article 5.5
claim.
(b) How does Thailand react to Poland's reference to Article 12 AD in this context?
Thailand concedes that it does not understand what Poland means in referencing Article 12.1
of the Anti-Dumping Agreement in the context of Article 5.5.  Thailand simply notes that Poland has
not raised any claims under Article 12 of the Anti-Dumping Agreement and thus claims and the
arguments derived therefrom are not within the Panel’s terms of reference and should be ignored.
With respect to the Panel’s proposed basis to consider Article 12, as provided to Poland in
Question 20(a), Thailand directs the Panel to the analysis of a virtually identical issue under the
Agreement on Safeguards.  In Argentina - Safeguard Measures on Imports of Footwear , the panel
stated:
“In our view, the notification requirements of Article 12 are separate from, and in
themselves do not have implications for, the question of substantive compliance with
Articles 2 and 4 [regarding the determinations of increased imports and serious
injury].”
“Ultimately, should a violation of Articles 2 and 4 be alleged, it would be the more
detailed information from the record of the investigation, and in particular the
published report(s) on the findings and reasoned conclusions of that investigation,
that would form the basis for evaluation of such an allegation.”37
                                                     
34 THAILAND - 60.
35 THAILAND - 61.
36 See G/ADP/AHG/1 (10 Feb. 1999) (THAILAND - 59).
37 WT/DS121/R, paras. 8.298 and 8.300 (25 June 1999).WT/DS122/R
Page 281
Thailand considers that the same analysis would apply here, but with even more force given that
Poland has not even raised a claim under Article 12 of the Anti-Dumping Agreement.  In other words,
notification requirements under Article 12 of the Anti-Dumping Agreement are separate from and do
not have implications for the question of substantive compliance with Article 5 of the Anti-Dumping
Agreement.  Rather, compliance should be measured using the more detailed information from therecord of the investigation.
ARTICLE 6 AD
23. Please confirm whether or not non-conf idential summaries of all confidential
information that was used by the Thai investigating authorities in the anti-dumping
investigation were provided to the Polish responde nts in the course of the investigation.  Please
identify all record documents provided to the Polish exporters in this context.
Thailand confirms that non-confidential summaries of confidential information that was used
by the Thai investigating authorities in the anti-d umping investigation were made available to the
Polish respondents.
The following confidential and non-confidential documents were affirmatively provided to
the Polish respondents:
- Application filed by SYS (THAILAND – 1);- Disclosure to Huta Katowice of information on which the preliminary determination of
dumping was based (THAILAND - 29);
- Disclosure to Stalexport of information on which the preliminary determination of dumping
was based (THAILAND – 31);
- Disclosure of non-confidential information on which the preliminary determination of injury
was based (THAILAND – 33);
- Disclosure of findings for Huta Katowice (THAILAND – 38); and
- Disclosure of essential facts in the Propos ed Definitive Determination (THAILAND - 37).
24. Thailand argues that Article 6.5.1 AD provides that an investigating authority shall
require interested parties providing confidential information to furnish non-confidential
summaries thereof, but that Article 6.5.1 does not require the investigating authorities to
provide those non-confidential summaries to the exporters or to the foreign producers.
(b) What is the legal basis for this assertion?
This assertion is based on a textual interpretation of Article 6.5.1 of the Anti-Dumping
Agreement, which expressly states that the “authorities shall require interested parties providing
confidential information to furnish non-confidential summaries thereof.”  On its face, this provision
does not contain any obligation requiring the authorities to provide non-confidential summaries to
interested parties.WT/DS122/R
Page 282
(c) In this context, what is the relevance, if any, of Article 6.1.2 AD?  Please explain in
detail.
Poland has never claimed or even argued that the Thai authorities acted inconsistently with
Article 6.1.2 of the Anti-Dumping Agreement.  Therefore, Thailand considers that any interpretationof Article 6.1.2 or even a reference thereto is unfair and prejudicial.
(d) What is the legal relationship, if any, between Article 6.4, 6.5.1 and 6.9 AD, on the one
hand, and Article 6.1.2 AD, on the other (e.g., does Article 6.4 encompass Article 6.1.2,
do they pertain to different things, etc.)?
Poland has never claimed or even argued that the Thai authorities acted inconsistently with
Article 6.1.2 of the Anti-Dumping Agreement.  Therefore, Thailand considers that any interpretation
of Article 6.1.2 or even a reference thereto is inappropriate and prejudicial.
25. The Panel notes that Poland refers to Article 12 in the context of its claims under
Article 6.
(b) How does Thailand react to Poland's reference to Article 12 AD in this context?
In its request for the establishment of the panel, Poland did not identify Article 12 of the Anti-
Dumping Agreement.  Therefore, any claims under Article 12 are outside the Panel’s terms ofreference and arguments regarding Article 12 are irrelevant to this proceeding.
Thailand directs the Panel to the analysis of a virtually identical issue under the Agreement on
Safeguards.  In Argentina - Safeguard Measures on Imports of Footwear , the Panel stated:
“In our view, the notification requirements of Article 12 are separate from, and in
themselves do not have implications for, the question of substantive compliance with
Articles 2 and 4 [regarding the determinations of increased imports and serious
injury].”
“Ultimately, should a violation of Articles 2 and 4 be alleged, it would be the more
detailed information from the record of the investigation, and in particular the
published report(s) on the findings and reasoned conclusions of that investigation,
that would form the basis for evaluation of such an allegation.”
38
Thailand considers that the same analysis would apply here, but with even more force given thatPoland has not raised a claim under Article 12 of the Anti-Dumping Agreement.  In other words,notification requirements under Article 12 of the Anti-Dumping Agreement are separate from and do
not have implications for the question of substantive compliance with Article 6 of the Anti-Dumping
Agreement.  Rather, compliance should be measured using the more detailed information from the
record of the investigation.
26. We refer to Tables 1-3 attached to the prop osed final determination of injury in Exhibit
THAILAND-37.  Please identify the specific a ssertions in Exhibit THAILAND-37 and Exhibit
THAILAND-46 derived from the data contained in these tables and explain whether and how
the data in the tables support those assertions.
In the determination of injury, the Thai investigating authorities based their analysis on
questionnaire responses from the Thai and Polish parties. The investigating authorities provided non-
                                                     
38 WT/DS121/R, paras. 8.298 and 8.300 (25 June 1999).WT/DS122/R
Page 283
confidential tables reflecting this information where possible. Thailand considers that the textual
explanation together with the disclosure of information and trends based on actual data adequately
illustrated the basis for the determination made by the Thai investigating authority, while complying
with its obligation to maintain confidentiality of submitted data.
Thailand notes that it does not have the burden to demonstrate before the Panel how each and
every aspect of its findings and analysis (referred to as “assertions” by the Panel) are or are not
supported by the relevant tables.  Rather, it is Poland’s burden to raise claims, including providing the
precise obligation allegedly violated and facts a nd circumstances on which the alleged violation is
based.  Poland has yet to even reach this threshold level of detail.
C. ARTICLE 2 AD
31. Does Thailand believe that the "same general category of products" under Article 2.2.2
AD refers to all H-beams, but not to all steel products produced by the Polish company inquestion?  If so, what is the legal basis for this view?
Thailand considers that in this case the “same general category of products” under Article
2.2.2 of the Anti-Dumping Agreement refers to all H-beams, but not to all steel products produced by
the respondent Polish producer.  However, the concept of “same general category of products” is
subject to interpretation within the particular facts of a particular case, including the data available to
the authorities.  In a case where the investigating authorities have both H-beam and “all-products”information, Thailand considers that it would make more sense to choose the narrower category as the
“same general category of products.” This is because broader and broader categories will encompass
products less and less “like” the products for which a profit is sought to be calculated.  As a result, the
broader the general category definition, the greater the likelihood that the profit calculation will be
inaccurate.
32. Thailand argues, concerning its calculation of the amount for profit used for constructed
value, inter alia, that Huta Katowice maintained a single set of accounting records which
covered all H-beams, seeming to imply that calculation of a separate profit amount just for
home market sales of JIS H-beams was not possible.  Thailand also argues, however, that “[t]heThai investigating authority determined that the profitability of home-market sales of products
identical to those sold to Thailand was ‘virtually  the same’ as the overall profitability of all
home market sales of H-beams.”  On what basi s was the investigating authority able to make
this determination if no accounting data were separately available on home market sales of JIS
H-beams?
It is important to distinguish between the stag es of the investigation.  For the preliminary
determination, which was reached without the benefit of an on-site verification, all information
contained in the Polish questionnaire response was taken into account, and all requests made by the
Polish respondent were preliminarily accepted on face value.  The Polish respondent claimed thatthere were insufficient sales of the like product in the home market, and therefore, the DFT proceeded
to establish normal value on the basis of constructed value.  For the cost of manufacturing (“COM”),
the respondent claimed that exports to Thailand were from a plant designated for JIS production of H-
beams and that this plant produced at lower costs than facilities producing H-beams for the home
market.  As a result, DFT used the COM reported for JIS production only to take account of this
allowance. All other allowances were accepted, including discounts and credit terms. Profit was based
upon the amount actually realised in the home market for all sales of H-beams of both JIS and DINstandard.
For the final determination, adjustments were made in the light of the information obtained
during the on-site-verification.  During this verification, DFT established that there were no separateWT/DS122/R
Page 284
production or stock records for export and for domestic production, and discounts requested were
found to be lower than claimed. As a result, the normal value was adjusted by combining the COM
and the amount declared for administrative, selling and general costs. The profit rate for the final
determination was based on this revised cost compared to the selling price of all (JIS and DIN) home
market sales on a transaction-by-transaction basis. The total profit realised was then expressed on aunit basis by dividing by total domestics sales.
The DFT also demonstrated to the Polish respondents that the profitability of home market
sales of DIN and JIS H-beams were virtually identical. See DFT’s letter to the law firm of Hogan &
Hartson on behalf of respondents responding to the comments received on the proposed finaldetermination, at 3-4  (THAILAND - 41; THAILAND 62).  The calculation consisted of the cost of
production (combined for the final determination) compared to the weighted average selling price of
JIS and then DIN. Id.  No separate production data was therefore required to calculate the profit rate.
As previously expressed, Thailand considers that the Polish exporter may have deliberately
chose to separate DIN and JIS sales on the domestic market to draw the attention of the authorities
away from actual home market selling prices for normal value. A comparison of actual domestic
prices and export prices revealed substantial dumping.
It is also clear that the Polish respondent assumed that normal value based on a constructed
value for a dumping margin calculation would be more preferable in that an average profit margin
could be used.  However, they failed to recognise the standard approach of establishing profit onidentical and/or the same category of goods. As a result of this calculation, the dumping margin
established is virtually identical to the one that would have been established if the respondent had
claimed, and the Thai authorities had accepted, that domestic sales of comparable products were
above 5 percent.
33. The question has been placed before the Panel whether subparagraphs (i) and (ii) of
Article 2.2.2 ADA are “safe havens” whereby applying any one of the methodologies set forth
therein yields a result for profit that is per se “reasonable” in the sense of Article 2.2 ADA, last
sentence, and Article VI:1(b)(ii) of GATT 1994.  The chapeau of Article 2.2.2 ADA sets forth the
preferred methodology for determining inter alia the amount of profit in a constructed value
calculation, and states that when such amount “cannot be determined on this basis” it “may be
determined” on the basis of the methodologies in the subparagraphs (i) and (ii).  The use of the
word “may” in this context could be seen as linking the word “reasonable” in Article 2.2 to
subparagraphs (i) and (ii) (which themselves do not contain the word “reasonable”), thereby
introducing a “reasonability” constraint into these subparagraphs.  Please comment.
First, Thailand disagrees that the term “may” in any way links the term “reasonable” in
Article 2.2 to the methods of calculation in Article 2.2.2.  The term “may” clearly means “is permitted
to” in ordinary and common sense usage.39  Article 2.2.2 essentially states that you are obligated to
calculate administrative, selling and general costs and profits using method X, but if you are unable touse method X, you are permitted to use method Y or Z.
Second, Poland seems to argue that “reasonable” under Article 2.2 operates as a constraint on
the level of constructed value and therefore on the level of the dumping margin.  However, to effect
the purpose of the Anti-Dumping Agreement – to neutralise the impact of dumped imports -
“reasonable” here must mean “as close as possibl e to the actual dumping margin.”  If dumping is
occurring at the rate of 500 percent, then it clearly would be reasonable to use a methodology thatassigns a rate of 500 percent – even if the profit seems in some other sense “unreasonable”.
                                                     
39 The definition of “may” includes “have permission to” or “be free to”.  Webster’s Ninth New
Collegiate Dictionary (Merriam-Webster 1996).WT/DS122/R
Page 285
Third, it follows from the above two observations that the profit calculated under
Article 2.2.2(i), (ii) or (iii) necessarily is reasonable per se , when the relevant conditions for using
Article 2.2.2 (i), (ii) or (iii) are met--that is, when the preferred method for calculating profit cannot be
used.  When the conditions for using Article 2.2.2 (i), (ii), or (iii) are met, there is no permissible wayto measure profit other than by using the methodologies specified under Article 2.2.2 (i), (ii), or (iii).
Thus, in those circumstances, no meaning can attached to the term “reasonable” other than what is
generated by the application of Article 2.2.2 (i), (ii) or (iii), as the case may be.
34. In this context, for purposes of argument only, assume for example that application of
the methodology under subparagraph (i) or (ii) of Article 2.2.2 yields a 300 per cent profit, and
that this profit margin is far in excess of the profit margin on the product for the industry as a
whole.  Would the fact that this result was arrived at based on the correct application of
subparagraph (i) or (ii) make it “reasonable” per se?  Is there any limit on what could be
accepted as “reasonable” results of calculations under subparagraphs (i) and (ii)?
As indicated in Thailand’s answer to Question 33 above, a result arrived at based on the
correct application of Article 2.2.2 (i) or (ii) is per se  reasonable.  The 300 percent profit figure simply
means that the enterprise examined would be dumping at a level far in excess of the level at which
other enterprises would be dumping if they were selling to the foreign market at equally low prices. If
an investigating authority were to reduce the dumpi ng margin because it was out of line with the
industry as a whole, it would be masking, and not accurately representing, the dumping that is actuallyoccurring. Reducing profit from the level that the producer was experiencing under Article 2.2.2(i)
would actually be unreasonable, because it would be less accurate. Such a result would contradict the
purpose of the antidumping duty law, because the foreign producer would be allowed to continuedumping, albeit at a somewhat lower level than before the investigation.
As noted above, there is no limit on what could be accepted as “reasonable” results of
calculations under subparagraphs (i) and (ii).  That is, of course, as long as the methodology of
2.2.2(i) is applied properly.
Thailand considers that what may occur with some frequency in anti-dumping cases is that
respondents anticipate that their dumping may be attacked, and as a result, they develop a marketing
and sales strategy for shielding against dumping findin gs in foreign markets.  The strategy involves a
producer selling a limited quantity of a certain item according to one specification in its home market,
while selling a large quantity of an extremely similar, almost identical item, but made according to a
different specification, to the foreign market.  The purpose of the strategy is to set up a claim thatthere are small but sufficient sales of the “like” product in the home market and use of these sales for
normal value will generate a low or zero margin.  It is important that the Agreement be interpreted in
such a way as to permit anti-dumping authorities to capture such efforts at evasion of legitimate
dumping findings.  (In the particular case before the Panel, the limited quantity of the product sold in
the home market (JIS sales) did not reach the required 5 percent, so there was no question ofcomparing the home market JIS sales to the JIS sales made to Thailand).
The fact is that all H-beams constitute an obvious, natural category, and the respondent must
have the burden to show why there is a major discrepancy caused by using the methodology in
Article 2.2.2(i), particularly when the respondent is costing all H-beams in a single accounting
database and the authorities find that profits on the like product in the home market are virtually
identical to profits for the same general category of products, i.e., all H-beams.
Also, it clearly was not the case in this investigation that the profit level from one product
within the same general category is causing an unreasonably high profit level that was then attributed
to the like product.  The Thai authorities were able to run a check comparing the home market JIS H-WT/DS122/R
Page 286
beam profit level to the DIN/JIS H-beam profit level combined, showing that the profit levels were
“virtually identical.”  Thus, it clearly was the case that the profit calculated for the general category of
products (all home market H-beams) accurately reflects the profit of the like product.40
35. Is the phrase “in the ordinary course of trade” as used in Article 2.2.2 relevant todetermining whether there is a reasonability test for calculations of profits under the chapeau of
Article 2.2.2 and/or its subparagraphs (i) and (ii)?  Please explain.
The phrase sales “in the ordinary course of trade” is not relevant to determining whether there
is a “reasonability test”.  Calculations must always be based on sales “in the ordinary course of trade.”A calculation that included sales not “in the ordinary course of trade” would be an incorrect
calculation - not because the figures calculated were not “reasonable,” but because they were not
based on sales “in the ordinary course of trade.”  In other words, “in the ordinary course of trade” is
an “independent test” for determining whether a dumping calculation has been made correctly. Most
importantly, in the circumstances of our case, neither the petitioner nor the respondent made anyclaim before the authorities that any of the home-market sales were not “in the ordinary course of
trade.”  If either party had raised such a claim, the authorities could have considered whether to
exclude those sales from the profit calculation.  In sum, the Thai investigating authorities were
entitled to assume that all sales were sales in the ordinary course of trade, absent a party
demonstrating that they were not.
D. ARTICLE 3 AD
36. Footnote 9 of the Anti-Dumping Agreement states that, under the Agreement, "the term
injury shall, unless otherwise specified, be taken to mean material injury to a domestic industry,
threat of material injury to a domestic industry or material retardation of the establishment of
such an industry…".  Would Thailand please confirm the nature of the injury found in its finaldetermination, i.e. was it material injury, thre at of material injury or material retardation?
Please indicate the documents in  the record (and specific parts of those documents) that form
the basis for your response.
The Thai authorities based its preliminary and final determination on material injury.  This is
evidenced in the following places in the record:
- Paragraph 5 of the Preliminary Determination states that SYS was “injured”.  See
THAILAND 25.  Although it is not clear from the reference, letters from respondents
contained in THAILAND - 35 and THAILAND - 40 demonstrate that they understood the
basis for the injury determination.
- Page 1 of DFT’s letter responding to respondents’ contention that no showing was made of
material injury.  See THAILAND - 41; THAILAND - 62.
- Paragraph 6 of the DFT’s report to the CDS Committee in which the Secretariat confirms the
recommendation that dumping has caused “material injury”.  See THAILAND - 43.
                                                     
40 Thailand notes that in the case where profits are virtually identical across products within the same
general category of products, the profit rates for the “gener al category” will accurately reflect the profit rate for
the “like” product.  In such case, the level of profit would never reach an “unreasonable” level because it wouldreflect the actual profit earned by the like product in the home market.  This is precisely the level intended to beused under the chapeau  of Article 2.2.2 of the Anti-Dumping Agreement for calculating profit.  In addition,
during the First Oral Hearing, Thailand recalls that the Panel asked whether the absence of a reasonability
constraint would create a disincentive for new or in novative companies to earn high profits.  In fact, no
disincentive is created.  Rather, such a company must simply ensure that it does not discriminate betweenmarkets in earning such large profits.WT/DS122/R
Page 287
- Paragraph 5 of the DIT’s report to the CDS Committee stating that the “DIT is of the opinion
that the imports from Poland had caused material injury.”  See THAILAND - 44.
- Paragraph 2 of the Final Determination states that imports of H-beams from Poland resulted
in “material injury” to the domestic industry and that “[m]aterial injury was found because of
the following reasons: . . . .”  See THAILAND - 46; THAILAND - 63.
37. We note that in paragraph 1.8.2 of Exhibit THAILAND-44, information is provided
concerning Poland’s percent share of total impo rts during three years (31 percent, 48 percent
and 57 percent, respectively).  In paragraph 4.2 of the same document, the same percentages
during the same years seem to be presented as Poland’s share of the Thai market.  Please
clarify.
A word-for-word translation of the first part of paragraph 4.2 is as follows:
“The import of H-beam from Poland expanded continuously by increasing at 16
percent in 1995 by 13 percent during the IP at the same time the total import into
Thailand declined by 25 percent in 1995 and by 4 percent in IP leading to the imports
from Poland when comparing with the total imports increases from 31 percent in
1994 to 48 percent and 57 percent in 1995 and IP, respectively. . .”
See THAILAND - 64.  Both paragraph 1.8.2 and paragraph 4.2 refer to Poland’s percent share of total
imports.
39. To the extent that you feel that it is sign ificant to your case, please provide in the same
table format as described above the informat ion that you consider relevant concerning the
Article 3.4 factors such as requested from Poland in question 38.
As stated in response to Question 7(b) from the Panel, Thailand considers this question to be
unfair and prejudicial to Thailand’s defence.  Thailand considers that it should not be placed in a
position to determine whether such a table is or is not significant in the absence of any specific claims
from Poland regarding Article 3.4.  However, in order to respond in good faith, Thailand will provideits views on the appropriate interpretation of Article 3.4 and will provide a response to the Question
based on its understanding of Poland’s purported claims as set out in its First Written Submission.
First, Thailand supports the EC’s interpretation as a permissible interpretation of Article 3.4
of the Agreement.  Accordingly, Thailand similarly believes that Article 3.4 does not set forth a list ofmandatory factors that must be considered in every case.  As the EC stated in paragraph 40 of its
Third Party Submission, the 1992 panel in United States - Salmon  confirmed the illustrative nature of
the list of factors.
41  Although this finding was made under the slightly different language of the
Tokyo Round Code, the illustrative nature of the list  is still confirmed by the use of the two words
“or” within Article 3.4 of the Anti-Dumping Agreement.
                                                     
41 In addition to the citation cited by the EC, the panel also stated that it
"considered, in light of its review of the analysis undertaken by the USITC that theUSITC had not failed to carry out ‘an evaluation of all relevant economic factors andindices having a bearing on the state of the industry’ as provided for in Article 3:3.The factors considered by the USITC (consumption, production, productioncapacity, shipments, employment sales, profits and operating losses, cash flow) were
specifically mentioned in the (illustrativ e) list of ‘relevant economic factors and
indices’ in Article 3:3.”
Report by the Panel, United States - Imposition of Anti-Dumping Duties on Imports of Fresh
and Chilled Atlantic Salmon from Norway , ADP/87, para. 537 (adopted 27 Apr. 1994).WT/DS122/R
Page 288
Thailand recalls that the Panel provided the fo llowing hypothetical (or one similar thereto) to
the Third Parties:  When could a decision be made if a treaty provided that “a decision must be agreed
to by all major trading nations, including the EC, Japan and the United States”?  The Panel then asked
whether the Third Parties agreed that all three listed nations must agree in order for a decision underthe treaty to be effective.  Thailand considers that a more appropriate hypothetical would be: When
could a decision be made if a treaty provided that “a decision must be agreed to by all relevant major
trading nations for which the decision has a bearing, including the EC, Japan, or the United States;
Australia; Brazil, Argentina, or Venezuela.”  Under this hypothetical, it is clearly not the case that all
of the nations listed must agree in order for a decision to be effective.  The only question is whetheronly the countries for which the decision is relevant as having a bearing must agree or whether at least
one country from each of the groups divided by semi-colons must agree.  In any event, under the EC’s
interpretation, it is clear that Thailand complied with Article 3.4.
To the extent that the Panel rejects the above interpretation, Thailand considers that only one
other permissible interpretation exists that gives full effect to the text of the provision in its context
and with consideration of its object and purpose.  This interpretation provides that an authority must
conduct “an evaluation of all relevant economic factors and indices having a bearing on the state of
the industry.”  These relevant economic factors include the following four factors: (1) actual and
potential decline in sales, profits, output, market share, productivity, return on investments, orutilisation of capacity; (2) factors affecting domestic prices; (3) the magnitude of the margin of
dumping; and (4) actual and potential negative effects on cash flow, inventories, employment, wages,growth, ability to raise capital or investments.  Notably, these “factors” provide more flexibility than
the factors listed in, for example, the Agreement on Safeguards, as should be the case given the lower
standard of injury in the Anti-Dumping Agreemen t.  Factors (1) and (4) relate to the actual and
potential “decline” or “negative effects” on a series of indices separated by “or”.  Thus, an evaluation
of factors (1) and (4) involve an evaluation of the actual and potential decline or negative effect of atleast one of the indices in each of the lists.  Factors (2) and (3) are somewhat vague and suggest that
the authority has wide discretion regarding how to evaluate them.
Poland’s only purported claim is that Thailand “chose not to present evidence regarding
profits, losses, profitability or cash flow.” Under the Panel’s interpretation, Poland is apparentlyclaiming that Thailand failed to “consider” factors (1) and (4), but has not claimed that Thailand failed
to evaluate them.  Thailand provides the following table based on Poland’s purported claim.WT/DS122/R
Page 289
Factor Consid.? Where42Eval.? Where
(1) actual or potential decline in
sales, profits, output, market
share, productivity, return on
investments, or utilisation of
capacityYes Profits/losses and profitability
considered:
-  Para. 11 and attached table
in THAILAND – 37
-  Page 1 ofTHAILAND – 41
-  Pages 3 and 11-12 in
THAILAND – 44
-  Paragraph 2.3 in
THAILAND – 46N/A N/A
(2) factors affecting domestic
pricesN/A N/A N/A N/A
(3) the magnitude of the margin
of dumpingN/A N/A N/A N/A
(4) actual and potential negative
effects on cash flow, inventories,employment, wages, growth,
ability to raise capital or
investmentsYes Cash flow considered:
- Paragraph 2.3 inTHAILAND – 46N/A N/A
“N/A” - Not Applicable
40. Please comment on the hypothesis that a two-stage analysis of the factors listed in
Article 3.4 ADA is required.  The first stage would be an initial “consideration” to determine
the “relevance” or lack thereof of each listed fact or and an identification of any other non-listed
factors that also were relevant.  The second stage would be a full analysis of all of the factorsthat had been identified as relevan t.  In other words, the factors in Article 3.4 would be seen as a
checklist of what would need to be “considered” in respect of whether or not each factor was
relevant.  If a given factor were deemed not to be relevant, the analysis of that factor could stop
at that point.  Under this hypothesis, the final determination would have to address each factor
in the checklist, and for each of those that ha d been deemed not to be relevant would simply
indicate that this was the case and why.  For ea ch relevant factor, the final determination would
have to indicate why it had been deemed to be relevant and in addition would have to contain a
full “evaluation” of it.  (Please note that th e reference to the “final determination” is not
necessarily intended to imply the public notice th ereof, but rather the report compiled by the
investigating authority concerning the investigat ion, which might or might not be the same as
the public notice.)
(a) Please indicate whether you agree or disagree with all or part of this hypothesis and
explain in detail the legal basis for your view.
Thailand considers that the above analytical approach could be used by an investigating
authority.  Thailand, however, does not find any support in the text of the article itself for imposing an
obligation that such authority indicate whether a factor is or is not relevant and why.  The text of
Article 3.4 of the Anti-Dumping Agreement is much more limited and merely states that “[t]he
examination . . . shall include an evaluation.”
Thailand considers, therefore, that the only question for the Panel is whether, in accordance
with the applicable standard of review, the au thority conducted the referenced evaluation.  If an
                                                     
42 The statements in the record were provided in paragraphs 98 to 101.  Poland has offered no response
to Thailand’s position.WT/DS122/R
Page 290
authority has made such evaluation, the Panel may then move to determine, again under the applicable
standard of review and if within the matter in disp ute, whether this evaluation supports an affirmative
injury determination.  Finally, Thailand notes that in this particular case, the interpretation of
Article 3.4 is not relevant to address the specific claims raised by Poland.  Poland had the obligation
to present and to prove its claim that a particular factor was or was not evaluated.  Poland has neitherpresented nor proved such a claim in its affirmative case or otherwise.
(b) If you disagree with this hypothesis, pl ease explain how, without “considering” each
factor, its relevance or irrelevance can be judged.
Thailand considers that it is solely for the Thai  authorities, not for a panel, to judge whether
certain factors as relevant or not.  The text of the Agreement does not provide for such an assessment,
indicating that the drafters viewed such “consideration” as wholly within the discretion of an authority
which has the requisite expertise to make such a judgement.  Thus, in accordance with the text of
Article 3.4, with the matter in dispute and with the applicable standard of review, the Panel is toreview only whether the authority has or has not conducted an examination in which it evaluated
factors.  The factors examined are those that the authority itself considers relevant and such
consideration is not subject to a panel’s review.
(c) Is it your view that if an examination of se veral factors led to a conclusion of injury, it
would not be necessary to “consider” any of the other factors?  Please explain.
Thailand considers that this would only be the case if the remaining factors, even if found
relevant and found to indicate no injury, could not counterbalance the finding of injury using the
evaluated factors.  Article 3.4 seems to contemplate this in stating that “[t]his list is not exhaustive,
nor can one or several of these factors necessarily give decisive guidance.” (Emphasis added)  The use
of “necessarily” suggests that even one factor alone could give decisive guidance.
Thailand considers that the Panel must distinguish between an appropriate (or most
appropriate) method for an authority to conduct an anti-dumping investigation and the manner in
which a WTO panel reviews an investigation to determine whether it is consistent with the Anti-
Dumping Agreement.  If a Member considers that  the authorities of another Member reached an
affirmative injury determination inconsistently w ith its obligations under Article 3.4, the complaining
Member has the burden to present and prove such claim.  The complaining Member could claim, for
example, that the authority’s determination was biased or subjective because it failed to evaluate a
particular factor or factors that if evaluated woul d outweigh the negative impact shown by the factors
actually evaluated.   The Panel would then review the Thai authorities’ approach to determine ifomitting the evaluation of such factor was biased or subjective.
41. Please describe the nature of the “relevance” of a factor in the context of Article 3.4
ADA. Is a factor “relevant” only when it supports an affirmative finding of injury, or should
“relevance” be judged on a more broad basis, for example in the sense of whether or not aparticular factor is informative as to the “state of the industry”?  Is a factor also “relevant”
when it does not support an affirmative finding of injury?  Please explain in detail.
Thailand considers that a factor is “relevant” if its analysis could potentially impact the
investigating authorities’ determination of injury by having a bearing on the state of the industry.
Thailand considers that a factor not supporting an affirmative finding of injury may well be relevant
to the injury analysis.
42. What is the significance of the fact that the term “such as” in Article 3.3 of the Tokyo
Round Anti-dumping code was changed to “including” in Article 3.4 of the Uruguay Round
Anti-dumping Agreement?  If no change in  meaning was intended, why was a change inWT/DS122/R
Page 291
terminology made?  According to the Concise Ox ford Dictionary (1990 ed.), the verb “include”
means to “comprise or reckon in as part of a whole” or to “enclose”.  The term “such as” means
“like” or “for example”.  Please explain in what sense, if any, these definitions could be viewed
as synonymous.
Thailand believes that the drafters did not intend  that this change in the language of the Anti-
Dumping Agreement would have any effect on the inte rpretation.  In the context of the Anti-Dumping
Agreement, Thailand considers “such as” and “including” to be synonymous to the extent that they
both require an investigating authority to evaluate all relevant factors set out after “such as” or
“including”.  Moreover, Thailand’s position that the change was unintentional is supported by the fact
that the drafters also rearranged the items listed in Article 3:3 of the Tokyo Round Code from “output,
sales, market share, profits” to “sales, profits, output, market share” in Article 3.4 of the Anti-
Dumping Agreement.
Thailand considers that regardless of the effect given to “including”, the Panel must also give
effect to the two uses of the word “or” in Article 3.4.  Finally, Thailand notes that no matter how
Article 3.4 is interpreted, an investigating authority must still have a basis for finding material injury,
whether using one or numerous factors and whether consideration of the factors is mandatory or not.
43. Please comment on the use of the word “or” at two places in the list of the factors in
Article 3.4 ADA, as well as on the use of semi-colons between subgroups of factors in that
Article.  In particular, what is the significance,  if any, of the fact that the word “or” appears
only within subgroups of factors which are separated by semi-colons, and not between  those
subgroups?
Thailand supports the arguments advanced by the European Communities’ in paragraph 41 of
its Third Party submission:
“the presence of the conjunction “or” to link some of the listed factors necessarily
implies that the investigating authorities are left the discretion to decide which of the
factors and indices listed can be considered relevant and which not in each particular
case.  If the Article 3.4 list had a mandatory nature and “all” factors and indices listedhad to be evaluate, the drafters of the ADA would have used the conjunction “and”,
as they had not hesitated doing in many other contexts.”
In the alternative, Thailand directs the Panel to it s permissible interpretation in response to Question
39 from the Panel.  That interpretation gives the appropriate meaning and effect to the use of “or”
within relevant factors.  Thailand disagrees with the Panel’s narrowing of the term “factors” to meanless than what is separated by the semi-colons.
46. To the extent that you feel that it is significant to your case, please provide the
information that you consider relevant concerning the determination of causation such as
requested from Poland in question 44.
Thailand considers that it is unfair and prejudicial to ask Thailand to consider whether such a
question is or is not significant in the absence of any specific claims from Poland regarding
Article 3.5.   In any event, as stated in response to Question 7(b), Poland has offered no new
arguments or assertions regarding Thailand’s compliance with Article 3.5. Moreover, it is not
Thailand’s burden to demonstrate compliance with each and every aspect of Article 3.5 in the absence
of any properly presented or precise claims to the contrary.  As a result, Thailand can only direct thePanel to its response already provided in paragraphs 107 and 108 of its First Written Submission.  In
good faith, Thailand also directs the Panel, inter alia , toWT/DS122/R
Page 292
- Paragraphs 1 to 16 of the Draft Information on Injury and the attached tables;
- Confidential Table attached as THAILAND - 67 reflecting in English the information on
average quarterly prices supplied to the CDS Committee and the non-confidential information
reported to Poland;
- Pages 1-2 of DFT’s response to Hogan & Hartson (THAILAND - 62; THAILAND - 41);- Sections 1, 3, 4, and 5 of the Confidential Report to the CDS Committee (THAILAND - 44);
and
- Paragraphs 2.2 to 2.5 in the Final Determination (THAILAND - 45).
47. To the extent that you feel that it is significant to your case, please provide the
information that you consider relevant concern ing the consideration of factors other than
imports such as requested from Poland in question 45.
Thailand considers that it is unfair and prejudicial to ask Thailand to consider whether such a
question is or is not significant in the absence of any specific claims from Poland regarding Article
3.5. For example, Poland has never indicated where respondents raised any specific concern regarding
the effects of the Kobe earthquake that were not analysed in the context of the effects of global market
conditions.  As a result, Thailand can only direct the Panel to its response already provided inparagraphs 109 to 115 of its First Written Submission.
48. Where in the record is the substantiation  for your assertion concerning which producer,
Huta Katowice or SYS, was the price leader dur ing the POI?  Where in the record are the
supporting data relevant to your views concernin g the finding of price suppression/depression?
As the record reflects, SYS decreased its prices in negotiations with its customers in order to
keep or win business in the face of unfair import competition.  To do so, it had to match consistently
lower Polish offer prices.  However, the Polish imports certainly won a considerable amount of
business, despite SYS’s attempts to compete, and the prices displayed in the sales made by therespondents were lower than those otherwise seen in the domestic market.  Thus, Polish prices were
lower both in the sense that their offer prices to cu stomers were lower, forcing SYS to lower prices to
meet the competition, and in the sense that the sales that they did win were at even lower prices.  The
“price leader” statement is based on these effects in the market.
As provided in response to Question 10 from Poland, it is also instructive to view the
movements of actual prices, given the fact that the Polish respondent offered a price [X-Conf .]
months in advance of delivery, and SYS offered a price [X-Conf.]  month in advance.  As a result,
SYS was competing with prices in, for example, Quarter 1 that were reflected in Polish price data for
Quarter 2.  Thus, using the confidential average quarterly prices provided in THAILAND - 67, theauthorities’ comparison of quarterly price movements was as follows:
Period Poland Movement Period SYS Movement
QTR 2/95 [P] QTR 1/95 [P+ 1,000.38]
QTR 3/95 [P+ 739.21] + QTR 2/95 [P+ 2,104.38] +
QTR 4/95 [P+ 2,422.32] + QTR 3/95 [P+ 3,002.38] +
QTR 1/96 [P+ 605.37] - QTR 4/95 [P+ 2,869.38] -
QTR 2/96 [P+ 174.82] - QTR 1/96 [P+ 1,974.38] -
Thus, SYS prices and Polish prices not only moved in the same direction, but the Polish respondent
was the price leader.WT/DS122/R
Page 293
The data relevant to the authorities’ finding of price depression and suppression can be found,
inter alia , in THAILAND - 1, THAILAND - 20 (section G), THAILAND - 52, THAILAND - 53
(Summarised Information of SYS, additional information submitted on 15 July 1996), and
THAILAND - 68 (attachment G-2 to SYS injury questionnaire response).
49. Under what circumstances, or in respect of  what sorts of factors, if any, is it the
responsibility of the investigating authority to seek information concerning the potential effects
of “known” factors other than dumped imports that might be causing injury, and when does the
responsibility fall to the responding party to  bring such issues to the attention of the
investigating authority?  For example, if the importing country is in an economic recession,
certainly the authority and all interested parties will “know” this. Would the authority have the
responsibility on its own initiative to try to identify the specific effects of the recession in the
domestic market for the product under investigation, or would it only have to consider this issue
if it were raised by an interested party?  Would it  make a difference if the factor in question was
not something widely known but rather was known only to the investigating authority and the
domestic industry (i.e., not to the respondent)?  Please explain and provide the legal basis for
your view.
Thailand respectfully refers to its response in paragraphs 109 to 115 of its First Written
Submission.  The responsibility to seek information concerning potential effects of “other factors”
only arises when such factors are made “known” to the investigating authority in the context of theinvestigation at issue.  In Thailand’s view, “other factors” can only be “known” to the investigating
authority if they are evident from responses from interested parties, i.e., either the petitioner or
respondents.  This position is supported by the use of the term “known” in Article 3.5 and the use of
the language “[f]actors which may be relevant in this respect include, inter alia . . . .”
If a particular region is in an economic recession, the authorities and interested parties may
generally have knowledge of it.  However, the au thorities cannot be presumed to “know” that the
economic recession in any way has an effect on the state of the particular industry under investigation
for purposes of Article 3.5 of the Anti-Dumping Agreement.  Without input from interested parties,
the investigating authority cannot be expected to af firmatively identify the infinite number of “other
factors” that may or may not affect the domestic i ndustry.  In fact, when looking at the next step, i.e.,
injury caused by such other factor, it would s eem logical that the respondents must raise some
presumption that the other factor is causing injury to the domestic industry.  This would be no
different that the petitioner’s burden to show material injury as a result of dumped imports.
Otherwise, investigating authorities would be left with an infinite number of factors for which injuryassessments would need to be made.
With respect to the final question, Thailand reiterates that if a factor becomes “known”
because it was referenced in submissions from intere sted parties then the authorities must determine
whether such factor is or is not injuring the domestic industry.  It appears that the Panel’s questioningsuggests that investigating authorities should be ob ligated to seek out any obscure factor that the
petitioner has not disclosed, that is not known to the respondents, but that is nevertheless an “other
factor” causing injury.  Thailand views such a standard as impossible to meet, given the infinite
number of industry-specific factors that could affect the state of an industry and the limited resources
available to most authorities.  The respondents must take some responsibility for defending their
interests and some responsibility to know and present the factors that may affect an industry in which
they are directly participating.WT/DS122/R
Page 294
E. ARTICLE 17.6 AD:  STANDARD OF REVIEW
50. Would Thailand please discuss in detail in what respects it believes that Article 17.6 AD
“defines” and “modifies” Members’ obligations under the AD Agreement.  Where, specifically,would these considerations be relevant to the Panel's examination in this dispute?
The obligations of a WTO Member applying anti-dumping measures are substantively
defined by the specific provisions of the Anti-Dumping Agreement, such as Articles 2, 3, 5 and 6.
However, a Member’s compliance with such obligations is determined based on panel review underthe standard of review provided under Article 17.6 of the Anti-Dumping Agreement.  In other words,
the Panel is to examine compliance only and exclusively through the lens of Article 17.6.  Thus,
although the substantive and procedural obligations imposed on a Member remain unaffected by
Article 17.6, they are as such not the object of these proceedings.  Therefore, the Panel could only
find Thailand in violation of its procedural or substantive obligations after applying the standard ofreview under Article 17.6 in order to determine compliance.  It is only in this sense that the relevant
procedural and substantive obligations of Thailand are “defined” or “modified” by Article 17.6.
Although the Panel could examine whether Thailand has complied with a particular
substantive obligation, such exercise would seem academic if it does not help answering the relevant
questions posed by Article 17.6: (1) Did Thailand not properly establish the facts?  (2) Were the Thai
authorities acting with bias in their evaluations? Were the evaluations subjective (or un-objective)?(3)  Are the interpretations applied by the Thai authorities impermissible under customary rules of
treaty interpretation?  In other words, although Thailand may be substantively obligated to provide a
correct establishment of the true facts, this obligation is not subject to panel review. Only a part, or
less stringent version, of such obligation is in dispute: the proper establishment of the facts.  If the
establishment of the facts was proper, it is irrelevant whether, in the end, the facts turn out to bedifferent than established.  Moreover, although Thailand may be substantively obligated to provide
correct  evaluations of the facts, this obligation is not subject to panel review. Only a part, or a less
stringent version, of the obligation is relevant: the unbiased and objective  evaluation.  Finally,
although Thailand is substantively obligated to apply the correct interpretations of provisions of the
Anti-Dumping Agreement and although panels and the Appellate Body are competent to provideauthoritative and thus correct  interpretations of the WTO Agreement, the question is not whether the
interpretation applied by Thailand is the correct  one, but whether it is a permissible one.
51. Would Thailand please explain its statement that in most instances, Article 17.6(i),
rather than Article 17.6(ii), is the standard to be applied to the Thai authorities’ examinations
and determinations.  That is, to what particular  aspects of the investigation at issue in this
dispute does each apply?
The crucial steps in anti-dumping investigations are the authorities’ determinations, or
assessments of dumping, injury and causation.  Of course, it is a matter of legal interpretation whatthe actual terms “dumping”, “injury” and “causation” mean.  However, once a (permissible)
interpretation of these concepts is found, and once the relevant economic data or facts are (properly)
established, the actual assessment or conclusion whether there is such dumping, injury and causal link
is a matter of an (unbiased and objective) evaluation of the economic facts established, i.e., review
under the “evaluation” clause of Article 17.6 (i).
As Thailand has repeatedly stated throughout this dispute, Poland has failed to even assert,
much less substantiate, that Thailand has failed to establish the facts properly, failed to make unbiased
or objective evaluations, or failed to apply permissible interpretations.  Thus, Thailand remains
uncertain as to both the purported claims at issue in this dispute and the applicable standard of reviewWT/DS122/R
Page 295
provision of Article 17.6 that should apply to such issues.  Again, Poland’s approach has directly
resulted in denying Thailand the opportunity to offer a meaningful response to the Panel’s question.
In general, Thailand considers that Article 17.6 addresses the specific steps to be taken in an
anti-dumping investigation under the Anti-Dumping Agreement and establishes different levels ofdeference with regard to the aspects of these steps.  In addition, Thailand does not agree that
paragraph (i) of Article 17.6 is solely “about facts” and Paragraph (ii) is solely “about law.” The
question here is: which step in the investigation by the Thai authorities is addressed under which part
of the specific system of review established by Article 17.6 of the ADA?
Article 17.6 (i) is intended to specifically address the application of law to fact (or “mixed
questions”) in the context of the authorities’ determ inations in anti-dumping investigations and to take
account of the fact that these evaluations are primarily economic in nature.  The drafters of
Article 17.6(i) have clearly, and appropriately, established a standard providing that these evaluations
are highly complex and cannot usefully be replaced by panel review beyond the exclusion of bias andsubjectivity. Thailand considers that the requirement of “unbiased and objective evaluation” in
Article 17.6 (i) constitutes the lex specialis for the entire process of determination, or assessment, of
dumping, injury and causation.
Past panels have understood this clearly and applied Article 17.6 (i) accordingly.  The panel
in United States – DRAMs  was called upon to examine the determinations made by the U.S.
investigating authorities regarding the requirement that the data examined “reasonably reflect the
costs associated with the production and sale" under Article 2.2.1.1 of the Anti-Dumping Agreement.
Of course, this determination arguably involves a legal step of interpretation,  inter alia,  of the terms
“reasonably” and “associated with”.  However, the panel concluded without hesitation that this
complex and primarily economic assessment by the authorities, as a whole, is an “evaluation” under
Article 17.6 (i):
“ [I]n light of Articles 17.5(ii) and 17.6(i)  of the AD Agreement, Korea's claim would
require us to determine whether, given the record evidence before the DOC, an
unbiased and objective investigating authority could properly have found that the
Flamm study did not ‘reasonably reflect the costs associated with the production andsale’ of DRAMs.”
43
Of course, before applying this test and the standard of Article 17.6 (i) of the Anti-DumpingAgreement, the panel had first to examine whether Korea’s legal interpretation, i.e., that
Article 2.2.1.1 of the Anti-Dumping Agreement requires a Member to accept projections of future
costs based on historical cost data as relevant data, was “permissible” under Article 17.6 (ii).  Oncethe panel accepted Korea’s legal interpretation for the sake of argument, however, the complex
assessment as a whole and the conclusions by the investigating U.S. authorities were a matter of
“unbiased and objective evaluation” in accordance with Article 17.6 (i).
Other panels have applied Article 17.6 of the Anti-Dumping Agreement in a similar way.
Notably, they have done so in the context of  Article 5.3 of the Anti-Dumping Agreement, i.e.,
examining the question of whether there was “suffici ent evidence” to initiate an investigation.  The
panels in Guatemala – Cement and Mexico – HFCS found that the determination of “sufficient
evidence” is an evaluation within the meaning of Article 17.6 (i):
“What constitutes ‘sufficient evidence’ to justify the initiation of an anti-dumping
investigation is not defined in the ADP Agreement.  In this case, of course, we are
                                                     
43  United States – DRAMs , Panel Report, WT/DS99/R, para. 6.67. See also paras. 6.69, 6.72 and 6.73.WT/DS122/R
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bound by the requirements of Article 17.6(i) of the ADP Agreement as the standard
of review applicable to our examination of the Ministry's decision to initiate.”44
“We believe that the approach taken by the Panel in the Softwood Lumber dispute is
a sensible one and is consistent with the standard of review under Article 17.6(i) .
Thus, we agree with the Panel in Softwood Lumber that our role is not to evaluate
anew the evidence and information before the Ministry at the time it decided to
initiate.  Rather, we are to examine whether the evidence relied on by the Ministry
was sufficient, that is, whether an unbiased and objective investigating authority
evaluating that evidence could properly have determined  that sufficient evidence of
dumping, injury, and causal link existed to justify initiating the investigation.”45
(Emphasis added, footnote omitted)
Thailand considers that if the standard of Article 17.6 (i) – unbiased and objective evaluation – covers
the act of determining that there is “sufficient evidence” of dumping, injury and causal link, it also
covers a fortiori the act of determining the actual existence of dumping, injury and causal link.
52. Please comment on the relationship, if any, between Article 17.6 ADA and Article 11
DSU, in particular whether or not these provisions must be read together, drawing on elements
from both except to the extent that they “differ” in the sense of Article 1.2 DSU, in which case
Article 17.6 ADA would prevail.  Please comment on whether you believe this is the correct
approach, and whether you do or do not see such a “difference” between Article 11 DSU and
Article 17.6 ADA.  Please describe any such diffe rence.  In this context, please discuss the
Appellate Body’s statement in Argentina – Footwear Safeguard:
“[F]or all but one of the covered agreements, Article 11 of the DSU sets forth the
appropriate standard of review for panels1.  The only exception is the Agreement
on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994, in which a specific provision, Article 17.6, sets out a special
standard of review for disputes arising under that Agreement” (underlining
supplied).
 ___________________________________
1  See e.g., Appellate Body Report, EC Measures Concerning Meat and Meat Products
("European Communities – Hormones"), WT/DS26/AB/R, WT/D S48/AB/R, adopted
13 February 1998, paras. 114-119;  Australia – Salmon, supra, footnote 26, para. 2.67
Thailand agrees with the Appellate Body’s dictum in Argentina – Footwear.  Article 11 of the
DSU provides the standard of review applicable to all covered agreements, including, in principle, the
Anti-Dumping Agreement, but only to the extent that Article 17.6 of the Agreement as lex specialis ,
expressly listed in Appendix 2 of the DSU, does not provide for a “different” standard.  As Thailand
has explained during the course of these proceedings, this standard is clearly different from the one
established by Article 11 of the DSU and provides for considerably more deference  with respect to
the establishment of the facts, the evaluation of the facts, and the interpretation of the applicable
provisions of the Anti-Dumping Agreement.
Article 11 of the DSU asks a panel to make an “objective assessment of the matter before it,
including [1] an objective assessment of the facts of the case and [2] the applicability of and
conformity with the relevant covered agreements.”  It is clear that for both steps, Article 17.6 of the
Anti-Dumping Agreement provides for a specific approach to the review of an anti-dumping measure,
                                                     
44 Guatemala – Cement, Panel Report, WT/DS60/R, para 7.54.
45  Mexico – HFCS , Panel Report, WT/DS 132/R, para. 7.57.WT/DS122/R
Page 297
and thus differs from the standard of review under Article 11 of the DSU.  For example, in reviewing
an anti-dumping measure, a panel is not to make an “objective [( i.e., authoritative)] assessment of the
facts” and determine the measure’s “conformity with the relevant covered agreements [( i.e., with the
panel’s interpretations)].”  Rather, “in its assessment of the facts of the matter”, a panel is to examine
solely whether the authorities established the data properly and whether their evaluation was unbiasedand objective.
Thailand also considers that Article 17.6(ii) is “different” from Article 11 of the DSU
regarding the interpretation of the pertinent provisions of the Anti-Dumping Agreement.  Article 17.6
(ii) applies to all provisions relevant for the question before the panel, i.e., whether the defending
Member and its authorities acted in accordance with  the provisions of the Anti-Dumping Agreement.
Article 11 of the DSU directs a panel to assess the conformity of a Member’s actions with the relevant
covered agreement.  In other words, it directs a panel to review whether a Member’s applications of
law are correct, i.e., consistent with the Panel’s own authoritative interpretations of that agreement.
Article 17.6 (ii) provides for a different, special st andard with regard to all interpretations in the
application of the Anti-Dumping Agreement: Where the application of legal concepts outside of the
complex determinations themselves is concerned, the Panel is bound to assess the conformity of the
measure with the Anti-Dumping Agreement not, as usually under Article 11 DSU, according to its
own interpretation of the same but according to all interpretations that are to be respected as
“permissible”.
53. The parties seem to agree that the appropriate standard of review is somewhere between
de novo review and total deference.  We note that within Article 17.6 itself, the two
subparagraphs arguably could be viewed as esta blishing different levels of review or deference
pertaining to two different types of issues.  Subparagraph (i) concerns facts and arguably
requires a considerable degree of deference and thus relatively limited review by a Panel.  By
contrast, subparagraph (ii) concerns issues of law and the question of multiple “permissible”interpretations of a given provision of the ADA, among which a national investigating authority
is free to choose.  Some commentators believe th at rarely if ever can there be more than one
permissible interpretation of any given treaty pr ovision.  This might arguably mean that the
required degree of deference under (ii) would be less than under (i).    Furthermore, the
question arises as to when, if at all, the establishment or evaluation of “facts” by aninvestigating authority becomes a question of law or legal interpretation under the Anti-
dumping Agreement (e.g., where the issue is whether a certain set of facts satisfies a given treaty
provision).  The question of this “penumbra” between fact and law could be particularly
relevant in the context of the Anti-dumping Agreement.
(a) Please comment on your views as to the nature of the differences between the  two
subparagraphs of Article 17.6 (coverage, degree of deference required, etc.).
Thailand refers to its Responses to Questions 50 to 52 above regarding its views on the
coverage of the two subparagraphs of Article 17.6 of the Anti-Dumping Agreement.  Thailand wishesto emphasise that it does not consider that subparagraph (i) of Article 17.6  is limited strictly to
“facts”.  Article 17.6 (i), in Thailand’s view, clearly deals with questions of the application of legal
concepts to facts (or the “penumbra”) in the evaluation of whether, for example, an authorities
determinations of dumping, injury and causal link are consistent with its obligations under the Anti-
Dumping Agreement.
Regarding the degree of deference, Thailand refers to its extensive treatment of the issue in its
First Written Submission.  Thailand considers that a Member’s authorities must be accorded
substantial deference under Article 17.6(i) in order to uphold the intent of the drafters.  With respect
to Article 17.6 (ii), Thailand considers respectfully that it is not necessarily relevant whether
commentators would conclude that rarely, if ever, may there be more than one “permissible”WT/DS122/R
Page 298
interpretation under the customary rules of treaty interpretation, as codified in Articles 31 and 32 of
the Vienna Convention.  Thailand submits that this is a narrow and incorrect reading of the term
“permissible”, which was introduced precisely to allow panels more flexibility for accepting legal
interpretations on the highly complex and technical legal provisions under the Anti-Dumping
Agreement.
Of course, it is the very purpose of rules of interpretation and of interpretation itself to ideally
lead to one interpretation.  However, it seems rather odd to assert that this is always, or even
regularly, the case in practice.  This would mean, for example, that a panel would have to ignore the
significant disagreement among the WTO Members, i.e., the parties to the treaty, within the AHG
regarding the correct interpretation of numerous key provisions.  It would also mean that the panel
would necessarily remove most of the value of academic discussions by learned legal scholars, as all
but one of the diverging interpretations advanced  in such debates would have to be considered
“impermissible”,  i.e., not justifiable under the customary rules of treaty interpretation.
The text, the context, the object and purpose, the subsequent practice, and the negotiating
history of the provision strongly suggest that there is often room for diverging “permissible”
interpretations of provisions of the Anti-Dumping Agreement.  The term “permissible,” thus,
recognises the fact that in many cases there will be disagreement on the correct interpretation, even
among WTO Members and learned experts applying customary rules of treaty interpretation.
Thailand respectfully submits that the Panel should gi ve due weight to this term and to interpret the
corresponding elements of Article 17.6 (ii) accordingly.
(b) Please also describe the standard of review that you believe should apply to issues that
fall within the penumbra between factual and legal issues as described above.  Is it the
standard in 17.6(i), 17.6(ii), or some other standard.  Please explain in detail.
Please see Thailand’s response to Question 53 (c) below.
(c) Please identify the standard of review (subparagraph (i), subparagraph (ii) or a
standard of review applicable in the penumbra if different from (i) or (ii)) that you
believe is applicable to each issue before th e Panel in this case, and please explain your
reasoning.
Thailand notes again that the standard of review applicable to the “penumbra” between law
and fact is found in the “unbiased and objective evaluation” portion of Article 17.6(i).  As stated
throughout this proceeding, Thailand does not know the precise issues before the Panel becausePoland has failed to present them properly and with any degree of clarity. Thailand’s inability to
respond to this question with any detail simply evidences the continuing prejudice to its defence
caused by Poland’s imprecise pleading and its violation of Thailand’s due process rights under
Article 6.2 of the DSU.
In general, Thailand considers that the proper establishment of the facts under Article 17.6(i)
refers to whether or not information and evidence was or was not, in fact, collected or examined and
whether or not the relevant procedures were fair  and consistent with the Anti-Dumping Agreement.
For example, this would apply in determining whethe r the Thai authorities collected data properly for
calculating constructed value.  Thailand considers that the evaluation of the facts under Article 17.6(i)
covers issues within the “penumbra”, including whether, for example, factors under Article 3.1 of the
Anti-Dumping Agreement do or do not support an affirmative finding of material injury.  Finally,Article 17.6(ii) covers legal interpretations, such as whether Article 5.5 of the Anti-Dumping
Agreement requires written notification.WT/DS122/R
Page 299
THAILAND'S RESPONSES TO POLAND’S QUESTIONS
1. Does the Antidumping Agreement apply di fferent rules to new producers? Throughout
the investigation, your administration characterized SYS as a “new entrant” that in its “early
stages” deserved “timely cost recovery”.  Where are such factors to be considered in the ADAgreement?
The Anti-Dumping Agreement does not apply different rules to new producers in assessing
whether a domestic industry has been materially injured as a result of dumped imports.  The
references in the question were not “factors” un der the Anti-Dumping Agreement, but rather were
noted by the Thai authorities in their analysis as conditions of competition relevant to their injury
analysis.
In examining the consequent impact of the dumped imports on the domestic industry under
Article 3.1 of the Anti-Dumping Agreement, the Thai investigating authorities considered the relevantfactors in Article 3.4 of the Anti-Dumping Agreement and evaluated such factors in light of the
particular circumstances and conditions of competition in the Thai domestic H-beam industry.
Certainly, Thailand must consider such conditions and circumstances, and failure to do so may raise
serious questions regarding compliance with the Anti-Dumping Agreement.  Moreover, Poland has
not provided a reference to any provision of the Anti-Dumping Agreement that prohibits an
investigating authority from considering the circumstances and conditions of a domestic industry,
whether they indicate more or less vulnerability to material injury from dumped imports.
2. Your authorities characterized steel as a “target industry” of the Thai Crown.  What
special rights or protections does SYS enjoy as a result?
Poland apparently takes the phrase “target industry” from paragraph 2 of the Final Injury
Determination in Exhibit THAILAND - 46.  The full paragraph states that
“The DIT is of the opinion that the imports from Poland had caused material injury to
the Thai domestic industry producing like product.  Moreover, this is a target industry
which the Royal Thai Government is seeking to promote fair competition in Thailand
and that it shall favorably reflect upon the Thai construction industry in the future.”
(Emphasis added).  In other words, Thailand identified the Thai steel industry as a domestic industry
that was suffering from unfair competition from im ports.  Accordingly, consistent with its WTO
rights and obligations, Thailand could impose remedial measures in the form of anti-dumping duties if
unfairly dumped imports were causing material injury to the industry.
3. We understand that at the time of this investigation, Thai law did not require that
investigating authorities find that the impact of  dumped imports was “significant” in order to
find that they caused injury to a domestic injury.  The Thai law has apparently been changed
since then.  Is our understanding correct?  If so, how could your finding of injury possiblycomply with Article 3.2 ADA?
Thailand notes that Poland has repeatedly misinterpreted Articles 3.1, 3.2, and 3.4 of the Anti-
Dumping Agreement.  In the question above, in paragraph 53 of its First Written Submission, in
paragraph 39 of its First Oral Statement and in its Concluding Statement to the First Oral Hearing,
Poland contends that Articles 3.1, 3.2, and 3.4 of the Anti-Dumping Agreement require that Thailand
determine that the consequent impact of the dumped imports on the domestic industry was“significant” and therefore “material” in order to ju stify an affirmative injury determination.  Neither
Article 3.1 nor Article 3.2 of the Anti-Dumping Agreement require that the consequent impact of the
dumped imports on the domestic industry must be “significant”.  Moreover, Article 3.4 provides thatWT/DS122/R
Page 300
the “examination of the impact of the dumped imports on the domestic industry concerned shall
include” the referenced evaluation.  Article 3.4, however, similarly does not provide that the
examination must show a “significant” effect.  Thailand considers that Poland’s interpretation may
explain why it disagrees with Thailand’s conclusions regarding its evaluation of the consequent
impact of the dumped imports on the domestic industry.
Thailand applied its domestic law in full compliance with the requirements under Article VI
of GATT 1994 and the Anti-Dumping Agreement.  Thailand is not obligated to determine whether
dumped imports had a “significant” effect on the domestic industry.  Thus, Thailand did not need this
provision in Thai law either at the time of the investigation or now.
As Poland may already know, Thailand was asked a question relating to Article 3.2 by the
United States after reviewing the relevant domestic legislation:
“Question  (US 10)
Article 7.2(1) of the Notification specifies the Committee shall examine
the volume of imported products and the effect on prices of domestic like
products without specifying that the Committee must consider whether any
increases in volume of imported products  are “significant,”  whether any price
undercutting is “significant,”  whether pr ices are depressed to a “significant
degree.” or whether imports prevent pr ice increases “to a significant degree.”
which are required by Article 3.2 of th e A-D Agreement and Article 15.2 of the
SCM Agreement.  How does Article 7.2(1) include these requirements of the A-D
and SCM Agreements?
Response
Although Article 7.2 (1) of the notif ication does not enumerate all the
requirements set forth in Article 3.2 of th e A-D Agreement and Article 15.2 of the SCM
Agreement, the Thai Authorities will use these WTO provisions as a guideline when
considering whether to make an injury determination under Article 7.2 (1)  of the
notification.”
See Notification of Laws and Regulations under Articles 18.5 and 32.6 of the Agreements: Replies of
Thailand to Questions from . . . the United Stat es, G/ADP/Q1/THA/9, 6 (14 Oct. 1997) (available in
the Document Dissemination Facility at www.wto.org).
4. Is Poland correct that Thailand no longer views the confidential data it has submitted as
material to this case?
Thailand submitted the confidential data as exhibits to its First Written Submission in order to
provide a more complete record of the investigation.  Poland asks whether Thailand “no longer”
views such data as material to “this case”.  As stated in previous submissions, Thailand has at all
times been and continues to be uncertain whether the confidential data is or is not material to the case
before the Panel because Poland has only presented vague and imprecise claims.  Thailand, however,considers that the confidential data is necessary to support the affirmative final determination in the
underlying anti-dumping investigation.
In addition, under Article 17.5 of the Anti-Dumping Agreement, the Panel is to examine the
“matter”, i.e., the measure and the claims
 challenging such measure, based on “the facts made
available in conformity with appropriate domesti c procedures to the authorities of the importing
Member”, including the confidential data. However, the Panel may only address such facts, includingWT/DS122/R
Page 301
the confidential data, in examining the precise “matter” at issue, i.e., in examining the measure and
the precise claims on which the dispute is based.  Because these claims remain uncertain, Thailand
remains uncertain whether the confidential data is or is not within the Panel’s authority to review.
5. Footnote 31 of your First Written Submission claims that the Final Determinations in
this matter were incorrect in a number of crit ical substantive regards.  You claim that these
were typographical or translation errors.  Are we correct that these errors have never been
noted before this point, even by SYS?  On what basis do you make this claim?  If the correct
market share of SYS was not 19.8 percent prio r to the IP, where in the record did the Thai
authorities express SYS’ market share for any period prior to the IP? The English version of
the Final Injury Determination issued by the Thai authorities states that Polish respondents
posed a “threat of material injury” to SYS, although a “threat” case was never initiated.  Where
in the Thai version of the Exhibit 44 does it show otherwise?  What is the Thai word or phrase
that you claim is mis-translated?
Thailand does not claim nor concede that “the Final Determinations in this matter were
incorrect in a number of critical substantive regards.”  Thailand refers Poland to footnote 31 which
states only that “several of DIT’s documents contain inadvertent typographical or translation errors.”
These inadvertent errors were not raised either by the domestic industry or the Polish respondents
during the investigation.  If such inadvertent errors were so critical, Thailand is curious as to why therespondents did not raise questions at the time and suspects that they were so obvious to the
respondents as to be immaterial.  Thailand notes that these clerical errors could have been cleared upat any time over the past 3 years had Poland (or the respondents) simply raised them with the Thai
authorities.
First, in paragraph 16 of DIT’s draft informa tion used for the final injury determination
(THAILAND - 37), the reference to SYS beginning operations in “March of 1995” should read“January of 1995”.  The DIT inadvertently referenced “January” as “March” in the determination.
SYS began operations in January 1995, as specified in (1) paragraph 1 of the Summarized
Information of Siam Yamato Steel Co., Ltd. contained in the application (THAILAND - 1;
THAILAND - 53), (2) Section C of SYS’ questionnaire response (THAILAND - 21), and (3)
paragraph 1.10.1 of the Confidential Report for the CDS Committee (THAILAND - 44). Certainly, asa sophisticated global seller, the Polish respondent  knew precisely when SYS began production and
began to compete with imported Polish products.
Second, in the chart for Market Data of H-Beam of Siam Yamato in the same document
(THAILAND - 37), the reference to “19.8” for 1995 market share should read “49.8”.  In the Thailanguage version of the Proposed Final Determination, the authorities referred to the correct market
share figure of 49.8 percent.  See THAILAND - 65.  Obviously, DIT simply inadvertently transcribed
the “4” to a “1” in the English language translation. Moreover, the correct figure was provided, inter
alia, in the disclosure for the preliminary determination (THAILAND - 33) and in paragraph 1.13.1 of
DIT’s confidential report to the CDS Committee (THAILAND - 44).  Notably, the respondenthighlighted the 49.8 percent figure in its 9 March 1997 letter to DFT (THAILAND - 35 at 2), used
this figure in its defence during the hearing at which SYS was in attendance (THAILAND - 36 at
para. 6.1), but failed to reference the error in any subsequent pleadings after the error appeared.
Again, as a sophisticated global seller, the Polish respondent certainly knew that SYS market share
was 49.8 percent and not the 19.8 percent inadvertently reported in the English translation.
Third, in paragraph 2 of the final determination of injury, the reference to “threat” is an
incorrect translation of the Thai language version of the determination.  The term “threat” is not
included in the final determination.  In THAILAND - 63, Thailand provides the respective pages of
the final determination with the relevant Thai language and English language portions highlighted.WT/DS122/R
Page 302
The Thai language states “material injury” and does not refer to “threat”.  See also  Thailand’s
response to Question 36 from the Panel.
6. At Paragraphs 109 and following of its First Submission, Thailand claims that its
authorities took into account disruption to steel supply in Asia caused by the 1995 Kobeearthquake, pointing to a series of rather general statements by those authorities regarding
demand for steel.  Specifically, where did Thailand consider disruption to supply and its effect
on prices caused by the Kobe earthquake? Do Members have any obligation to take notice on
their own initiative of such sup erceding, intervening causes?  Or need such causes be considered
only to the extent they are raised by a party in the context of a proceeding?
In its First Written Submission, Thailand indicates that it complied with its obligations under
Article 3.5 of the Anti-Dumping Agreement by cons idering whether factors known to it were causing
injury to the domestic industry.  One “other factor” known to the Thai authorities at the time of the
investigation was global market conditions and their effect on prices. Thailand considers that, to theextent relevant to conditions in the global market for H-beams, the Kobe earthquake contributed to
these conditions and was therefore addressed by the authorities during the investigation.  Moreover, at
the time of the investigation, the respondents did not provide the authorities with any information or
argument as to why the effects of the Kobe earthquake should be considered as a separate and isolated
“other factor”.
Thailand’s position regarding the interpretation of Article 3.5 of the Anti-Dumping
Agreement is clear from its First Written Submission.  In paragraph 115, Thailand stated:
“Thus, Thailand examined factors other than the dumped Polish imports that were
known to it and found in each case that they  were not causing injury to the domestic
industry.  The Thai investigating authorities were not obligated to seek out “otherfactors” on their own initiative and were not obligated to examine “other factors” not
made known by interested parties during the course of the investigation.
37
---------
37 See United States - Imposition of Anti-D umping Duties on Imports of Fresh and
Chilled Atlantic Salmon from Norway , ADP/87, paras. 547 and 550 (adopted 27 Apr.
1994).”
7. Is it your reading of Article 3.4 ADA that all factors taken into account in an injury
determination must be explained in a final determination, or is Article 3.4 better read as
allowing Members to evidence final determinations by pointing to working papers in an
administrative file, reducing a final determinatio n to a mere recitation of data and conclusions?
The public notices and/or separate reports of the final determination must comply with
Article 12 of the Anti-Dumping Agreement.  Poland has not challenged Thailand’s public notices
and/or separate reports under Article 12.  Therefore, the Panel must presume that Thailand’s public
notices and/or separate reports of the final determination are compatible with Article 12 of the Anti-Dumping Agreement.
As Poland and the Panel are aware, Thailand does not consider that it has any basis on which
to respond to Poland’s claims under Article 3, given Poland’s failure to comply with Article 6.2 of the
DSU.  In any event and without prejudice to this position, an assessment of whether Thailand
complied with Article 3.4 of the Anti-Dumping Agreement must be based on the facts made available
to the authority (as specified in Article 17.5(ii) of the Anti-Dumping Agreement) and the analysis ofthose facts in the record.  Because Thailand is presumed to comply with Article 12 of the Anti-WT/DS122/R
Page 303
Dumping Agreement, it is unnecessary for the Panel to decide which notices and separate reports are
or are not relevant to assessing compliance.  Rather, it may use any such notices or reports on the
record of the investigation to determine substantive compliance with Article 3.4 in accordance with
the applicable standard of review.
8. What is the basis for Thailand’s view that its obligations under the Antidumping
Agreement are only those  “defined or modified” by Article 17.6?
Thailand refers Poland to its response to Question 50 from the Panel.
9. Our understanding is that the Draft Injury Information Notice of 1997 was never
adopted or issued in “final” form.  Is that correct?  We also understand that the Final Injury
Determination of June 1997 relies on the facts as set forth in the Draft Injury Information
Notice.  Is this also correct?
As specified in the cover letter, Exhibit THAILAND - 37 contains the Proposed Definitive
Determination.  This Proposed Definitive Determination provided (1) the essential facts under
consideration which form the basis for the decision whether to apply definitive measures and (2) a
small quantum of proposed analysis of such facts.  Under Article 6.9 of the Anti-Dumping
Agreement, the authorities are obligated to disclose essential facts.  In Thailand’s view, however, the
Thai authorities are not obligated to provide proposed analysis prior to the final determination.
Thailand did so in order for interested parties to have an opportunity to review and comment on such
analysis.46
The DIT considered comments from interested parties (THAILAND - 41; THAILAND - 62
(more legible)) on the Proposed Definitive Determination in preparing its Confidential Report to the
CDS Committee (THAILAND - 44).  Based on this Report, the Committee found material injury andissued, through the DIT, the Final Determination of Injury (THAILAND - 46).  The Final
Determination was based on the same essential facts as disclosed to interested parties in the Proposed
Definitive Determination.  The proposed analysis in the Proposed Definitive Determination, however,
was finalised for the final determination, afte r considering comments from interested parties.
                                                     
46 Notably, Members disagree as to whether providing disclosure of proposed analysis is required under
the Agreement.  The two most recent AHG meetings discussed the issue as follows:
“Some Members suggested that it was unclear whether disclosure before a
determination was made could be meaningful, since which facts were “essential” was notknown until the decision was taken.  On [the] other hand, some Members suggested that the
disclosure of essential facts could not constitute a prejudgment of the investigating
authorities’ decision, which would be made after the disclosure.  There was discussion ofwhether the disclosure obligation was satisfied by a disclosure exclusively of facts, or whethersome disclosure of analysis or reasoning was also needed.  Some Members pointed our thatdisclosure of reasoning or analysis suggested th at the decision had been made at the time the
disclosure was made, which was not, in their view, a correct implementation of the
requirement.”
G/ADP/AHG/R/2, para. 8 (7 July 1997) (THAILAND - 60).
“Several Members noted that the disclosure of essential facts was to take place
before the final decision, and therefore must not prejudice the final decision.  Thus, suchdisclosure should relate to bare facts without analysis on weight or judgement.  One Membernoted the relation between this topic, and the question of treatment of confidential
information, and suggested that the Agreemen t should read consiste ntly across these two
requirements.  Another Member noted that different methods of disclosure could all beacceptable under the Agreement.”G/ADP/AHG/R/4, para. 27 (4 August 1998) (THAILAND - 61).WT/DS122/R
Page 304
10. We would ask you to compare the Final Injury Determination with the Draft Injury
Information Notice.  Could you please comment on  all inconsistencies or discrepancies that you
find between those two documents.  For example,  could you please explain the following items:
• the Final Determination states that Polish  imports represented 24 percent of the
Thai market in 1995 and 26 percent in th e IP, while the Draft Injury Information
Notice states that the Polish market share was 24.2 percent in 1995 and 25.3 percent
in the IP.
The Proposed Final Determination ( i.e., the “essential facts”) reported market shares of
24.2 per cent in 1995 and 25.3 percent for the IP.  The authorities inadvertently reported the IP marketshare figure from the preliminary determination, instead of the correct figure used for the final
determination.  The correct market share figures are as follows:
Total Consumption Polish Imports Market Share
1995 [D] [I] 24.2
IP [D+ 22,855] [I+ 12,445] 25.9
The consumption figures reported in the Confidential Report to the CDS Committee were
[D- 8,927]MT for 1995 and [D+ 22,534] MT for the IP.47  Other information submitted to the
Committee included the table at THAILAND - 66, which provides the correct figures for both total
SYS domestic sales and for total imports.  When these figures are properly added, they reflect thecorrect total consumption figures in the above table.
• The Final Determination states (at para. 2.2) that “[a]verage CIF import
price and the average price of Siam Yamato move in the same direction”.However, Table 1 in the Draft Injury Information Notice indicates that they
moved in the same direction in only 3 of 6 calendar quarters examined.
The statement is based on the fact that the Polish respondent offered a price [X-Conf.]
months in advance of delivery, and SYS offered a price [X-Conf]  month in advance.  As a result, SYS
was competing with prices in, for example, Quarter 1 that were reflected in Polish price data for
Quarter 2.  Thus, using the confidential average quarterly prices provided in THAILAND - 67, the
authorities’ comparison of quarterly price movements was as follows:
Period Poland Movement Period SYS Movement
QTR 2/95 [P] QTR 1/95 [P+ 1,000.38]
QTR 3/95 [P+ 739.21] + QTR 2/95 [P+ 2,104.38] +
QTR 4/95 [P+ 2,422.32] + QTR 3/95 [P+ 3,002.38] +
QTR 1/96 [P+ 605.37] - QTR 4/95 [P+ 2,869.38] -
QTR 2/96 [P+ 174.82] - QTR 1/96 [P+ 1,974.38] -
• The Final Determination states (at para . 2.5) that SYS “decreas[ed] its price
to match those of the Polish imports" and states (at para. 2.3) that SYS
“decrease[d] its price to the level of Polish imports.’”  But the FinalDetermination also states (at para. 2.2) that the price of Polish imports “has
always been lower”.
                                                     
47 See Confidential Report to the CDS Committee (Thai language version), para. 1.7 (THAILAND -
64).  The English language translation of the Report inadvertently repeated the total import figure of 187,490MT in paragraph 1.7.WT/DS122/R
Page 305
A more accurate translation of the relevant portion of paragraph 2.3 is “the company has no
other way but to reduce its price following that of import from Poland.”  Similarly, a more accurate
translation of the relevant portion of paragraph 2.5 is “by reducing its selling price to the level close to
the Poland import price.”  The Thai language ve rsion of the Final Determination is provided at
THAILAND - 46 for Poland to verify the translation.
The explanation in paragraph 2.3 is drawing a conclusion regarding the “influence of Polish
imports upon the Thai domestic market,” including the causal link between the dumped imports and
SYS’ pricing.  The phrase in paragraph 2.5 was similarly analysing the effect of dumped imports on
SYS’ pricing.
• The Final Determination states (at para. 2.2) that Polish import prices were
below other import prices.  Given also the above statement that SYS
decreased its prices to those of Polish levels, does this mean that SYS prices
were below such other import prices?
SYS prices were below prices of the fairly priced imports from other countries.
• The Final Determination states that the “import volume of subject
merchandise from Poland has continuously increased” (para 2.1), whereas
the Table labeled “Import from Poland” in the Draft Notice shows that
Polish import figures moved up and down throughout the IP.
The statement is based on annual import data, consisting of increased imports from
82,011 MT in 1994 to 94,682 MT in 1995 to 107,127 MT during the IP.  See Confidential Report to
the CDS Committee, para . 1.8.2 (THAILAND - 44).
11. The Final Injury Determination (at para. 1) states that the DIT “examined all relevant
factors as prescribed in the Ministry of Commerce Notification”.  Could you please list the
factors set forth in that Notification, includ ing an English-language translation of the
Notification, if one is available.
Thailand applied its domestic law in full compliance with the requirements under Article VI
of GATT 1994 and the Anti-Dumping Agreement.  Thailand provided the following questions and
replies regarding Thailand’s application of its domestic law at the time of the investigation:
“Question (HKG 9(a))
 Numerous provision of the Agreement  are not feature in the Notification
of the codification may not be adequate.  . . .
(a) In the absence of explicit domestic provisions reflecting the above
Agreement provisions, how will Thailand ensure compliance wi th the Agreement?
Response
The purpose of the present Ministerial Notification is to temporary providing
means for the implementation of the A-D Agreement in Thailand. It is in no way to
cover all the specific details, however, it should be noted that the Anti-Dumping and
Countervailing Duty Act is in a process of drafting. This Act will be in full compliance
to the letter of the Agreement.WT/DS122/R
Page 306
 In the interim, the Thai Authoritie s implementing the Notification are fully
aware of requirements under the WTO Agreement and intend to maintain a full
compliance with all such requirements.
***
Question (US 11)
What economic factors or indices will the Committee evaluate under
Article 7.2(2) of the regulations in examin ing the effects of the imported products
on producers of like products in Thaila nd, and how is such an evaluation or
examination consistent with Article 3.4 of the A-D Agreement and Article 15.4 ofthe SCM Agreement?
Response
In making a determination under Article 7.2(2) of the notification, the Thai
authorities will abide by Article 3.4 of th e A-D Agreement and Article 15.4 of the SCM
Agreement.”
See Notification of Laws and Regulations under Articles 18.5 and 32.6 of the Agreements:
Replies of Thailand to Questions from . . . Hong Kong, China . . . and the United States,
G/ADP/Q1/THA/9, 3-4 and 6-7 (14 Oct. 1997) (availabl e in the Document Dissemination Facility at
www.wto.org).
12. The Final Injury Determination (at para. 2.3) contains two statements further on which
we seek clarification.  It states that “the Thai domestic industry was unable to increase its prices
to recover costs in a reasonable period of time”.  It also states that Polish imports “affected
[SYS’] cash flow.  Could you please indica te precisely where in the Draft Final Injury
Determination the DIT made such findings?
Poland is confusing the “information” on which Thailand based its analysis and the analysis
itself.  These are separate aspects.  See, e.g., Mexico - HFCS  at footnote 597 (stating that “[I]t is thus
not clear whether Article 6.4 necessarily applies to conclusions drawn by the authority on the basis of
information, or only applies to the information itself”). The non-confidential factual information on
which the referenced analysis (or “findings”) are based is contained in points 7 and 11 and in the
tables ( e.g., Net Profit (Loss) and Return on Investment) of the Draft Final Injury Information.  See
THAILAND - 37.
13. The Final Injury Determination (at para. 2.2) compares CIF import prices and average
SYS prices. Poland’s understanding is that Thai authorities made no adjustments to these prices
in making this comparison.  Is that correct?
The Thai Authorities considered all relevant  information regarding the level of price
undercutting.  As it will be appreciated, price undercutting varies on a transaction-by-transaction basis
as well as on the information made available to the Thai authorities.  In this context, a wide range of
prices were used to establish price undercutting.  For the purpose of the disclosure provided to Poland,
price undercutting was illustrated as a comparison between CIF import prices and SYS ex-factoryprices, i.e., “landed” prices in Thailand.
Taking either landed prices or adjusted landed prices, Thailand established price undercutting.
In addition, the Thai authorities were made awar e that quantities of Polish H-beams were being
offered at CIF prices with credit terms of [X-Conf.]  days.  See, e.g., actual invoices in THAILAND -WT/DS122/R
Page 307
69.  Poland, and even the Polish respondent, may not be aware of this because Polish sales were on an
FOB basis, and it was the traders that offered these terms.  However, this affected the level of price
undercutting, given that offering such terms is the equivalent of unloading product on the market at
any price.
14. The Draft Injury Information Notice (at para. 8) states that “the increase in Polish
imports during July-September 1995 led to a decre ase in sales of the complainant and the
increase in imports during April – June 1996 res ulted [in] the decline in output of the
complainant.”.  Where did the Thai authoritie s explain how either of these “increases” (the
existence of which is, in any event, disputed by Poland) “caused” either of those events at issueor how such imports would affect sales in one circumstance and output in another, for example.
As set forth in Table 2 of the Draft Injury Information Notice, on which the statement in
paragraph 8 expressly relies, please note that in the calendar quarter in which sales were
“affected” output, in fact, rose, and in the ca lendar quarter in which output was “affected”,
sales, in fact, rose.
In paragraph 8 of the Draft Injury Information Notice, the Thai authorities first provided a
general assessment of the data, including the general effects on production and sales caused by the
increased penetration of Polish imports.  The preliminary analysis in sub-paragraphs 1 and 2 were
provided to explain the data relating to the two significant quarterly import spikes.  The first spike
was considered to cause a decrease in sales because Polish imports were not “growing the market” but
were causing customers to shift to cheaper supply.  Although production did not decrease, this simplymeant that domestic inventories were increasing to make up the difference.  The second spike was
considered to cause a decline in production because sales were not meeting targets and SYS already
had excessively high inventory levels as a result of the previous import spike.  The failure to meet
sales targets is reflected in paragraph 1.12.2 of the Confidential Report to the CDS Committee
(THAILAND - 44).
In any event, although its analysis of the specific effects in these two quarters was valid, the
Thai authorities considered it unnecessary to adopt the same narrow analysis in the Final
Determination.  Instead, the authorities relied on th eir more comprehensive assessment.  This decision
can be attributed, in part, to the comments received from respondents on this particular issue.  See
THAILAND - 40, at 4.WT/DS122/R
Page 308
ANNEX 2-7
RESPONSES BY THAILAND TO ADDITIONAL
QUESTIONS FROM POLAND
(7 April 2000)
Dear Mr. Chairman,
In accordance with its continuing good faith efforts to resolve this dispute, Thailand provides
the enclosed responses to Poland's Additional Questions to Thailand.  By providing these responses in
advance of the Second Oral Hearing, Thailand hopes Poland will have an opportunity to address them
during the hearing.
Poland indicates that its additional questions are based on "secret" data.  Thailand assumes
that Poland's use of the term "secret" instead of the more accurate term "confidential" was
unintentional and just argumentative.  Any other explanation would suggest that Poland intends to
ignore its obligation to prevent the disclosure of  this confidential information.  The fact that Poland
has not designated which data in its Additional Questions is "confidential" suggests that the
alternative explanation may unfortunately be the case.
Poland also states that this "secret" data was contained in exhibits that were filed in an
"unusual" was.  Thailand simply reminds Poland that a defending Member is not obligated to submit
any argument or data at any time during a panel proceeding.  If a complainant properly presents
claims and a prima facie case to support them, a defending Member must rebut such case based on the
particular data and arguments it considers most relevant and persuasive.  As stated throughout thisproceeding, however, Thailand does not know whether the confidential data is or is not relevant to its
defence because Poland has never properly presented its claims.
Concerning problems of translation, Thailand reiterates to the Panel that there is no obligation
in the Anti-Dumping Agreement for the Thai Author ities to translate documents from Thai to English.
Under Thai law, all decisions, determinations, and reports for an anti-dumping investigation must be
prepared in the Thai language.  The translations of  the determinations in this case were made in a
good faith effort to  assist the exporting parties in defending their essential interests in the
investigation and to provide the Panel with the confidential basis for the Thai authorities' decision, to
the extent relevant.  There are unintentional inaccuracies in the English translation, given that theywere completed entirely in-house and only with the assistance of a thesaurus and dictionary.  The
latter accounts for the use of over expressive English terminology, namely "skyrocketed" or "shrunk".
As Poland is in possession of both the official Thai versions and unofficial English
translations of relevant exhibits and as the Polish exporters also benefited from a Thai legal counselduring the proceeding, Mr. Suwit Suwan of "Dr. Ukrit Mongkolnawin Law Office", Thailand
encourages Poland to verify any corrections that Th ailand makes to the English translations.  Thailand
notes that Poland did not respond to Thailand's question as to whether Poland or the Polish
respondents ever requested or otherwise obtained a translation of the Thai documents supplied and/or
available to them during the investigation.
Thailand remains willing to provide responses to any additional questions that Poland may
have in the light of the answers that we have subm itted in this document.  Thailand also reserves the
right to clarify its responses herein at the Second Oral Hearing.WT/DS122/R
Page 309
CONFIDENTIAL INFORMATION removed
from or summarized in Questions 3, 5, 8, 9, and
10 and the responses to Questions 3, 5, 8, 11, and
13 from Poland.
1.  Is Poland correct in its understanding that THAILAND Exhibit-44 is the sole
confidential document on which the Final Injury  Determination is based, or are there other
such documents?
THAILAND - 44 is the text of a report prepared by the DIT for the CDS Committee.  The
report is a summary of confidential and non-confidential evidence supplied by interested, co-operating
parties during the course of the investigation, including the information obtained by the Thai
authorities on their own initiative.  This evidence includes, inter alia , SYS’ and the Polish producers’
questionnaire responses, material obtained during the on-site-verification, Thai customs statistics,
technical dossiers on specifications, etc.
Moreover, the text of THAILAND - 44 was based on multitudes of confidential working
papers such as the table provided in THAILAND - 66.  These working papers summarize  several
hundred source documents that provided, for example, transaction-specific price information,
production information, sales information, and other information considered relevant by the CDSCommittee.
2.  Would it be accurate to state that any discrepancies between (i) THAILAND Exhibit-44
and (ii) the Final Injury Notice and Final Injury Determination would represent mistakes by the
Thai authorities?
The referenced discrepancies concern minor translation errors in the English version of
THAILAND - 44 and a few typographical errors in the original versions of other documents.  These
errors were known to the CDS Committee, as the Thai language and working paper documents for
THAILAND - 44 clearly show, including corrections that were made during the meeting itself.
None of these errors were material to the analysis and conclusions reached by the DIT and the
CDS Committee as there were no errors in the source documents and the evidence upon which these
documents are based.
To claim that a difference between the two sets of documents constitutes a “mistake”
represents a misunderstanding of the purpose of the documents concerned. THAILAND - 37 represent
the disclosure of non-confidential essential facts.  THAILAND - 44, however, represents the final
confidential summary report containing facts and analysis for consideration by the CDS Committee.The two reports are not identical.   For example, THAILAND - 44 took account of the comments onthe essential facts from all interested parties and examined considerations relating to whether the
imposition of anti-dumping duties was in the national interest.
3.  Could you please explain the statement in  paragraph 1.7 of this Exhibit that domestic
demand for subject merchandise was [D - 128,92 1 MT] in 1994, [D - 8,927 MT] in 1995, but only
187,490 in the IP?
Please see paragraph 1.7 in the Thai language version of the report (THAILAND - 64).  The
figure in the Thai version was [D + 22,534 MT].  The figure of 187,490 MT (which represents total
imports during the IP as reflected in paragraph 1.8.1) was inadvertently used for domestic demand in
paragraph 1.7 of the English language translation.WT/DS122/R
Page 310
How can those figures be reconc iled with the statement in the same paragraph that domestic
demand increased [D*] per cent in the IP?
Please see above.
How can those same figures be reconciled with the statement in the Final Injury Determination
(at para. 2.4) that domestic demand “expanded” in the IP?
Please see above.
How can those same figures be reconciled with th e statement in the Draft Final Injury Notice (at
para. 1) that domestic consumption increased by 4 per cent from 1995 to the IP?
Please see above.
How do you reconcile that finding of a 4 per cen t increase in consumptio n with the above-stated
finding in Exhibit 44 that consumption increased [D*] per cent?
THAILAND - 37 inadvertently reported “4” per cent instead of “[D*]” per cent for the
increase in consumption from 1995 to the IP.
4. Could you please explain the statement in paragraph 1.8.1 of this Exhibit that imports of
subject merchandise “shrunk continuously” from 261,863 MT in 1994 to 261,863 in 1995, to
187, 490 MT in the IP?
Please see paragraph 1.8.1 in the Thai language version of the report (THAILAND - 64).
Obviously, the figure of 261,863 was inadvertently repeated for 1994 and 1995.  The actual figure,
196,076 MT, was corrected for the CDS Committee and is provided in the Table entitled
“Comparison of Production, Sales and Imports from Poland” in THAILAND - 66.
How do these figures support the conclusion that imports “shrunk continuously”?
Please see above.
How do they reconcile with the figures set forth in paragraph 1.7? Did domestic demand equal
imports in 1994 and again in the IP?
Please see above.
How can those figures be reconciled with the statement in the same paragraph 1.8.1 that
imports decreased 25 per cent in 1995 and 8 per cent in the IP?
The original Thai version of THAILAND - 44 states correctly a decrease of 4 per cent.  See
THAILAND - 64.
How can those same figures be reconciled with th e statement in the Draft Final Injury Notice (at
para. 4) that imports decreased 8 per cent from 1995 to the IP?
THAILAND - 37 inadvertently reported “8” per cent instead of “4” per cent for the decrease
in imports from 1995 to the IP.WT/DS122/R
Page 311
5. Could you please explain the statement in  paragraph 1.8.2 of this Exhibit that Polish
imports of subject merchandise “skyrocketed” dur ing the IP to [I + 12,445] MT, given the fact
that Thai authorities have claimed that Poli sh imports held an approximately 25.3 per cent
market share and the total domestic demand was 187, 490 MT?
In its cover letter to these responses, Thailand explains the translation of the term
“skyrocketed”.  A more accurate translation would have been “increased significantly”.  In any event,
Thailand provides the following clarification of the translation:
“The imports from Poland, on the other hand, have continued to increase.  Polish
imports in 1994 were about [I - 12,671] MT, or [I* - 17] per cent of total imports.
Polish imports in 1995 were about [I] MT, or [I*] per cent of total imports.  During
the IP, Polish imports skyrocketed to [I + 12,445] MT, or [I* + 9] per cent of total
imports.  The rise of Polish imports is 16 per cent in 1995 and 13 per cent in the IP.”
Therefore, Paragraph 1.8.2 states that Polish imports “skyrocketed” both in absolute terms (from [I]
MT in 1995 to [I + 12,445] MT for the IP) and compared  to total imports (from [I*] per cent in 1995
to [I* + 9] per cent for the IP).  This paragraph does not refer to the domestic market share held by
Polish imports.  The demand figure is addressed above in response to question 3.
Do these figures ([I + 12,445] of 187,490 MT) indica te that Polish firms held more than half of
the Thai market (which would contradict the DIT’ s market share figures) or that Polish imports
actually fell to about 47,000 MT (25% of 187,000 MT)?
Please see above.
How do the figures in paragraph 1.8.2 reconcil e with the statements  in the Final Injury
Determination (at para. 2.1) that Polish imports had “continuously increased” or those in the
Draft Final Injury Notice (at para. 4) that Poli sh imports increased 10 per cent from 1995 to the
IP?
Please see above. THAILAND - 37 inadvertently reported “about 10” per cent instead of “13” per
cent for the increase in Polish imports from 1995 to the IP.
6.  We would now like to turn Thailand’s attention to the issue of pricing as THAILAND
Exhibit-44 contains the first meaningf ul pricing data available to Poland.
Could you please confirm the accuracy of the statement in paragraph 1.9.1 of this Exhibit that
average CIF import prices were B 8,952 in 1994, B 9,936 in 1995, and B 9,462 during the IP?
The average CIF price of  B 9,462 in THAILAND - 44 refers to the IP, whereas B 8,754 in
THAILAND - 37 refers to 1996.  The information in THAILAND - 37 inadvertently refers to the IPinstead of 1996.   The error has no effect on the ability of interested parties to compare CIF prices
from all countries and from Poland and to comment accordingly. Given the confidentiality of
domestic prices, the only purpose of the table in THAILAND - 37 was to show the relationship
between Polish import prices and those from other countries.
How do you explain that the Draft Final Injury Notice (at para. 6 and in the Table “Price Data
of H-Beam”), while confirming this first two figures, states that average CIF import prices wereB 8,754 during the IP?
Please see above.WT/DS122/R
Page 312
How do these figures reconcile with the Thai claim in paragraph 4.6 of Exhibit 44 that the
average CIF import price was B 10,782?
As specified in paragraph 1.11 of THAILAND - 44, the average CIF import price of B 10,782 reflects
the price for all other imports excluding Polish imports.
Where in its Final Determination did Thailand make a finding of “significant” price
undercutting, “significant” price depression, or “sig nificant” increase in Polish import volume?
Although the translation of the Final Determination does not use the word “significant”, the Thai
language version clearly leads to the conclusion that the increase in Polish imports was “significant”
and that the price undercutting and depression/suppression was “significant”.
It should  be pointed out that the analysis of price -undercutting presented to the CDS
Committee was in far more detail than the summary provided.   The presentation of price undercuttinginvolved comparisons of actual selling prices of  Po land  available  to the DIT with the actual selling
price of the domestic industry at the same level of trade in Thailand (end user) and on the same terms.
This information was used for the preliminary dete rmination,  confirmed for the final determination,
and presented in detail to the CDS Committee.  See, e.g., paragraph 2 of the Preliminary
Determination (THAILAND - 25).
7. Could you please confirm the accuracy of the statement in paragraph 1.9.2 of
THAILAND Exhibit-44 that average Polish CIF import prices were “stable” from 1994, to 1995,
to the IP?  We note further that paragraph 5 (at page 13) of this Exhibit states that “there is
price stability with respect to the subject merchandise”.
This term is simply used to describe the fact that average Polish CIF import price for 1995
(B 8,409) was approximately the same as the price for the IP (B 8,473).  “Stable” was also used in the
context of Polish import prices being below the prices of the domestic industry during the period of
1994 - IP.  The Thai authorities did not intend the term “stable” to mean, for example, not causing any
market disruption.
Paragraph 1.9.2 provides that Polish import prices actually rose significantly during the period
in question, from B 7792 in 1994 to B 8409 in 1995 to B 8473 in the IP.
1
Please see above.
Please confirm that you view such price movements as demonstrating price “stability”.
Please see above.
How do you explain that, in contrast to the figures set forth in paragraph 1.9.2 of THAILAND
Exhibit-44, the Draft Final Injury Notice (at para. 6 and in the Table “Price Data of H-Beam”),
while confirming this first two figures, states  that average Polish import prices were B 7,975
during the IP?
THAILAND - 37 inadvertently referred to “IP” instead of “1996”.  The Polish price of B 7,975 is for
the period 1996, not for the IP.
                                                     
1 The B 8,473 figure is also set forth in paragraph 1.11 of THAILAND Exhibit 44.WT/DS122/R
Page 313
8. Could you please confirm the statement in paragraph 1.12.6 (first indent) of
THAILAND Exhibit-44 that [X-Conf]?
The purpose of this paragraph was for the benefit of the CDS Committee.   Before deciding to
impose definitive measures, the CDS Committee is also responsible for assessing whether suchmeasures would be in the consumer or national interest. In this particular context, the concern of the
CDS Committee was [X-Conf] .  The DIT explained that the exports from the company concerned,
while below actual domestic prices during the proceeding (by the fourth quarter of the IP they were
generally above),  were in any case [X-Conf.].
How do you explain the opposite statement, contained in paragraph 10 of the Draft Final Injury
Notice, that SYS “can sell [its] exports at the price higher than in the domestic market”?
There is no contradiction. Paragraph 10 of the draft final injury notice refers to the fact that SYS
“can” export to markets above domestic price, i.e., they were able to do so.   In fact, SYS did on
occasions sell on export markets above domestic prices on a transaction basis, particularly in the
fourth quarter of the IP.   However, the DIT acknowledges that yearly averages of prices would show
that export prices were generally below domestic selling prices.
Thailand had previously claimed that its higher export price indicates price suppression and
price depression by reason of imports into Thailand.  Given that the factual premise of that
statement is false (that is, given that export pr ices were, in fact, lower), what is the relation
between high domestic prices and a claim of possible price suppression or price depression?
The Thai authorities did not claim that exports were a basis for its finding of price depression or
suppression.  The authorities found that the dumped imports were the cause of the price depression
and suppression.
Would Thailand agree that its lower prices in ex port markets were the actual causes of SYS’
failure to cover costs or otherwise fail to meet its ambitious sales targets?
No.  The actual cause of SYS’ failure to cover costs or otherwise fail to meet its sales targets was the
dumped Polish imports.
9. Could you please confirm the accuracy of the SYS pricing data contained in
paragraph 1.12.6 (second and third indents) of  THAILAND Exhibit-44?  We note that these
data confirm the fact that export prices were well below Thai domestic prices.
This information reveals that export prices were below Thai domestic prices, except for the
fourth quarter of the IP.
Given these data, the statement in paragraph 1.9.2 of THAILAND Exhibit 44 that Polish import
prices were “stable”, and the accompanying data in that paragraph that Polish import prices in
fact continually rose, was not the DIT wrong in concluding in the Final Injury Determination
(at paragraph 2.2) that average import and domestic prices “move in the same direction”?
No.  Please see the responses to Poland’s questions herein and Thailand’s responses to Poland’s
previous questions.
Given these same factors, was not the DIT wrong in concluding in the Final Injury
Determination (at paragraph 2.3) that SYS “decrease[d] its price to the level of Polish imports”,
given that Thai prices have  always been much higher?WT/DS122/R
Page 314
No.  Please see Thailand’s response to previous Question 10 from Poland.
Table 1 of the Draft Final Injury Notice provides that Thai domestic prices actually rose from
111 to 118 during final quarter of the IP, an increase of 6.3 per cent.  Given that reported
increase, how can Thailand now claim (in indent two) that the price in the final quarter fell
from [P – B 1974.38] to [P – B 1768.38]?
The Thai authorities inadvertently committed a typographical error by listing “118” instead of “108”
in the index.
10.  On the issue of causation, we note the statement in paragraph 3.3 of THAILAND
Exhibit 44 that “[w]hereas SYS relies on export for about [X-Conf.] per cent of its sales, it is
much effected [sic] by the downturn of world ma rket price for H-beams. This is due to the fact
that there is a slowdown of construction world-wide coupled with the fact that the total
production capacity far surpassed the demand”.
What consideration of these facts was ma de in the Final Injury Determination?
The information in paragraphs 3.2 and 3.3 were considered in evaluating the “other factor” of global
market conditions. Paragraph 2.4 of the Final Determination discusses the conclusions reached based
on this information.
Given these important external factors, how could the DIT possible conclude that Polish
imports were the cause of SYS’ alleged injury?
The Thai authorities assessed this “other factor”.  Poland simply disagrees with the  authorities’
conclusion.
11.  Paragraphs 4.2 and 4.3 contain statements that Polish imports are “likely” to be the
price leader in the Thai market.  Where in  the record did Thai authorities make a
determination that Polish imports were the price leader?
The issue of price leadership was of considerable importance to the DIT throughout the
investigation, and the conclusions reached are based on the entire record of the investigation.  In
summary, the fact that Polish import prices were below domestic industry prices obviously has a
bearing on price leadership.  This was considered decisive in that the H-beams exported by Poland
and the H-beams produced by the domestic industry  were competing in the same segment of the
market, generally of the same quality, specifications and end use.  Poland was well-known by the
consuming industry as a major supplier of H-beams in Asia.    There was also no quality difference
between the product of SYS and Poland that would justify this price difference.   Consequently,
decisions of sourcing of H-beam from Poland or the domestic industry was dictated by price.
Having established that the products were in direct competition, the Thai authorities
determined that sales of Polish imports were made using offers provided [X-Conf.]  months in
advance and discovered that this fact was used as a basis of negotiation within the domestic market to
drive down prices of future supplies.   In addition, the DIT noted that during the IP traders were also
offering Polish product with [X-Conf.]  day credit terms.  Given these circumstances, the Thai
authorities were fully justified in finding that Polish imports assumed a leadership position in the Thai
domestic market.
12. Paragraph 4.4 states that the “situation described in 4.2 and 4.3 demonstrates instances
of price undercutting and suppression”?  How does such a finding support the conclusion inWT/DS122/R
Page 315
paragraph 2.3 of the Final Injury Determination that Polish imports “resulted in price
undercutting and suppression”?
A more accurate translation of “instances” is “situation”.  Thailand notes that paragraph 4.4,
in both the English and Thai language, clearly states that paragraphs 4.2 and 4.3 demonstrate thatPolish imports were resulting in the situation of price undercutting and suppression, not just some
instances thereof.
13. Paragraph 4.8 remarks on the fact that SY S losses are “due to operating expenditures
that cannot be reduced.”  Would you agree that SYS endured high start-up costs?  If not, howdo you explain the statement in paragraph 5 (at p age 13) that “SYS has to bear the costs of new
entrants which is, as a rule, high”?
A crucial aspect of the investigation was to assess whether the Thai domestic prices were
reasonable bearing in mind the high start-up costs concerned.   In other words, although there wasprice-undercutting, the DIT also considered it of importance to decide whether the targeted selling
prices of SYS were reasonable.   In this respect, it was noted that [X-Conf.] .  The DIT considered
these targeted selling prices to be reasonable in that they reflected a selling price of some of the most
efficient manufacturers world-wide.  However, the domestic industry could not have foreseen that
Pland would resort to substantial dumping and undercut domestic prices.WT/DS122/R
Page 316
ANNEX 2-8
SECOND ORAL STATEMENT OF THAILAND – OPENING REMARKS
(12 April 2000)
1. Mr. Chairman, distinguished Members of the Panel, professional staff of the WTO
Secretariat, I would like to thank you again for taking the time to assist Poland and Thailand inresolving this dispute.
2. Before presenting our oral statement, I would like to provide a few remarks to place this
dispute in the proper context and to explain the background and philosophy behind the use of anti-
dumping instruments in Thailand.
3. Thailand would like to emphasise that it places significant importance on the ability of its
industries to embrace competition in the Thai domestic market, and we acknowledge the need for our
industries to remain vigilant in meeting the dema nds of the global marketplace.  In our view, this
philosophy is to the ultimate benefit of our consumers, our producers, and our economy as a whole.
4. A practical result of this philosophy has been a demonstrated reluctance to use anti-dumping
measures, except where dumping and injury are at such a significant level that the public interest
dictates the imposition of such measures.  In implementing our obligations under the Anti-Dumping
Agreement, we studied the approach taken over the past few decades by the major users of these rulesand regulations, including the United States and the EC.  For the first time in the H-beams
investigation, we even adopted the approach of separating the administrative bodies that investigate
dumping and injury.
5. Although we did not have years of experience or a large anti-dumping budget like the major
users, we nevertheless complied with each and every obligation under the Anti-Dumping Agreementin the H-beams investigation.
6. Specifically, our authorities have gone beyond the requirements of the Agreement in a
number of important respects.
7. First, for example, to ensure that Polish exporters had a full opportunity to defend their
interests, documents were translated from the offi cial Thai language into English, including the
questionnaires, disclosures, and determinations.
8. Second, Thailand did not hesitate to provide an extension to the deadline for the Polish
respondents to file their questionnaire responses.  This extension was well beyond the period
mandated under the Agreement.
9. Third, Thailand accepted all of the allowances provided in the respondents’ questionnaire
responses for both the preliminary and final determ inations.  The authorities considered that this
would minimize trade disruption pending the outcome of on-site verification.
10. Fourth, Thailand responded specifically to the comments and arguments from the Polish
respondent on the draft final determination.
11. Fifth, in spite of the fact that there was only one Thai producer and one Polish producer, the
Thai authorities provided a summary of the confid ential information on which its determinations were
based.WT/DS122/R
Page 317
12. Thailand urges the Panel to compare these good faith efforts with the complete failure on the
part of Poland to take any responsibility for the defence of its interests or to act in good faith in this
dispute.  Just as an example,
- Poland received the non-confidential application over 3 years before requesting
establishment of a panel, but never requested nor, as far as we are aware, obtained a
translation.
- Poland (and the Polish respondents) failed to request clarification of any clerical
errors and other purported inconsistencies between the preliminary determination,essential facts, and final determination.
- Poland failed to present any precise claims whatsoever until its rebuttal, after
Thailand offered speculation as to Poland’s purported claims and after the Panel
formulated questions to elicit precise responses.
- And, finally, Poland refused to respond to the questions that Thailand presented to
Poland after the First Oral Hearing.
13. In Thailand’s view, WTO Members (and their foreign producers and exporters) must take at
least a minimum amount of responsibility to defend their interests, must take minimal steps to present
their own case, and must act in good faith in WTO proceedings.  Poland has failed to meet even themost forgiving standards.
14. On specific issues, Thailand considers that the most reasonable basis for the calculation of
profit for constructed value is to use the profit actually realized in the domestic market for the
identical or same general category of products.  As the level of profit on the domestic market often
determines the ability of an exporter to dump, Thailand considers that any other profit margin wouldactually allow exporters to manipulate the process and to dump with impunity.
15. With respect to injury and causation, the Thai authorities used extensive and detailed
information as the basis for its determinations.  This information was properly established and was
evaluated in an unbiased and objective manner.
16. Notwithstanding Poland’s protests otherwise and as the exhaustive factual record
demonstrates, the DIT did not undertake the investigation in order to blindly approve the domestic
industry’s case.  For example, although price underc utting and price suppression and depression were
clearly attributable to the dumped imports, the DIT nevertheless established whether the selling prices
of the domestic industry were reasonable from the outset, and whether Polish prices simply
represented those of an efficient manufacturer.
17. In deciding this issue, the authorities relied upon information on capacity, technology, and
other relevant aspects obtained from, inter alia , the on-site verification.  The authorities concluded
that the Polish producer was not more efficient and that pricing represented unfair trade.  In fact, the
Polish producer’s low level of efficiency, including the use of outdated technologies, was
independently confirmed from reports on the restruct uring of Huta Katowice as part of the accession
to the EC, as well as related documents on the privatisation of the group.  Based on this information, it
was considered that Huta Katowice was, in fact, one of the least efficient producers in the world.
18. Notably, the Thai authorities also determined that the imposition of the measure at issue was
in the overall public interest, including consideration of the potential effect on consumers in Thailand.
This also shows the lack of bias on the part of the authorities.WT/DS122/R
Page 318
19. In summary, Thailand considers that its investigating authorities went to great lengths to
comply with both the letter and the spirit of Article VI of GATT 1994 and the Anti-Dumping
Agreement.
20. I would now like to ask my colleague to present Thailand’s detailed oral statementWT/DS122/R
Page 319
ANNEX 2-9
SECOND ORAL STATEMENT OF THAILAND – MAIN STATEMENT
(12 April 2000)
I. INTRODUCTION
1. Mr. Chairman, distinguished Members of the Panel, WTO professional staff, it is indeed an
honour and a pleasure to appear and speak before you today.
II. THAILAND REQUESTS A PRELIMINARY RULING BASED ON POLAND'S
FAILURE TO PRESENT PRECISE CLAIMS
2. As a preliminary matter, Thailand reiterates its request that the Panel dismiss Poland’s
complaint based on its violation of Article 6.2 of the DSU.  Thailand directs the Panel to its
Responses to the Panel’s questions on the proper interpretation of Article 6.2 of the DSU and provides
several responses to Poland’s arguments.
3. First, in paragraph 13 of its rebuttal, Poland contends that the Appellate Body’s reference to
“attendant circumstances” and to “the course of the panel’s proceedings” means that any lack of
precision is susceptible to prospective cure by a complainant.  Such a concept is obviouslyinconsistent with the principles of due process and would be like a criminal prosecutor being allowed
to add new criminal charges on which a guilty verdict could be made at any time during a trial.  In
paragraph 143 of its report in Bananas III , the Appellate Body clearly recognised this and expressly
stated that “[i]f a claim is not specified in the re quest for the establishment of a panel, then a faulty
request cannot be subsequently ‘cured’ by a complaining party’s argumentation in its first writtensubmission to the panel or in any other submission or statement made later in the panel proceeding.”
4. Thailand notes that the EC also agrees that “no subsequent remedy can cure the fact that the
complainant failed to provide in its request for esta blishment of a panel ‘a brief summary of the legal
basis of the complaint sufficient to present the problem clearly”.  In the EC’s view, allowing such a
remedy would “deprive this formal act of its raison d’être.”
5. Second, in paragraph 11 of its rebuttal and in response to Question 1(a) from the Panel,
Poland contends that a violation of Article 6.2 requires that the Panel examine the intent of the
complainant to determine if the complainant acted wi th “scienter” or “deliberate deceit”.  Poland also
argues that the Panel should conduct this exam ination without considering the Appellate Body’s
interpretation of Article 6.2 of the DSU.  In Thailand’s view, Poland’s approach would be no differentthan including an examination of intent or deceit ful intent with respect to the violation of any
provision of any covered agreement.  Does Poland suggest that the Panel should also examine
whether Thailand intended to violate the Anti-Dumping Agreement? Whether any Thai violation was
intended to be deceitful?  Whether such intent coul d possibly exist, given that the interpretations of
provisions by the panel in Mexico - HFCS  occurred after the investigation? Given that Poland’s
interpretations of the Anti-Dumping Agreement were not known at the time of the investigation?
Given that this Panel’s interpretations were not known at that time?  Poland’s interpretation that an
examination of intent or deceitful intent is required is simply unsupported and unsupportable.
6. In order to complete the record, however, Thailand offers the following particulars to
demonstrate that Poland has and continues to intentionally deceive Thailand: (1) Poland merely listed
articles in its request for establishment of a panel; (2) Poland only offered sweeping allegations in itsWT/DS122/R
Page 320
First Written Submission, rather than provide precise claims based on the documents in its possession
since the investigation; (3) without justification, Poland delayed for over two weeks in accepting a
settlement that would allow all parties access to the confidential basis for the Thai authorities’
determinations; (4) Poland withheld its companies’ consent  to the disclosure of their confidential
information and argued that the entire dispute should be decided on the basis of non-confidentialinformation; (5) Poland used the delay that it caused  as a basis for  rhetoric intended to discredit
Thailand before the Panel; (6) Poland failed to confirm Thailand’s understanding of Poland’s claims
under Articles 2 and 3 of the Anti-Dumping Agreement during the Oral Hearing; (7) Poland changed
the basis for its claims in its First Oral Statement and in its rebuttal; (8) Poland refused to answer
Questions from Thailand, including, as just an example, whether it had requested or otherwiseobtained a translation of the non-confidential application, where in the record the Polish respondents
identified “other factors” and the specific effects of the Kobe earthquake in particular, and how a
“reasonable” profit should be calculated; and (9) Poland presented claims in its rebuttal that were
never raised before.  All of these particulars objectively demonstrate that Poland has intentionally
with scienter and with deliberate deceit misled Thailand as to the claims being asserted against it.
7. Third, in paragraph 15 of its rebuttal, Poland claims that “overly strict interpretations of
provisions designed to protect due process rights” would frustrate the intent of Members’ to secure
positive solutions to disputes.  Thailand cannot understand how such a claim can conform to the basic
protection afforded by the rule of law.  Thailand simply reminds Poland and the Panel that no dispute
settlement system based on the rule of law can operate effectively nor can it be considered legitimate
by its users without ensuring basic and effective protection of due process rights.  These rights must
be more important than reaching a decision at all costs and regardless of fairness to the parties.
8. Fourth, in paragraph 18 of its rebuttal, Poland states that “further factual background”
regarding Poland’s claims is set forth in its request for consultations and in POLAND - 19, which
purports to be the document read to Thai officials during consultations.  From a factual perspective,
neither Poland’s request for consultations nor POLAND - 19 provide any additional “factual
background”.   Poland’s request for consultations gives the date and the dumping margins for thepreliminary determination, the date and the dumping margin for the final determination, and the dates
of the respondents’ request for disclosure and the authority’s reply.  The request then states that
“Poland has serious concerns regarding the conf ormity with the Agreement of the following:
- the determination of injury to the Thai domestic industry according to Article 3 of the
Agreement;
- the determination of dumping (and particul arly the calculation of the dumping margin)
according to Article 2 of the Agreement;
- inconsistency of the procedure applied by th e Thai investigating authorities with the
provisions of Articles 5 and 6 of the Agreement.
9. It is obvious that the request for consultations provides absolutely no indication of or
“additional background” for Poland’s purported claims.
10. In POLAND - 19, Poland attempts to provid e evidence as to why Thailand should not be
confused regarding its specific claims.  POLAND - 19, however, only gives broad discussions of
various aspects of the investigation and then simply  concludes that “we are of the opinion that the
domestic industry of Thailand did not suffer any material injury” or “there was no negative impact.”
Simple disagreements with conclusions cannot rise to  the level of identifying claims that involve the
violation of specific provisions of the agreement.  Notably, POLAND - 19 does not even reference
Articles 3.5, 5 (other than 5.5) or 6 of the An ti-Dumping Agreement or Article VI of GATT 1994.WT/DS122/R
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11. From a legal perspective, Poland’s arguments also fail.  Poland contends that the unconfirmed
oral presentation of a two-page statement such as POLAND - 19 is sufficient to remedy a deficient
request for establishment of a panel and is sufficient to prevent prejudice to the defending Member
and Third Parties as a result of such deficient request.  Poland is simply wrong.
12. First, as provided under Article 4.6 of the DSU, “[c]onsultations shall be confidential, and
without prejudice to the rights of any Member in any further proceeding.”  Thus, third party Members
not involved in consultations will have no indication as to the claims that compose the matter in
dispute and would not be aware of any clarification of such claims during the course of consultations.
Moreover, Article 4.6 states that consultations are not to prejudice the rights of “any” Member.  Thisincludes the rights of the defending Member and third parties to know the precise claims that will
compose the matter subject to panel review.
13. Thailand reminds Poland that what transpires during consultations is supposed to remain
confidential between the parties.  Raising consultations during a panel dispute undermines the entire
consultation process under the DSU.  In fact, Poland’s actions threaten to stifle the willingness of anyMember to enter future consultations with Poland, knowing that Poland is likely to use the discussions
during consultations in any subsequent dispute.
14. Second, past practice of WTO panels and the Appellate Body have found that (1) the DSU
does not require precise and exact identity between the specific measures that were the subject of
consultations and the specific measures identified in the request for the establishment of a panel
(Appellate Body, Brazil - Aircraft , para. 132); (2) a panel must examine claims under a provision of a
covered agreement if such provision is identified in the panel’s terms of reference, even if such
provision was not mentioned during consultations ( Japan - Agricultural Products , para. 8.4); and
(3) “[t]he only requirement under the DSU is that c onsultations were in fact held, or were at least
requested, and that a period of sixty days elapsed . . . What takes place in those consultations is not
the concern of a panel ( Korea - Alcoholic Beverages , para. 10.19)”.
15. In Bananas III , the panel stated that “[c]onsultations are … a matter reserved for the parties.
The DSB is not involved; no panel is involved; and the consultations are held in the absence of the
Secretariat.  In these circumstances, we are not in a position to evaluate the consultation process in
order to determine if it functioned in a particular way … Ultimately, the function of providing notice
to a respondent of a complainant’s claims and arguments is served by the request for establishment of
a panel and by the complainant’s submissions to that panel.” ( Bananas III , paras. 7.19 and 7.20).
16. This past practice demonstrates that any claims allegedly raised between the two parties
during consultations are not the concern of a panel and, in fact, will not necessarily be the claims that
compose the matter subject to panel review.  It is the terms of reference as defined by the request for
establishment of a panel that define the precise claims that will be subject to panel review.  In this
case, the basis for this past practice is evident given that Poland alleges that POLAND - 19 was readto Thai officials during consultations.  There is no way to verify this fact, and it is impossible for
Thailand to prove what Poland actually said or did not say during consultations.  Moreover, Third
Parties will have had no access to this oral presentation by Poland and must rely, like the Panel, on the
request for establishment of a panel.
17. Based on this prior practice, it is clear that wh at transpired in writing or orally during the
course of consultations is irrelevant as to whether Poland violated Article 6.2 of the DSU or whether
Thailand and/or Third Parties were prejudiced by Poland’s actions, or lack thereof.
18. Thailand’s fifth point regarding Poland’s arguments on Article 6.2 of the DSU is that in
paragraph 20 of its rebuttal, Poland contends that Thailand “ignores, for example, the fact that
Poland’s explanation of its Article 3 claims is hinged on express language reflecting the relevant sub-WT/DS122/R
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paragraphs 1, 2, 4, and 5 of Article 3.”  To the contrary, Poland’s request for establishment of a panel
only refers to the express language of paragraph 1 of Article 3 and to the “enumerated factors” in this
paragraph.  The request provides absolutely no reference to the distinct obligations contained in
paragraphs 2, 4, or 5 of Article 3.  Thailand also notes that Poland has merely listed Articles 2, 5, and
6 of the Anti-Dumping Agreement and Article VI of GATT 1994.
19. Poland’s arguments seems to suggest that the best way forward is for the Panel to conclude
that referring solely to the enumerated factors in Article 3.1 is sufficient to set forth claims under
Articles 3.2, 3.4, and 3.5.  Such an approach, however, would be like charging an individual with one
crime (without referring to any facts or circumstances on which the charges are based) and then
adding charges for related crimes at later stages in the trial, thereby giving the individual less and lessopportunity to defend against charges on which a guilty verdict or violation could be based.  Of
course, this approach completely lacks fundamental fairness and due process and cannot be an
acceptable way to operate a system based on the rule of law.
20. Sixth, in paragraph 28 of its rebuttal, Poland attempts to argue that Thailand’s compliance or
lack thereof with Article 6.2 of the DSU is relevant to Poland’s actions in this dispute.  Of course,Thailand’s actions in other cases are completely irrelevant to this case.  Thailand would also direct the
Panel and Poland to its Response to Question 1(a) from the Panel where Thailand explains the
application of Article 6.2 of the DSU in anti-dumping cases.  Thailand also notes that its
September 1999 request fully complies with the requirements of Article 6.2 of the DSU, as evidenced
by reading the entire request for DS181 (not DS180 as Poland cited).  Poland simply quotes from the
concluding summary and ignores the special procedures applicable to disputes under the Agreementon Textiles and Clothing.
21. Seventh, in paragraph 30 of its rebuttal, Poland contends that Thailand has taken a meritless
position in considering that Poland’s claims became less clear during the proceedings.  To the
contrary, as explained in its Response to Question 5(b) from the Panel, Thailand made a good faith
attempt to identify “claims” under Articles 2 and 3 from Poland’s First Written Submission.  During
the hearing, however, Poland did not provide any “clarification” whatsoever and ignored Thailand’sconcerns.  In fact, Poland did not confirm that Thailand had identified Poland’s claims correctly,
proceeded to present new “claims”, and changed ones that Thailand had attempted to identify.  As a
result, Thailand was left with no choice but to object to Poland’s entire case.  A simple comparison of
Poland’s request for establishment, its First Written Submission, and its rebuttal highlights the
incomplete and imprecise nature of the claims presented up to the rebuttal stage.
22. Finally, in paragraph 31 of its rebuttal, Poland tries again to characterise Thailand’s
submission of evidence in its defence as “ ex parte ” and “remarkable” and “secret”.  Poland continues
to misunderstand the nature of panel proceedings.  To show a violation, Poland must present precise
claims and then must present a prima facie  case to support such claims.  If such a case is made,
Thailand must rebut such case with relevant and persuasive evidence and argument.  In this case,Poland’s claims are only now at this late stage becoming clear.  In retrospect, if Thailand had known
that Poland would delay the opportunity for all parties to review confidential information of both the
Polish respondents and the petitioner and then would use the delay that it caused to present misleading
rhetoric throughout the remaining stages of the disp ute, Thailand would have waited until this point to
respond to the claims finally presented in this final stage of the dispute.
23. As it has repeatedly stated in its submissions and directly to the Polish delegation, Thailand
has no objections to Poland reviewing any and all information on which the Thai authorities based
their determinations, subject to the procedures established to protect confidentiality.  Poland’s
repeated failure to recognise Thailand’s good faith and its failure to itself act accordingly is
inappropriate, undiplomatic, and unfair and has no place in WTO dispute settlement.WT/DS122/R
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24. With respect to the submissions of the Third Parties, Japan stated that “specificity of the panel
request effectively prevents the complaining parties from continuously raising additional legal claims
throughout the panel proceedings.  In short, the specificity requirement serves to ensure due process
and fairness in the panel proceeding.”  Moreover, Japan also specifically stated that Poland failed to
satisfy the requirements of Article 6.2 and that the Panel should allow Poland to remedy the lack ofspecificity only in exceptional circumstances and only when the Panel can ascertain “that the ability
of the respondent to defend itself is in no way prejudiced.”
25. Without prejudice to its position under Article 6.2 of the DSU, Thailand now turns to addresssome of the specific issues that seem to underlie the present dispute.
III. THE CORRECT APPLICATIO N OF THE STANDARD OF REVIEW
DEMONSTRATES THAT POLAND HAS FAILED TO MAKE ITS CASE
26. With respect to the applicable standard of review under Article 17.6 of the Anti-Dumping
Agreement, Thailand considers that it has provided an exhaustive discussion of this provision in its
First Written Submission and in its Responses to Qu estions 50 - 53 from the Panel.  Thailand provides
only a brief response to Poland’s interpretation.
A. ARTICLE 17.6(i)
27. In paragraphs 34 and 35 of its rebuttal, Poland contends that the proper establishment of the
facts requires that (1) the data on which the authorities rely is internally consistent and (2) the method
that the Thai authorities gathered the facts must be fair and open and allow interested parties to review
and respond to such facts.  Without prejudice to its interpretation and without necessarily disagreeingwith Poland’s interpretation, Thailand simply emphasises that Poland has completely ignored the
obligation of the investigating authorities to protect confidential information.  More importantly, in its
responses to Questions from the Panel and from Poland, Thailand has demonstrated that none of the
data relied upon by its authorities was internally inconsistent and that its fact-gathering methods were
fair and open and allowed interested parties to review and comment on data, to the extent it was notconfidential.
28. In paragraph 36 of its rebuttal, Poland bases its interpretation of Article 17.6(i) on its
interpretation of Article 3.4.  Thailand simply notes that its interpretation of Article 3.4 is not
consistent with Poland’s interpretation of Article 3.4 and that the Thai authorities were not “biased”
under any permissible interpretation.
B ARTICLE 17.6(ii)
29. From its rebuttal, it is apparent that Poland still fails to understand the text, let alone the
object and purpose, of Article 17.6 (ii) of the Anti-Dumping Agreement.  First, Poland asserts in
paragraph 33 of its rebuttal that the relevant provisions of the Anti-Dumping Agreement do not admitof more than one correct  interpretation.  Leaving aside the unhelpful generality of the assertion, it
simply misses the point. Article 17.6(ii) does not speak to “correct” or “incorrect” interpretations.
Unlike Article 11 of the DSU, Article 17.6 (ii) does not address this question and instead provides that
an authority may use any permissible interpretation.
30. Second, in paragraph 48 of its rebuttal, Poland recognises the obvious possibility of more than
one “permissible” interpretation.  Thus, even Poland realises that the language of Article 17.6(ii) must
be given some effect, and a panel is not free to adopt an interpretation that would reduce a provision
to redundancy or inutility.
31. Third, in paragraphs 32 and 48 of its rebuttal, Poland refers to the permissibility, or
impermissibility, of Thailand’s actions.  The issue is  not the permissibility of actions, but of the ThaiWT/DS122/R
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authorities’ interpretations.  Of course, the former  may follow from the latter, but that is a different
question.  By its repeated reference to the permissibility of Thailand’s actions, Poland seems to
suggest that Thailand is somewhat generally claiming “permissibility” of its actions under
Article 17.6(ii).  This is incorrect.  Thailand has done nothing more and nothing less than interpret the
rule embodied in Article 17.6 (ii).  In Thailand’s view, if the actions of the Thai authorities are basedon a permissible interpretation of the applicable rule, than the Panel should not overturn the
authorities interpretation and the actions flowing from it.
32. Fourth, Thailand fully agrees with Poland’s statement in paragraph 39 of its rebuttal that it is
irrelevant whether the Member interpreting and applying a provision of the Anti-Dumping Agreement
“deems” its actions permissible.  The permissibility of an interpretation is for the Panel to decide.However, Thailand considers that Poland is simply misunderstanding Thailand’s interpretation and
the text itself of Article 17.6(ii) when it asserts that there cannot be different obligations for different
Members derived from the same rule.  All Members have the same obligations under the same
provisions.  But if and when there are two or more permissible interpretations of one provision or two
or more “multilateral understandings” of one provision, any Member is justified under the standardestablished by Article 17.6(ii) if it applies one of those permissible interpretations.  In that sense, it
may indeed happen that different Members’ actions may be upheld by panels based on different
interpretations.  But it is any Member’s right to re ly on any of these permissible interpretations of one
and the same obligation.
33. In paragraph 45 of its rebuttal, Poland contends that Thailand introduces a new standard by
stating that an appropriate test is whether a decision “could have been made by a reasonable and
unprejudiced person.”  Not only is this the test applied by multiple panels in the application ofArticle 17.6 (i), but it is also quite obviously an interpretation of the requirements of Article 17.6 (i),
not an introduction of new elements.  By merely restating that the text of Article 17.6 (i) states
“unbiased and objective”, Poland does little to assist the Panel in formulating an interpretation of
Article 17.6(i) consistent with past practice.
34. In addition, in paragraph 47 of its rebuttal, Poland attempts to offer a reference post hoc  to its
“claim” alleging bias on the part of the Thai authorities.  First, Poland refers only to obligations of the
investigating authorities under Article 3.1 of the Anti-Dumping Agreement, including positive
evidence and an objective examination.  Poland does not refer to bias, to the absence of an objective
evaluation, or to the applicable standard of review under Article 17.6.  Thailand notes that an
examination (or the act of investigating) is not the same as an evaluation (or the act of determining the
value of).  Second, under the applicable standard of review, Poland must present a prima facie  case
with respect to each and every claim.  A single sweeping allegation is insufficient.  Finally, Poland
has still not presented any evidence to support even this broad and sweeping allegation of lack of
objectivity.
35. Finally, in its Response to Question 53 from the Panel, Poland discloses its misunderstanding
of its obligations in a WTO panel dispute.  In part (a) of Question 53, Poland repeatedly refers to what
Article 17.6(i) obligates the Panel to investigate or examine in the context of the Thai investigation.
In fact, the Panel is limited under the chapeau  of Article 17.6 of the Anti-Dumping Agreement to
examine the matter before it, including the measure and the claims comprising such matter.   It is only
within this context that the Panel may apply the standard of review.  In other words, the Panel mustapply the standard of review in examining the clai ms presented by Poland and not the validity of the
Thai investigation outside the scope of such claims.
37. Thailand reiterates that Poland has the burden of proof as a matter of law throughout this
dispute to demonstrate that Thailand has violated its obligations under the Anti-Dumping Agreement
and GATT 1994.  As a matter of process, Poland must first present a prima facie  case of a violation
under the applicable standard of review in orde r to trigger any obligation by Thailand to respond.WT/DS122/R
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According to Thailand, Poland has failed to present the required case and has, in most cases, failed to
even make the requisite claims.  Therefore, Thailand respectfully submits that Poland’s failure to
establish a prima facie  case under the applicable standard of review should end the Panel’s review on
all aspects of Poland’s complaint.
38. In section (c) of its Response to Question 53, Poland finally attempts to list its claims in this
dispute.  Poland states that such claims can be found in the Panel’s terms of reference, in Poland’s
First and Second Written Submissions,  in Poland’s First Oral Statement, and Poland’s Responses to
Panel Questions 3, 4,  8, and 9.  As the Appellate Body has stated, however, “claims” must be set
forth in the request for establishment of a panel.  Thailand simply urges the Panel to compare these
“claims” in Poland’s Response to Question 53 with the purported “claims” listed in its request forestablishment of a panel.  Only one claim appears to be the same.  For this one purported claim,
however, Poland still does not provide sufficient detail, given that it does not list which of the three
factors in Article 3.1 was not considered, much less provide any additional facts or circumstances on
which the alleged violation is based.
IV. THAILAND ACTED CONSISTENTLY WITH ARTICLE 2 OF THE ANTI-
DUMPING AGREEMENT
39. With respect to Articles 2.2 and 2.2.2 of the Anti-Dumping Agreement, Thailand refers the
Panel to its previous submissions and to the submissions of the EC and the United States.
40. Thailand considers that its authorities were permitted to calculate profit using the method
provided under Article 2.2.2(i) and that the amount calculated was per se  reasonable.  In its response
to Question 29 from the Panel, Poland admitted that the Thai authorities correctly calculated the
amount of profit under the method provided in subparagraph (i).  Therefore, Thailand acted in
accordance with Articles 2.2 and 2.2.2(i) of the Anti-Dumping Agreement and Article VI of GATT
1994.
41. Even if an additional obligation to ascertain the “reasonableness” of the amount of profit
calculated under Article 2.2.2(i) is introduced, the Thai authorities demonstrated the reasonableness ofthe profit amount.  In the “Fair amount of profit” section of THAILAND - 62, the Thai authorities
compared the profit amount for all H-beams and the profit amount for the like product (JIS H-beams)
and demonstrated that the profit amounts were virtually identical. The Thai authorities also found in
THAILAND - 62 that “based on the price information submitted by Huta Katowice, it is noted that
there is no significant difference between the weighted average price of profitable sales of JIS (989.22PLN per tonne) and DIN (993.12 PLN per tonne) products sold on the Polish domestic market.”
42. As evidenced in its responses (or lack thereof) to Questions 7 and 8 from Thailand, Poland
has offered no method for determining whether a particular level of profit is “reasonable”.  Moreover,
although Huta Katowice is actually earning profits in excess of 35 percent on all H-beams and
virtually the same profits on JIS H-beams, Poland continues to regard this profit level asunreasonable.  Thailand simply cannot understand how an investigating authority could ever justify
using Poland’s approach of taking a profit amount other than that actually realised on the domestic
sales of the identical or general category of products concerned.
43. Thus, assuming the Panel decides to address Poland’s allegations, Thailand respectfully urges
the Panel to find that Poland has failed to demonstrate that the Thai authorities’ interpretation ofArticles 2.2 and 2.2.2(i) of the Anti-Dumping Agreement and Article VI of GATT 1994 was not
permissible and, in the alternative, that the Thai auth orities were biased or subjective in assessing the
reasonableness of the profit amount used for constructed value.WT/DS122/R
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V. THAILAND ACTED CONSISTENTLY WITH ARTICLE 3 OF THE ANTI-
DUMPING AGREEMENT
44. At this point in this proceeding, and despite all of its highly charged and undiplomatic
rhetoric, it is clear that Poland’s complaint is entirely based on its disagreement with the conclusionsreached by the Thai authorities with respect to injury and causation.  As Thailand has demonstrated,
the information and analysis on which the injury and causation determinations were made was
properly established and evaluated without bias or subjectivity in reaching an affirmative
determination.  While Thailand has admitted to making a number of reporting and clerical errors,
Poland is well aware that such errors were not material to the determinations made and have beenadequately and thoroughly explained during the course of these proceedings.
45. Poland is now referencing these errors and the confidential information supplied by interested
parties using unhelpful, argumentative, and meaningless terms such as “secret”, “ ex parte ”, “post
hoc”, “gibberish”, and “breathtaking”.  Quite surprisingly, Poland repeatedly alleges that information
on the record was not shared with the interested parties.  Apparently, Poland does not understand orhas chosen to completely ignore Thailand’s obligation to protect confidential information.  Although
Poland’s approach in this dispute constitutes a tr ansparent attempt to discredit Thailand before the
Panel, it does nothing to support any of the claims made by Poland, to the extent that such claims can,
in fact, be identified.
46. Another unfortunate aspect of Poland’s rebutt al is that it continues to misunderstand the
nature of WTO panel proceedings.  For example, in paragraph 52 of its rebuttal, Poland asserts that
Thailand has offered no evidence on the “meaningful establishment, consideration and evaluation ofseveral factors enumerated in Article 3, and utterly ignores the requirement that it explain why it did
not give weight to the factors it did discuss.”  Poland also states that Thailand makes no
demonstration that dumped imports caused material  injury to SYS.  Notwithstanding that the Thai
authorities did comply with Articles 3.4 and 3.5 in finding injury and causation, it is not Thailand’s
obligation in this panel proceeding to explain how each and every aspect of its injury and causationfindings complied with the Anti-Dumping Agreement.  Rather, in order for the Panel to find that
Thailand acted inconsistently with the Agreement, Poland must present claims in its request for
establishment of a panel; it must present a prima facie  case of a violation based on such claims; and
Thailand must be found not to have rebutted any prima facie  case.
47. In this case, Poland (1) failed to set forth its claims in its request for establishment of a panel
with sufficient specificity; (2) failed to present a prima facie  case on any claims that were properly
raised; and (3) therefore, failed to satisfy its burden of proof that Thailand acted inconsistently with
the Agreement on any aspect of the Thai authorities’ injury or causation determinations.
A. ARTICLES 3.1 AND 3.2
48. In paragraphs 54 to 57 of its rebuttal, Poland demonstrates its complete misunderstanding of
the confidential factual record on which the Thai authorities based its determination.  This record
contains positive evidence that the Thai authoritie s objectively examined with respect to all of the
factors listed in Article 3.1 of the Anti-Dumping Agreement.  Thailand considers that it has also
demonstrated in this proceeding that the Thai auth orities did consider that increases in imports were
significant and that price undercutting and price suppression and depression was occurring to a
significant degree.
49. Thailand has explained the difficulties in summarising non-confidential information for the
interested parties and in providing translations of original Thai language documents.  The Thai
authorities provided these summaries and translations in good faith in order to provide the
respondents with an opportunity to comment in defence of their interests.  With only one respondentWT/DS122/R
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and one petitioner, the Thai authorities would have been completely within their rights under Article 6
to block out the actual data in confidential tables and not provide relative figures, as is the practice of
other Members.  Thailand would also have acted consistently with the Anti-Dumping Agreement in
refusing to provide any translation of the essential facts and determinations.  Thailand’s good faith
efforts should not be penalised.
B. ARTICLE 3.4
50. With respect to Article 3.4, the essential question for the Panel is how it will approach its
examination of the matter in dispute under its terms of reference, including the claims, if any,
provided therein.  In its request for establishment of a panel, Poland failed to set forth any preciseclaims.  Poland only stated that the Thai authorities violated their obligations under Article 3 in
finding injury and recited the language in Article 3.1 of the Anti-Dumping Agreement.
51. In its First Written Submission, Poland stated that all relevant economic factors were not
examined and clarified what it had said during consultations, i.e., that it disagreed with the authorities’
conclusions reached because certain factors evaluated under Article 3.4 indicated that the domesticindustry was not injured.  Poland then asserted, specifically, that the “Thai authorities chose not to
present evidence regarding profits, losses, profit ability or cash flow.”  Thailand responded to the
specific allegation that evidence was not presented on the four factors and directed the Panel and
Poland to where this evidence was referenced.
52. In its First Oral Statement, Poland simply reiterated its broad allegation under Article 3.4 and
failed to identify any additional specific factors.   Instead of speculating as to which of the factors that
Poland may consider relevant, but unexamined or unevaluated, Thailand again referred to where theevidence evaluated on the four factors identified by Poland could be found.
53. In its questions, the Panel proposed an interpretation of Article 3.4.  Although Poland
obviously embraced the Panel’s interpretation, Thailand disagrees with the Panel’s proposed factor-
by-factor approach and considers it to be impermissibly strict and contrary to the object and purpose
of Article 3.4, i.e., to examine the impact of the dumped imports on the domestic industry under
circumstances where no factor can give decisive guidance.
54. Thailand considers that there may indeed be another permissible interpretation of Article 3.4
of the Anti-Dumping Agreement that Thailand has not raised.  Under Article 3.4, the “examination”
or “investigation” shall include an “evaluation” of all relevant factors or, consistent with the definition
of “evaluate” in the Concise Oxford English Dictionary , shall include the “formation of an idea of the
amount, number, or value of” all relevant factors.  A question could arise as to whether the reference
to “evaluation” in Article 3.4 means forming an idea about the amount, number, or value of each
individual “factor” or forming an idea about the amount, number, or value of the impact as a whole of
dumped imports, i.e., evaluating whether there is injury and whether it is material.  Under such an
interpretation, Article 3.4 would not require a factor-by-factor evaluation, but would require anevaluation of the raw data obtained on the entire set of relevant factors.
55. In any event, in response to the Panel’s request for Poland’s position on the 16 factors
presumed to be listed in Article 3.4, Poland now specifies at the rebuttal stage of these proceedings
that the Thai authorities did not “consider” a series of specifically identified factors, reiterates that
none were adequately evaluated, and then offers an allegation in the context of the applicable standardof review.
56. Thailand is left in the unfortunate position of either attempting to identify and respond during
the final Oral Hearing to Poland’s new claims provided at the rebuttal stage or to trust the Panel to
recognise that any semblance of due process would be destroyed and that the validity of WTO
proceeding in the eyes of WTO Members would be undermined if the Panel were to accept Poland’sWT/DS122/R
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late claims and make findings on them.  Thailand will trust the Panel to protect its due process rights
in this proceeding.
57. Subject to its objections and the necessary prej udice that flows from Poland’s approach to this
case, Thailand offers a response to Poland’s charges, to the extent it is able to formulate one at this
late stage in the proceeding.  As Thailand has stated, during its examination, the Thai authoritiesevaluated or formed an idea of the amount, number, or value of all relevant economic factors and
indices having a bearing on the state of the industry.  Thailand notes that in its rebuttal, Poland
predominantly refers to its disagreement with the Thai authorities’ conclusions reached regarding its
evaluations, not to whether such evaluations were indeed conducted.
58. In paragraph 1 of POLAND - 19, in paragra ph 64 of its First Wri tten Submission and in
paragraph 32 of its First Oral Statement, Poland admitted that the Thai authorities formed an idea
about the amount, number, or value for output, capacity utilisation, sales, market share, and
employment, indicating that they were all increasing.  Poland also indicated that inventories were
falling and capacity ( i.e., growth) was increasing.  Thus, even Poland concedes that the Thai
authorities evaluated these factors.
59. For actual and potential decline in profits and actual and potential negative effects on cash
flow, the Thai authorities formed an idea ab out the amount, number, or value as specified in
paragraphs 98 to 101 of Thailand’s First Submission and as reflected, inter alia , in paragraph 1.17 of
THAILAND - 44 and paragraph 2.3 of the Final Injury Determination in THAILAND - 46.
60. With respect to actual and potential decline in return on investments and actual and potential
negative effects on ability to raise capital and on investment, the Thai authorities evaluated these
factors, inter alia , in paragraph 1.17 and section 5 of THAILAND - 44.
61. For factors affecting domestic prices, THAILAND - 44 contains an evaluation of domestic
production, import volumes, consumption, global and domestic market conditions, credit terms, and
other factors that affect domestic prices.
62. With respect to the magnitude of the margin of dumping, the Thai authorities obviously did
not know the magnitude of the final margin unti l after the final dumping determination.  Thus, its
evaluation of the magnitude of the margin was based on the significantly lower price that Poland was
able to offer to take sales in Thailand as a result  of its dumping and the impact that such low prices
have on the domestic industry.  This evaluation is reflected in, among other places, section 4 of
THAILAND - 44.
63. The Thai authorities also agree with the interpretation of this factor given by the authorities of
other Members, including the US International Tr ade Commission.  According to the U.S. ITC, for
example, the magnitude of the margin of dumping does not illuminate either the nature of competition
in the importing Member between subject imports and the domestic like product, or the extent of any
injury caused to domestic producers caused by such imports.  Instead, the magnitude of the margin of
dumping typically speaks to differences in conditions in the home market as compared to the marketof the importing Member or in the variables used to construct normal value or export price.
64. For actual and potential decline in productivity, paragraph 2.5 of the Final Determination
explains that SYS was still seeking economy of scale as a new producer, and thus, its productivity was
necessarily always increasing during this period of expansion and development.
65. With respect to actual and potential negative effects on wages, Thailand regrets that its
evaluation relied on cost information that SYS has no t authorised Thailand to disclose.  As shown in
THAILAND - 67, SYS submitted labour cost information.  These costs reflect that the vast majorityWT/DS122/R
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of workers are paid on minimum statutory levels.  T hus, labour costs are directly linked to the number
of employees.
66. Notably, section 4 and 5 of THAILAND - 44 and the Final Injury Determination in
THAILAND - 46 reflect the investigation into the impact of dumped imports on the domestic industry
and the evaluation of  the entire set of relevant factors and indices in determining whether the impactof dumped imports caused material injury.
67. In paragraphs 72 to 92 of its rebuttal, Poland raises a number of issues relating to data that
Thailand has clarified in its rebuttal and in its responses to Poland’s questions.  Thailand notes,
however, that it has never and does not now “seek to distance itself” or “wish to walk away” from its
confidential report.  Rather, Thailand considers that  the report correctly summarises the basis for the
Thai authorities’ determination and demonstrates that such determination was entirely consistent with
the Anti-Dumping Agreement.
C. ARTICLE 3.5
68. In paragraph 95 of its rebuttal, Poland introduces for the first time a completely new
interpretation of Article 3.5 of the Anti-Dumping Agreement and claims that Thailand violated
Article 3.5 because the Thai authorities provided “no examination of why the factors enumerated in
Article 3.5 [of the] Anti-Dumping Agreement were or were not themselves relevant.”  Poland’s
newest claim has no basis in the text of Article 3.5 and completely ignores the other factors that the
Thai authorities did consider.  Moreover, Poland’s new claim simply redirects the Panel away from
the fact that Poland has failed to respond to Thailand’s question regarding where any interested party
raised the Kobe earthquake as having a specific effect separate and distinct from the effect of globalmarket conditions for H-beams.
69. In footnote 73 of its rebuttal, Poland simply  notes that the Kobe earthquake was “raised”
during the oral hearing and at verification, without any evidence to support its claim, including no
reference in THAILAND - 36.  Poland also cites to THAILAND - 40, where the earthquake wasmentioned only in a footnote and only in the context of prices in the Asian markets as a whole.  Thus,
Poland has provided no explanation or supporting evidence regarding the basis on which any unique
effects of the earthquake should be examined in addition to global market conditions for H-beams.
Poland has also not indicated where the “other factors” that it merely lists were raised in the
underlying proceeding.
70. In paragraph 100 of its rebuttal, Poland states that it “cannot speculate as to why Thailand has
refused to release [SYS’ cost of production] information.”  To prevent Poland from “speculating”,
Thailand reminds Poland that SYS has not authorised disclosure of this information because it
considers that the Government of Poland will not protect the confidentiality of this information fromits state-controlled steel company.  Given Poland’s repeated and exhaustive references to “secret”
rather than the correct term, “confidential”, in referring to data that Poland is to prevent from
disclosure, Thailand considers that SYS’ fears may be well-founded.  Thailand also notes that
Poland’s confusion may explain why it delayed obtai ning approval from its respondents to disclose
their confidential data and even, at one point, stated that the Panel should limit its examination to non-confidential information.
71. Poland’s remaining arguments regarding causation are based on issues that Thailand has
clarified in its rebuttal and in its responses to Poland’s questions and reflect the essential basis of
Poland’s complaint, that is, Poland simply would have reached a different conclusion based on the
record of the investigation.WT/DS122/R
Page 330
VI. THAILAND ACTED CONSISTENTLY WITH ARTICLE 5 OF THE ANTI-DUMPING
AGREEMENT
72. In its rebuttal, Poland finally provides some clarification of its assertions with respect to
Article 5.  Thailand is now, however, in the seriously prejudicial position of having to respond tothese allegations orally at the last hearing.  Poland cannot now remedy its violation of Article 6.2 of
the DSU by clarifying its assertions during rebuttal.  Such an approach violates Article 6.2,
undermines Thailand’s due process rights, and seriously prejudices Thailand’s ability to defend itself.
Notably, Third Parties have never seen the clarification that Poland now provides for the first time.
To the best of its ability at this late stage, Thailand offers its response.
A. ARTICLE 5.2 CHAPEAU
73. In paragraphs 116 to 117 of its rebuttal, Poland alleges for the first time that Thailand violated
the chapeau  of Article 5.2 of the Anti-Dumping Agreement.  Poland apparently contends that the
application contained no “evidence” whatsoever on injury or causal link.  The “evidence” of injury
and causal link are provided in both the non-confidential and confidential versions of the application
contained in THAILAND - 1, THAILAND - 52, and THAILAND - 53.  Notably, the chapeau  of
Article 5.2 only provides that the application must contain “evidence” that is relevant and that is
beyond simple assertion.  No quantum of evidence beyond this minimum threshold is required.
Moreover, the chapeau  does not require that an application contain analysis of any kind.  As the panel
in Mexico - HFCS  (para. 7.76) stated, “Article 5.2 does not require an application to contain analysis,
but rather to contain information, in the sense of evidence, in support of allegations.”  The application
of SYS clearly satisfies the requirements of the chapeau  of Article 5.2.
74. Thailand directs the Panel to, as a brief example, the attachments to the confidential and non-
confidential applications which contain relevant evidence beyond simple assertion on: selling pricesof H-beams, SYS selling prices, SYS financial statements, total imports from Poland compared with
total consumption in Thailand, import quantity, import price, sales volume of SYS, domestic market
quantity and market share by country, product size information, domestic market quantity and market
share by group of products, quantity and import price from other countries, imports from 1988-1996,
summarised information on SYS including domestic market conditions, import duty comparison,import prices, average import prices from Poland, and SYS inventories.
75. As noted earlier, Poland did not respond to Thailand’s question as to whether it requested or
otherwise obtained a translation of the non-confiden tial application.  As even a cursory examination
of THAILAND - 53 demonstrates, Poland would probably not have raised these allegations had it orthe Polish respondents taken any amount of responsib ility for determining the basis for the initiation.
The non-confidential application was distributed to Poland and to the Polish respondents over three
years prior to the filing of the request for establishment of a panel.  In response to Question 11 from
the Panel, Poland states that the non-confidential application was the only information in its
possession and that it can only provide detail when it receives the confidential application.  As alreadystated, Poland has had well over three years to request or obtain a translation of the non-confidential
application in its possession and has failed to do so.
76. In footnote 92 to its rebuttal, Poland cites POLAND - 17 and POLAND -18 for support.
Thailand simply notes that neither exhibit refers to Article 5 or, specifically, to Article 5.2.  In fact,
Poland only contends that Thailand “infringed” articles 12.1.1(iii) and 12.1.1(iv) of the Anti-Dumping
Agreement.  Poland has not raised these articles in the context of this dispute.  Interestingly, the
majority of POLAND - 18 does not even relate to this dispute, but contains five comments on “other
inconsistencies of the Thai anti-dumping legislation with the Agreement.”WT/DS122/R
Page 331
B. ARTICLE 5.2(iv)
77. In paragraph 117 of its rebuttal, Poland then makes the rather confusing claim that the
application contained only raw numerical data on dumping and that this data is not sufficient under
Article 5.2(iv) because it is not more than simple assertion, unsubstantiated by relevant evidence.First, Thailand again emphasises that Poland has never identified subparagraph (iv) of Article 5.2
prior to the rebuttal stage.  Second, Thailand considers that the information relating to dumping is that
information reasonably available to the applicant under subparagraph (iii) of Article 5.2, including
relevant price information.  Therefore, Thailand is unclear as to the nature of Poland’s allegation
under Article 5.2(iv).
78. In paragraph 117, Poland continues by providing an incomplete reference to the Mexico-
HFCS  panel report.  As Poland correctly states, the panel in Mexico-HFCS  considered that the
information provided in an application must “demonstrate” the consequent impact of the imports on
the domestic industry.  Poland, however, did not refer to footnote 575 which cites the Concise Oxford
Dictionary  and states that “[w]e do not understand ‘demonstrate’ in this context to mean ‘prove’, but
rather to mean ‘show evidence of; describe or explain by help of specimens . . . ‘”.  Notably, the panel
in Mexico-HFCS  (para. 7.74) also stated that “the applic ant need only provide such information as is
‘reasonably available’ to it with respect to the rele vant factors.” As discussed earlier, the application
clearly contained information reasonably available to the applicant on factors relevant to the
allegation of injury and this information “shows evidence of” the consequent impact of dumped
imports on the domestic industry.
79. In accordance with the panel’s legal and factual findings in Mexico-HFCS , Thailand
respectfully urges the Panel to find, to the extent it decides to reach Poland’s claims, that Poland has
failed to present a prima facie  case that the Thai authorities were biased or subjective in finding that
the application satisfied the requirements of the chapeau  and subparagraph (iv) of Article 5.2.
C. ARTICLE 5.380. In paragraph 119 of its rebuttal, Poland claims that Thailand violated Article 5.3 of the Anti-
Dumping Agreement because the Thai authorities could not satisfy the obligations of Article 5.3 if“the petition lacks two of the three basic requirem ents for initiation, and is wholly deficient with
respect to the third.”  Poland confirms that this is the basis for its allegation under Article 5.3 in its
Response to Question 12 from the Panel.  As Thailand has demonstrated, the Thai authorities
complied with the chapeau  of Article 5.2 and Article 5.2(iv) and thus the basis for Poland’s allegation
under Article 5.3 lacks foundation.
81. Thailand notes that the panel in Mexico - HFCS  (para. 7.95) stated that its analysis under
Article 5.3 would principally be based “on the notice of initiation, but also take into account
information that was before [the investigating authority] at the time of its determination, to the extent
consideration of it can be discerned from the notice.”  As Thailand has repeatedly stated, Poland hasnot identified any portion of the record as described in Thailand’s Response to Question 10 from the
Panel on which its allegations under Article 5.3 are based.  This may be because Poland erroneously
considers, as stated in its response to Question 10 from the Panel, that the non-confidential application
is the only relevant document for determining if the Thai authorities complied with Article 5.3. Thus,
the only basis for Poland’s claim under Article 5.3 must be its claim that Thailand violated
Article 5.2.  As just stated, Poland’s allegation under Article 5.2 is without merit.
82. Accordingly, to the extent that the Panel decides to reach Poland’s claim under Article 5.3,
Thailand respectfully urges the Panel to find that Poland has failed to present a prima facie  case that
the Thai authorities were biased or subjective in fi nding that sufficient evidence existed to justify the
initiation of an investigation.WT/DS122/R
Page 332
D. ARTICLE 5.5
83. With respect to its allegations under Article 5.5 of the Anti-Dumping Agreement, Thailand
simply notes that Poland has provided no legal basis for its position that Article 5.5 requires writtennotification and that oral notification is not perm issible.  Poland’s only support is the same AHG
minutes that Thailand considers support its position that written notice is not required.
84. In their responses to Question 3 from the Panel, Third Parties similarly found that Article 5.5
does not require written notification.
85. With respect to the facts surrounding the meeting between the Thai authorities and a
representative of the Government of Poland, Poland asserted its view of the facts in response to
Question 8 from the Panel.  Poland did not provide any documentary evidence to support its views
and did not provide any of the details requested in Question 8(c) from the Panel with respect to the“timeliness” or “propriety” of the notification or with respect to what should have happened at the
meeting but did not.
86. Thailand refers the Panel to its Response to Question 8 and to THAILAND - 14, THAILAND
- 56, and THAILAND - 57.
VII. THAILAND ACTED CONSISTENTLY WITH ARTICLE 6 OF THE ANTI-
DUMPING AGREEMENT.
87. In paragraph 123 of its rebuttal, Poland first inaccurately quotes from Article 6.4 of the Anti-
Dumping Agreement and then sets forth its claims in  detail for the first time.  As I stated earlier,
Thailand is now in the seriously prejudicial position of having to respond to these claims orally at thelast hearing.  Poland cannot now remedy its violation of Article 6.2 of the DSU by making its claims
during rebuttal.  Such an approach violates Article 6.2, undermines Thailand’s due process rights, and
seriously prejudices Thailand’s ability to defend itself.  Notably, Third Parties have never seen these
claims.  To the best of its ability at this late stage, Thailand offers its response.
A. ARTICLE 6.4
88. Poland contends for the first time that Thailand violated Article 6.4 because the Thai
authorities never informed the Polish respondents that SYS filed a non-confidential version of its
questionnaire response and never affirmatively provided such response to the Polish respondents.Poland and the Polish respondents obviously knew that SYS filed a questionnaire response, as
evidenced in paragraph 1 of the Preliminary Injury Determination in THAILAND - 25.  Because the
Thai authorities were obligated to require interested parties to furnish a non-confidential summary
under Article 6.5.1 of the Anti-Dumping Agreement, Poland and the Polish respondents either knew
or should have known that a non-confidential version was filed by SYS.  In its First WrittenSubmission, Poland did not claim that the authorities failed to require SYS to submit a non-
confidential version.  If Poland had not known that the non-confidential version existed, it certainlywould have claimed that Thailand violated Article 6.5.1 for not requiring one from SYS.
89. Thailand now reminds Poland and the Panel of the precise requirements of Article 6.4.  This
article states that “whenever practicable” the authorities shall provide “timely opportunities for all
interested parties to see all information” that (1) is relevant to the presentation of their cases, (2) is notconfidential, and (3) is used by the authorities in its investigation.  Poland has not demonstrated that
the authorities failed to allow respondents to see, where practical, information that satisfies these three
conditions. Moreover, Poland has presented no evidence to demonstrate that respondents were denied
a timely opportunity to see the non-confidential version, to the extent Poland can demonstrate that theWT/DS122/R
Page 333
information contained in the version satisfies the conditions under Article 6.4.  Thus, Poland has
failed to present a prima facie  case that Thailand violated Article 6.4.
90. Next, Poland claims that Thailand violated Article 6.4 because the Thai authorities failed to
provide “a legally adequate copy of any petition, as the non-confidential summary, ExhibitTHAILAND 1, fails to meet the requirements of  Article 5.3 AD.”  As I stated earlier, the non-
confidential version of the application provided to Poland and the Polish respondents in September
1996 satisfies the requirements of Article 5.2 of the Anti-Dumping Agreement and the authority acted
consistently with Article 5.3 of the Anti-Dumping Agreement.  Moreover, the compliance with
Article 5.3 is irrelevant to whether Thailand complied with Article 6.4.  Thus, Poland’s claims areboth unsubstantiated and irrelevant.
91. Next, again in paragraph 123 of its rebuttal, Poland makes an assertion relating to whether the
Final Determination was based on detailed findings of fact or on “secret” findings that contradict
statements in the Final Injury Determination.  Thailand is not clear how Poland considers thatThailand violated Article 6.4 and, accordingly, simply refers to Thailand’s responses to the questions
from the Panel and Poland.
B. ARTICLE 6.5.192. In paragraph 124 of its rebuttal, Poland provides no additional clarification of its purported
claim under Article 6.5.1 of the Anti-Dumping Agreement.  Either intentionally or unintentionally,Poland refers to the non-confidential summaries “that were provided.”  Thailand does not understand
whether Poland is claiming that the authorities’ non-confidential summaries do not meet the
requirements of Article 6.5.1 or whether the non-confidential summaries filed by the interested parties
violate Article 6.5.1.  Poland refers to “tossing out labels” of price suppression and price undercutting,
suggesting that its claim is that the authorities’ summaries violated Article 6.5.1.  On its face,however, Article 6.5.1 does not apply to any summaries prepared by the authorities.
93. In paragraph 124 of its rebuttal, Poland then shifts from its original assertion under
Article 6.5.1 to a new one.  Now, Poland apparently contends that failure to provide non-confidential
summaries does not, in fact, violate Article 6.5.1, but Article 6.4.  I have already addressed Poland’s
Article 6.4 claims.
C. ARTICLE 6.994. In paragraph 125, Poland again asserts that Thailand violated Article 6.9 of the Anti-Dumping
Agreement.  At this point, Poland claims that this violation is based on the failure of the authorities to
provide the respondents with a weighing of all relevant economic factors used as the basis for the final
injury determination, including the basis for using overlapping 12-month periods for comparison.  As
Thailand has stated in its Responses to Questions 9 and 12 from Poland, the Thai authorities were
obligated to disclose non-confidential essential “facts” not the analysis of those facts.  It was notobligated to disclose how it intended to weigh economic factors for which it collected facts or its basis
for reporting both 1995/IP and quarterly data.  Poland has not provided any basis in Article 6.9 for the
obligation to disclose analysis in addition to facts.
95. Poland continues to complain about the reporting of overlapping periods for certain factors.  It
has still failed, however, to demonstrate that any distortion is introduced by the use of these periods.
Moreover, in most cases, the Thai authorities analysed monthly, quarterly, and 1995/IP data, asevidenced in THAILAND - 44, THAILAND - 66, and THAILAND - 67.  Because of the confidential
nature of this data, however, the authorities decided to disclose indexed 1995/IP data for a number of
factors.  Finally, as Thailand has stated in previous submissions, the comparison of overlappingWT/DS122/R
Page 334
periods is as meaningful as a comparison of periods that do not overlap, given that the authorities
were well aware of the nature of the comparison.
96. In paragraph 125 of its rebuttal, Poland also contends that the Thai authorities should have
disclosed additional facts that were not contained in the disclosure of essential facts in THAILAND -37 or in the disclosure on dumping to the Polish respondents in THAILAND - 38.  Poland has still not
provided any indication of the additional data that should have been disclosed.  Moreover, Thailand
has fully explained any inadvertent clerical er rors or discrepancies between the confidential
information on which the final determination was based and the non-confidential disclosure provided
to interested parties.  None of these errors or discrepancies materially affected the disclosure ofessential facts or the ability of interested parties to defend their interests.  Poland has failed to
demonstrate otherwise.
97. Poland’s Response to Question 21 from the Panel continues to raise Thailand’s “surprise” at
additional requests for disclosure.  In an attempt to misleadingly portray the Thai authorities as non-responsive, Poland asks the Panel to compare THAILAND - 40, 47, and 48 with THAILAND - 49.
Of course, Poland did not refer to the comprehensive response to THAILAND - 40 that the Thai
authorities provided in THAILAND - 41.  Poland also ignores the fact that the final determination was
not based on any new information, as was stated  in THAILAND - 49.  Thus, there were no new non-
confidential facts that could have been disclosed.
VIII. CONCLUSION
98. Based on the aforementioned, Thailand respectfully requests that the Panel find that it acted
consistently with its obligations under Article VI of GATT 1994 and the Anti-Dumping Agreement.WT/DS122/R
Page 335
ANNEX 2-10
RESPONSES FROM THAILAND TO
ORAL QUESTIONS OF THE PANEL AT THE SECOND MEETING
(13 April 2000)
1. Pursuant to your instruction, Thailand provides the following clarifications to its responses to
questions from the Panel and Poland:
2. In its Opening Remarks to the Second Oral Hearing, Thailand referred to a document
regarding the restructuring of Huta Katowice in the context of Poland's accession to the EU.  The Thaidelegation has not been able to confirm the nature and date of this document from the source of the
passage.  Accordingly, Thailand requests that the Panel disregard this reference as irrelevant to this
dispute.
3. Mr. Gauthier asked for a more detailed explanation of the factors considered by the Thai
authorities in its determination of price undercutting.   The Thai authorities first determined that Polish
imports and domestic products competed on the basis of price.  As stated in response to AdditionalQuestion 11 from Poland (and confirmed in paragraph 1.5 of THAILAND – 44):
This was considered decisive in that the H-beams exported by Poland and the H-
beams produced by the domestic industry were competing in the same segment of the
market, generally of the same quality, specifications, and end-use.  Poland was well-known by the consuming industry as a major supplier of H-beams in Asia.  There was
also no quality difference between the product of SYS and Poland that would justify
this price difference.  Consequently, decisions of sourcing of H-beams from Poland
or the domestic industry was dictated by price.
The authorities then compared Polish import prices and SYS' prices in a number of different ways.
As stated in response to Additional Question 6 from Poland (and confirmed in paragraph 2 of
THAILAND – 25):
It should be pointed out that the analysis of price-undercutting presented to the CDS
Committee was in far more detail than the summary provided.  The presentation ofprice undercutting involved comparisons of actual selling prices of Poland available
to the DIT with the actual selling price of the domestic industry at the same level of
trade in Thailand (end user) and on the same terms.  This information was used for
the preliminary determination, confirmed for the final determination, and presented in
detail to the CDS Committee.
This analysis was conducted on a transaction-by- transaction basis, where such information was
available, on an average monthly basis, on an average quarterly basis, and on an average 1995/IP
basis.  For purposes of reporting to Poland, the Thai authorities used a quarterly basis as evidenced in
THAILAND – 67 and in Thailand's response to Question 13 from Poland, which states:
The Thai authorities considered all relevant  information regarding the level of price
undercutting.  As it will be appreciated, price undercutting varies on a transaction bytransaction basis as well as on the information made available to the Thai authorities.
In this context, a wide range of prices were used to establish price undercutting.  forWT/DS122/R
Page 336
the purpose of the disclosure provided to Poland, price undercutting was illustrated as
a comparison between c.i.f. import prices and SYS ex-factory prices, i.e. "landed"
prices in Thailand.
For other purposes, the Thai authorities also considered, inter alia , the effect of credit terms
(paragraph 1.18 of THAILAND – 44 and Thailand's response to Question 13 from Poland), the importduty (paragraph 3.4 of THAILAND- 44), the BOI su rcharge (paragraph 3.4 of THAILAND – 44), and
the timing of offers (paragraph 4.3 of THAILAND – 44 and Thailand's response to Question 10 from
Poland).  Notably, Poland has presented no rebuttal to Thailand's responses to Poland's Questions and
Additional Questions.
4. Mr. de Azevedo asked whether there was a distinction between the meaning of "fact" and
"data" or whether they have the same meaning in the context of this dispute.  According to the 10
th
Edition of the Concise Oxford Dictionary , "fact" is defined as "information used as evidence" or,
chiefly in law, "the truth about events as opposed to interpretation".  "Data" is defined as "facts and
statistics used for reference of analysis".  In the context of this dispute, Thailand considers that "data"
is a subset of "facts" and is normally confined to statistics.  All facts are capable of verification as to
their truth or falsity and are normally presumed true, absent conclusive evidence to the contrary.  An
example of a fact that is not data would be whether a Thai official met with a Polish official and what
was discussed between the two.  Whether what was discussed permissibly satisfies Article 5.5 of the
Anti-Dumping Agreement, for example, is not a fact but an interpretation.
5. In response to Thailand's question to Poland to identify examples of "supporting particulars"
for purposes of showing prejudice, Poland stated th at it is the case of "knowing it when you see it".
Thailand suggests that this inability to objectively  identify such particulars is consistent with
Thailand's response to Question 2(a) from the Panel, including the passage cited in Guatemala –
Cement  on the harmless error of the failure to notify.  In any event, as shown in Thailand's responses
to Question 2(b) and 7(b) from the Panel, Thailand has demonstrated with supporting particulars thatit lacked actual knowledge of the claims against it and that it was seriously prejudiced in this
proceedingWT/DS122/R
Page 337
ANNEX 3-1
THIRD PARTY SUBMISSION BY THE
EUROPEAN COMMUNITIES
(21 February 2000)
TABLE OF CONTENTS
    Page
1. INTRODUCTION ................................................................................................................. ........... 338
2. PROCEDURA L ISSUES ............................................................................................................ ..... 338
2.1 T HE ARTICLE 6.2 DSU STANDARD FOR REQUESTS FOR THE ESTABLISHMENT OF A PANEL .................. 338
2.2 P OLAND ’S FAILURE TO STATE CLEARLY THE CLAIMS IN THE FIRST WRITTEN SUBMISSION ................. 339
2.3 T HAILAND ’S FAILURE TO PROVIDE CERTAIN CONFIDENTIAL EXHIBITS TO THE OTHER PARTIES ........... 339
3. CLAIMS SUBMITTED  BY POLAND........................................................................................... 340
3.1 A MOUNT OF PROFIT USED IN THE CALCULATION OF THE CONSTRUCTED NORMAL VALUE ................... 340
3.2 D ETERMINATION OF MATERIAL INJURY : EVALUATION OF ALL RELEVANT FACTORS ............................ 343WT/DS122/R
Page 338
1. INTRODUCTION
1. The European Communities (hereafter “the EC”) welcomes this opportunity to present its
views in the proceeding brought by Poland over the consistency with Article VI of the General
Agreement on Tariffs and Trade (hereafter “GATT 1994”), and with Articles 2, 3, 5, and 6 of theAgreement on Implementation of Article VI of the GATT (hereafter “ADA”) of the definitive anti-
dumping duties imposed by Thailand on imports of an gles, shapes and sections of iron or non-alloy
steel and H-beams from Poland.
2. The EC has decided to intervene as third party in this case because of its systemic interest in
the correct interpretation of the ADA and in the correct application of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (h ereafter “DSU”).  Many of the issues in dispute
relate to questions of fact on which the EC is not in a position to comment. Accordingly, the EC will
limit its submission to a number of issues of legal interpretation which are of particular interest to the
EC.
3. Section II discusses the EC’s procedural concerns.  Sections III considers some of the claims
submitted by Poland.
2. PROCEDURAL ISSUES
2.1 THE ARTICLE 6.2 DSU STANDARD FOR REQUESTS FOR THE ESTABLISHMENT OF
A PANEL
4. Thailand has requested the Panel to issue a preliminary ruling dismissing Poland’s claims
under Articles 5 and 6 ADA because in its request for the establishment of a panel Poland has not
presented any factual or legal basis for these violations, thus denying Thailand its right to present aneffective defence and violating Article 6.2 of the DSU.
5. Article 6.2 DSU sets the standards for the request for the establishment of a panel.  It
provides, in the relevant part, that:
“The request for the establishment of a panel shall be made in writing.  It shall indicate
whether consultations were held, identify the specific measures at issue and provide a
brief summary of the legal basis of the co mplaint sufficient to present the problem
clearly.”
6. In Korea - Dairy Products
1, the Appellate Body has recently refined its previous findings on
the exact requirements of Article 6.2 DSU. In EC - Bananas , in fact, it had held that it was sufficient
for the complainants “to list the provisions of the specific agreements alleged to have been violated
without setting out detailed arguments as to which specific aspects of the measures at issue relate to
which specific provisions of those agreements".2  In that occasion the Appellate Body had also
specified that the panel request needs be “sufficiently precise” for two reasons: because it forms thebasis for the terms of reference of the panel, and because “it informs the defending party and the third
parties of the legal basis of the complaint”.
3  Now, returning on the same issue, the Appellate Body
has clarified that the identification of the treaty provisions alleged to be violated is “always necessary”
and constitute a “minimum prerequisite” to present th e legal basis of the complaint.  If this might, in
some cases, be enough to meet the standard of Article 6.2 DSU, in other cases, for instance when an
                                                     
1 Report by the Appellate Body on Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products, WT/DS98/AB/R, 14 December 1999.
2Report by the Appellate Body on European Communities - Regime for the Importation, Sale and
Distribution of Bananas , AB-1997-3, WT/DS27/AB/R, 9 September 1997, at paragraph 141.
3Ibid. , at paragraph 142.WT/DS122/R
Page 339
article contains more than one distinct obligation, the mere listing of articles of an agreement is likely
to be not sufficient to  inform the defending pa rty and any third parties of the legal basis of the
complaint.4  I n Korea - Dairy Products , these considerations lead the Appellate Body to find that,
although the articles listed contained each several distinct obligations and the request of the panel by
the complainant should have been more detailed, the defendant had failed to demonstrate that themere listing of the articles alleged to have been violated had prejudiced its ability to defend itself.
7. In the request for the establishment of this Panel, Poland has merely listed the articles claimed
to have been violated by Thailand, without taking into account the fact that each of the articles listed,
i.e. Article VI GATT 1994, Articles 2, 3, 4, 5 and 6 of the ADA are all composed of many paragraphs,each of them setting out distinct obligations.
8. Following Poland’s failure to present its claims clearly  the EC, as a third party, has not been
able  to know the legal basis of the complaint until it has received the First Submission by Poland.
This has impaired the EC’s ability to exercise to  the fullest extent its procedural rights in this
proceeding.
2.2 POLAND’S FAILURE TO STATE CLEARLY THE CLAIMS IN THE FIRST WRITTEN
SUBMISSION
9. The lack of sufficient clarity in the Polish request for the establishment of the panel has been
aggravated by the fact that Poland has failed to state clearly its claims even in its First WrittenSubmission, to the extent that the EC still has doubts on the scope and legal basis of certain Polish
claims.
5  This raises the further issue of whether Poland has been able to submit a prima facie  case
that Thailand has violated Article VI GATT 1994 and the ADA.
10. The Appellate Body has made it clear in several occasions that a panel cannot make a case for
the complainant.  In particular, a panel cannot rule in favour of a complaining party “which has not
established a prima facie  case of inconsistency based on specific legal claims asserted by it”.6
2.3 THAILAND’S FAILURE TO PROVIDE CERTAIN CONFIDENTIAL EXHIBITS TO THE
OTHER PARTIES
11. With regard to Thailand’s failure to provide cer tain confidential exhibits to the other parties,
the EC refers to the comments contained in its submission to the Panel of 18 February 2000.
12. The compromise solution proposed by Thailand in its letter to the Panel of 17 February is still
unacceptable to the EC.  It implies in fact that the other parties would not have access to some of the
information provided to the Panel.
13. The EC would like to reiterate that if Thailand considers Article 18.2 DSU not sufficient to
secure the protection of its confidential information, it has the possibility to propose to the Panel theadoption of more stringent rules as part of its Working Procedures.
                                                     
4 Report by the Appellate Body on Korea Dairy Products , cited above, at paragraphs 114 ff.
5 See, below, paragraphs 14 and 36.
6 Report by the Appellate Body on Japan - Measures Affecting Agricultural Products , AB-1998-8,
WT/DS76/AB/R, 22 February 1999, at paragraph 129. See also Report by the Appellate Body on Brazil –
Export Financing Programme for Aircraft , AB-1999-1, WT/DS46/AB/R, 2 August 1999, at paragraph 194.WT/DS122/R
Page 340
3. CLAIMS SUBMITTED BY POLAND
3.1 AMOUNT OF PROFIT USED IN THE CALCULATION OF THE CONSTRUCTED
NORMAL VALUE
14. Poland claims that the Thai authorities used an “unreasonable” amount of profit in calculating
the normal value. Although Poland’s submission does not identify clearly the specific provisions
allegedly breached by Thailand, Poland’s complaint appears to be that the Thai authorities violated
Article VI.1(b)(ii)  GATT 1994 and the last se ntence of the first paragraph of Article 2.2 ADA7. On
the basis of the facts known to the EC, this claim is unfounded and should be rejected by the Panel.
15. The decision by the Thai authorities to construct the normal value appears to have been based
on the following factual findings:
- first, export sales to Thailand consisted of JIS H-beams;- second, JIS H-beams were not sold in Poland in sufficient quantity to allow a proper
comparison; and
- third, the DIN H-beams sold in Poland are not “like” JIS H-beams
8.
16. In turn, the decision by the Thai authorities to use the profit margin realised by Huta
Katowice on its domestic sales of both JIS and DIN H-beams rests on the finding that, while not being
“like” products, DIN and JIS H-beams belong to the “same general category of products”.
17. Poland does not challenge the conclusion of the Thai authorities that domestic sales of JIS H-
beams were too small to permit a proper comparison. Nor does Poland contest that DIN H-beams arenot “like” JIS H-beams.
9 Indeed, that finding was requested by the Polish exporters themselves.
Finally, Poland does not dispute that, in light of those two findings, the Thai authorities were justified
in calculating the normal value on the basis of the cost of production. Poland’s complaint is that the
amount of profit included by the Thai authorities in the constructed normal value was
“unreasonable”. According to Poland, the Thai authorities should have used instead any of the three“reasonable” profit rates proposed by the Polish exporters.
18. As recalled by Poland
10, both Article VI.1(b)(ii)  GATT 1994 and the last sentence of the first
paragraph of Article 2.2 ADA set forth the princi ple that the amount of profit included in the
constructed normal value must be “reasonable”. That principle, however, is further specified inArticle 2.2.2 ADA, which lays down detailed rules for the determination of the “reasonable amount
for profit”. Contrary to what Poland appears to suggest, Article VI.1(b)(ii)  GATT 1994 and the last
sentence of the first paragraph of Article 2.2 ADA do not establish a supplementary “reasonability”
test, different from that embodied in Article 2.2.2. Rather, to the extent that a Member complies with
the rules of Article 2.2.2, it must be deemed to comply as well with the general principle enounced inArticle VI.1(b)(ii) of GATT and in the last sentence of the first paragraph of Article 2.2 ADA.
                                                     
7 Poland’s First submission, at paragraph 78.
8 Thailand now argues that, in light of the close similarity between the two types of H-beams, it would
have been reasonable for the Thai investigating authority to have found that all the H-beams sold in Poland were
“like” products.  See Poland’s First Written Submission, at footnote No 26. Although the issue is not before the
Panel, the EC would agree that the Thai investigating authorities seem indeed to have made an unduly limited
interpretation of the notion of “like product”.
9 Poland’s First Written Submission, at paragraph 81.
10 Ibid. , at paragraph 78.WT/DS122/R
Page 341
19. Therefore, the relevant issue before the Panel is whether Thailand determined the reasonable
amount for profit in accordance with the relevant rules of Article 2.2.2. For the reasons explained
below, the EC is of the view that the determination made by the Thai authorities was consistent with
those rules and, consequently, also with Article VI .1(b)(ii) GATT 1994 and with the last sentence of
the first paragraph of Article 2.2 ADA.
20. The chapeau of Article 2.2.2 provides that, in pr inciple, the amount of profit must be based
“on actual data pertaining to production and sales in the ordinary course of trade of the like product by
the exporter or producer under investigation”.
21. In the present case, the Thai authorities concluded that the method set out in the chapeau of
Article 2.2.2 could not be applied since domestic sa les of the relevant “like” product (i.e. JIS H-
beams) were not made in sufficient quantity to allow a proper comparison. That conclusion has not
been challenged by Poland in this dispute.
22. The chapeau of Article 2.2.2 goes on to state that, where the reasonable amount for profit
cannot be determined on the basis of the profit realised on the domestic sales of the like product, it
may be determined on the basis of one the following methods:
“(i) the actual amounts […] realised by the exporter or producer in question in respect of [
…] sales in the domestic market of the country of origin of the same general category
of products;
(ii) the weighted average of the actual amounts […] realised by other exporters or
producers subject to investigation in respect of production and sales of the like
product in the domestic market of the country of origin;
(iii) any other reasonable method, provided that the amount for profit so established shall
not exceed the profit normally realised by other exporters or producers on sales of
products of the same general category in the domestic market of the country of
origin”.
23. Article 2.2.2 does not prescribe any hierarchy among the above three options. Nor does it
require that the investigating authorities should try first all of them before selecting that which yields
the most “reasonable” result in each particular case. Rather, Article 2.2.2 leaves complete discretion
to the investigating authorities to choose whichever of the three options they consider most
appropriate.
24. Thailand has expressed the view that options (ii) and (iii) are subordinated to option (i)11. That
view, however, finds no support in the wording of Article 2.2.2. Moreover, contrary to what Thailand
suggests, that interpretation is by no means required by the object and purpose of Article 2.2.2. The
constructed normal value is a surrogate for the normal value based on domestic prices. The purpose ofthe rules set out in Article 2.2.2 is to arrive at a constructed value as close as possible to the normal
value that would have been determined on the basis of domestic prices, had there been sufficient
comparable sales in the ordinary course of trade. Option (i) is not inherently more apt to achieve that
objective than option (ii) or  than “any other reasonable method” consistent with option (iii).
25. Contrary to Thailand’s assertion
12, the universe of data relevant for option (ii) is not
necessarily “broader” than that relevant for option (i). Both options involve an enlargement of the
pool of data, albeit in different directions.
                                                     
11 Thailand’s First Written Submission, at paragraph 73.
12 Ibid.WT/DS122/R
Page 342
26. Moreover, the level of profits realised by a producer on its domestic sales of the subject
product depends not only on company specific factors, such as its relative efficiency compared to
other producers of the like product, but also on structural or market factors affecting equally all
companies selling the same product. While option (i) allows to take into account the first category offactors, it fails to capture the impact of those in the second category, which is often preponderant. For
example, if the product subject to investigation is isolated from imports by high tariffs, the profit
realised by other exporters on their domestic sales of that product is likely to provide a more accurate
basis than the profit realised on the sale of other products belonging to the “same general category of
products” which do not enjoy similar tariff protection.
27. The Thai authorities have explained that in the case at hand they chose to apply option (i).
Since Poland does not contest that the method provided for in the chapeau of Article 2.2.2 was not
available in this case, it is also beyond dispute that the Thai authorities were entitled to resort to
option (i). Thus, the only issue which needs to be addressed by the Panel is whether the Thaiauthorities applied correctly option (i). In the EC’s view, Poland has not satisfied the burden to
demonstrate that the Thai authorities failed to do so.
28. In essence, Poland contends that DIN H-beams and JIS H-beams cannot be considered to
belong to the “same general category of products” in  view of the Thai authorities’ previous finding
that they are not “like” products.
13  This argument, however, is plainly wrong. The notion of “general
category of products” is broader than that of “like” products. That conclusion is commanded not onlyby the ordinary meaning of those two terms, but also by the structure of Article 2.2.2. If the notion of
“general category of products” had the same, or a narrower, scope than that of “like” products, option
(i) would become totally redundant, since its application presupposes always that the reasonable
amount for profit cannot be determined on the basis of the sales of “like” products.
29. The EC notes that, aside from the above argument, Poland has not advanced any other
argument, let alone evidence, to show that the “general category of products” was wrongly defined by
the Thai authorities.
30. Instead, Poland goes on to argue that the profit rate determined by the Thai authorities is
“unreasonable” because it is higher than the rates obtained with any of the methods proposed by the
Polish exporters.
14  That argument, however, is wholly irrelevant. As explained above, the only issue
before the Panel is whether the determination made by the Thai authorities is consistent with the terms
of option (i) of Article 2.2.2, and not whether, in casu,  option (i) yields the “most reasonable” result,
compared to the results of  “any other reasonable method”.
31. The mere fact that the profit rate used by the Thai authorities is relatively high compared to
other (allegedly) “reasonable” rates proposed by the Polish exporters does not make it
“unreasonable”. A profit rate determined in accordance with the method set out in option (i) is
conclusively presumed to be “reasonable” in all circumstances, irrespective of the results of thatmethod in each particular case. This is confirmed by the wording of option (iii) of Article 2.2.2, which
refers to “any other reasonable method…[emphasis added]”, thus indicating clearly that the preceding
methods set out in the chapeau and in options (i) and (ii) are  “reasonable” per se .
32. For the above reasons, the EC is of the view that the Thai investigating authorities established
the amount for profit included in the constructe d normal value in conformity with Article 2.2.2 and,
therefore, that Poland’s claim under this heading should be rejected by the Panel.
                                                     
13 Poland’s First Written Submission, at paragraph 83.
14 Ibid. , at paragraphs 82 and 83.WT/DS122/R
Page 343
3.2 DETERMINATION OF MATERIAL INJURY: EVALUATION OF ALL RELEVANT
FACTORS
33. Poland claims that the Thai authorities have violated Article VI GATT 1994 and Article 3
ADA because they have made “no proper showing of material injury”.  In particular, according to
Poland, the Thai authorities did not base their determination on positive evidence; they did not
conduct “an objective examination of the volume and effects on price of the Polish imports, and the
impact of those imports on SYS”; they failed to c onsider whether there had been a significant increase
in imports or a significant price undercutting or a depression of prices; they did not examine “all
relevant economic factors and indices”; and they failed to demonstrate that the Polish imports werecausing injury.
15
34. On the basis of the facts known, the EC is not in a position to judge the correctness of these
arguments. Admittedly, Thailand’s determination of injury could be more detailed. At the same time,
however, the EC would note that, contra ry to Poland’s repeated assertions16, the mere fact that output,
sales, capacity utilisation, employment and market shares were positive in the investigation period
does not exclude per se  a finding of injury. It should, for instance, be noted that the Thai producer was
not profitable.
35. In addition, the EC would like to put forward some general systemic considerations with
respect to the extent of the requirements imposed  upon the investigating authorities by Article 3 ADA.
36. In its written submission, Poland refers several times to the fact that one of the principles set
forth by Article VI GATT 1994 and Article 3 ADA is  “the fundamental principle that an injury
determination shall include an evaluation of all factors”.17  However, Poland neither explains where in
Article VI GATT 1994 or Article 3 ADA this “fundamen tal principle” is enunciated, nor it specifies
what it refers to with the expression “all relevant factors”.  In particular, it is not clear whether Polandintends to say that the injury determination shal l include an evaluation of all the three factors
indicated in paragraph 1 of Article 3, i.e. the volume of the dumped imports, the effect of the dumped
imports on prices in the domestic market for like products, and the consequent impact of these imports
on domestic producers of such products. Or, if it pa raphrases the wording of paragraph 4 of Article 3,
which requires the investigating authorities to include  in their examination of the impact of the imports
on the domestic industry
“an evaluation of all relevant economic factor s and indices having a bearing on the state
of the industry”.
In the first hypothesis the EC would support Poland’s assertion that all the three factors need to be
evaluated. In the second hypothesis, instead, the EC  would contest this assertion and would consider
necessary for the Panel to turn its attention to the exact meaning of this paragraph.
37. The EC is aware that the recent report of the panel in the Mexico - HFCS  case
18 has
interpreted Article 3.4 as requiring the consideration of each of its listed factors.19  Since the Panel
                                                     
15 Ibid. , at paragraphs 64-76 .
16 See e.g. Poland’s First Written Submission, at paragraphs 64 and 74.
17 Ibid. , at paragraph 50.
18 Report by the Panel on Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS)
from the United States, WT/DS132/R, 28 January 2000, at paragraph 7.128.
19 The United States did not argue that Article 3.4 requ ired the  consideration of  all the injury factors
listed therein (see Report by the Panel on Mexico – HFCS , cited above, at paragraph 7.121). Thus, the Panel’s
conclusion was not only erroneous, but also ultra petitum . The EC can only wonder why the Panel devoted such
lengthy considerations to an issue which was not raised by any of the parties to the dispute and the resolution of
which was clearly not necessary to decide the claim before it.WT/DS122/R
Page 344
may be faced with the need to deal with the same provision in the present case, the EC feels it must
dedicate some time to explain further why the interpretation of the panel in the Mexico - HFCS  case
appears excessive, incorrect and certainly not in line with the consistent previous reading of this norm.
This notwithstanding the fact that the panel’s report is still subject to appeal and that its inaccuracies
could still be corrected by the Appellate Body.
38. Article 3.4  ADA reads as follows:
“The examination of the impact of the dumped imports on the domestic industry
concerned shall include an evaluation of all relevant economic factors and indices
having a bearing on the state of the industr y, including actual and potential decline in
sales, profits, output, market share, productiv ity, return on investments, or utilization of
capacity;  factors affecting domestic prices;  the magnitude of the margin of dumping;
actual and potential negative effects on cash  flow, inventories, employment, wages,
growth, ability to raise capital or investments.  This list is not exhaustive, nor can one orseveral of these factors necessarily give decisive guidance.”
39. The current text of Article 3.4 is unchanged from that in Article 3.3 of the 1979 Anti-dumping
Code, with the exception that it specifies that the impact is “of the dumped imports”, it includes the
“magnitude of the margin of dumping” as one of the indices having a bearing on the state of the
industry, and it uses the locution “including” in lieu of “such as”.
40. The 1992 panel in US - Salmon  was called to verify whether the US authorities had properly
considered the factors mentioned in Article 3.3 of the 1979 Anti-dumping Code.  According to the
panel, purpose of this norm is to require
“investigating authorities to include in their examination of the impact of the imports
on the domestic industry an evaluation of all relevant economic factors and indiceshaving a bearing on the state of the industry and it contains an illustrative list of those
factors and indices” (emphasis added).20
41. The illustrative and not mandatory nature of the Article 3.4 is apparent from its wording. First
of all, paragraph 4 requires investigating authorities to evaluate not “all economic factors and indices”
but only all those economic factors and indices which are “relevant”.  The use of this adjectivestrongly qualifies the elements to be considered and, by allowing discerning between what is and what
is not “relevant”, it certainly introduces an element of discretion.  Secondly, the use of the word
“including” to introduce the list of factors and indices implies, similarly to the expression “such as”,
that what follows are only some of the examples that could be given.  Thirdly, the presence of the
conjunction “or” to link some of the listed factors necessarily implies that the investigating authorities
are left the discretion to decide which of the factors and indices listed can be considered relevant and
which not in each particular case.  If the Article 3.4 list had a mandatory nature and “all” factors and
indices listed had to be evaluate, the drafters of the ADA would have used the conjunction “and”, as
they had not hesitated doing in many other contexts. Finally, the last sentence of paragraph 4 clearly
states that
“This list is not exhaustive, nor can one or several of these factors necessarily give
decisive guidance.”
While the first part of this sentence could be interpreted to mean that, in certain circumstances,
investigating authorities need to evaluate more factors than the ones actually listed, the second part of
                                                     
20 Report by the Panel on United States - Imposition of Anti-Dumping Duties on Imports of Fresh and
Chilled Atlantic Salmon from Norway , ADP/87, adopted by the Committee on Anti-Dumping Practices on 27
April 1994, at paragraph 493.WT/DS122/R
Page 345
this sentence a contrario  affirms that some times one or several, and thus not all, of the listed factors
can give decisive guidance to examine the impact of the dumped imports on the domestic industry
concerned.  It is thus clear that in these cases the investigating authorities are not required to look
further.
42. The panel in Mexico – HFCS placed considerable reliance on a series of previous panel
reports concerning the interpretation of Article 4.2 of the Agreement on Safeguards (the “AS”) and
Article 6.3 of the Agreement on Textiles and Clothing (the “ATC”).21  The panel, however,
completely ignored the existence of important textual differences between those two provisions and
Article 3.4 ADA, which render the analogy drawn by the Panel totally inapposite.
43. In the first place, the list of injury factors in Article 3.4 ADA includes many factors that are
not mentioned in Article 4.2 AS or in Article 6.3 ATC. Specifically, Article 4.2 AS does not list
factors such as “return on investments”, “cash flow”, “inventories”, “wages”, “growth”, “ability to
raise capital” and “investments”, whereas Article 6.2 ATC does not mention “return on investment”,“cash flow”, “growth” and “ability to raise capital”. The fact that the list of injury factors is shorter in
Article 4.2 AS and 6.3 ATC constitutes a clear indication that the consideration of each of the factors
listed in Article 3.4 ADA may not always be necessary for reaching an injury finding.
44. Another important textual difference disregarded by the panel in Mexico – HFCS  is that in
both Article 4.2 AS and 6.3 ATC, the injury factors are linked by the conjunction “and”, instead of
“or”. This difference reflects the fact that in Article 4.2 AS and 6.3 ATC the list of injury factors islimited to those which a priori  are likely to be most directly relevant for any injury determination. By
contrast, in Article 3.4 ADA, where the list includes many other factors, it is appropriate to leave
some discretion to the investigating authority in order to discern which factors may be relevant in a
given case.
45. Finally, it is significant that the last sentence of Article 3.4 ADA has no equivalent in
Article 4.2 AS. That omission must surely have some meaning. Yet the panel in Mexico – HFCS  did
not even address it.
46. The panel in Mexico  - HFCS  not only overlooked the above textual differences, but in
addition failed to take into account the different rationale for the imposition of safeguard measures
and anti-dumping measures. As emphasised by the Appellate Body in Argentina - Footwear  and
Korea - Dairy Products
22, “the application of safeguard measure does not depend upon unfair trade
action, as is the case with anti-dumping or countervailing measures” .23  For that reason, the injury
threshold for the imposition of safeguard measures  (“serious injury” in the case of measures imposedpursuant to the AS; and “”serious damage” in the case of measures applied under Article 6 ATC) is
higher than the standard of injury required for the imposition of anti-dumping measures (“material
injury”). Yet the interpretation of Article 3.4 of the ADA made by the panel in Mexico  - HFCS  would
have the paradoxical result that the imposition of anti-dumping measures, a remedy against “unfair
trade”, would require a more exhaustive injury examination than the imposition of safeguardmeasures, a remedy against “fair trade”.
                                                     
21 Report by the Panel on United States - Measure Affecting Imports of Woven Wool Shirts and Blouses
from India , WT/DS33/R, 6 January 1997, at paragraph 7.25; report by the Panel on Korea – Taxes on Alcoholic
Beverages , WT/DS75/R, WT/DS84/R, 17 September 1998, at paragraph 7.55; and Report by the Panel on
Argentina – Measures Affecti ng Imports of Footwear, Tex tiles, Apparel and Other Items , WT/DS56/R, 25
November 1997, at paragraph 8.123.
22 Report of the Appellate Body on Korea –Dairy Products , cited above, at paragraph 87.
23Report by the Appellate Body on Argentina – Measures Affecting Imports of Footwear, Textiles,
Apparel and Other Items , AB-1998-1, WT/DS56/AB/R, 27 March 1998, at paragraph 94.WT/DS122/R
Page 346
47. The panel in Mexico – HFCS  compounded its mistake by concluding that the consideration of
each of the Article 3.4 factors is not only mandatory, but moreover “… must be apparent in the final
determination of the investigation authority”.24  As only justification for that sweeping assertion, the
panel contented itself with quoting in a footnote part of Article 12.2.2, namely that:
“A public notice of conclusion or suspensi on of an investigation in the case of an
affirmative determination providing for the imposition of a definitive duty or the
acceptance of a price undertaking shall contain, or otherwise make available through a
separate report, all relevant information on the matters of fact and law and reasons
which have led to the imposition of final measures …”
It will not escape the careful reader that the norm refers to the obligation to indicate in the public
notice of final determination “all relevant  information on the matters of fact and law and reasons which
have led to the imposition of final measures” [emphasi s added]”, which is very different from saying, as
the panel in Mexico – HFCS  does, that “each of the Article 3.4 factors must be apparent in the final
determination of the investigating authority”. Scope of Article 12.2.2 is to allow interested parties and
the public to review the determination of the inves tigating authorities.  In this light, investigating
authorities are asked to provide a series of inform ation.  The final part of Article 12.2.2, which the panel
in Mexico – HFCS  has not noted, is even clearer on this issue:
“In particular, the notice or report shall contain the information described in
subparagraph 2.1, as well as the reasons for the acceptance or rejection of relevant
arguments or claims made by the exporters and importers …”
Subparagraph 2.1 of Article 12 requires, with regard  to Article 3 ADA, that a public notice shall
contain in particular
“(iv) considerations relevant  to the injury determination as set out in Article 3”.
[emphasis added]
Once again, no express mention of “all the factors” in Article 3.4.
48. In conclusion, the correct interpretation of Article 3.4 ADA brings to the following
considerations.  In an injury determination, one of the three factors that investigating authorities have
always to examine is the impact of the dumped imports on the domestic industry concerned. However,
in this examination, investigating authorities are allowed to discern which of the ec onomic factors and
indices, having a bearing on the state of the industry and listed in Article 3.4, are relevant.  It is from the
point of view of these considerations that the main flaw in the reasoning of the panel in the Mexico -
HFCS  case appears evident.  The panel confuses the nature of the evaluation of all relevant factors in
the examination of the impact of the dumped imports on the domestic industry concerned, which is
“mandatory”, with the nature of the list of economic factors and indices provided, which isillustrative.
                                                     
24 Report by the Panel on Mexico – HFCS , cited above, at paragraph 7.128.WT/DS122/R
Page 347
ANNEX 3-2
THIRD PARTY SUBMISSION BY JAPAN
(21 February 2000)
INTRODUCTION
The WTO Agreement, in particular the Anti-Dumping Agreement (hereinafter referred to as
the AD Agreement) permits the use of anti-dumping measures only under strict conditions stipulated
therein because such measures are exceptions to the non-discriminatory principle and the rule
prohibiting duties that exceed the bound rate of the WTO.  By virtue of being such exceptions, the
authorities must adhere strictly to the rules of the AD Agreement when initiating AD investigations.
We have witnessed a substantial increase in the number of instances in which anti-dumping measuresare invoked, and have increasingly become concerned about the abuse of the AD measures in some
cases.
Japan has requested to take part in this proceeding of the panel as a third party so as to
evaluate whether this particular AD measure in question was undertaken in accordance with the rules
of the AD Agreement.  In particular, the AD Agreement obligates the Members to evaluate
information in an objective manner and to disclose information in a manner described in the ADAgreement.
Hence, Japan requests that the Panel examine whether the view espoused by Thailand with
regard to the Standard of Review (Article 17.6 of the AD Agreement) is appropriate, whether the
authority of Thailand conducted investigation in accordance with Article 5.2 and 5.3, whetherThailand disclosed the information in accordance with Article 6.9, and whether Thailand provides the
panel with sufficient information.
ARGUMENT
1. Standard of Review (Article 17.6)
Thailand asserts that Article 17.6 defines or modifies the obligations of Member states under
Articles 2, 3, 5 and 6 of the AD Agreement (See Thai land’s first written submission, para. 43).  Japan
does not share the same view as Thailand’s.  Japan considers that Article.17.6 provides the criterion orthe standard by which the panel must judge the case, and that this provision does by no means
“define” or ”modify” the obligations of Members under the provisions of the AD Agreement.
2. Initiation of investigations (Article 5.2, 5.3)
Initiating AD investigations itself inflicts a chilling effect on exportation even if provisional
or definitive anti-dumping measure is never taken.  It is therefore crucial that the requirements of
Articles 5.2 and 5.3 are strictly adhered to when the authorities initiate the investigation.  Japan
requests that the panel examine whether the Thailand’s initiation of the investigation fulfils the
requirements of Article 5.2 and 5.3 of the AD Agreement.
3. Disclosure of information in sufficient time before arriving at a final decision
(Article 6.9).
Article 6.9 of the AD Agreement requires the author ity to “inform all interested parties of the
essential facts (…) which form the basis for the decision whether to apply definitive measures” beforeWT/DS122/R
Page 348
a final determination. Japan considers that it is the obligation of the Member states to have its
authorities provide sufficient information, in order that defendants can fully understand essential facts
which form the basis of determination on dumping, injury and causation.  Japan requests the panel to
judge whether Thailand acted in a manner consistent with the requirement of Article 6.9 of the AD
Agreement.
4. Thailand’s submission of information before the panel
Japan considers that it is indispensable that Thailand provide the panel with the sufficient
information in order for the panel to determine, pursuant to Article 17.6 of the AD Agreement,whether authorities of Thailand established the facts in an objective and unbiased manner so as to be
consistent with the provisions of the AD Agreement.  For example, we believe that the panel should
examine the following points:
- Whether the injury was determined in a manner consistent with the provisions of the
AD Agreement, against the circumstance under which a company increased its
market share, volume of sales, etc.
- Whether the profits was constructed properly in accordance with the provisions of the
AD Agreement.WT/DS122/R
Page 349
ANNEX 3-3
THIRD PARTY SUBMISSION BY THE
UNITED STATES
(21 February 2000)
TABLE OF CONTENTS
Page
I.  INTRO DUCTION ............................................................................................................. 35 0
II. US VIEWS ON THE PARTIE S’ CLAIMS AND ARGUMEN TS................................. 350
A. THE APPROPRIATE STANDARD OF REVIEW IS DEFERENCE TO
THE INVESTIGATING AUTHORITY UNDER ARTICLE 17.6 OF THE
AGREEMEN T..................................................................................................................... 3 50
B. APPLICATION OF THE STANDARD OF REVIEW TO THE INJURY
DETERMINAT ION ............................................................................................................ 351
C. THE INVESTIGATING AUTHORITIES MUST DISCLOSE TO ALL
INTERESTED PARTIES THE ESSENTIAL FACTS THAT FORM THE BASIS OF
THEIR DECI SION .............................................................................................................. 352
D. OPTIONS FOR THE CALCULATION OF CONSTRUCTED VALUE
PROFIT CONSISTENT WITH ARTICLES 2.2 AND 2.2.2 ARE LIMITED, BUT
NOT IN THE MANNER ADVOC ATED BY POLAND .................................................... 352
III. THE AGREEMENT DOES NOT REQUIRE THE PARTIES TO PROVIDE 
CONFIDENTIAL INFORMATION TO THE PANEL, BUT IF SUCH
INFORMATION IS SO PROVIDED, IT NEED NOT BE MADE AVAILABLE
TO ALL PARTIES TO  THE DISPUTE.......................................................................... 354WT/DS122/R
Page 350
I.  INTRODUCTION
1. The United States makes this third party submission to comment on certain legal
interpretations of the Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994 (the “Agreement”).  Many of the issues in this dispute appear to involvequestions of fact, and, in several instances, the facts are either unclear or are in dispute.  In addition, in
several instances, the precise claims of Poland are sufficiently vague to make comment difficult.  For
this reason, the United States has emphasized what it believes to be the proper legal interpretation of
several provisions of the Agreement, without expressing  a definitive view as to whether, over all, the
facts of this case spell out a violation of the Agreement.
2. Section II below addresses several of the issues raised by the parties, including (1)  the
requirement that the determination of the Member’s investigating authorities show that all of the
enumerated injury factors were evaluated, (2) the requirement that the authorities disclose to the
interested parties all non-confidential information used by the authorities in the investigation, and (3)the calculation of constructed value profit.  On this latter issue, in particular, the United States urges
the Panel to reject Poland’s interpretation of the Agreement’s constructed value profit provisions –
contained in Articles 2.2 and 2.2.2 – because it imposes a comparative “reasonableness” standard and
creates a cap on constructed value profit amounts where no such provisions exist in the Agreement.
3. Finally, Section III addresses the issue of whether the parties are required to submit
confidential information to the Panel and to serve such information on other parties to the dispute,
including third parties.  The United States emphasizes that, since Thailand has apparently chosen to
submit confidential information to the Panel and has offered, under appropriate safeguards, to serve
this information on the other parties, it does not appear that this is an issue that the Panel has to decide
in this proceeding.
II. US VIEWS ON THE PARTIES’ CLAIMS AND ARGUMENTS
A. T
HE APPROPRIATE STANDARD OF REVIEW IS DEFERENCE TO THE INVESTIGATING
AUTHORITY UNDER ARTICLE 17.6 OF THE AGREEMENT
4. The United States generally endorses Thailand’s discussion of the application of Article 17.6
of the Agreement to WTO anti-dumping proceedings.1  The United States also agrees, as recently
stated in the panel report in  High Fructose Corn Syrup,  that the proper approach is to examine
whether the evidence before the investigating authority is such that an unbiased and objective
investigating authority evaluating that evidence could properly have made the same determination.2
In addition, as the panel stated in Guatemala - Cement,  the panel’s  “role is not to evaluate anew the
evidence and information before” the investigatin g authority, but rather to examine whether the
evidence it relied on was sufficient.3
                                                     
1 Thailand also argues that Poland has not met its burden of proof to establish a prima facie  case that
Thailand’s process of establishing the relevant facts did not respect all interests concerned.  First submission of
Thailand, dated February 14, 2000, at para. 47.  The United States does not take a position on this issue, butagrees with Thailand that, absent a prima facie  case of bias, the burden of proof does not shift to Thailand to
prove that it acted without bias.  Id., para. 51.
2  Mexico -- Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States,
WT/DS132/R, Report of the Panel (January 14, 2000), paras. 7.94 - 7.95.
3 Guatemala – Anti-Dumping Investigation Regarding Portland Cement from Mexico , WT/DS60/R,
Report of the Panel (June 19, 1998), para. 7.57.  We note that the panel in High Fructose Corn Syrup stated that,
although the Appellate Body reversed the Guatemala-Cement  panel’s conclusion, the panel’s report set out a
standard that it considered instructive.  High Fructose Corn Syrup, para. 7.94.WT/DS122/R
Page 351
B. A PPLICATION OF THE STANDARD OF REVIEW TO THE INJURY DETERMINATION
5. Article 3.4 specifically requires that the investigating authorities’ examination of the impact
of the dumped imports on the domestic industry
include an evaluation of all relevant economic factors and indices having a bearing on
the state of the industry, including actual and potential decline in sales, profits,
output, market share, productivity, return on investments, or utilization of capacity;
factors affecting domestic prices; the magnitude of the margin of dumping; actual and
potential negative effects on cash flow, in ventories, employment, wages, growth,
ability to raise capital or investments.
6. As Poland points out, Thailand does not include explicit findings concerning each and every
factor in Article 3.4.4  This allegation in itself does not, in the view of the United States, set out a
violation.  The Agreement, in requiring that each factor be evaluated, does not necessarily require that
the investigating authorities make a finding as to each factor.  Rather, Article 12.2 requires that theauthorities set forth “in sufficient detail the findings and conclusions reached on all issues of fact and
law considered material by the investigating authorities.”  While all enumerated factors must be
evaluated, not all are necessarily material in any particular case.  Poland’ s simple assertion that all
relevant economic factors were not examined does not inform the Panel as to how Thailand may have
violated the Agreement.
7. The Agreement also, however, clearly states that “ [i]t must be demonstrated  that the dumped
imports are, through the effects of dumping as set forth in paragraphs 2 and 4, causing injury within
the meaning of this Agreement."
5  While the United States does not believe that Articles 3.2 and 3.4
require in each case a specific finding on each enumerated factor, it must be discernible from the
authorities’ determination that they evaluated each of the enumerated factors.  This objective may be
achieved when a determination, through its demonstration of why the authorities relied on the specificfactors they found to be material in the case, thereby discloses why other factors on which they do not
make specific findings were accorded less weight.  In the current case, the United States shares
Poland’s concern about the adequacy of Thailand’s findings not only because of the lack of discussion
of a number of the enumerated factors, but also because Thailand’s specific findings on the factors it
addressed do not in any way elucidate why it did not  give weight to factors it did not discuss.
8. Poland also argues, in part, that Thailand has not met the requirements of Article 3 of the
Agreement.  The United States is unclear as to the exact nature of Poland’s assertion regarding
Thailand’s assessment of the market share of the subject imports.
6   If Poland is arguing that an
absolute increase in the volume of subject imports is required, the plain text of Article 3.2 providesthat the investigating authorities may consider whether there has been such a significant increase
“either in absolute terms or relative to production or consumption."
7  Thus, the Agreement permits the
investigating authorities to consider whether either  an absolute or a relative increase in imports is
significant, and does not require either one or the other.   If Poland is simply asserting that the alleged
1.1 per cent increase in market share is not significant, then this is a factual matter for the Panel todecide.
                                                     
4  See First submission of Poland, dated January 24, 2000, paras. 74-75.
5  Article 3.5.
6  See Poland’s first submission, paras. 65, 72.
7  Article 3.2.WT/DS122/R
Page 352
C. T HE INVESTIGATING AUTHORITIES MUST DISCLOSE TO ALL INTERESTED PARTIES THE
ESSENTIAL FACTS THAT FORM THE BASIS OF THEIR DECISION
9. Poland claims that Thailand failed to provide to respondents non-confidential information
upon which it based its findings.8  On June 20 and 23, 1997, respondents requested disclosure of the
information used in the final determination.  On July 7, 1997, the Thailand Ministry of Commerce“expressed surprise” at this request, stating that it had previously provided the information, and did
not provide any further information.
10. Article 6.4 of the Agreement provides that:
The authorities shall whenever practicable provide timely opportunities for all
interested parties to see all information that  is relevant to the presentation of their
cases, that is not confidential as defined in paragraph 5, and that is used by the
authorities in an anti-dumping investigation , and to prepare presentations on the basis
of this information.
(Emphasis added.)
11. While the United States may not be privy to all the facts relevant to this point
9, it is clear that
interested parties involved in an anti-dumping proceeding are to be given the opportunity to defend
their interests by obtaining certain fundamental inform ation applicable to the investigation.  A reading
not just of Article 6.4, but of Article 6 in its entirety, gives rise to this interpretation.  If the Thai
authorities did in fact omit to provide respondents with the non-confidential information they used toformulate their findings, they disregarded not only the letter but the spirit of the Agreement.
D. O
PTIONS FOR THE CALCULATION OF CONSTRUCTED VALUE PROFIT CONSISTENT WITH
ARTICLES 2.2 AND 2.2.2 A RE LIMITED , BUT NOT IN THE MANNER ADVOCATED BY POLAND10
12. Articles 2.2 and 2.2.2 of the Agreement set forth the requirements for calculating profit when
normal value is based on constructed value instead of prices.  Article 2.2 provides for the addition to
cost of production of a reasonable amount for profit, inter alia .  Article 2.2.2 then sets forth several
explicit options for how a reasonable profit may be determined.
13. Poland argues that Thailand impermissibly used an “unreasonable” amount for constructed
value profit.  According to Poland, Article 2.2, read in conjunction with Article 2.2.2(iii), imposes a
comparative “reasonableness” standard which limits the amount for profit that can be utilized in
calculating constructed value.  Poland contends that “[c]alculation of reasonable profits should thus
involve fair and similar comparisons."11  Using this standard, Poland compares the profit amount
calculated by Thailand with profit figures proposed by Poland12 and concludes that the profit figure
                                                     
8  Poland’s first submission, paras. 91-92.
9  The panel is presented with conflicting information in that Thailand states that not only did its
investigating authority disclose all non-confidential inform ation to the parties that it considered in reaching its
final determination, but it also attempted to summarize the confidential information.  Thailand’s firstsubmission, para. 77.
10 Nothing the United States has said with respect to the constructed value profit issue should be
construed as expressing agreement or disagreement with  Thailand’s actual calculation of a profit amount in this
case, as the United States does not have access to the specific factual information considered by Thailand.
11  Poland’s first submission, paras. 79-80.
12  The three profit options proposed by Poland are the profit figure in the petition, Huta Katowice’s
company-wide profit rate, and the profit rate from Huta Katowice’s third country sales of the like product.Poland’s first submission, para. 82.WT/DS122/R
Page 353
used by Thailand is impermissible under the Agreement because it exceeds a “maximum ‘reasonable’
amount of profit."13
14. The United States disagrees with Poland’s interpretation of Articles 2.2 and 2.2.2 which,
based upon an incomplete and selective reading of the applicable provisions, imposes a limitation onthe amount for constructed value profit where no such requirement exists in the Agreement.  The
general requirement of Article 2.2, which provides for the addition to cost of production of a
“reasonable” amount for profit, does not itself create an absolute limit on profit amount because
Article 2.2 provides no specific or express standard against which to judge a profit figure.  The only
explicit limitation on the determination of constructed value profit found in the Agreement is that inArticle 2.2.2.  Therefore, if a profit amount is determined pursuant to one of the  methodologies
specified under Article 2.2.2, it is “reasonable” within the meaning of Article 2.2.  With one
exception, discussed below, these methodologies in Article 2.2.2 limit how the administering
authorities may determine profit amount, not the amount of the profit  itself.
15. The chapeau  of Article 2.2.2 provides that the preferred option for constructed value profit is
to calculate an amount for profit based on “actual data pertaining to production and sales in the
ordinary course of trade of the like product by the exporter or producer under investigation.”  If,
however, an amount for profit cannot be determined on this basis, it may be based on any of the
following three alternatives:
(a) the actual amounts incurred and realized by the exporter or producer in question in
respect of product and sales in the domestic market of the country of origin of the
same general category of products;
(b) the weighted average of the actual amounts incurred and realized by other exporters
or producers subject to investigation in respect of production and sales of the likeproduct in the domestic market of the country of origin;
(c) any other reasonable method, provided that the amount for profit so established shall
not exceed the profit normally realized by other exporters or producers on sales of
products of the same general category in the domestic market of the country of origin.
16. The chapeau  of Article 2.2.2 and subparts (i) and (ii), therefore, provide limitations only as to
the source of the data used to calculate a profit figure ( i.e., the location of the sales and the types of
products), but not as to the amount.  In contrast, subpart (iii) does contain a limitation on profit
amount.  Specifically, subpart ( iii) provides a cap on the amount of constructed value profit by
requiring that the profit amount not exceed profits normally realized by other exporters or producers
on sales of products in the same general category in the home market.
17. The “profit cap” in subpa rt (iii), therefore, is the only explicit limitation on the choice of a
constructed value profit figure – and is applicable only to profit amounts determined under subpart(iii).  The cap is necessary in this instance to impose some limitations on “other” methodologies for
determining profit not specifically articulated in  the Agreement.   Significantly, subpart (iii) does not
expressly or implicitly impose a similar limitation upon the preferred profit methodology in the
chapeau  or the alternatives in subparts (i) or (ii).  Such a limitation is not necessary with respect to
these provisions because each one itself defines a specific “reasonable”  methodology.
18. Article 31(1) of the Vienna Convention on the Law of Treaties
14 (the “Vienna Convention”)
states: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given
                                                     
13  Id., para. 83.WT/DS122/R
Page 354
to the terms of the treaty in their context and in light of its object and purpose.”  Furthermore, “it is
the duty of any treaty interpreter to ‘read all app licable provisions of a treaty in a way that gives
meaning to all of them, harmoniously.’"15  Poland’s interpretation of the constructed value profit
provisions bundles the various provisions together in order to imply the existence of a limitation
where none exists.  Such an interpretation  is contrary to the plain language of Article 2.2.2, whichprovides the only explicit limitation on the calculation of constructed value profit.  Furthermore,
Poland’s construction of the constructed value profit provisions would render the preferred option
found in the chapeau of Article 2.2.2, as well as those in subparts (i) and (ii) of Article 2.2.2,
superfluous.
19. Finally, the negotiating history of the Agreement
16 reveals the delicate negotiated balance
reflected in Article 2.2.2.17  The 1979 Code provided that constructed value include a “reasonable”
amount for profit.  The term “reasonable”, however, was not defined; nor were explicit profit
calculation methodologies included in the 1979 Code.  During the Uruguay Round negotiations, a
number of delegations advocated that profit be determined on the basis of a company’s actual dataand proposed alternative methodologies for determining profit when actual data was unavailable.
18
The resulting provisions of Article 2.2.2 of the Agreement reflect a similar structure, i.e., a preferred
option and three alternatives.  Poland’s interpretation accords neither with the negotiators’ intent nor
with the meaning of Articles 2.2 and 2.2.2.
20. For these reasons, the United States believes that Poland’s interpretation of the profit
provisions found in Articles 2.2 and 2.2.2 should be rejected.  Furthermore, in accordance withArticle 17.6(i), should the panel determine that Thailand’s establishment of the facts was proper, that
the facts on the record support the methodology employed, and that the evaluation was unbiased and
objective, the panel should sustain Thailand’s calculation of constructed value profit for Huta
Katowice as consistent with Article 2.2.2.
III. THE AGREEMENT DOES NOT REQUIRE THE PARTIES TO PROVIDE
CONFIDENTIAL INFORMATION TO THE PANEL, BUT IF SUCH INFORMATION
IS SO PROVIDED, IT NEED NOT BE MADE AVAILABLE TO ALL PARTIES TO
THE DISPUTE
21. As noted above in Section II.C, while Article 6 of the Agreement provides a mandate forinterested parties to obtain the in formation needed to defend their in terests, this mandate applies only
with respect to non-confidential information.  Should confidential information be requested, it may
not be disclosed without the specific permission of the party submitting it pursuant to Article 6.5.  In
essence, the authorities are forbidden to disclose such information without the consent of the party
that submitted it.  A footnote to Article 6.5 recognizes that some countries, such as the United States,have administrative protective order procedures that provide for limited disclosure.  In so providing,
however, the footnote recognizes that other countries may choose not to adopt such procedures for
limited disclosure of confidential information.  The United States’ view that the Thai authorities had
an obligation to disclose the information upon which they relied in making their final determination
pertains solely to non-confidential information.
                                                                                                                                                                    
14 Vienna Convention, done at Vienna, 23 May 1969, 1155 U.N.T.S. 221; 8 International Legal
Materials 697 (1969).
15  See Korea – Definitive Safeguard Measures on Imports of Certain Dairy Products , Report of the
Appellate Body, AB 1999-8 (adopted  14 December 1999), para. 81.
16  Under Article 32 of the Vienna Convention, this material may be considered to confirm the meaning
of a provision of a treaty.
17  See generally  Terence P. Stewart, et al. , The GATT Uruguay Round: A Negotiating History
(1986-1992) 171-190 (1993) (discussing the negotiations concerning constructed value profit, inter alia ).
18  See Stewart, supra  note 17, at 175-77 n.1012-1024, and GATT documents cited therein.WT/DS122/R
Page 355
22. Members are not required to  submit confidential information to a panel, although subject to
the conditions in the Agreement, they may do so.  The Agreement prohibits disclosure absent consent.
Article 17.7 plainly reiterates the need for permission from the party submitting the sensitive
information to disclose it.19  No provision of either the Agreement or the Dispute Settlement
Understanding transforms information that was confidential in the underlying investigation into
non-confidential information that may be disclosed once the matter is presented to a WTO panel.
23. In this proceeding, Thailand has submitted confidential information to the Panel.  However,
Thailand’s action cannot prejudice the choices made by Poland in this proceeding or other parties in
other proceedings before other panels.20
24. The EC has provided comments on Thailand’s confidential submission, terming it“inadmissible” for a number of reasons.  Thailand has, however, apparently offered to submit the
information to the parties.  As a result, the Pa nel need not reach the issues raised in the EC’s
submission.  Nevertheless, because of the Chairman’s request that the parties do so, the United Statespresents its comments concerning the appropriateness of in camera  inspection of confidential
information.
25. The United States disagrees with the EC’s contention that Thailand should not be permitted to
submit confidential information to the Panel withou t submitting it to all parties to the proceeding.
Article 17.7 specifically contemplates such a procedur e.  It provides that confidential information
provided to the panel shall not be disclosed without formal authorization from the person, body orauthority providing such information.  This provision plainly includes information gathered by the
authorities that conducted the investigation at issue in a panel review.  Further, Article 17.7 does not
exempt disclosure to other parties to a panel proceeding from its prohibition on disclosure.  Thus,
Article 17.7 provides for circumstances in which a Member may provide to a panel confidential
information that may not be disclosed to other parties to a proceeding.
26. The EC’s contention that Article 17.7 contemplates disclosure to parties before a panel when
it speaks of disclosure to a panel is contrary to the use of the term “panel” in Article 17.  For example,
Article 17.6 addresses how the panel shall determine whether authorities’ establishment of the facts
was proper and how it shall interpret the relevant provisions of the Agreement.  Plainly, the “panel” towhich Article 17.6 refers does not encompass the parties before the panel.  Nothing in Article 17.7
                                                     
19  Article 17.7 of the Agreement states:  “Confidential information provided to the panel shall not be
disclosed without formal authorization from the person, body or authority providing such information.  Where
such information is requested from the panel but release of such information by the panel is not authorized, a
non-confidential summary of the information, authorized by the person, body or authority providing theinformation, shall be provided.”  Thus, on its face, Article 17.7 does not require disclosure of confidential
information to panels.  It requires panels, when they in  fact receive such information, not to release it further
without permission.
20  The United States is in agreement with Thailand that confidential information disclosed to this Panel
must be protected against disclosure in subsequent  WTO proceedings, including those before the Appellate
Body.  See Thailand’s first submission, para. 4.WT/DS122/R
Page 356
indicates that the term “panel” as used there is in tended to have any different meaning from the term
as used in the preceding article.
27. To the extent that the EC argues that Article 18.1 of the Dispute Settlement Understanding is
contrary to Article 17.7 of the Agreement, Article 1.2 of the Dispute Settlement Understandingguarantees that Article 17.7 controls.  Article 17.7 is identified as a special or additional rule under
Appendix 2 of the Dispute Settleme nt Understanding.  Article 1.2 of the DSU provides that “[t]o the
extent that there is a difference between the rules and procedures of this Understanding and the
special or additional rules and procedures set forth in Appendix 2, the special or additional rules and
procedures in Appendix 2 shall prevail.”WT/DS122/R
Page 357
ANNEX 3-4
ORAL STATEMENT OF THE EUROPEAN COMMUNITIES
(8 March 2000)
Mr Chairman, Members of the Panel,
1. Introduction
1. The European Communities is intervening as third party in this case because of its systemic
interest in the correct interpretation of the Anti-D umping Agreement and in the correct application of
the DSU.
2. Many of the issues disputed in this case relate to questions of fact on which the European
Communities is not in a position to comment.  Therefore, it has limited its third party contribution to
some specific issues of procedure and of legal interpretation raised by this dispute.
3. Today, the European Communities will focus its intervention on two main issues arising from
Poland’s claims:
- the amount of profit used in the calculation of the constructed normal value;
- and, the factors that need to be evaluated in determining the existence of material
injury.
1.1 Thailand’s communication of confidential exhibits only to the Panel
4. Before turning its attention to these issues , the European Communities would like to express
its satisfaction for the way the Panel has handled Thailand’s bizarre communication of confidential
exhibits.
5. As it has made clear in its letter to the Panel of 18 February, the European Communities
considers that the adoption of Supplemental Working Procedures is the correct way of balancing
Thailand’s concerns on confidential information with the need to respect due process, the principle of
equality of arms, and the adversarial nature of the WTO dispute settlement system.
6. Today, therefore, the European Communities can only welcome Thailand’s submission of all
exhibits to all parties to this dispute.  Only one wrinkle remains in this procedure.  Due to this
question of confidentiality, Thailand has ended up communicating part of its First Submission more
than two weeks after the originally agreed deadline, which means only 3 working days before thismeeting, a time too short to allow the other part y and the third parties to properly review these
documents.
7. The Panel, in its letter of 2 March 2000, has reassured the parties that “they will be given full
opportunity to raise and address all issues that they wish during the remainder of the Panel’s
proceeding”.  However, on the basis of the agreed Working Procedure, third parties are invited to
participate only at the first substantive meeting of the Panel.  Therefore, the EC and the other thirdparties to this dispute will not have any other opportunity to make their views on the data submitted
by Thailand known to the Panel.WT/DS122/R
Page 358
8. The European Communities, therefore, can only regret that its fullest participation in this
Panel’s procedure has been prejudiced by Thailand’s failure to address properly and timely the issue
of confidentiality.
2. Claims submitted by Poland
2.1 Amount of profit used in the calculation of the constructed normal value
9. The European Communities will now turn their attention on the first of the two issues raised
by Poland’s claims: the amount of profit used in the calculation of the constructed normal value.
10. In its Submission, Poland claims that the Thai authorities used an “unreasonable” amount of
profit in calculating the normal value. Poland’s co mplaint appears to be that the Thai authorities
violated Article VI.1(b)(ii) GATT 1994 and the last sentence of the first paragraph of Article 2.2 of
the Anti-Dumping Agreement1  For the reasons already explained in its Written Submission, the
European Communities considers that this claim is unfounded and should be rejected by the Panel.
11. Those two provisions, in fact, do not establish a supplementary “reasonability” test, different
from that embodied in Article 2.2.2 of the Anti-Dumping Agreement. To the extent that a Member
complies with the rules of Article 2.2.2, it must be deemed to comply as well with the general
principle enounced in Article VI.1(b)(ii) of GATT and in the last sentence of the first paragraph of
Article 2.2 of the Anti-Dumping Agreement. Therefore, the relevant issue before the Panel is whetherThailand determined the reasonable amount for profit in accordance with Article 2.2.2.
12. The chapeau of Article 2.2.2 provides that, in pr inciple, the amount of profit must be based
“on actual data pertaining to production and sales in the ordinary course of trade of the like product by
the exporter or producer under investigation”.
13. In the present case, the Thai authorities concluded that the method set out in the chapeau of
Article 2.2.2 could not be applied since domestic sa les of the relevant “like” product (i.e. JIS H-
beams) were not made in sufficient quantity to allow a proper comparison. That conclusion has not
been challenged by Poland in this dispute.
14. Article 2.2.2 goes on to state that, where the method set out in the chapeau cannot be used, the
reasonable profit margin may be determined on the basis of one of the three methods described in that
Article.
15. No hierarchy among those three options is prescribed by Article 2.2.2 . Nor does this norm
require that the investigating authorities should tr y first all of these methods before selecting that
which yields the most “reasonable” result in each particular case. Rather, Article 2.2.2 leaves
complete discretion to the inves tigating authorities to choose whichever of the three options they
consider most appropriate.
16. Thailand has suggested that options (ii) and (iii) are subordinated to option (i). That view is
mistaken. The constructed normal value is a surrogate for the normal value based on domestic prices.
The purpose of Article 2.2.2 is to arrive at a constructed value as close as possible to the normal value
that would have been determined on the basis of do mestic prices. Option (i) is not inherently more apt
to achieve that objective than option (ii) or than “any other reasonable method” consistent with option
(iii).
                                                     
1 Poland's First Written Submission, at paragraph 78.WT/DS122/R
Page 359
17. The Thai authorities have explained that they chose to apply option (i). Poland does not
contest that the method in the chapeau of Article 2.2.2 was not available in this case. Therefore, it is
also beyond dispute that the Thai authorities were entitled to resort to option (i). Thus, the only issue
which needs to be addressed by the Panel is whethe r the Thai authorities applied correctly option (i).
In the European Communities’ view, Poland has not satisfied the burden to demonstrate that the Thaiauthorities failed to do so.
18. In essence, Poland contends that DIN H-beams and JIS H-beams cannot be considered to
belong to the “same general category of products” because of the Thai authorities’ previous finding
that they are not “like” products. This argument, however, is plainly wrong, because the notion of“general category of products” is broader than that of “like” products.
19. Poland goes on to argue that the profit rate determined by the Thai authorities is
“unreasonable” because it is higher than the rates obtained with any of the methods proposed by the
Polish exporters. As shown in our written submission, this argument is wholly irrelevant.
20. In conclusion, the mere fact that the profit rate used by the Thai authorities is relatively high
compared to other (allegedly) “reasonable” rates proposed by the Polish exporters does not make it
“unreasonable”. A profit rate determined in accordance with the method set out in option (i) is
decisively presumed to be “reasonable” in all circumstances, irrespective of the results of that method
in each particular case.
2.2 Determination of material injury: evaluation of all relevant factors
21. The European Communities will now turn their attention to the second issue raised by
Poland’s claims regarding determination of material injury.
22. In its claims regarding Thailand’s violation of Article VI GATT 1994 and Article 3 Anti-
Dumping Agreement, Poland refers several times to the fact that one of the principles set forth in
these articles is
“the fundamental principle that an injury determination shall include an evaluation of
all factors” (emphasis added)
2
23. The European Communities strongly disagree with this interpretation of Article 3.4.  Theletter, the context and the purpose of Article 3.4 of the Anti-Dumping Agreement (and of its
predecessor, Article 3.3 of the 1979 Anti-Dumping Code) as well as their consistent application
unequivocally indicate that the list of factors that national investigating authorities have to consider in
their examination of the impact of dumped imports on the domestic industry, is of an illustrative and
not of a mandatory  nature.
24. From a textual point of view, Poland does not explain where in Article VI GATT 1994 orArticle 3 of the Anti-Dumping Agreement this “fundamental principle” is enunciated.  Nor is thisprinciple evident from the wording of Article 3.4.  This norm reads in f act:
“The examination of the impact of the dumped imports on the domestic industry
concerned shall include an evaluation of all relevant economic factors and indices
having a bearing on the state of the industry, including actual and potential decline in
sales, profits, output, market share, productivity, return on investments, or utilization
of capacity;  factors affecting domestic prices;  the magnitude of the margin ofdumping;  actual and potential negative effects on cash flow, inventories,
                                                     
2 Poland’s First Written Submission, at paragraph 50.WT/DS122/R
Page 360
employment, wages, growth, ability to raise capital or investments.  This list is not
exhaustive, nor can one or several of these factors necessarily give decisive
guidance.”
The first element which appears evident from the word ing of this norm is that paragraph 4 requires
investigating authorities to evaluate not “all economic factors and indices” but only all thoseeconomic factors and indices which are “relevant”.  The use of this adjective strongly qualifies the
elements to be considered and, by allowing discernment between what is and what is not “relevant”, it
introduces an element of discretion.  Secondly, the use of the word “including” to introduce the list of
factors and indices implies that what follows are only some of the examples that could be given.
Thirdly, the presence of the conjunction “or” to link  some of the listed factors necessarily entails that
the investigating authorities are left the discretion to decide which of the factors and indices listed can
be considered relevant and which not in each particular case.  If the Article 3.4 list had a mandatory
nature and “all” factors and indices had to be evaluated, the drafters of the Anti-Dumping Agreement
would have used the conjunction “and” - as they had not hesitated doing in many other contexts.
Finally, the last sentence of paragraph 4 clearly states that
“This list is not exhaustive, nor can one or several of these factors necessarily give
decisive guidance.”
Read a contrario , the second part of this sentence affirms that some times one or several, and thus not
all, of the listed factors can give decisive guid ance to examine the impact of the dumped imports on
the domestic industry concerned.  It is thus clear th at in these cases the investigating authorities are
not required to look further.
25. Moving on to analyse the context of Article 3.4, it is evident that the context of Article 3.4 is
Article 3 of the Anti-Dumping Agreement, which has as its object to determine whether injury
occurred because of the dumped imports.  In this light, purpose of Article 3.4 is to require that
national investigating authorities determine the impact of these imports on the domestic industryevaluating those economic factors and indices which “have a bearing”, “make a difference ” on the
state of the industry.  In the present case, for instance, the European Communities would note that
factors like output, sales, capacity utilisation, employment and market shares of SYS were positive in
the investigation period.  However, this does not exclude per se  a finding of injury because, at the
same time, the Thai producer was not profitable.
26. The illustrative and not mandatory nature of the Article 3.4 is also confirmed by previous
practice.  In 1992, the panel in US - Salmon  was called to verify whether the US authorities had
properly considered the factors mentioned in Article 3.3 of the 1979 Anti-Dumping Code.  The panel
qualified as “illustrative” the list of factors and indices contained in this norm.
3
27. The European Communities is aware that the recent report of the panel in the Mexico - HFCS
case4 has interpreted Article 3.4 as requiring the consideration of each of its listed factors.  The
European Communities considers to have devoted sufficient time in its Written Submission to explain
why interpretation of the panel in the  Mexico - HFCS  case is excessive, incorrect and certainly not in
line with the consistent previous reading of this norm.  Today, the European Communities would only
like to draw the attention of the Panel to the following facts:
                                                     
3 Report by the Panel on United States - Imposition of Anti-Dumping Duties on Imports of Fresh and
Chilled Atlantic Salmon from Norway , ADP/87, adopted by the Committee on Anti-Dumping Practices on 27
April 1994, at paragraph 493.
4 Report by the Panel on Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS)
from the United States , WT/DS132/R, 28 January 2000, at paragraph 7.128.WT/DS122/R
Page 361
- the respondent party in the Mexico – HFCS  case, the United States, had not argued
that Article 3.4 required the consideration of all the injury factors listed therein5 and
thus the panel’s conclusion was not only erroneous, but also ultra petitum .  As a
matter of fact, the same issue had also been discussed in the only previous WTO
antidumping case, the first Guatemala Cement  case, where the United States had
clearly affirmed the contrary.6  One can only wonder why the Panel devoted such
lengthy considerations to an issue which was not raised by any of the parties to the
dispute and the resolution of which was clearly not necessary to decide the claim
before it;
- the panel in Mexico – HFCS  relied on a series of previous panel reports concerning
the interpretation of Article 4.2 of the Agreement on Safeguards and of Article 6.3 of
the Agreement on Textiles and Clothing7, completely ignoring the existence of
important textual differences between those two provisions and Article 3.4;
- at the same time, the panel did not take into consideration previous panel findings on
Article 3.4 of the Anti-Dumping Agreement or on its predecessor, Article 3.3 of the
1979 Anti-Dumping Code;
- the Panel in Mexico – HFCS  concluded that the consideration of each of the
Article 3.4 factors is not only mandatory, but moreover “… must be apparent in the
final determination of the investigation authority.8  Nowhere, in the Anti-Dumping
Agreement in general and in Article 12.2.2 of this Agreement in particular, is this
requirement spelt out;
- finally, the Panel confused the nature of the evaluation of all relevant factors in the
examination of the impact of the dumped imports on the domestic industryconcerned, which is “mandatory”, with the nature of the list of economic factors and
indices provided, which is illustrative.
28. Thus, the correct interpretation of Article 3.4 of the Anti-Dumping Agreement brings us to
the following conclusion.  In an injury determin ation, one of the three factors that investigating
authorities have always to examine is the impact of the dumped imports on the domestic industry
concerned. However, in this examination, investigating authorities are allowed to discern which of the
                                                     
5 See Report by the Panel on Mexico – HFCS , cited above, at paragraph 7.121.
6 Report by the Panel on Guatemala - Anti-Dumping Investigation Regarding Portland Cement from
Mexico , WT/DS60/R, 19 June 1998, at paragraph 5.52.
7 Report by the Panel on United States - Measure Affecting Imports of Woven Wool Shirts and Blouses
from India , WT/DS33/R, 6 January 1997, at paragraph 7.25; report by the Panel on Korea – Taxes on Alcoholic
Beverages , WT/DS75/R, WT/DS84/R, 17 September 1998, at paragraph 7.55; and Report by the Panel on
Argentina – Measures Affecti ng Imports of Footwear, Tex tiles, Apparel and Other Items , WT/DS56/R, 25
November 1997, at paragraph 8.123.
8 Report by the Panel on Mexico – HFCS , cited above, at paragraph 7.128.WT/DS122/R
Page 362
economic factors and indices, having a bearing on the state of the industry and listed in Article 3.4,
are relevant.
Mr. Chairman, Members of the Panel, thank you for your attention.WT/DS122/R
Page 363
ANNEX 3-5
ORAL STATEMENT OF JAPAN
(8 March 2000)
Mr. Chairman, Distinguished Members of the Panel,
On behalf of the Government of Japan, I would like to thank you for this opportunity to
submit our views in this dispute.
In our statement today we will address the procedural issues that have been raised by the
parties prior to this Panel meeting.  As we have already expressed our views in our letter dispatched
on 1 March 2000, we will confine ourselves to highlighting the main points of our argument and
supplementing the views already submitted, while we leave our argument on the substantive issues to
our third party submission submitted on 21 February.
1. Ensuring Fairness of the Panel Deliberation
In our letter addressed to the Panel, we emphasised the importance of ensuring fairness of
Panel deliberation among all the parties concerned, including the third parties.  Japan disagrees with
the views expressed by the Untied States and Thailand in their respective submissions on the
treatment of confidential information.  Japan disagrees with the United States and Thailand thatArticle 17.7 of ADA is in conflict with and prevails  over Article 18.2 of DSU.  Rather, Japan believes
that Article 17.7 of ADA supplements Article 1 3.1 of the DSU.  The Panel has, however, not
indicated its interpretation of these provisions in communicating its decision to establish the
Supplemental Working Procedures.  Considering the importance of the issues raised, Japan would like
to request the Panel to provide its interpretation of these provisions.
2. Establishment of Supplemental Working Procedures
Japan considers it appropriate that the Panel has now established a supplemental procedure
for immediate and simultaneous disclosure of the exhibits as well as the treatment of BusinessConfidential Information.
On the issues of meeting dates, however, Japan shares the views expressed by Poland and EC
in their letters dated 2 March.  In order for all the parties concerned to have equal opportunities to
review all relevant information and to be heard by the Panel on these issues, the Panel should ensurethat the rights of the parties under the DSU are not prejudiced.  Given that the first substantive
meeting of the parties is now being held without giving the third parties an opportunity to review all
issues including the procedural issues described above, and to be heard by the Panel on such issues,
Japan respectfully asks the Panel to clearly indicate how all the parties concerned will be given full
opportunity to raise and address all issues that the parties wish during the remainder of the Panel's
proceedings.
This concludes Japan's statement.  Thank you for your attention.WT/DS122/R
Page 364
ANNEX 3-6
ORAL STATEMENT OF THE UNITED STATES
(8 March 2000)
Introduction
1. Thank you, Mr. Chairman, and members of the Panel.  It is a pleasure for us to appear before
you today to present the views of the United States in this proceeding.  The purpose of this oral
statement is to highlight certain aspects of our written statement, in light of issues raised by other third
parties, and to comment on new matters raised subsequent to our written submission.
Standard of Review
2. As stated in its third party written submission, the United States generally endorses
Thailand’s discussion of the application of Article 17.6 of the Agreement on Implementation of Article
VI of the General Agreement on Tariffs and Trade 1994  to WTO anti-dumping proceedings.  Contrary
to Japan’s position, Article 17.6, a special or additional rule under the Understanding on Rules and
Procedures Governing the Settlement of Disputes  (“DSU”), states in unambiguous terms that, in
assessing the facts, if the Panel determines that th e investigating authority’s assessment of the facts
was proper and its evaluation was unbiased and objective, it may not overturn the decision even
though it may have reached another conclusion.
Application of Standard of Review
3. As the United States stated in its written submission, Thailand need not include explicit
findings regarding each and every economic factor that is listed in Article 3.4 of the Agreement, but it
needs to show that it did evaluate each of them.  This does not mean that every report must contain a
factor-by-factor explanation of that evaluati on.  A competent authority’s written report may
adequately reflect its compliance with Article 3.4 if the report as a whole makes it reasonablydiscernible why the authority gave weight to the factors it discussed and why it did not give weight to
the factors that it did not discuss.  The United States shares Poland’s concern about whether the report
of the Thai authority meets such a standard.
4. On the other hand, the United States disagrees with Poland’s apparent assertion that an
absolute growth in the volume of imports is ne cessary to an affirmative determination under Article
3.2 of the Agreement.  The United States, however, expresses no view as to whether the investigation
here met the standard for an affirmative determination of injury that is set forth in Article 3.  We note
the EC’s disagreement with the recent panel report in Mexico -- Anti-Dumping Investigation of High
Fructose Corn Syrup (HFCS) from the United States .  Rather than burden the Panel here with
extensive argumentation concerning another case, the United States simply expresses its disagreement
with the EC’s contentions and notes that, since the EC’s submission here, that report has been adopted
by the Dispute Settlement Body.
Constructive Value Profit
5. As stated in our submission, the United States disagrees with Poland’s interpretation of
Articles 2.2 and 2.2.2 because it appears to be  based upon an incomplete and selective reading of the
applicable provisions and imposes a limitation on the amount for constructed value profit where no
such limitation exists.  The United States’ complete views regarding the proper interpretation ofWT/DS122/R
Page 365
Art. 2.2 and 2.2.2 are set forth in our submission.  Thus, there is no need to repeat these views here.
Instead, the United States would like to stress the following points.
6. First, the general requirement of Article 2.2, which provides for the addition to cost of
production of a “reasonable” amount for profit, does not itself impose any specific and separaterequirement as to the absolute amount of constructed value profit or as to how constructed value profit
should be calculated. Such requirements are embodied in the chapeau of Art. 2.2.2 and its subparts.
To the extent that a profit amount is determined pursuant to one of the methodologies specified under
Article 2.2.2, it is “reasonable” within the meaning of Article 2.2.
7. Second, while the chapeau of Article 2.2.2 and subparts (i) and (ii) provide limitations as to
the source of the data used to calculate a profit figure ( i.e., the location of the sales and the types of
products), it is only subpart (iii) that contains an express limitation on profit amount.  Subpart (iii)
provides a cap on the amount of constructed value profit by limiting the amount to that normally
realized by other exporters or producers on sales of products in the same general category in the homemarket.
8. Third, Poland’s interpretation  is contrary to the plain language of the chapeau and subparts of
Article 2.2.2  because it improperly bundles those provisions together to imply a limitation on the
amount of constructed value profit where none exists.  One result of Poland’s interpretation is to
render the two provisions that do not contain an ab solute limitation superfluous.  Another result is to
ignore the delicate balance achieved by the Members in negotiating Article 2.2.2.
9. For these reasons, the United States believes that Poland’s interpretation of the profit
provisions found in Articles 2.2 and 2.2.2 should be rejected.
10. Additionally, the United States would like to note that it concurs with the European
Communities that the Anti-Dumping Agreement “does not establish a supplementary ‘reasonability’
test, different from that embodied in Article 2.2.2.”
1  In addition, the United States concurs with the
European Communities that, “to the extent that a Member complies with the rules of Article 2.2.2, it
must be deemed to comply as well with the general principle enunciated in Article VI.1(b)(ii) of
GATT and in the last sentence of the first paragraph of Article 2.2 [of the Anti-DumpingAgreement].”
2
Anti-dumping Measures Not Exception
11. The United States disagrees with Japan’s characterization of anti-dumping measures as an
exception to free-trade principles of the WTO.  To the contrary, the right conferred by Article VI and
the Anti-Dumping Agreement, to impose anti-dumping measures, forms part of the carefully crafted
balance of rights and obligations under the WTO.
12. Japan appears to conclude that, because it believes that anti-dumping measures are an
exception, application of these measures requires a heightened “strict” level of scrutiny and imposes
some burden on the Member imposing such measures to justify their imposition.  Similar arguments
have been rejected by WTO panels and the Appellate Body.  For example, in Wool Shirts and Blouses
from India , the Appellate Body recognized that it must respect the balance of rights and obligations
embodied in the transitional safeguard mechanism of Article 6 of the Agreement on Textiles and
Clothing.3  It rejected the argument that the positive obligations in the transitional safeguard
                                                     
1  Third Party Submission of the European Communities, dated February 21, 2000, para. 18.
2  Id.
3 United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India ,
WT/DS33/AB/R, at 16.WT/DS122/R
Page 366
mechanism were “exceptions” imposing the burden of proof on the party asserting their use.  In doing
so, the Appellate Body distinguished between affirmative defenses, that is,  limited exceptions from
obligations under certain other provisions of the GATT 1994, and positive rules that establish
obligations in and of themselves.  The Anti-Dumping Agreement embodies positive rules that are part
of the WTO balance of rights and obligations.  They are not an exception that must be proven orwhich is subject to any special scrutiny.
13. This issue has been raised in a number of disputes and, appropriately, the panels and
Appellate Body have not shifted any burdens of proof or engaged in any heightened scrutiny due to
the alleged “exception” of anti-dumping duties.  Where panels and the Appellate Body have addressedArticle VI of the GATT or the Tokyo Round agreements based on Article VI,  none of the panels (1)
found that Article VI was an exception, (2) imposed the “burden of proof” on the party imposing anti-dumping or countervailing duties, or (3) expressly indicated a requirement to interpret Article VI in a
narrow manner.
4  In Desiccated Coconuts , one of the few cases to consider Article VI of the GATT
1994, both the panel and the Appellate Body refrained from treating Article VI as an “exception”.5
14. As the Appellate Body stated in the Hormones  case:
The general rule in a dispute settlement proceeding requiring a complaining party to
establish a prima facie  case of inconsistency with a provision of the SPS Agreement
before the burden of showing consistency with that provision is taken on by the
defending party, is not avoided by simply describing that same provision as an
"exception".  In much the same way, merely characterizing a treaty provision as an
"exception" does not by itself justify a "stricter" or "narrower" interpretation of that
provision than would be warranted by examination of the ordinary meaning of the
actual treaty words, viewed in context and in the light of the treaty's object and
purpose, or, in other words, by applying the normal rules of treaty interpretation.6
15. In summary, anti-dumping measures do not constitute exceptions from the rest of the WTO
framework.  They are subject to the same rules of interpretation as any other provision of the WTO
Agreements.  Therefore, the Panel should decline to endorse Japan’s assertion that anti-dumping
measures constitute an exception to free trade principles or, by implication, require the application of
a heightened level of scrutiny.
                                                     
4  See Canada - Imposition of Countervailing Duties on Imports of Manufacturing Beef from the EEC ,
SCM/85, Report of the Panel issued 13 October 1987 (unadopted); EEC - Regulation on Imports of Parts and
Components , L/6657, Report of the Panel adopted 16 May 1990, BISD 37S/132 (Japan argued that in
interpreting Article XX(d), panel should take into account that Article VI is an exception); United States - Anti-
Dumping Duties on Gray Portland Cement and Cement Clinker from Mexico , ADP/82, Report of the Panel
issued 7 September 1992 (unadopted); United States - Imposition of Anti-Dumping Duties on Imports of Fresh
and Chilled Atlantic Salmon from Norway , ADP/87, Report of the Panel adopted 26-27 April 1994; United
States - Imposition of Countervailing Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway ,
SCM/153, Report of the Panel adopted 28 April 1994; and EC - Anti-Dumping Duties on Audio Tapes in
Cassettes Originating in Japan , ADP/136, Report of the Panel issued 28 April 1995 (unadopted);  United
States–anti-dumping Duty on Dynamic Random Access Memory Semiconductors (Drams) of One Megabit orabove from Korea , WT/DS99/R, Panel Report issued 29 January 1999
In two cases, a third-party raised the issue.  Korea –Anti-dumping Duties on Imports of Polyacetal
Resins , ADP/92 and Corr. 1, BISD 40S/205; and United States - Imposition of Countervailing Duties on Certain
Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in France, Germany and the United Kingdom ,
SCM/185, Report of the Panel issued 15 November 1994 (unadopted).
5  See Brazil – Measures Affecting Desiccated Coconuts , WT/DS22/R, Report of the Panel, as
modified by the Appellate Body, WT/DS22/AB/R, adopted 20 March 1997.
6  EC – Measures Concerning Meat and Meat Products (Hormones) , WT/DS26/AB/R, Report of the
Appellate Body adopted 13 February 1998, para. 104.WT/DS122/R
Page 367
Disclosure of Essential Facts
16. Article 6.4 of the Agreement requires that the authorities provide all interested parties with
the non-confidential information that is used in an anti-dumping investigation.  Article 6 in its entiretypromotes the ability of interested parties to defend their interests by obtaining certain non-confidential
information.  Not being completely familiar with the proceedings before the Thai authority, the
United States is not in a position to state a view as to whether the authority complied with Article 6.4
in this investigation.
Disclosure of Confidential Information
17. Article 6.5 of the Agreement precludes the disclosure of confidential information absent the
permission of the party submitting it.  Article 17.7 reiterates the need to obtain permission from the
party submitting confidential information before th at information may be disclosed.  This provision
specifically contemplates the situation at issue here, that is, the submission of confidential information
to the Panel absent submission to all parties.  Contrary to the claim by Japan, Article 17.7 of the
Agreement is not a “supplement” to any article of the DSU.  To the extent that Japan’s position entails
a reading of Article 18.1 of the DSU contrary to the plain language of Article 17.7 of the Agreement,
Article 1.2 of the DSU provides that Article 17.7 controls.
18. The United States notes the parties have agreed on a method for disclosure of some of the
confidential information obtained during the course of  the investigation.  We note that the parties
recognize the principle, espoused by the United States, that one must obtain consent from the
submitter of confidential information before disclosing it.
Conclusion
19. This concludes our presentation to the Panel.  We will be happy to respond to any questions
of the Panel or the parties.WT/DS122/R
Page 368
ANNEX 3-7
RESPONSE OF THE EUROPEAN COMMUNITIES
TO THE PANEL'S QUESTIONS
(29 March 2000)
A. R EQUEST BY THAILAND FOR RULING UNDER ARTICLE 6.2 DSU WITH RESPECT TO ARTICLES 5
AND 6 AD
Question 1
We note the following passage from the Appellate Body Report in the Korea – Dairy
Safeguard case:
“… There may be situations where the simple listing of the articles of the
agreement or agreements involved may, in the light of attendant circumstances,
suffice to meet the standard of clarity in  the statement of the legal basis of the
complaint.  However, there may also be  situations in which the circumstances
are such that the mere listing of treaty articles would not satisfy the standard of
Article 6.2.  This may be the case, for instance, where the articles listed establish
not one single, distinct obligation, but rather multiple obligations.  In such a
situation, the listing of articles of an agreement, in and of itself, may fall short of
the standard of Article 6.2.1  (emphasis in original)
(a) How is the phrase "in the light of attendan t circumstances" in the above passage to be
interpreted, both in general, and in the cont ext of the present dispute?  What relevance,
if any, could this phrase have in this particular case.  Are there any "attendant
circumstances" in this case that might be  relevant to the request by Thailand for a
ruling under Article 6.2 DSU with respect to Articles 5 and 6 AD?  Please explain in
detail.
Reply
The European Communities does not consider th is phrase relevant in the context of the
present dispute because both Article 5 and Article 6 ADA fall under the second example given by the
Appellate Body, i.e. that of articles establishing “not one single, distinct obligation, but rather multiple
obligations”.
(b) Does Poland's request for establishment “merely list” Articles 5 and 6 AD, or does it go
beyond a  “mere listing”?
Reply
As explained already in its Written Submission to the Panel, the EC considers that Poland, in
its request for the establishment of the Panel, has merely listed the articles claimed to have beenviolated by Thailand.
                                                     
1 WT/DS98/AB/R, para. 124.WT/DS122/R
Page 369
 (c) Do Articles 5 and 6 AD each establish one single, distinct obligation or rather multiple
obligations? What is the basis for your response?
Reply
It is clear just from a textual analysis of Articles 5 and 6 ADA that they are both composed of
numerous paragraphs, each of them setting out distinct obligations.
Question 2
We note the following passage from the Appellate Body Report in the Korea – Dairy
Safeguard case:
"… whether the mere listing of the articles claimed to have been violated meets
the standard of Article 6.2 must be ex amined on a case-by-case basis.  In
resolving that question, we take into  account whether the ability of the
respondent to defend itself was prejudiced, given the actual course of the panel
proceedings, by the fact that the pane l request simply listed the provisions
claimed to have been violated.2
What is the meaning of the phrase "given the actual course of the panel proceedings" in the
above passage?  Would it, for example, permit the subsequent "remedying" of a possibly
insufficient panel request in the course of th e panel proceedings?  How is this phrase to be
interpreted and applied in the present case in respect of the request for a ruling under Article
6.2 relating to Articles 5 and 6 AD?  Please explain in detail.
Reply
The EC believes that the phrase “given the actual course of the panel proceedings” recalls the
concept of a case-by-case analysis of the adequacy of a request for the establishment of a panel.
In this regard, the EC considers useful to recall that, according to the Appellate Body, one of
the reasons for which a panel request needs to be  “sufficiently precise” is that “it informs the
defending party and the third parties of the legal basis of the complaint”3   In other words, a main
objective of Article 6.2 DSU is to ensure that the respondent and the third parties are able to take
whatever steps they deem appropriate to defend their interests.  On the contrary, where the request forthe establishment of a panel is not able “to present the problem clearly”, the ability of the interested
parties to take such steps is vitiated.  In this lig ht, no subsequent remedy can cure the fact that the
complainant failed to provide in its request for the establishment of the panel  “a brief summary of the
legal basis of the complaint sufficient to present the problem clearly”.  Sustaining the contrary would
deprive this formal act of its raison d’être.
B. A
RTICLE 5 AD
Question 3
Does Article 5.5 AD require written notice, or would a meeting between government
officials be sufficient under this provision?  Please explain in detail.
                                                     
2 WT/DS98/AB/R, para. 127.
3 Ibid. , at paragraph 142.WT/DS122/R
Page 370
Reply
The term “notify” (“ notificar”  in Spanish, “ notifier”  in French) implies some degree of
formality.  This does not necessarily exclude, however, that a notification can be made orally in the
course of an official meeting with representatives of the exporting Member.  It is obvious,nevertheless, that, in the absence of any written re cord, it may be difficult for the importing Member
to rebut a subsequent allegation that no proper notification was made.
In practice, most Members seem to make the notification provided for in Article 5.5 ADA in
writing. The practice of the EC, for example, is to inform the Government of the exporting Member
by means of a note verbale  delivered to the Mission of that country in Brussels.
C. A
RTICLE 6 AD
Question 4
With respect to Poland's reference in para graph 92 of its first written submission to
data based on "overlapping time periods for comparison in the final determination", Polandappears to argue that the use of such data mi ght necessarily introduce a flaw in the analysis
conducted by the Thai investigating authorities.  Is this necessarily the case?  Could such an
approach confirm the persistence of trends over time, as Thailand asserts in paragraph 80 of its
first written submission?
Reply
The use of overlapping time periods does not necessarily vitiate an injury determination.  In
the EC practice, for example, the period of refere nce for the injury determination  covers several
calendar years plus the period of investigation for the dumping determination, which sometimes
overlaps with the last calendar year.
The EC would note, nevertheless, that in the present case the reference period for the injury
determination consisted, apparently, of only one calendar year plus an additional 12-months period
which overlapped with the calendar year to a considerable extent (from 3 to 6 months).  It may be
questionable whether a comparison of data for just two, largely overlapping, time periods may
provide a sufficient basis for an injury determination.
Question 5
Thailand argues that Article 6.5.1 AD provides that an investigating authority shall
require interested parties providing confidenti al information to furnish non-confidential
summaries thereof, but that Article 6.5.1 does not require the investigating authorities to
provide those non-confidential summaries to the exporters or to the foreign producers.
Reply
By its own terms, Article 6.5.1 ADA does not impose any obligation upon the investigating
authorities to provide the non-confidential summaries received from the domestic producers to the
exporters or to the foreign producers.  This does not mean, however, that the investigating authorities
are under no such obligation.  The obligation to make the non-confidential summaries available to the
exporters and foreign producers aris es from other provisions of the ADA, and in particular from
Articles 6.1.2 and 6.3.WT/DS122/R
Page 371
In sum, while Thailand appears to have violated the ADA by not providing the non-
confidential summaries to the Polish exporters, Poland has brought its complaint under the wrong
provision of the ADA.
(a) In this context, what is the relevance, if any, of Article 6.1.2 AD?  Please explain in
detail.
Reply
Non-confidential summaries furnished by the domestic industry constitute “evidence
presented in writing by one interested party”.  Therefore, Article 6.1.2 ADA requires that those
summaries be made available promptly to the exporters or foreign producers.
(b) What is the legal relationship, if any, between Article 6.4, 6.5.1 and 6.9 AD, on the one
hand, and Article 6.1.2 AD, on the other (e.g., does Article 6.4 encompass Article 6.1.2,
do they pertain to different things, etc.)?
Reply
Article 6.4 does not encompass Article 6.1.2, but rather overlaps with it. Article 6.4 is broader
than Article 6.1.2 in that it applies irrespective of the source of the information. In contrast,
Article 6.1.2 applies only to evidence provided by the interested parties.  On the other hand,
Article 6.1.2 has a broader scope in that it covers all evidence presented in writing, while Article 6.4
only extends to information that is both “relevan t” and “used” by the investigating authorities.
Article 6.1.2 and Article 6.4 are subject to the requirement not to disclose information
provided on a confidential basis set out in Article 6.5.  In turn, Article 6.5 is qualified by Article 6.5.1,
which provides that, where information has been pr ovided on a confidential basis, the investigating
authorities must require a non-confidential summary thereof.  Those summaries are not, by definition,
confidential and therefore fall within the scope of the obligations imposed by Articles 6.1.2 and
Article 6.4.
The requirement imposed by Article 6.9 is entirely different from those set forth in
Articles 6.1.2 and 6.4. The latter may be satisfied by granting access to the public file to the interestedparties. In contrast, Article 6.9 imposes on the investigating authorities a positive duty to identify and
point to each interested party which facts, among those made available in the public file in accordance
with Articles 6.12 and 6.4, as well as those submitted by that interested party on a confidential basis,
constitute the “essential facts” which will form the basis for the decision of the investigating authority
whether to apply definitive measures.
D. A
RTICLE 2 AD
Question 6
Poland appears to argue that, if either Article 2.2.2(i) or 2.2.2.(ii) is applied, the
methodologies described therein do not ipso facto yield “reasonable” results in the sense ofArticle 2.2 AD and Article VI:1(b)(ii) of GATT 1994, but rather that such results are
“presumed” to be reasonable and record evid ence in an investigation can rebut this
presumption.  Please comment on this argument, including in the light of the language in the
chapeau of Article 2.2.2 that the methodologies set forth in Article 2.2.2 are to be used “for the
purpose of” Article 2.2, which in turn refers to “reasonable” amounts for profits, inter alia.What factors, elements or considerations (if any) could establish that a calculation of the profit
rate under Article 2.2.2(i) or (ii) was “unreasonable”?WT/DS122/R
Page 372
Reply
As argued extensively in its third party submission, the EC considers that the amounts for
profit established in accordance with either Article 2.2.2 (i) or 2.2.2 (ii) are always “reasonable”.  This
is not a refutable presumption, but rather a presumption iuris et de iure .
The above is confirmed by the wording of subparagraph (iii) which refers to “any other
reasonable method”.  This implies necessarily that the preceding methods, including the one set out in
the chapeau, are “reasonable” per se. As a matter of simple logic, a “reasonable” method cannot  yield
an “unreasonable” result.
Furthermore, if Article 2.2 imposed a supplementary “reasonability test”, the requirement in
subparagraph (iii) that “any other methods” must be “reasonable” would become redundant.
Poland’s proposition that Article 2.2.2 establishes simply a refutable presumption of
reasonability finds no support whatsoever in the wording of Article 2.2.2.
The terms “for the purposes of Article 2.2” serve to indicate that the amounts mentioned
therein are those to be included in the calculation of the constructed normal value as provided for in
Article 2.2.  If they purported to have the meanin g suggested in the question, the drafters would have
used instead clearer wording to that effect such as “subject to Article 2.2 …”, “without prejudice to
Article 2.2 …”, or “provided that the requirements of Article 2.2 are satisfied …”.
Moreover, the terms “for the purposes of” precede also the method set out in the chapeau of
Article 2.2.  Therefore, the argument outlined in the question would have the consequence that the
additional reasonability test supposedly contained in Article 2.2 would apply also to that method,something which not even Poland seems to be arguing.
Finally, it is worth noting that where the drafters of the ADA intended to establish a refutable
presumption, they did so expressly (see  e.g. footnote 2 ADA) The same is true of other WTO
Agreements (see e.g. Article 6.2 of the SCM Ag reement, and Article 2.5 of the TBT Agreement).
Question 7
The question has been placed before the Panel whether subparagraphs (i) and (ii) of
Article 2.2.2 ADA are “safe havens” whereby applying any one of the methodologies set forth
therein yields a result for profit that is per se “reasonable” in the sense of Article 2.2 ADA, last
sentence, and Article VI:1(b)(ii) of GATT 1994.  The chapeau of Article 2.2.2 ADA sets forth the
preferred methodology for determining inter alia the amount of profit in a constructed value
calculation, and states that when such amount “cannot be determined on this basis” it “may be
determined” on the basis of the methodologies in the subparagraphs (i) and (ii).  The use of the
word “may” in this context could be seen as linking the word “reasonable” in Article 2.2 to
subparagraphs (i) and (ii) (which themselves do not contain the word “reasonable”), therebyintroducing a “reasonability” constraint into these subparagraphs.  Please comment.
Reply
The EC fails to see how the use of the word “may” could have the far reaching consequences
described in the question.
In Article 2.2.2, the word “may” indicates permission and not mere possibility, as the
question appears to suggest.  It implies that Members are entitled to establish the amount for profit in
accordance with the methods set out in subparagraphs (i) and (ii).  This is confirmed by the SpanishWT/DS122/R
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and the French versions which use the terms “ podrán ” and “ pourront ”, respectively, instead of
“pueden  ” and “ peuvent ”.
The reading suggested in the question would render  subparagraphs (i) and (ii) superfluous.  If
Members do not have the right, but merely the possibility to use those methods, what is the use ofspelling them out in detail in Article 2.2.2?  It is not plausible that they were inserted in the ADA with
a simple pedagogical purpose, so that “new users” of anti-dumping measures such as Thailand could
learn some possible methods for determining an “amount for profit”.
Furthermore, the term “may” applies not only to subparagraphs (i) and (ii), but also to
subparagraph (iii).  If it were correct that the word “may” introduces a “reasonability constraint” into
subparagraphs (i) and (ii), it would do the same also with respect to subparagraph (iii).  But, if so, it
would have been sufficient to refer in paragraph (iii) to “any other method”, instead of to “any other
reasonable method”.
Question 8
In this context, for purposes of argument only, assume for example that application of
the methodology under subparagraph (i) or (ii) of Article 2.2.2 yields a 300 per cent profit, and
that this profit margin is far in excess of the profit margin on the product for the industry as a
whole.  Would the fact that this result was arrived at based on the correct application of
subparagraph (i) or (ii) make it “reasonable” per se?  Is there any limit on the acceptable“reasonableness” of calculations under subparagraphs (i) and (ii)?
An amount for profit is not “unreasonable” simply because it is high.  The “reasonability” of
the amount for profit to be included in the constructe d value should not be considered in the abstract,
but rather in the light of the object and purpose of Article 2.2.2, which is to arrive at a constructedvalue as close as possible to the normal value that would have been determined on the basis of
domestic prices, had there been comparable sales in the ordinary course of trade.
Profit margins may vary considerably from one country to another, as well as among different
product markets, depending on the prevailing competitive conditions.  In a market where there is littleor no competition, profit margins will be high.  Accordingly, the “reasonable amount for profit” in
that market will have to be also high if it is to be  representative of the conditions prevailing in that
market.
A monopolistic producer protected by high tariffs will charge prices which consumers could
justifiably consider as “unreasonably” high.  Yet the ADA contains no provision allowing, let alone
requiring, to disregard domestic prices for the purposes of a normal value calculation in those
circumstances, or in any other situation where prices are “too high” from the point of view of
consumers.  By the same token, the mere fact that the profit margin yielded by the method set out in
subparagraphs (i) or (ii) is in any given case relatively high, compared to those prevailing in othercountries or product markets, is not a sufficient  reason to call into question its “reasonability”.
The methods set out in subparagraphs (i) and (ii) are based on actual profit data, albeit for
different exporters or products.  A 300 per cent profit margin is unusual in any country or product
market.  The EC, therefore, doubts of the practi cal relevance of the example mentioned in the
question.  However, assuming arguendo  that the correct application of the methods subparagraphs (i)
and (ii) yielded that result, the EC would still regard it as “reasonable”.
Assume, for example, that in the present case there were two Polish exporters of H-beams to
Thailand (companies A and B). A has no domestic sales, while B made sufficient domestic sales in
the ordinary course of trade.  The average profit margin obtained by B on those sales is 300 per cent.WT/DS122/R
Page 374
Why should it be “unreasonable” to assume that, had A made some domestic sales, it would have
obtained at least the same profit margin as B? And why would that assumption be less “reasonable”
than to establish B’s normal value on the basis of  its domestic prices (which incorporate a 300 per
cent profit margin)?
Question 9
Is the phrase “in the ordinary course of trade” as used in Article 2.2.2 relevant to
determining whether there is a reasonability test for calculations of profits under the chapeau of
Article 2.2.2 and/or its subparagraphs (i) and (ii)?  Please explain.
Reply
The phrase “in the ordinary course of trade” as used in Article 2.2.2 has the implication that,
in establishing the reasonable amount for profit, the investigating authorities must disregard salesmade at unreliable prices, including in particular sales below cost (provided that the requirements of
Article 2.2.1 are met).
That phrase gives no support to the proposition that the methods set out in Article 2.2.2 are
subject to an additional  “reasonability test”.  To the contrary, the exclusion of sales not in the
ordinary course of trade, which could have distorte d the result, provides an additional justification for
the presumption that those methods are “ reasonable” per se.
E. A
RTICLE 3 AD
Question 10
Please comment on the hypothesis that a tw o-stage analysis of the factors listed in
Article 3.4 ADA is required.  The first stage would be an initial “consideration” to determine
the “relevance” or lack thereof of each listed fact or and an identification of any other non-listed
factors that also were relevant.  The second stage would be a full analysis of all of the factors
that had been identified as relevan t.  In other words, the factors in Article 3.4 would be seen as a
checklist of what would need to be “considered” in respect of whether or  not each factor was
relevant.  If a given factor were deemed not to be relevant, the analysis of that factor could stop
at that point.  Under this hypothesis, the final determination would have to address each factor
in the checklist, and for each of those that ha d been deemed not to be relevant would simply
indicate that this was the case and why.  For ea ch relevant factor, the final determination would
have to indicate why it had been deemed to be relevant and in addition would have to contain a
full “evaluation” of it.  (Please note that th e reference to the “final determination” is not
necessarily intended to imply the public notice th ereof, but rather the report compiled by the
investigating authority concerning the investigat ion, which might or might not be the same as
the public notice.)
(a) Please indicate whether you agree or disagree with all or part of this hypothesis and
explain in detail the legal basis for your view.
(b) If you disagree with this hypothesis, please explain how, without “considering” each
factor, its relevance or irrelevance can be judged.
(c) Is it your view that if an examination of se veral factors led to a conclusion of injury, it
would not be necessary to “ consider” any of the other factors?  Please explain.WT/DS122/R
Page 375
Reply
The EC would tend to consider the two-stage a pproach proposed by the Panel to interpret the
“examination” to be conducted under Article 3.4 as too formalistic and not based on any textual
element.  In particular, the EC fears that from this interpretation the Panel may derive requirementsthat are not contained in Article 3.4.  In particular, the two-stage approach could not go as far as
requiring investigating authorities to indicate fo r each discarded factor why it was deemed not to be
relevant.
The EC would tend to consider reasonable to interpret Article 3 as articulating a realistic
rather than a formal notion of injury.  In this light, it has to be recalled that, in the economic reality of
specific injury determinations, not only do the factors listed in Article 3.4 differ in importance from
case to case, but it is possible to deduce that certain of them are inherently likely to be more
significant than others and that findings on some may make findings on others superfluous.  Thus, for
instance, how can a calculation of return on investments possibly be relevant or even meaningful inthe case of an industry that is making losses?  Some times one or several of the factors listed in
Article 3.4 can give decisive guidance to determine the impact of the dumped imports on the domestic
industry concerned.  In these cases, the investigating authorities are not required to look further.
Therefore, evaluation of all the factors cannot be regarded as compulsory.
The conclusion that some factors listed in Article 3.4 are inherently more important than
others is partly drawn from everyday understanding of business economics, and partly from aconsideration of the broad context of Article 3.4.  By the latter the EC means the parallel provisions in
the Safeguards Agreement and the ATC, which provides for an assessment of injury to a national
industry, i.e. Article 4.2(a) of the Safeguards Agreement and Article 6.3 of the ATC.  A comparison
between these provisions shows significant differences .  In particular, the provisions in the Safeguards
Agreement and the ATC omit a number of factors which are present in the ADA.  While all theAgreements are open-ended regarding the factors that may be considered, there seems to be no reason,
other than their perceived relative importance, for the omission.  Although the question of injury
arises in quite distinct contexts in the three categories of agreements, in each case the issue is whether
a domestic industry is being injured by imports. There appears to be no reason why the factors to be
considered should vary between them.  That being so, it would be perverse to suggest that the list of
‘compulsory’ factors should be different in each case.  Much more likely is that the drafters intended
the relevant national authorities to make a realistic assessment of the situation according to the facts
of each case, giving most emphasis to those factors that have most relevance. It is reasonable to
conclude that the crucial factors are almost always going to be amongst those that are common to all
three agreements.
Question 11
Please describe the nature of the “relevance” of a factor in the context of Article 3.4
ADA.  Is a factor  “relevant” only when it supports an affirmative finding of injury, or should“relevance” be judged on a more broad basis, for example in the sense of whether or not a
particular factor is informative as to the “state of the industry”?  Is a factor also “relevant”
when it does not support an affirmative finding of injury?  Please explain in detail.
A factor is “relevant” in the context of Article 3.4 ADA when it provides guidance to
determine the impact of dumped imports on the domestic industry concerned, i.e. when it helps assess
whether there is injury.
From a textual point of view, the EC would like  to draw the Panel’s attention on the fact that
all the categories (or “sub-groups” in the word of the Panel) of factors and indices listed in Article 3.4
ADA, but one, are clearly negative factors, namely : “actual and potential decline in …”, “magnitudeWT/DS122/R
Page 376
of the margin of dumping” (inherently negative), “actual and potential negative effects  on” (emphasis
added).  This interpretation of the factors listed in Article 3.4 is reinforced by a consideration of the
opening phrase, which speaks of the “  impact of the dumped imports”.  The word “impact” carries a
negative aspect, which is not present, for example, in the phrase “the effect of the imports” in the
corresponding provision of Article 6 of the ATC.
Although this textual argument cannot go as far as saying that an evaluation of these factors
would only be “relevant” when it supports an affirmative finding of injury, the EC believes that it can
at least shed some light on the nature of “the economic factors and indices having a bearing on the
state of the industry” that the investigating authorities are called to evaluate.
Question 12
What is the significance of the fact that the term “such as” in Article 3.3 of the Tokyo
Round Anti-DumpingCcode was changed to “including” in Article 3.4 of the Uruguay RoundAnti-Dumping Agreement?  If no change in  meaning was intended, why was a change in
terminology made?  According to the Concise Ox ford Dictionary (1990 ed.), the verb “include”
means to “comprise or reckon in as part of a whole”  or to “enclose”.  The term “such as”
means “like” or “for example”.  Please explain in what sense, if any, these definitions could be
viewed as synonymous.
See answer under Question 13.
Question 13
Please comment on the use of the word “or” at two places in the list of the factors in
Article 3.4 ADA, as well as on the use of semi-colons between subgroups of factors in thatArticle.  In particular, what is the significance,  if any, of the fact that the word “or” appears
only  within subgroups of factors which are separated by semi-colons, and not between
 those
subgroups?
Reply
As explained at length in its Written Submission, the EC recognises that the first sentence of
Article 3.4, if taken by itself, contains conflicting elements.  If “including” and “or” were in fact to be
taken literally, their concurrent use would lead to a perverse interpretation.  Consequently, the
interpretation of this norm has to be conducted taki ng into account the ordinary meaning of all its
terms and its context.
Thus, if it is true that textually the word “including” may mean “enclosing”, in the context of
Article 3.4 this notion is undermined by the nature of the list of factors that follows.  These factors are
broken into four categories by semi-colons, and within some of the parts the word “or” is used.  Asalready pointed out in its Submission, the EC firmly  believe that the presence of the conjunction “or”
to link some of the listed factors necessarily imp lies that the investigating authorities are left the
discretion to decide which of the factors and indices listed can be considered relevant and which not
in each particular case.  If the Article 3.4 list had a mandatory nature and “all” factors and indices
listed had to be evaluate, the drafters of the ADA w ould have used the conjunction “and”, as they had
not hesitated doing in many other contexts.   One example of this being that only the conjunction
“and” and not the conjunction “or” does appear in the injury factors’ lists of the SafeguardsAgreement and ATC.  This is further confirmed by  the negotiating history of the ADA.  During the
Uruguay Round, in fact, New Zealand proposed to make the list of factors presented in what is now
Article 3.4 an entirely compulsory checklist.  In its proposed text the list of factors followed a colon
(:) and the ‘or’ in ‘ …or utilization of capacity ’ is missing.  This approach was vigorously rejected byWT/DS122/R
Page 377
the other parties, who felt the list should be indicative, and the present text is the result of this
rejection.
Furthermore, any possible ambiguity in the first sentence is eliminated by the second sentence
of Article 3.4 ADA, which makes perfectly clear that it is not necessary to consider all the factorslisted in the first sentence.  The EC has already provided its interpretation of this part of paragraph 4
in its Written Submission.  However, a further element needs to be noticed.  The relevant part of
paragraph 4 states that:
“This list is not exhaustive, nor can one or several of these factors necessarily give
decisive guidance.”
The use of the words “nor … necessarily” (meaning “need not, but may”) in the second part of this
sentence means that sometimes one or several, and thus not all, of the listed factors can give “decisive
guidance”. Since a single factor can thus give “decisive guidance”, it is clear that in these cases the
investigating authorities are not required to look further.
The necessity of a concurrent textual and contextual analysis of all elements of Article 3.4 is
well illustrated by the comparison of the following sentences, in part used as an example by the Panel
itself during the oral hearing:
(1) The President of Iruthia shall evaluate all major trading nations’ proposals, including those of
the EC, Japan and the United States.
(2) The President of Iruthia shall evaluate all major trading nations’ proposals, including those of
the EC, Japan or the United States.  This list is not exhaustive, nor can one or several of these
proposals necessarily give decisive guidance.
It is clear that in example N° 1, the word “including” does mean “comprising”, “ at the very least”,
and thus the President of this hypothetical state will have to evaluate proposals from all three nations
mentioned.  On the contrary, in the second case, the context of the phrase is such that the meaning of
“including” is not that neat anymore and the Presid ent can claim a discretionary authority in choosing
which proposals to evaluate: those from the EC, Japan and the United States plus others; only thosefrom the United States and Japan; etc.
Question 14
Under what circumstances, or in respect of what sorts of factors, if any, is it the
responsibility of the investigating authority to seek information concerning the potential effects
of “known” factors other than dumped imports that might be causing injury, and when does the
responsibility fall to the responding party to  bring such issues to the attention of the
investigating authority?  For example, if the importing country is in an economic recession,
certainly the authority and all interested parties will “know” this. Would the authority have the
responsibility on its own initiative to try to identify the specific effects of the recession in the
domestic market for the product under investigation, or would it only have to consider this issue
if it were raised by an interested party?  Would it  make a difference if the factor in question was
not something widely known but rather was known only to the investigating authority and the
domestic industry (i.e., not to the respondent)?  Please explain and provide the legal basis for
your view.WT/DS122/R
Page 378
Reply
As suggested by the Panel, Article 3.5 ADA might be read as requiring the investigating
authorities to examine any relevant other factors “known” to them, even if those factors have not been
invoked by the respondents. In practice, nevertheless, this issue is likely to be of little relevance.
In the first place, the wording of Article 3.5 ma kes it clear that the investigating authorities
must “know” not only the existence of the factor in question, but also that that factor is “injuring the
domestic industry”. Thus, to take up the Panel’s example, the investigating authorities must be aware
not only of the existence of a recession, but also that the recession is causing injury to the industryconcerned. While, as suggested by the Panel, it ma y be reasonable to assume that the investigating
authorities “know” the existence of a recession, it ca nnot be assumed that they “know” also its effects
on the domestic industry concerned. (The Panel suggests that a recession will always cause “injury” to
all domestic industries. That is not necessarily so. Some industries may even benefit from a
recession).
Second, the burden of proving that the investigating authorities “knew” one factor lies with
the complaining Member. Moreover, in accordance with Article 17.5 (ii) ADA, Panels may not
examine facts that were not “made available” to the investigating authorities in conformity with
appropriate domestic procedures.
Thus, in sum, in order to establish a viol ation of 3.5 ADA, the complaining Member would
have to prove, on the basis of facts made available to the investigating authorities, that those
authorities “knew” that some “other factor” was causing injury to the domestic industry.  In practice,
that  kind of proof may be extremely difficult to furnish unless the respondents have invoked the
existence of that “other factor” in the course of the investigation
F. A
RTICLE 17 AD
Question 15
Please comment on the relationship, if any, between Article 17.6 ADA and Article 11
DSU, in particular whether or not these provisions must be read together, drawing on elements
from both except to the extent that they “differ” in the sense of Article 1.2 DSU, in which case
Article 17.6 ADA would prevail.  Please comment on whether you believe this is the correct
approach, and whether you do or do not see such a “difference” between Article 11 DSU and
Article 17.6 ADA.  Please describe any such diffe rence.  In this context, please discuss the
Appellate Body’s statement in Argentina – Footwear Safeguard:
“[F]or all but one of the covered agreements, Article 11 of the DSU sets forth the
appropriate standard of review for panels.1  The only exception is the Agreement
on Implementation of Article VI of the General Agreement on Tariffs andTrade 1994, in which a specific provision, Article 17.6, sets out a special
standard of review for disputes arising under that Agreement” (underlining
supplied).
___________________________________
1See e.g., Appellate Body Report, EC Meas ures Concerning Meat and Meat Products
("European Communities – Hormones"), WT/DS26/AB/R, WT/D S48/AB/R, adopted
13 February 1998, paras. 114-119;  Australia – Salmon, supra, footnote 26, para. 2.67WT/DS122/R
Page 379
Reply
See answer under Question 16.
Question 16
The parties seem to agree that the appropriate standard of review is somewhere between
de novo review and total deference.  We note that within Article 17.6 itself, the two
subparagraphs arguably could be viewed as establishing different levels of review or deference
pertaining to two different types of issues.  Subparagraph (i) concerns facts and arguablyrequires a considerable degree of deference and thus relatively limited review by a Panel.  By
contrast, subparagraph (ii) concerns issues of law and the question of multiple “permissible”
interpretations of a given provision of the ADA, among which a national investigating authority
is free to choose.  Some commentators believe th at rarely if ever can there be more than one
permissible interpretation of any given treaty pr ovision.  This might arguably mean that the
required degree of deference under (ii) would be less than under (i).    Furthermore, the
question arises as to when, if at all, the establishment or evaluation of “facts” by an
investigating authority becomes a question of law or legal interpretation under the Anti-
Dumping Agreement (e.g., where the issue is whether a certain set of facts satisfies a given
treaty provision).  The question of this “penumbra” between fact and law could be particularly
relevant in the context of the Anti-Dumping Agreement.
(a) Please comment on your views as to the nature of the differences between the  two
subparagraphs of Article 17.6 (coverage, degree of deference required, etc.).
(b) Please also describe the standard of review that you believe should apply to issues that
fall within the penumbra between factual and legal issues as described above.  Is it thestandard in 17.6(i), 17.6(ii), or some other standard.  Please explain in detail.
(c) Please identify the standard of review (subparagraph (i), subparagraph (ii) or a
standard of review applicable in the penumbra if different from (i) or (ii)) that you
believe is applicable to each issue before th e Panel in this case, and please explain your
reasoning.
Reply
The EC believes that Article 17 ADA, although an additional rule in the meaning of
Appendix 2 DSU, constitutes overall a restatement of the provisions found in the DSU.  The argument
that, on the basis of Article 1.2 DSU, Article 17 ADA would always prevail, is thus not sustainable
because the prerequisite for the application of Article 1.2 DSU is missing: Article 17 ADA and the
norms of the DSU do not usually differ.  As the Appellate Body has pointed out clearly in its analysis
of the relation between the ADA and the DSU, two sets  of rules should be considered to differ when
they cannot be read as complementing each other, i.e. “when adherence to one provision would lead
to a violation of the other provision”.  Apart from such cases, the special or additional rules of the
ADA should be seen as forming an integrated whole with the DSU4
In this light, Article 11 of the DSU and Article 17.6 ADA can be considered to differ only in
one respect.  Under Article 11 DSU a panel is asked to “make an objective assessment” of “the facts
of the case and the applicability of and conformity with the relevant covered agreements”.  Thus, onthe basis of this norm, the panel will in prima persona  and objectively assess both the issues of fact
                                                     
4 Report by the Appellate Body on  Guatemala - Anti-Dumping Investigation Regarding Portland
Cement from Mexico , AB-1998-6, WT/DS60/AB/R, 2 November 1998, at paragraphs 65-68.WT/DS122/R
Page 380
and the issues of law that are at the basis of the controversy submitted to its judgement.  Under
Article 17.6, a panel is also asked to deal directly with the legal issues at the basis of the case.
Article 17.6(ii) reads in fact in the relevant part:
“the panel shall interpret the relevant provisions of the Agreement in accordance with
customary rules of interpretation of public international law.”
However, with regard to issues of fact, Article 17.6(i) only requires the panel to “determine whether
the authorities' establishment of the facts was proper and whether their evaluation of those facts was
unbiased and objective”.  In this case, thus, the panel is only required to review the assessment of the
facts conducted by the investigating authorities and not to conduct it ex novo .  This higher deference
to the factual findings of the national authorities is also confirmed by the final disposition contained in
Article 17.6(ii), which reads:
“If the establishment of the facts was proper and the evaluation was unbiased and
objective, even though the panel might have reached a different conclusion, theevaluation shall not be overturned”.
Apart from this different standard of deference applicable as far as the assessment of the facts of the
case are concerned, the EC does not see any “difference” in the provisions of Article 11 DSU and
Article 17.6 ADA.  This implies, among other things, that all the remaining rules of Article 11 DSU
apply also in anti-dumping cases.
As far as the so-called “penumbra” between fact and law that the Panel refers to, the EC is not
in a position to comment because unable to perceive that “penumbra”.  For the EC, the issues that
panels are called to assess are “brightly” issues of fact or issues of law.
Finally, the EC would like to recall that it has intervened as third party in this case because of
its systemic interest in the correct interpretation of the ADA and in the correct application of the DSU.The EC, instead, is not in a position to comment on the many issues in dispute which relate to
questions of fact.  Accordingly, the EC is not in  a position to answer to Panel’s Question 16 (c).WT/DS122/R
Page 381
ANNEX 3-8
RESPONSE OF JAPAN
TO THE PANEL'S QUESTIONS
A. REQUEST BY THAILAND FOR RULING UNDER ARTICLE 6.2 DSU WITH RESPECT
TO ARTICLES 5 AND 6 AD
1. We note the following passage from the Appellate Body Report in the Korea –Dairy
Safeguard case:
“… There may be situations where the simple listing of the articles of the
agreement or agreements involved may, in the light of attendant circumstances,
suffice to meet the standard of clarity in  the statement of the legal basis of the
complaint.  However, there may also be situations in which the circumstances
are such that the mere listing of treaty articles would not satisfy the standard of
Article 6.2.  This may be the case, for instance, where the articles listed establish
not one single, distinct obligation, but rather multiple obligations.  In such a
situation, the listing of articles of an agreement, in and of itself, may fall short of
the standard of Article 6.2.1  (emphasis in original)
(a) How is the phrase "in the light of attendant circumstances" in the above passage to be
interpreted, both in general, a nd in the context of the present dispute?  What relevance, if any,
could this phrase have in this particular case.  Are there any "attendant circumstances" in this
case that might be relevant to the request by Thailand for a ruling under Article 6.2 DSU with
respect to Articles 5 and 6 AD?  Please explain in detail.
Reply
(i) In general, when interpreting the phrase "in the light of the attendant circumstances", one
must first visit the object and purpose of Article 6.2 on which all panel establishment requests must bebased.
(ii) The issue of fulfilment of the specificity requirement provided for in Article 6.2 has been
repeatedly raised in a number of cases and is one of the most controversial issues of legal
interpretation under the DSU.  As has been reaffirm ed by the past panels and the Appellate Body, the
object and purpose of the requirement is, first, to ensure clarity of panel's terms of reference, which
pursuant to Article 7 of the DSU are typically determined by the panel request, and, second, to inform
the respondent and potential third parties of the scope of the complaining party's claims and to enable
them to respond adequately.  We also believe that specificity of the panel request effectively prevents
the complaining parties from continuously raising additional legal claims throughout the panelproceedings. In short, the specificity requirement serves to ensure due process and fairness in the
panel proceeding.
(iii) Article 6.2 of the DSU provides two specific requirements; first, identification of the specific
measures at issue, and second, provision of a brief summary of the legal basis of the complaint
sufficient to present the problem clearly.  With regard to the first requirement, we support the
interpretation developed by the panel on Japan - Film which found that for a measure not explicitlydescribed in a panel request to be regarded as being included in the measures specifically identified, it
                                                     
1  WT/DS98/AB/R, para. 124.WT/DS122/R
Page 382
must have a clear relationship, that is, must be subsid iary or so closely related, to the latter so that the
responding party can reasonably be found to have received adequate notice.  Although we believe that
the standard developed by the panel is implicit in the terms of Article 6.2, it should be articulated in
that provision, if necessary.  As for the second requirement, the past panels and the Appellate Body
found that it was sufficient for the complaining parties to list the provisions of the specific agreementsalleged to have been violated without setting out detail arguments.  We disagree. Since a simple
listing of the provisions which are allegedly violated is not enough to properly perform a notice
function of the panel request, the linkage between the specific measures concerned and the provisions
allegedly violated thereby be presented.  In line with the above understanding, Japan has submitted its
own panel request which in our opinion would fulfil the above requirements, as was the case at thetime of our panel establishment request for the Canada-Auto Pact.
(iv) Thus, the exact threshold as to what level of specificity of claim would satisfy the
requirement of Article 6.2, must be judged against the two specific requirements explained above.  In
order for a panel establishment request to fulfil these requirements, due consideration should be givento the "attendant circumstances" of respective cases because not all cases can be based on the same
level of specificity.
(v) In the context of the present dispute, Articles 5 and 6 AD are cited in the panel request.  As
these Articles impose upon the Member initiating the investigation a detailed set of requirements, the
claims in the panel establishment request should go beyond merely listing Articles 5 and 6, and
"identify the specific measures at issue and provide a brief summary of the legal basis of thecomplaint" so that the linkage between the specific  measures concerned and the provisions allegedly
violated thereby is presented.
(vi) In Japan's view, Poland fails to fulfil th ese requirements because the panel establishment
request in question states no more than Thai authorities violated these provisions in their initiation andconduct of the investigation.
(b) Does Poland's request for establishment “merely list” Articles 5 and 6 AD, or does it go
beyond a “mere listing”?
Reply
Japan is of the view that Poland's request merely lists Articles 5 and 6 AD because the request
fails to explain what actions by the Thai investigating authorities violated the obligations set forth in
these Articles.
(c) Do Articles 5 and 6 AD each establish one single, distinct obligation or rather multiple
obligations? What is the basis for your response?
Reply
Articles 5 and 6 establish multiple obligations.  For example, Article 5.2 AD lists four
categories of information that shall be contained in an application for the initiation of an investigation.
Article 6.9, on the other hand, requires the disclosure of essential facts to interested parties.
2. We note the following passage from the Appellate Body Report in the Korea – Dairy
Safeguard case:
"… whether the mere listing of the articles claimed to have been violated meets
the standard of Article 6.2 must be ex amined on a case-by-case basis.  In
resolving that question, we take into  account whether the ability of theWT/DS122/R
Page 383
respondent to defend itself was prejudiced, given the actual course of the panel
proceedings, by the fact that the pane l request simply listed the provisions
claimed to have been violated.2
What is the meaning of the phrase "given the actual course of the panel proceedings" in the
above passage?  Would it, for example, permit the subsequent "remedying" of a possiblyinsufficient panel request in the course of th e panel proceedings?  How is this phrase to be
interpreted and applied in the present case in respect of the request for a ruling under
Article 6.2 relating to Articles 5 a nd 6 AD?  Please explain in detail.
Reply
(i) As we presented in our response to Question 1.(a) above, the specificity requirement of
Article 6.2 effectively prevents the complaining parties from continuously raising additional legal
claims throughout the panel proceedings, thereby ensuring due process and fairness in the panel
proceeding.
(ii) If the panel establishment request clearly fails to fulfil the standard imposed by Article 6.2,
the DSB should not decide to establish the panel.
(iii) In many instances in which the defending parties requested the panel to make a preliminary
ruling on such issues as the specificity require ment, however, the panel had to examine all the
relevant issues as well as legal claims before it ruled on such preliminary issues.  The examination ofthe phrase "given the actual course of the panel proceedings" must therefore take into account such
reality that the panel may not be able to determine whether the panel establishment request meets the
requirement of Article 6.2 at an early stage of the panel proceeding, failing the decision of the DSB to
reject that panel establishment request.
(iv) Issues such as the specificity requirement, however, had better be dealt with at an early stage
of the panel proceeding in order for the panel to concentrate on the substance of the issues raised.
Thus, the specificity requirement of Article 6.2 must be stringently administered before the
establishment of the panel.  Only under exceptional circumstances should the panel allow the
complaining party to present any additional specificity of claims during the course of the panelproceeding in order to clear the threshold of specificity imposed by Article 6.2, and only when the
panel can ascertain that the ability of the respondent to defend itself is in no way prejudiced.
(v) Should the panels allow the complaining parties to remedy the lack of specificity in the panel
establishment request with ease, it would lead to the kind of situations in which the complainingparties continuously raise additional legal claims throughout the panel proceedings, which places the
defending parties at a disadvantage to the discredit of the WTO Dispute Settlement mechanism.
(vi) In the context of the case in question, Poland's panel establishment request fails to fulfil the
specificity requirement of Article 6.2, and only under the exceptional circumstances any remedy forthe lack of specificity be made available to Poland.
B.  ARTICLE 5 AD
3. Does Article 5.5 AD require written notice, or would a meeting between government
officials be sufficient under this provision?  Please explain in detail.
                                                     
2 WT/DS98/AB/R, para. 127.WT/DS122/R
Page 384
Reply
Although Article 5.5 does not specify that notification should be in writing, other
considerations suggest that Article 5.5 requires written notification.  The word "notify" suggests a
more formal process than mere oral notification.  The New Shorter Oxford English Dictionary (1993ed.) defines the word "notify" as follows: "make known, publish".  Interpreting Article 5.5 to require
only oral notification could also create an evidentiar y dilemma in that the government of the exporting
Member concerned may deny having received (sufficient) oral notification.  Absent a requirement for
written notification, however, the risk of failing to meet this obligation should fall on the party
making the notification.
C. ARTICLE 6 AD
5. Thailand argues that Article 6.5.1 AD provides that an investigating authority shall
require interested parties providing confidenti al information to furnish non-confidential
summaries thereof, but that Article 6.5.1 does not require the investigating authorities to
provide those non-confidential summaries to the exporters or to the foreign producers.
Reply
Japan believes that data based on overlapping time periods do not necessarily introduce a flaw
in an investigation.  It depends on the reasons the authority has for analyzing overlapping time period.This issue should be decided on a case-by-case basis.  Ultimately, whatever comparison periods are
used, investigating authorities must show injury by reasons of unfairly  price imports and must be able
to explain the risk  behind the analytic methodology being used. Japan believes that a member
challenging a particular analytic methodology s hould explain clearly the flaws in the methodology
being attacked.
(a) In this context, what is the relevance, if any, of Article 6.1.2 AD?  Please explain in
detail.
Reply
5(a) Article 6.1.2 expands on the obligation create d under Article and 6.5.1.  Article 6.5.1 provides
that authorities "shall require interested parties providing confidential information to furnish non-
confidential summaries thereof".  Article 6.1.2 provides that written evidence "shall be made available
promptly to other interested parties in the investigation".  The interaction of these Articles created anobligation on the part of Thailand to make non-confidential summaries available to other interested
parties in a prompt manner.  In this regard, consideration should be given to the purpose of non-
confidential summaries, which is to allow interested parties to participate in investigations.
Moreover, under Article 6.2, all interested parties "shall have a full opportunity for the defense of
their interests".  Such a defense would be impair ed without access to non-confidential summaries.
(b) What is the legal relationship, if any, between Article 6.4, 6.5.1 and 6.9 AD, on the one
hand, and Article 6.1.2 AD, on the other (e.g., does Article 6.4 encompass Article 6.1.2,
do they pertain to different things, etc.)?WT/DS122/R
Page 385
Reply
These Articles are interrelated, and create an obligation for authorities to provide interested
parties with relevant (non-confidential) information in a timely fashion.  Article 6.4 is more expansive
and general than Article 6.1.2.  Article 6.1.2 refers only  to "evidence presented in writing", whileArticle 6.4 refers to "all information" that is relevant  to the case of an interested party and that is used
by authorities in an investigation.
Article 6.5.1 elaborates on the obligation under Article 6.1.2 to provide promptly interested
parties with evidence presented in writing by other interested parties.  Article 6.5.1 outlines in generalterms what information must be contained in non-confidential summaries of information.
Finally, Article 6.9 stipulates to the obligation of authorities to disclose "essential facts" to all
interested parties, which is a subset of the information that must be made available to interested
parties under Article 6.4.  Article 6.9, however, contains stricter conditions because of the importantnature of "essential facts".  Accordingly, Article 6.9 does not employ Article 6.4's term "whenever
practicable", and carefully defines when the "essential facts" must be informed all  interested parties.
D. ARTICLE 2 AD
6. Poland appears to argue that, if either Article 2.2.2(i) or 2.2.2.(ii) is applied, the
methodologies described therein do not ipso facto yield “reasonable” results in the sense ofArticle 2.2 AD and Article VI:1(b)(ii) of GATT 1994, but rather that such results are
“presumed” to be reasonable and record evid ence in an investigation can rebut this
presumption.  Please comment on this argument, including in the light of the language in the
chapeau of Article 2.2.2 that the methodologies set forth in Article 2.2.2 are to be used “for the
purpose of” Article 2.2, which in turn refers to “reasonable” amounts for profits, inter alia.What factors, elements or considerations (if any) could establish that a calculation of the profit
rate under Article 2.2.2(i) or (ii) was “unreasonable”?
Reply
Japan agrees that a reasonableness requirement underlies Article 2.2.2 in calculating "the
amounts of administrative, selling and general costs and for profits" by virtue of the cross-reference in
the chapeau of that Article to Article 2.2.  The methodologies employed pursuant to Article 2.2.2
cannot be presumed to yield, ipso facto, "reasonable" results without reading away the word
"reasonable".  A determination of whether a me thodology under Article 2.2.2 was "reasonable" should
be guided by whether there is evidence that reasonable alternatives were rejected without a good
rationale.
7. The question has been placed before the Panel whether subparagraphs (i) and (ii) of
Article 2.2.2 ADA are “safe havens” whereby applying any one of the methodologies set forththerein yields a result for profit that is per se “reasonable” in the sense of Article 2.2 ADA, last
sentence, and Article VI:1(b)(ii) of GATT 1994.  The chapeau of Article 2.2.2 ADA sets forth the
preferred methodology for determining inter alia the amount of profit in a constructed value
calculation, and states that when such amount “cannot be determined on this basis” it “may be
determined” on the basis of the methodologies in the subparagraphs (i) and (ii).  The use of the
word “may” in this context could be seen as linking the word “reasonable” in Article 2.2 to
subparagraphs (i) and (ii) (which themselves do not contain the word “reasonable”), therebyintroducing a “reasonability” constraint into these subparagraphs.  Please comment.
8. In this context, for purposes of argument only, assume for example that application of
the methodology under subparagraph (i) or (ii) of Article 2.2.2 yields a 300 per cent profit, andWT/DS122/R
Page 386
that this profit margin is far in excess of the profit margin on the product for the industry as a
whole.  Would the fact that this result was arrived at based on the correct application of
subparagraph (i) or (ii) make it “reasonable” per se?  Is there any limit on the acceptable
“reasonableness” of calculations under subparagraphs (i) and (ii)?
9. Is the phrase “in the ordinary course of trade” as used in Article 2.2.2 relevant to
determining whether there is a reasonability test for calculations of profits under the chapeau of
Article 2.2.2 and/or its subparagraphs (i) and (ii)?  Please explain.
Reply
Please see the answers to question 6 which demonstrates Japan's  basic position.
E. ARTICLE 3 AD
10 Please comment on the hypothesis that a two-stage analysis of the factors listed in
Article 3.4 ADA is required.  The first stage would be an initial “consideration” to determine
the “relevance” or lack thereof of each listed fact or and an identification of any other non-listed
factors that also were relevant.  The second stage would be a full analysis of all of the factors
that had been identified as relevan t.  In other words, the factors in Article 3.4 would be seen as a
checklist of what would need to be “considered” in respect of whether or  not each factor was
relevant.  If a given factor were deemed not to be relevant, the analysis of that factor could stopat that point.  Under this hypothesis, the final determination would have to address each factor
in the checklist, and for each of those that ha d been deemed not to be relevant would simply
indicate that this was the case and why.  For ea ch relevant factor, the final determination would
have to indicate why it had been deemed to be relevant and in addition would have to contain a
full “evaluation” of it.  (Please note that th e reference to the “final determination” is not
necessarily intended to imply the public notice th ereof, but rather the report compiled by the
investigating authority concerning the investigat ion, which  might or might not be the same as
the public notice.)
(a) Please indicate whether you agree or disagree with all or part of this hypothesis and
explain in detail the legal basis for your view.
Reply
Japan disagrees with the hypothesis that there might be irrelevant factors listed in Article 3.4
on a case-by-case basis, when examining the impact of the dumped imports. Japan believes that,
according to the language of Article3.4, all factors listed are "relevant".  Authorities shall not
arbitrarily exclude certain factors because they do not believe them to be relevant.
(b) If you disagree with this hypothesis, pl ease explain how, without “considering” each
factor, its relevance or irrelevance can be judged.
Reply
Please see the answer to question 10(a).
(c) Is it your view that if an examination of se veral factors led to a conclusion of injury, it
would not be necessary to “consider” any of the other factors?  Please explain.
ReplyWT/DS122/R
Page 387
Article 3.4 specifically requires an "evaluation of all relevant economic factors and indices".
This is important because an evaluation of only certain factors could lead to an erroneous conclusion.
Whereas one or two factors may point to imports as causing injury to the domestic industry, an
evaluation of the remaining factors might contradict this conclusion.
11. Please describe the nature of the “relevance” of a factor in the context of Article 3.4
ADA. Is a factor “relevant” only when it supports an affirmative finding of injury, or should
“relevance” be judged on a more broad basis, for example in the sense of whether or not a
particular factor is informative as to the “state of the industry”?  Is a factor also “relevant”
when it does not support an affirmative finding of injury?  Please explain in detail.
Reply
Japan thinks that the nature of the "relevance" requirement in Article 3.4 must be judged on a
broader basis than merely inquiring whether a factor supports an affirmative finding of injury.  Thisconclusion emerges from the language of Article 3.4 which is not restrictive.  Thus, Article 3.4 uses
the phrase "evaluation of all relevant factors . . . having a bearing on the state of the industry" as
opposed to referring to factors having a bearing on the "injury" of the industry.
12. What is the significance of the fact that the term “such as” in Article 3.3 of the Tokyo
Round Anti-dumping code was changed to “including” in Article 3.4 of the Uruguay Round
Anti-dumping Agreement?  If no change in  meaning was intended, why was a change in
terminology made?  According to the Concise Ox ford Dictionary (1990 ed.), the verb “include”
means to “comprise or reckon in as part of a whole” or to “enclose”.  The term “such as” means
“like” or “for example”.  Please explain in what  sense, if any, these definitions could be viewed
as synonymous.
Reply
Japan believes that the change in terminology was made for a specific reason.  Whereas,
"such as" means "like" or "for example" and therefore does not entail a requirement that each factor
subsequently listed be reviewed, "including" does entail such a requirement.  Because "including"means "part of a whole", the factors listed after the word "including" are a subset of a potentially
larger group of factors that must be reviewed by authorities.
13. Please comment on the use of the word “or” at two places in the list of the factors in
Article 3.4 ADA, as well as on the use of semi-colons between subgroups of factors in thatArticle.  In particular, what is the significance,  if any, of the fact that the word “or” appears
only within subgroups of factors which are separated by semi-colons, and not between
 those
subgroups?
Reply
Please see the answer to question 10(a).
14. Under what circumstances, or in respect of  what sorts of factors, if any, is it the
responsibility of the investigating authority to seek information concerning the potential effects
of “known” factors other than dumped imports that might be causing injury, and when does the
responsibility fall to the responding party to  bring such issues to the attention of the
investigating authority?  For example, if the importing country is in an economic recession,
certainly the authority and all interested parties will “know” this. Would the authority have the
responsibility on its own initiative to try to identify the specific effects of the recession in the
domestic market for the product under investigation, or would it only have to consider this issueWT/DS122/R
Page 388
if it were raised by an interested party?  Would it  make a difference if the factor in question was
not something widely known but rather was known only to the investigating authority and the
domestic industry (i.e., not to the respondent)?  Please explain and provide the legal basis for
your view.
Reply
Japan believes there is an obligation on the part of authorities to consider the potential effects
of factors other than dumped imports that might be causing injury to the domestic industry.  This
obligation derives from the third sentence of Article 3.5 which expressly states that "the authoritiesshall also examine any known factors other than the dumped imports which at the same time are
injuring the domestic industry".  Moreover this sentence does not use the phrase "before the
authorities" contained in the previous sentence of Article 3.5, thereby indicating a broader scope of
the obligation of authorities.
F. ARTICLE 17 AD
15. Please comment on the relationship, if any, between Article 17.6 ADA and Article 11
DSU, in particular whether or not these provisions must be read together, drawing on elements
from both except to the extent that they “differ” in the sense of Article 1.2 DSU, in which case
Article 17.6 ADA would prevail.  Please comment on whether you believe this is the correct
approach, and whether you do or do not see such a “difference ” between Article 11 DSU andArticle 17.6 ADA.  Please describe any such diffe rence.  In this context, please discuss the
Appellate Body’s statement in Argentina – Footwear Safeguard:
“[F]or all but one of the covered agreements, Article 11 of the DSU sets forth the
appropriate standard of review for panel
31.  The only exception is the
Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994, in which a specific provision, Article 17.6, sets out a
special standard of review for disputes arising under that Agreement”
(underlining supplied).
Reply
Japan believes that Article 17.6 ADA and Ar ticle 11DSU should be read together.
Article 17.1 provides that "Except as otherwise provided herein, the Dispute Settlement
Understanding is applicable to consultations and the settlement of disputes under this Agreement.
The Appellate Body's statement in Argentina Footwear Safeguard merely describes Article 17.  Thisstatement does not purport to explain how Article 17.6 ADA and Article 11 DSU should be
interpreted together as a matter of treaty interpretation.  The appellate body does not indicate that
art.17 ADA has completely replaced Article 11 DSU.
                                                     
3 See e.g., Appellate Body Report,  EC Measures  Concerning Meat and Meat Products ("European
Communities – Hormones"), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, paras. 114-119;
Australia – Salmon, supra, footnote 26, para. 2.67WT/DS122/R
Page 389
ANNEX 3-9
RESPONSE OF THE UNITED STATES TO THE
PANEL'S QUESTIONS
FIRST SUBSTANTIVE MEETING
A. REQUEST BY THAILAND FOR RULING UNDER ARTICLE 6.2 DSU WITH RESPECT
TO ARTICLES 5 AND 6 AD
1. We note the following passage from the Appellate Body Report in the Korea –Dairy
Safeguard case:
"124. There may be situations where the simple listing of the articles of the
agreement or agreements involved may, in the light of attendant circumstances,
suffice to meet the standard of clarity in  the statement of the legal basis of the
complaint.  However, there may also be  situations in which the circumstances
are such that the mere listing of treaty articles would not satisfy the standard of
Article 6.2.  This may be the case, for instance, where the articles listed establishnot one single, distinct obligation, but rather multiple obligations.  In such a
situation, the listing of articles of an agreement, in and of itself, may fall short of
the standard of Article 6.2.
1  (emphasis in original)
(a) How is the phrase "in the light of attendant circumstances" in the above passage to be
interpreted, both in general, a nd in the context of the present dispute?  What relevance, if any,
could this phrase have in this particular case.  Are there any "attendant circumstances" in this
case that might be relevant to the request by Thailand for a ruling under Article 6.2 DSU with
respect to Articles 5 and 6 AD?  Please explain in detail.
Response:
This question relates specifically to Poland’s statement in its request for the establishment of
panel that
The principal measures to which Poland objects are:Thai authorities initiated and conducted this investigation in violation of the
procedural and evidentiary requirements of  Article VI of GATT 1994 and Articles 5
and 6 of the Anti-Dumping Agreement.
“[I]n light of the attendant circumstances” means, in general terms, that the factual context
surrounding the request for a panel, including any record of the consultations or other
communications between the parties, or the circumstances of the measure being reviewed, may mean
that a relatively abbreviated description of the legal claim may be sufficient to satisfy the requirement
of Article 6.2 DSU that the request “provide a brief summary of the legal basis of the complaint
sufficient to present the problem clearly”.
                                                     
1  WT/DS98/AB/R, para. 124.WT/DS122/R
Page 390
Articles 5 (Initiation and Subsequent Investigation) and 6 (Evidence)  of the Anti-Dumping
Agreement are lengthy and contain various obligations which might have been the intended object of
Poland’s request for the establishment of a panel. With one possible exception, the United States is
unaware of any circumstances attendant to Poland’s request for establishment that would have
clarified what Poland meant by its general reference to Articles 5 and 6 of the Anti-DumpingAgreement.  The arguable exception is that certain aspects of the underlying investigation would have
made some Article 5 and 6 claims unlikely.  For instance, Article 6.10 is applicable in cases, among
others, where there are numerous exporters.  Since the investigation at issue here involved only one
exporter, it is unlikely that Poland believed it had a claim based on the “multiple exporter” provisions
of Article 6.10.  However, the United States did not participate as a third party in the consultationsheld between the parties and therefore cannot comment on what information regarding the Article 5
and 6 claims Poland may have consulted upon with Thailand.  If there are documents (e.g., questions
Poland posed to Thailand) delineating Poland questions and concerns, these would be relevant for thePanel to consider.  The United States notes Thaila nd’s argument that the lack of specificity in the
request for establishment has denied Thailand its right to present an effective defense to the Article 5and 6 claims.  This fact would suggest that the “attendant circumstances” were not such that a listing
of the articles was sufficient to meet the standard of clarity in the statement of the legal basis of the
complaint.  Further clarity might have been provided by, for instance, providing a narrative
description of the problem.
(b) Does Poland's request for establishment “merely list” Articles 5 and 6 AD, or does it go
beyond a “mere listing”?
Response :
Poland’s request for establishment puts Articles 5 and 6 into a sentence, stating that Thailand
initiated and conducted the investigation in violation of those articles.  This statement is the functionalequivalent of listing the articles.
(c) Do Articles 5 and 6 AD each establish one single, distinct obligation or rather multiple
obligations? What is the basis for your response?
Response:
Articles 5 and 6 establish various obligations.  Article 6.2 DSU requires that the establishment
request “provide a brief summary of the legal basis of the complaint sufficient to present the problem
clearly”.  In the case of Articles 5 and 6, it would appear that DSU Article 6.2 read in conjunctionwith AD Article 17.5(i) would require some specificity as to the Article 5 and 6 obligations alleged to
have been breached, without necessarily requiring a listing of specific paragraphs of the article.  For
example, the panel in Mexico -Anti-Dumping investigation of High Fructose Corn Syrup (HFCS) from
the United States  found that the US request for establishment narratively describing the US
allegations met the requirements of DSU Article 6.2 and AD Article 17.5(i), were not cited
2  Poland’s
request for establishment regarding AD Articles 5 and 6 do not provide any such detail.  Further,
Thailand has alleged that its ability to defend itself was prejudiced by this lack of detail, which is one
of the factors that the Appellate Body has identifi ed as important in considering a claim under Article
6.2 DSU.
2. We note the following passage from the Appellate Body Report in the Korea – Dairy
Safeguard case:
                                                     
2 See US request for establishment (WT/DS132/2) and the panel ’s findings in sections VII(B)(1) and
(2) of its report (WT/DS/132/R, 28 January 2000).WT/DS122/R
Page 391
"127. Whether the mere listing of the articles claimed to have been violated
meets the standard of Article 6.2 must be  examined on a case-by-case basis.  In
resolving that question, we take into  account whether the ability of the
respondent to defend itself was prejudiced, given the actual course of the panel
proceedings, by the fact that the pane l request simply listed the provisions
claimed to have been violated.3
What is the meaning of the phrase "given the actual course of the panel proceedings" in the
above passage?  Would it, for example, permit the subsequent "remedying" of a possibly
insufficient panel request in the course of th e panel proceedings?  How is this phrase to be
interpreted and applied in the present case in respect of the request for a ruling underArticle 6.2 relating to Articles 5 a nd 6 AD?  Please explain in detail.
Response:   
A panel could determine, based on the course of the panel proceedings, that the original
establishment request was sufficient in that it presented the problem sufficiently clearly.  This could
be the case, for instance, if it were apparent from the parties’ subsequent submissions that there was a
common understanding of the claim as set forth in the request.  If there was a common understanding,
then it is unlikely that a party’s ability to defend itself was prejudiced by the supposed lack of clarity.
In the instant dispute, it is not clear from the facts of the actual course of the panel
proceedings that Thailand was aware of Poland’s precise legal claims.  Indeed, in Poland’s firstsubmission, its brief discussion of its Article 5 and 6 claims discussed, for the first time, Article 12. 2
of the Anti-Dumping Agreement (concerning the public notice of determinations).  This lack of notice
could very well prejudice the ability of a party to defend itself.
B. ARTICLE 5 AD
3. Does Article 5.5 AD require written notice, or would a meeting between government
officials be sufficient under this provision?  Please explain in detail.
Response:
Article 5.5 is silent on the issue of the type of  notice required.  To date, disputes concerning
the application of Art. 5.5 have centered around the time frame for providing notice
4  rather than the
method of notification.
The absence of an express requirement of written notice provides authorities with the latitude
to develop notification procedures that are consistent with both their international obligations and
their internal domestic policies.  A meeting between government officials could satisfy the
notification requirement, provided that the objective of the meeting is specific and sufficiently
documented to support a review on the record by the panel.
                                                     
3 WT/DS98/AB/R, para. 127.
4 Recently, the Committee on Anti-dumping Practices  issued a recommendation calling for notification
to occur “as soon as possible after the receipt ... of a pr operly documented application, and as early as possible
before the decision is taken regarding initiation....”  Recommendation Concerning The Timing of the Notification
under Article 5.5. , G/ADP/5 circulated Nov. 3, 1998.  However, th at recommendation is silent as to the type of
notification required.WT/DS122/R
Page 392
C. ARTICLE 6 AD
4. With respect to Poland's reference in pa ragraph 92 of its first written submission to
data based on "overlapping time periods for comparison in the final determination", Poland
appears to argue that the use of such data mi ght necessarily introduce a flaw in the analysis
conducted by the Thai investigating authorities.  Is this necessarily the case?  Could such an
approach confirm the persistence of trends over time, as Thailand asserts in paragraph 80 of its
first written submission?
Response:
The United States generally agrees with the approach set forth by Thailand in paragraph 80 of
its first written submission.  That is, using overlapping time periods is of no import with respect to a
determination of injury.  It is true that comparing, for example, a compilation of three years of data
and then comparing two partial years of data may assist the investigating authority in its determinationof injury by reason of the subject imports.  This is especially true with respect to industries in which
seasonal variations in purchasing patterns are evident.  For instance, at a time when typewriters were
utilized as often as computers are used today, major purchases took place at the beginning of the
school year and at Christmastime.  Thus, comparing shipments and other data for the full 12 months
in, for example, 1980, with such data compiled for the full years 1981 and 1982, and then comparing
such data for the third and fourth quarters of 1981 wi th such data for the third and fourth quarters of
1982, would prove particularly useful in determining such facts as whether or not subject importswere rising or declining, whether or not domestic production had increased or decreased, and the like.
Comparisons of interim period data are particularly useful when an extraordinary event has occurred,
such as a major capital expenditure or economic crisis, that may skew the full-year data.  The interim
period data serve in such a case to help isolate various causes of injury, whether subject imports or
other causes.
Data for an interim period should not, however, be compared with full-year data.  To do so
would involve a mismatching of periods, or a comparison of apples to oranges.  Using the example set
forth above, assuming the domestic industry had undergone a capital expansion in the last quarter of
1982, and that data were compared with full-year 1981 data, it may appear that the cause of any injurywere other than what would be shown had the interim 1982 data been compared with interim 1981
data.
5. Thailand argues that Article 6.5.1 AD provides that an investigating authority shall
require interested parties providing confidenti al information to furnish non-confidential
summaries thereof, but that Article 6.5.1 does not require the investigating authorities to
provide those non-confidential summaries to the exporters or to the foreign producers.
(a) In this context, what is the relevance, if any, of Article 6.1.2 AD?  Please explain in
detail.WT/DS122/R
Page 393
Response:
Article 6.1.2 of the Agreement states: “Subject to the requirement to protect confidential
information, evidence presented in writing by one in terested party shall be made available promptly to
other interested parties participating in the investig ation.”  There is no conflict between this provision
and Article 6.5.1 of the Agreement stating, in pertinent part, that “[t]he authorities shall require
interested parties providing confidential informa tion to furnish non-confidential summaries thereof.”
Article 6.5.1 recognizes, as does Article 6.1.2, the need to protect confidential information and
provides a means for doing so.  Members assure compliance with Article 6.1.2 by requiring an
interested party to provide summaries to the other interested parties, as it would in accordance with
Article 6.5.1.
The United States notes that Article 6.1.2 states that the information “shall be made
available”.  The plain meaning of this language is that service on other parties is not required.  The
summaries may simply be placed in a room, open to the public, so that interested parties may obtainthem if they wish to do so.
Article 6.1.2 also states that the information is to be made available “promptly”.  In keeping
with the intent of this provision as evidenced in  Articles 6.2 and 6.9 providing that information is to
be disclosed in sufficient time for the interested  parties to defend their interests, interpreting
“promptly” in the full context of Article 6.1.2 means th at the submitter of the confidential information
must make available a non-confidential summary in su fficient time for the interested parties to defend
their interests.
(b) What is the legal relationship, if any, between Article 6.4, 6.5.1 and 6.9 AD, on the one
hand, and Article 6.1.2 AD, on the other (e.g., does Article 6.4 encompass Article 6.1.2,
do they pertain to different things, etc.)?
Response:
Article 6.1.2 aims, as stated above, to allow the parties to defend their interests while paying
due regard to the need to protect confidential information.  Article 6.4 furthers this end and, indeed,extends it to some degree.  In stating that “wheneve r practicable” the authorities are to provide timely
opportunities for all interested parties to utilize all non-confidential information that is relevant to
their cases, the Article places an onus on the authorities to take affirmative action to provide that
information to the parties at appropriate times during the investigation.  This provision thus allows
interested parties to be active participants in th e investigation by enabling them to prepare their
presentations on the basis of relevant information that is used by the authorities.  Article 6.5.1 seeks to
balance the need to protect confidential information with the requirement that the interested parties be
able to prepare their cases.  Article 6.9 places an affirmative obligation on the authorities to provide to
the interested parties certain key information, i.e., the essential facts that form the basis of their
decision.  A reading of this provision in conjunction with Articles 6.1.2, 6.4 and 6.5.1 leads to theconclusion that, in disclosing the essential facts, confidential information is to be protected.
D. ARTICLE 2 AD
6. Poland appears to argue that, if either Article 2.2.2(i) or 2.2.2.(ii) is applied, the
methodologies described therein do not ipso facto yield “reasonable” results in the sense of
Article 2.2 AD and Article VI:1(b)(ii) of GATT 1994, but rather that such results are“presumed” to be reasonable and record evid ence in an investigation can rebut this
presumption.  Please comment on this argument, including in the light of the language in the
chapeau of Article 2.2.2 that the methodologies set forth in Article 2.2.2 are to be used “for the
purpose of” Article 2.2, which in turn refers to “reasonable” amounts for profits, inter alia.WT/DS122/R
Page 394
What factors, elements or considerations (if any) could establish that a calculation of the profit
rate under Article 2.2.2(i) or (ii) was “unreasonable”?
Response:
As the United States stated in its submission to the panel, if a profit amount is determined
pursuant to one of the methodologies specified under Article 2.2.2, it is “reasonable” within the
meaning of Article 2.2.  The preferred option for constructed value profit, articulated in the chapeau
of Article 2.2.2, is to calculate an amount for profit based on “actual data pertaining to production and
sales in the ordinary course of trade of the like product by the exporter or producer underinvestigation.”  If, however, an amount for profit cannot be determined on this basis, the
administering authority has the discretion to determine profit based on any of the three alternative
methodologies articulated in Articl es 2.2.2(i), 2.2.2(ii), or 2.2.2(iii).
The simple answer to the panel’s question as to whether there are factors that could establish
that a profit rate calculated under Articles 2.2.2(i) or 2.2.2(ii) is “unreasonable” is no.  The panel’s
question suggests some sort of standard against which a third party might judge the “reasonableness”
of a profit figure.  The Agreement does not provide for this.
Under the framework of Articles 2.2 and 2.2.2, an administering authority has the discretion
to calculate an amount for profit based on any of the three alternative methodologies (provided the
preferred option is unavailable).  The authority  may determine, based on the evidence before it, that
use of a particular methodology is inappropriate; however, a panel’s review of the authority’s choice
of a profit methodology and the calculation itself is governed by the standard set forth in
Article 17.6(i), i.e., whether the authority’s establishment of the facts was proper and whether their
evaluation of those facts was unbiased and objectiv e.   As the Article 17.6(i) states, “[i]f the
establishment of the facts was proper and the evaluation was unbiased and objective, even though thepanel might have reached a different conclusion, the evaluation shall not be overturned.”
Finally, the negotiating history of the Agreement further confirms this interpretation of
Article 2.2. and 2.2.2 and its subparagraphs.  The negotiating history demonstrates that a balance was
struck between competing interests with respect to the method for calculating a profit rate as provided
for under Article 2.
5 1  At no point during the negotiations did the delegations attempt to define the
term “reasonable.”  Instead, the delegates focused upon the methodologies , reflected in the chapeau
and subparagraphs of Article 2.2.2, that would provide the means  for calculating a “reasonable”
profit.  The delegations granted the investigating authority with the discretion to determine,
ultimately, what is a reasonable amount for profit.  Different minds may reach different conclusions asto what is a “reasonable” amount for profit, nonetheless, the Agreement permits such an outcome.
7. The question has been placed before the Panel whether subparagraphs (i) and (ii) of
Article 2.2.2 ADA are “safe havens” whereby applying any one of the methodologies set forth
therein yields a result for profit that is per se “reasonable” in the sense of Article 2.2 ADA, lastsentence, and Article VI:1(b)(ii) of GATT 1994.  The chapeau of Article 2.2.2 ADA sets forth the
preferred methodology for determining inter alia the amount of profit in a constructed value
calculation, and states that when such amount “cannot be determined on this basis” it “may be
determined” on the basis of the methodologies in the subparagraphs (i) and (ii).  The use of the
word “may” in this context could be seen as linking the word “reasonable” in Article 2.2 to
                                                     
5 At various stages during the negotiations, several countries strongly encouraged the use of actual data
where at all possible.  See e.g.,  Submission of Japan on the Amendments to the Anti-dumping Code  , GATT
Doc. No. MTN.GNG/NG8/W/30 (June 20, 1988) at 3; Submission of Korea,  GATT Doc. No.
MTN.GNG/NG8/W/34 (Oct. 27, 1988) at 4; Communication from the Delegation of Hong Kong ,, GATT Doc.
No.  MTN.GNG/NG8/W/30 (June 20, 1987) at 2; Submission from the Nordic Countries , GATT Doc. No.
MTN.GNG/NG/W/15 (Nov. 16, 1987) at 4.WT/DS122/R
Page 395
subparagraphs (i) and (ii) (which themselves do not contain the word “reasonable”), thereby
introducing a “reasonability” constraint into these subparagraphs.  Please comment.
Response:
The United States is of the view that subparagraph (iii), which provides that the authority may
use “any other reasonable method” to calculate a profit rate, implies that the foregoing methods, i.e.,
subparagraphs (i) and (ii), are equally “reasonable.”  Further, as explained above, the United States
maintains that the chapeau  of Article 2.2.2 and its subparagraphs provide the methods for calculating
a reasonable profit rate.  There are no constraints on the calculation of constructed value profit otherthan those explicitly articulated in the Agreement – i.e., the chapeau  of Article 2.2.2 and subparts (i)
and (ii) provide limitations as to the source of the data used to calculate a profit figure ( i.e., the
location of the sales and the types of products) and subpart (iii) provides a cap on the amount of
constructed value profit.  A “reasonability” constraint would suggest the existence of some generally-
recognized neutral measure or standard for profit – an unlikely concept, at best, given the delicatenegotiated balance reflected in Article 2.2.
6   To impose a constraint where none exists may well
amount to changing that finely drawn balance.
8. In this context, for purposes of argument only, assume for example that application of
the methodology under subparagraph (i) or (ii) of Article 2.2.2 yields a 300 per cent profit, and
that this profit margin is far in excess of the profit margin on the product for the industry as a
whole.  Would the fact that this result was arrived at based on the correct application of
subparagraph (i) or (ii) make it “reasonable” per se?  Is there any limit on the acceptable
“reasonableness” of calculations under subparagraphs (i) and (ii)?
Response:
It is the United States’ position that the administering authority has the discretion to
determine, based on the evidence before it, that use of a particular methodology is inappropriate.
Theoretically, therefore, an authority could determine to reject a particular methodology that results in
a 300 percent profit rate because the rate is “far in excess of the profit margin on the product for the
industry as a whole.”  However, a panel’s review of the authority’s choice of a profit methodology
and the calculation itself is governed by the standard set forth in Article 17.6(i), i.e., whether the
authority’s establishment of the facts was proper and whether their evaluation of those facts was
unbiased and objective.
9. Is the phrase “in the ordinary course of trade” as used in Article 2.2.2 relevant to
determining whether there is a reasonability test for calculations of profits under the chapeau of
Article 2.2.2 and/or its subparagraphs (i) and (ii)?  Please explain.
Response:
No.  The phrase “in the ordinary course of trade” as used in Article 2.2.2, however, implies
that only sales in the ordinary course of trade are appropriate for use in calculating an amount for
profit.  Article 2.2.1 provides that certain below-cost  sales may be treated as not being in the ordinary
course of trade.
E. ARTICLE 3 AD
                                                     
6 See generally  Terence P. Stewart, et al. , The GATT Uruguay Round: A Negotiating History ( 1986-
1992) 171-190 (1993) (discussing the negotiations concerning constructed value profit, inter alia ).WT/DS122/R
Page 396
10 Please comment on the hypothesis that a two-stage analysis of the factors listed in
Article 3.4 ADA is required.  The first stage would be an initial “consideration” to determine
the “relevance” or lack thereof of each listed fact or and an identification of any other non-listed
factors that also were relevant.  The second stage would be a full analysis of all of the factors
that had been identified as relevan t.  In other words, the factors in Article 3.4 would be seen as a
checklist of what would need to be “considered” in respect of whether or  not each factor was
relevant.  If a given factor were deemed not to be relevant, the analysis of that factor could stop
at that point.  Under this hypothesis, the final determination would have to address each factor
in the checklist, and for each of those that ha d been deemed not to be relevant would simply
indicate that this was the case and why.  For ea ch relevant factor, the final determination would
have to indicate why it had been deemed to be relevant and in addition would have to contain a
full “evaluation” of it.  (Please note that th e reference to the “final determination” is not
necessarily intended to imply the public notice th ereof, but rather the report compiled by the
investigating authority concerning the investigat ion, which  might or might not be the same as
the public notice.)
(a) Please indicate whether you agree or disagree with all or part of this hypothesis and
explain in detail the legal basis for your view.
Response:
The United States agrees with this hypothesis in part.  As stated in its third party written
submission, all of the factors enumerated in Article 3.4 must be evaluated, although not all are
necessarily material in any particular case7 1  Given that some of the factors may not be material in a
particular case, some may not be even relevant to the determination of the impact of the dumped
imports on the domestic industry.  Similarly, insofar as Article 3.4 states that the list of factors is not
exhaustive, there may be other factors that are not listed that are relevant to this determination8   The
panel in High Fructose Corn Syrup  agreed:
The text of Article 3.4 is mandatory . . . . [T]he listed factors in Article 3.4 must be
considered in all cases.  There may be other relevant economic factors in the
circumstances of a particular case, consideration of which would also be required.  Ina threat of injury case, for instance, the AD Agreement itself establishes that
consideration of the Article 3.7 factors is also required.  But consideration of the
Article 3.4 factors is required in every case, even though such consideration may lead
the investigating authority to conclude that a particular factor is not probative in the
circumstances of a particular industry or a particular case, and therefore is notrelevant to the actual determination.  Moreover, the consideration of each of the
Article 3.4 factors must be apparent in the final determination of the investigating
authority.
9
However, the United States disagrees that Article 3.4 of the Agreement sets forth a single method bywhich an investigating authority ’s final determinat ion must make such consideration apparent.  The
requirements for the contents of the notice or repo rt reflecting the authority’s final determination
appear not in Article 3.4, but rather in Article 12.2.  That article provides, in relevant part, “Each such
notice shall set forth, or otherwise make available through a separate report, in sufficient detail the
findings and conclusions reached on all issues of fact and law considered material by the investigating
authorities.”  Article 12.2.1 further provides that “[s]uch a notice or report shall, due regard being paid
                                                     
7 Third Party Submission of the United States of America, para. 6.
8 See Mexico -- Anti-Dumping Investigation of High Fructose Corn Syrup (HCFS) from the
United States , WT/DS132/R, Report of the Panel (January 28, 2000), para. 7.124 (no one factor by itself is
necessarily decisive).
9 High Fructose Corn Syrup, para. 7.128.WT/DS122/R
Page 397
to the requirement for the protection of confidential information, contain in particular . . .
considerations relevant to the injury determination as set out in Article 3 [and] the main reasons
leading to the determination.”  None of these provisions utilizes the particular “checklist” approach
hypothesized by the Panel’s question.  Rather, Article 12.2 as a whole indicates a need for explicit
findings on those of the “considerations relevant to the injury determination as set out in Article 3"that an authority “considered material” in the particular case.  By doing so, an authority may make
apparent why the authority did not deem other considerations material and thus, without following a
checklist approach, comply with the requirement to provide its findings and conclusions “in sufficient
detail.”  Certainly, an authority may assure more confidently against a possible finding of a failure to
comply with the Agreement by following the checklist  method that the Panel’s questions posits.  The
Agreement does not, however, compel that method as the sole permissible approach to the drafting of
reports.
(b) If you disagree with this hypothesis, pl ease explain how, without “considering” each
factor, its relevance or irrelevance can be judged.
Response:
See Response to Questions 10(a) and (c).  Art. 3.4 states that the investigating authority must
evaluate (and thus "consider") the listed economic factors in the course of its investigation.  However,
Art. 12.2  requires the administering authority to discuss in its report only those factual and legal
issues it considers to be material.  When the Panel can ascertain from the determination why anauthority regarded as immaterial the factors for wh ich it did not make specific findings, an authority’s
consideration of those factors may be disclosed even without such findings.  In some instances, an
authority’s explanation of the importance of particular factors may show why others are of attenuated
relevance. This Panel should not articulate a general rule that an authority must expressly explain the
irrelevance of each factor that it has found immaterial when the Agreement does not articulate such arequirement.
(c) Is it your view that if an examination of se veral factors led to a conclusion of injury, it
would not be necessary to “consider” any of the other factors?  Please explain.
Response:
It is the view of the United States that each of the factors must be “considered.”  Article 3.4 is
a mandate, stating that the example of the impact of the imports on the domestic industry “ shall
include  an evaluation of all relevant economic factors,” emphasis added, and sets forth what it later
explains is a non-exhaustive list of these factors.  Article 3.4 also states that neither “one [n]or several
of these factors [can] necessarily give decisive guidance” as to whether or not the dumped imports
have adversely impacted the domestic industry.  Ar ticle 3.4 thus contemplates that some factors may
tend to support an injury determination while others may tend to contradict such a finding.  Balancing
the significance of such factors is a question for the investigating authority.  As has been explained,whether an authority’s explanation of why it found certain factors to be particularly persuasive also
can explain why it found factors not to be persuasive is an issue that should be decided on the basis of
particular decisions, not by imposition of a general “checklist” rule.
11. Please describe the nature of the “relevance” of a factor in the context of Article 3.4
ADA. Is a factor “relevant” only when it supports an affirmative finding of injury, or should
“relevance” be judged on a more broad basis, for example in the sense of whether or not aparticular factor is informative as to the “state of the industry”?  Is a factor also “relevant”
when it does not support an affirmative finding of injury?  Please explain in detail.
Response:WT/DS122/R
Page 398
The United States avers that a factor is certainly “relevant” in the context of Article 3.4 when
it supports an affirmative finding that the dumped imports have adversely impacted the domestic
industry.  Along with an examination of the volume of the dumped imports and the effect of these
imports on domestic prices pursuant to Article 3.1, the investigating authorities may determine thatthere is injury to the domestic industry by reason of the dumped imports.
However, the “relevance” of the Article 3.4 factors extends beyond supporting an injury
determination.  Article 3.4 states that “all relevant economic factors and indices having a bearing on
the state of the industry” must be evaluated.  Thus, even if a factor does not lend support to anaffirmative injury determination, the authority must evaluate it so long as it sheds light on the
condition of the domestic industry.
It is possible that certain factors may be irrelevant because they do not support either an
affirmative or a negative determination of injury.  For instance, an authority may find that a certainindustry must operate with high capacity utilization in order to remain viable and may do so even if it
must do so at a loss.  A finding that such an industry is operating at high capacity may not be
particularly probative either in terms of supporting or contradicting an injury determination.  Thus, in
such a case an authority would regard making finding s about the particular capacity utilization of the
industry to be irrelevant.
12. What is the significance of the fact that the term “such as” in Article 3.3 of the Tokyo
Round Anti-dumping code was changed to “including” in Article 3.4 of the Uruguay Round
Anti-dumping Agreement?  If no change in  meaning was intended, why was a change in
terminology made?  According to the Concise Ox ford Dictionary (1990 ed.), the verb “include”
means to “comprise or reckon in as part of a whole” or to “enclose”.  The term “such as” means
“like” or “for example”.  Please explain in what sense, if any, these definitions could be viewedas synonymous.
Response:
By changing the term “such as” to “including”, the Uruguay Round Agreement negotiators
clarified the need for the authority to evaluate each and every listed factor that is relevant to the state
of the industry.  The term “such as” could be understood to imply that the list is merely illustrative,
and that the authority could pick and choose the factors that it wished to consider.  These terms may
be deemed synonymous to the extent that what follows each is not an exhaustive list, but rather
comprises only some of the factors that may be considered relevant in any investigation and that mustbe evaluated.
13. Please comment on the use of the word “or” at two places in the list of the factors in
Article 3.4 ADA, as well as on the use of semi-colons between subgroups of factors in that
Article.  In particular, what is the significance,  if any, of the fact that the word “or” appears
only within subgroups of factors which are separated by semi-colons, and not between
 those
subgroups?
Response:
With respect to the use of the word “or” in Arti cle 3.4 of the Agreement, the first “or” ends a
listing of factors that indicate declines in the domestic industry.  The use of the term “or” here doesnot detract from the requirement that “all relevant  economic factors” be evaluated, but only indicates
that a decline must not be found in each of these factors in order to find injury, as might have been
implied it the negotiators had used the word “and.”  This usage in the first sentence of Article 3.4 thusWT/DS122/R
Page 399
reflects that, as stated in the second sentence, no “one or several of these factors necessarily give
decisive guidance.”
As pertains to the second “or,” it simply precedes another word for “capital,” and reflects that
the first term, “investments,” may be substituted for the second term, “capital.”
If  “or” occurred between the subgroups listed in Article 3.4, the intent of the negotiators
would have been to enable the investigating authority to evaluate as few as one of the economic
factors listed, such as factors affecting domestic prices.  However, the negotiators clearly intended
that more factors be evaluated rather than fewer.  The fact that “all relevant economic factors” are toevaluated, and the clear statement that the list is not exhaustive, make this intent explicit.
14. Under what circumstances, or in respect of  what sorts of factors, if any, is it the
responsibility of the investigating authority to seek information concerning the potential effects
of “known” factors other than dumped imports that might be causing injury, and when does theresponsibility fall to the responding party to  bring such issues to the attention of the
investigating authority?  For example, if the importing country is in an economic recession,
certainly the authority and all interested parties will “know” this. Would the authority have the
responsibility on its own initiative to try to identify the specific effects of the recession in the
domestic market for the product under investigation, or would it only have to consider this issue
if it were raised by an interested party?  Would it  make a difference if the factor in question was
not something widely known but rather was known only to the investigating authority and the
domestic industry (i.e., not to the respondent)?  Please explain and provide the legal basis for
your view.
Response:
The investigating authority is not obligated to seek causes of injury to the domestic industry
other than the dumped imports.  The panel in United States -- Imposition of Anti-Dumping Duties on
Imports of Fresh and Chilled Atlantic Salmon from Norwa
10 1 addressed this issue in interpreting
Article 3.4 of the Tokyo Round Agreement which, like Article 3.5 of the Uruguay Round Agreement,
required authorities not to attribute injuries caused by other factors to the imports from anotherMember.  The Panel stated “there is no express requirement that investigating authorities examine in
each case on their own initiative the effects of all other possible factors other than imports under
investigation.
11 1  It continued by stating that this does “not mean that, in addition to examining the
effects of the imports under Articles 3:1, 3:2 and 3:3, the [investigating authority] should somehow
have identified the extent of injury caused by thes e other factors in order to isolate the injury caused
by the imports.  Rather, [the investigating authority] was required to conduct an examination
sufficient to ensure that in its analysis of the factors set forth in Articles 3:2 and 3:3 it did not find that
material injury was caused by imports from Norway when material injury to the domestic industry
allegedly caused by imports from Norway was in fa ct caused by factors other than these imports.12
The slight change in terminology between th e Tokyo Round Code’s Article 3.4 and the Anti-
Dumping Agreement’ s Article 3.5, if anything, reinforces this interpretation.  The Tokyo Round
Code article posited that “[t]here may be other factors which at the same time are injuring the
industry.”  The Anti-Dumping Agreement article states that “authorities shall examine any known
factors other than the dumped imports which at the same time are injuring the domestic industry.”
Unlike the phrasing used in the Panel’s question,  therefore, the Anti-Dumping Agreement does not
require examination of “potential effects” of known factors that might be  injuring the domestic
                                                     
10 BISD 41S/229, adopted 27 April 1994.
11 United States -- Salmon at para. 550.
12 United States -- Salmon at para. 555.WT/DS122/R
Page 400
industry, but rather of those that are injuring the domestic industry.  This change from the Code
reinforces the point that the authorities need not, as the Norwegian Salmon  panel put it, examine “on
their own initiative the effects of all other possible factors.”
To address the example posited by the Panel, a recession may be a generally known
phenomenon but may or may not have a known effe ct on every industry within an economy.  Some
may be countercyclical and others for specific reasons may not be particularly affected by a recession.
An authority should be able to expect that interested parties will identify a recession as a known factor
that is injuring the domestic industry if they regard it as one.  Foreign and domestic producers and
importers are the active experts concerning the operation of the marketplace.  Their silence on thesubject would be persuasive evidence to an authority that a recession was not a known factor injuring
the industry and thus would not warrant further examination.
It is difficult to address the Panel’s second hypothetical in the abstract, because it is difficult
to picture how a factor would arise that was not something widely known but rather was known only
to the investigating authority and the domestic industry, which, at the same time, an authority could
address in its public report.  As has been previously discussed, an interested party’s public summaries
must be made available to other interested parties, so that a respondent’s failure to “know” such an
other factor would be the result either of its own lack of diligence or of the factor’s being confidential.
If it is confidential, it cannot be discussed in the public report under Article 12.2.  Exactly how such a
circumstance would arise is at best speculative, and the Panel should not address such a question
unless it is squarely presented by the facts.  Moreover, it is apparent that the negotiators of theAgreement did not contemplate such a situation, and the Agreement, by not defining to whom such a
factor must be “known,” does not specifically address it.  This being the case, the matter admits of
more than one permissible interpretation and under Article 17.6 (ii) the Panel may not impose a single
interpretation if a Member adopts an interpretation of the requirements that the terms of the
Agreement permit.
F. Article 17 AD
15. Please comment on the relationship, if any, between Article 17.6 ADA and Article 11
DSU, in particular whether or not these provisions must be read together, drawing on elementsfrom both except to the extent that they “differ” in the sense of Article 1.2 DSU, in which case
Article 17.6 ADA would prevail.  Please comment on whether you believe this is the correct
approach, and whether you do or do not see such a “difference ” between Article 11 DSU and
Article 17.6 ADA.  Please describe any such diffe rence.  In this context, please discuss the
Appellate Body’s statement in Argentina – Footwear Safeguard:
“[F]or all but one of the covered agreements, Article 11 of the DSU sets forth the
appropriate standard of review for panel
131.  The only exception is the
Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994, in which a specific provision, Article 17.6, sets out a
special standard of review for disputes arising under that Agreement”
(underlining supplied).
Response:
The United States agrees with the Appellate Body’s statement in Argentina -- Footwear
Safeguard  that Article 17.6 sets out a special standard of review for disputes arising under the
                                                     
13 See e.g., Appellate Body Report,  EC Measures  Concerning Meat and Meat Products ("European
Communities – Hormones"), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, paras. 114-119;
Australia – Salmon, supra, footnote 26, para. 2.67WT/DS122/R
Page 401
Agreement.  Article 17.6(i) of the Agreement clearly states that in assessing the facts of the matter
before it, a panel is to “determine whether the authorities’ establishment of the facts was proper and
whether their evaluation of those facts was unbiased and objective.  If the establishment of the facts
was proper and the evaluation was unbiased and objective, even though the panel might have reached
a different conclusion, the evaluation shall not be overturned”.  To the extent there is any differencebetween the Agreement and the Dispute Settlement Understanding, Article 1.2 of the DSU guarantees
that Article 17.6, which is identified as a special or additional rule under Appendix 2 of the DSU,
controls.  Article 1.2 of the DSU provides that “[t]o the extent that there is a difference between the
rules and procedures of this Understanding and the special or additional rules and procedures set forth
in Appendix 2, the special or additional rules and procedures in Appendix 2 shall prevail”.
Article 11 of the DSU encompasses more than a standard of review, however.  It reads:The function of panels is to assist the DSB in discharging its responsibilities under
this Understanding and the covered agreem ents.  Accordingly, a panel should make
an objective assessment of the matter before it, including an objective assessment of
the facts of the case and the applicability of and conformity with the relevant covered
agreements, and make such other findings as will assist the DSB in making the
recommendations or in giving the rulings provided for in the covered agreements.
Panels should consult regularly with the parties to the dispute and give them adequate
opportunity to develop a mutually satisfactory solution.
Panels are directed by Article 11 of the DSU to make other findings that will assist the DSB and to
consult regularly with the parties to the dispute, two matters that do not involve a standard of review.
Thus, Article 11 of the DSU must be read in conjunction with Article 17.6 of the Agreement in order
to ensure that, pursuant to Article 1 of the DSU, the rules and procedures of the DSU are applied to
disputes.  Similarly, Article 17.6(ii) of the Agreement explains that although customary rules of
interpretation of public international law govern,  more than one interpretation of a provision of theAgreement is permitted, while there is no such language in Article 11 of the DSU.  In order to satisfy
the requirements of both the DSU and the Agreement, one must read the two provisions in tandem.
Specifically, Article 17.6 of the Anti-Dumping Agreement provides a special and additional
rule that must prevail with respect to any consid eration of the “objective assessment of the matter” in
the context of  Article 11 of the DSU.  As to factual determinations, Article 17.6 makes clear, inter
alia, that the matter before the Panel is not whether there was injury or dumping, but rather whether
the investigating authority properly established the facts and evaluated them in an unbiased and
objective way.  Article 17.6 further makes clear that a Panel does not conduct the required assessment
of that question if it evaluates what findings it would make if presented with the same evidence.  As tolegal questions, Article 17.6 makes clear that a Panel fails to make the required assessment of the
applicability or conformity of an authority’s action with the Anti-Dumping Agreement when, if the
terms of the Agreement admit of multiple permissible interpretations, a Panel decides that an
authority’s action fails to conform with the Anti-Dumping Agreement when it conforms to one of
those interpretations.
16. The parties seem to agree that the appropriate standard of review is somewhere between
de novo review and total deference.  We note that within Article 17.6 itself, the two
subparagraphs arguably could be viewed as establishing different levels of review or deference
pertaining to two different types of issues.  Subparagraph (i) concerns facts and arguably
requires a considerable degree of deference and thus relatively limited review by a Panel.  By
contrast, subparagraph (ii) concerns issues of law and the question of multiple “permissible”interpretations of a given provision of the ADA, among which a national investigating authority
is free to choose.  Some commentators believe th at rarely if ever can there be more than one
permissible interpretation of any given treaty pr ovision.  This might arguably mean that theWT/DS122/R
Page 402
required degree of deference under (ii) would be less than under (i).    Furthermore, the
question arises as to when, if at all, the establishment or evaluation of “facts” by an
investigating authority becomes a question of law or legal interpretation under the Anti-
dumping Agreement (e.g., where the issue is whether a certain set of facts satisfies a given treaty
provision).  The question of this “penumbra” between fact and law could be particularlyrelevant in the context of the Anti-dumping Agreement.
(a) Please comment on your views as to the nature of the differences between the  two
subparagraphs of Article 17.6 (coverage, degree of deference required, etc.).
Response:
The two parts of Article 17.6 state complementary rules of decision that recognize that both
questions of fact and law under the Anti-Dumping Agreement can be expected to raise issues to which
there is more than one permissible answer.  In both contexts, the article imposes a default rule thatrequires a Panel not to impose its own choice between (or among) such answers.
The two aspects of the Article overlap in scope.  In particular, whether an authority’s “establishment
of the facts was proper” under Article 17.6(i)  may raise issues involving legal interpretation of
provisions of the Agreement under Article 17.6(ii).  Such issues may entail interpretation of articles of
the Agreement, for instance, that specify proc edures for gathering information bearing on the
determinations of dumping and injury.
Even apart from such overlap of coverage, it cannot be unequivocally stated that either
subarticle imposes a greater degree of deference.  The difference between the terms used in the two
subarticles reflects at least in part that an authority’s establishment of the facts will be reflected, at
least in essence, in its published determination or report (report).  In contrast, an authority’s report
may not articulate or even imply a particular interpretation of the terms of the Anti-DumpingAgreement, particularly in countries in which the WTO Agreements are implemented by statute rather
than being self-executing.  Consequently, Article 17.6(ii) does not ask whether an authority’s
evaluation of the requirements of the Agreement was unbiased and objective.  To this extent, Article
17.6(ii) states a more lenient standard than does Article 17.6(i), since under Article 17.6(ii) a result
that might be sustainable had an authority undertaken an evaluation of the facts cannot be sustained inthe absence of such an evaluation.
Although some commentators have described Article 17.6(ii) as imposing a “two-step”
approach
14 1 it is not clear that this fact particularly distinguishes Article 17.6(ii) from Article 17.6(i)
in terms of the degree of deference required.  Article 17.6(ii) specifies that, in interpreting the Anti-Dumping Agreement, panels will have reference to  “the customary rules of interpretation of public
international law.”   The Anti-Dumping Agreement lik ewise sets forth certain rules that apply to the
establishment of facts.  Nevertheless, both subarticles stipulate that application of those  rules will in
certain instances leave questions unresolved.   In both cases, the Panel must defer to that result which
does not overturn the measure challenged.
The Panel’s question suggests that some may regard the default aspect of Article 17.6(ii) as
applying in at most rare cases.  Such a view would in general violate the general principle that a panel
is not free to adopt an interpretation that would reduce a provision to redundancy or inutility
15 1  More
importantly, such a view of Article 17.6(ii) fails to recognize the implication that Article 17.6(ii) itself
has for the interpretation of other provisions of the Agreement.  The negotiators of the Anti-Dumping
Agreement, uniquely among negotiators of the WTO Agreements, saw fit to make specific provision
                                                     
14 See Steven P. Croley & John H. Jackson, WTO Dispute Procedures, Standard of Review, and
Deference to National Governments, 90 Am. J. Int’l L. 193 (1996).
15 See United States -- Standards for Reformulated and Conventional Gasoline, AB-1996/1 of
April 1996, Section IV.WT/DS122/R
Page 403
for the possibility that customary rules of interpretation would not resolve disputes concerning the
meaning of the Anti-Dumping Agreement16 1  This very fact provides context for the interpretation of
that Agreement.  It reflects the negotiators’ understanding that they had left a sufficient number of
issues unaddressed or ambiguous such that they needed to make special provision for cases in which
customary rules would not provide an unequivocal result.  In fact, Article 17.6(ii) reflects a deliberatechoice by the negotiators to allow for multiple interpretations.  In this sense, Article 17.6(ii)
constitutes an admonition to panels to take special care not, as reflected in Articles 3.2 and 19.2 of the
DSU, to add to the obligations of Members.  The reference to "customary rules of interpretation of
public international law" is not specific.  While we may presume that it refers to the Vienna
Convention, the panel may not apply the Convention in a manner which renders any of the expresslanguage of the Agreement a nullity.  Thus, to the extent that the commentator suggests that
Articles 31 and 32 of the Convention require or even permit a panel to choose one interpretation of
ambiguous language in the Agreement as the only interpretation, that commentator would render a
nullity the second sentence of Article 17.6(ii) of the Agreement.  That sentence expressly
acknowledges that the drafters of the Agreement were aware that they had fashioned language thatallowed of more than one permissible interpretation, and they expressly directed that panels were not
to resolve such ambiguities in favor of only one interpretation.
Moreover, as commentators have recognized
17  the terms of the second prong of
Article 17.6(ii) are nearly identical to those of a leading United States Supreme Court decision,
Chevron U.S.A. Inc. v.  Natural Resources Defense Council, Inc.,  467 US 837 (1984).  That decision,
concerning the interpretation of statutes governing the actions of administrative agencies ofgovernment, held that “if the statute is silent or ambiguous with respect to the specific issue, the
question for the court is whether the agency’s answer is based on a permissible  construction of the
statute.”  Id. at 843 (emphasis supplied).  Although US courts have given various statements as to
what a permissible construction consists of, the most prominent statement is that given by Chevron
itself, namely, whether the interpretation is “reasonable.
18   The standard of whether an interpretation
is “permissible” provided an available model for Article 17.6(ii) because the Anti-Dumping
Agreement concerns decisions made by national administrative authorities.  Such usage reflects an
evident recognition that the task of panels would be similar to that of courts reviewing the actions of
administrative agencies.
This does not mean that the negotiators intended to adopt US jurisprudence wholesale in
adopting terminology from US law.  Rather, the terms of Article 17.6(ii) and the context of the Anti-
Dumping Agreement as a whole suggest that, if anything, the standard to be applied by DSB panels
would be more deferential than that applied by US courts.  First, whereas the Chevron  doctrine is a
generic standard applying to all statutes governing administrative agencies, Article 17.6(ii) is specificto the Anti-Dumping Agreement and thus, as has been discussed, reflects a particular judgment about
the extent to which its drafters regarded that Agreement as resolving legal questions.  Indeed, while
under Chevron , an administrative agency is liable to have articulated its interpretation of the relevant
statute, no such explicit interpretation is required of a Member’s authority under Article 17.6(ii).
Thus, it would be expected that the second prong of Article 17.6(ii) would come into play morefrequently than the second prong of the United States’ Chevron  doctrine.
Second, as commentators have suggested, the customary of rules of construction of public
international law are likely to resolve questions of ambiguity in interpretation less frequently than
would rules of interpretation of US law.  In part icular, as commentators have noted, while US judges
                                                     
16 In addition, the Ministerial Declaration on AD/CVD Dispute Settlement applies the standard of
review set forth in Article 17.6 of the AD Agreement to matters pertaining to subsidies and countervailing
measures, in view of “the need for consistent resolution of disputes arising from anti-dumping and
countervailing duty measures.”
17 See Croley & Jackson, 90 Am J. Int’l L. at 204.
18 See Croley & Jackson, 90 Am. J. Int’l L. at 203.WT/DS122/R
Page 404
often resort to legislative history of statutes to resolve whether a statute speaks unambiguously to an
issue of agency authority, negotiating history is likely to be less available for interpreting the Anti-
Dumping Agreement.  Moreover, whereas in statutes passed by legislatures, the views of a minority
who voted against a provision as to its purpose can be disregarded, the Anti-Dumping Agreement
reflects a consensus among negotiators and thus a resolution of conflicting purposes.  Article 17.6(ii)is an affirmative reflection that no single purpose prevailed in the drafting of a significant number of
provisions.
Third, Chevron  concerns how to interpret what the US Supreme Court called a “delegation”
of authority from the US Congress to administrativ e agencies the parameters of whose authority it
defines.  In the WTO, in contrast, the delegation runs in the other direction.   The WTO itself is
established by its Members, and it is they who have delegated to the DSB the authority to seek to
resolve disputes.  Anti-Dumping measures and the authorities that administer them are not established
pursuant to delegation from the WTO and indeed preceded that organization.   The Members have
agreed to bind their actions only to the extent agreed.  Thus, although some commentators havesuggested that such “sovereignty” concerns should not have informed the negotiation of any
agreement under the WTO, it would be implausible to suggest that the two-prong test of
Article 17.6(ii) was meant to be less deferential than the similar US test on which it was modelled.
In summary, to the extent that some have suggested that Article 17.6(ii) should provide less
deference to national authorities on issues of law than does Article 17.6(i), that suggestion finds no
support in the text or manifest purpose of those articles.  In keeping with the fact that the Anti-Dumping Agreement reserves the functions of  inve stigating and establishing the facts to national
authorities, the Agreement provides that panels will accord substantial deference to their findings.
Likewise, reflecting that the Agreement left substantial areas in which Members might choose how to
establish and operate anti-Dumping regimes, the Agreement provides that panels will accord
substantial deference on questions of interpretation.
(b) Please also describe the standard of review that you believe should apply to issues that
fall within the penumbra between factual and legal issues as described above.  Is it the
standard in 17.6(i), 17.6(ii), or some other standard.  Please explain in detail.
Response:
No general answer can properly be given to this question.  The United States assumes that
what the Panel refers to as the “penumbra” are what in United States jurisprudence would be called
mixed questions of law and fact.  Such questions ma y arise in a variety of contexts and which aspect
of Article 17.6 will apply will vary according to the particular issue and the way in which parties pose
their arguments to panels.
This is not only because, as discussed above, the two subarticles of Article 17.6 overlap in
their coverage.  Specific questions may be framed in multiple ways.  For example, in the recent panelproceeding concerning Mexico’s anti-dumping measures with respect to high fructose corn syrup
from the United States, the United States argued that Mexico violated the Anti-Dumping Agreement
because, having defined the relevant domestic industry as all producers of sugar, the Mexican
authority examined the impact of subject imports only on the production of sugar for commercial use.
It is evident that such a contention might be said to involve both subarticles.  Certainly, for example,
the United States was making arguments concerning how the Mexican authority established the facts,
both with respect to the investigation conducted and the findings made.  In doing so, however, itinvoked interpretations of the substantive articles concerning the meaning of injury under the
Agreement and its relation to the definition of domestic industry.  Although the United States did not
impugn the motivation of the Mexican authority, it might have made arguments concerning whether
Mexico, in choosing to examine the effects of imports only on the aspect of domestic industryWT/DS122/R
Page 405
production most likely to be affected by imports, had made an unbiased and objective evaluation of
the facts.  Thus, the same claim properly would raise questions sounding under all aspects of
Article 17.6.
(c) Please identify the standard of review (subparagraph (i), subparagraph (ii) or a
standard of review applicable in the penumbra if different from (i) or (ii)) that you
believe is applicable to each issue before th e Panel in this case, and please explain your
reasoning.
Response:
Because of the overlap in coverage between the two subarticles of Article 17.6, both apply to
the issues before this Panel.
With respect to the issue regarding whether th e Thai authority evaluated all the factors in
accordance with Article 3.4 of the Agreement, the Panel must examine the factors the authority
evaluated and determine whether the authority’s evaluation was unbiased and objective, a
determination that is made under subparagraph (i).  The Panel may also consider whether the
investigating authority had an obligation to seek in formation regarding other factors ad indices that it
did not evaluate, which is a matter of law under subparagraph (ii).
As pertains to whether or not the Thai injury determination was based on a rational reading of
positive evidence and was an objective evaluation, subparagraph (i) applies insofar as the facts
established by the Thai investigating authority and on which it relied in making its injury
determination must be assessed by the Panel.  The Panel must determine whether the Thai authority’s
evaluation of those facts was unbiased and objective in accordance with subparagraph (i).  Because
Poland also claims that the Thai domestic industry suffered no material injury, subparagraph (ii) isalso invoked as per the example given in response to (b) above.
As pertains to the proper calculation of the dumping margin, the Panel must first examine the
calculation that was used, especially how much profit was included, in accordance with subparagraph
(i).  Then, as the United States explained in its Third Party Submission, legal interpretations ofArticles 2.2 and 2.2.2 are required in order to determine what constitutes a reasonable profit
19   The
United States believes the customary rules of interpretation of public international law must be
applied, i.e., the Vienna Convention and other interpretive documents must be invoked20   T h i s
procedure is set forth in subparagraph (ii).
As pertains to whether the investigation was properly initiated, subparagraph (i) is applicable
in that the petitioner’s application for initiation of the investigation must be examined.  The Panel
must determine exactly what comprised the application and whether the Thai authority’s evaluation of
the application, i.e., its finding that the application contained sufficient evidence to initiate an
investigation under Article 5 of the Agreement, was unbiased and objective.  The need for a factualdetermination of whether the elements listed in Article 5.2 were present places this issue within the
purview of subparagraph (i).  Yet if certain facts in the application were sparse, subparagraph (ii) is
invoked in that a legal decision must be made as to whether the application provided sufficient
information to justify the initiation of an investigation in accordance with Article 5.3.
Whether or not Poland was properly or timely notified of the filing of the petition is a factual
matter to which subparagraph (i) applies.  Subparagraph (ii) may be invoked if there is need todetermine what constituted the necessary notification under Article 5.5.
                                                     
19 Para. 14.
20 See id. Paras. 18-19 & nn.WT/DS122/R
Page 406
Whether or not the Thai investigating authority properly disclosed the information used for its
final determination is an issue of fact and subparagraph (i) is applicable.  The record of the underlying
investigation will show whether or not the parties were granted timely opportunities, whenever
practicable, to see all non-confidential information relevant to the presentation of their cases pursuantto Article 6.4.  The record will also show whethe r the essential facts forming the basis for the Thai
authority’s decision were disclosed to the parties.  A determination of what comprise the “essential
facts” may necessitate a legal interpretation in accordance with subparagraph (ii).
As pertains to whether Article 6.5.1 required the Thai authority to disclose non-confidential
summaries to the foreign exporters or producers is matter of legal interpretation that requires
application of subparagraph (ii).  The United States response to Question 5 addresses this issue in
more detail.
To the United States
17. In your written submission at paragraph 4, you state that the Guatemala – Cement
Panel stated that a panel’s “’role is not to evaluate anew the evidence and information before’
the investigating authority, but rather to exam ine whether the evidence  it relied on was
sufficient”.  The reference to the examination of whether the “evidence it relied on was
sufficient” appears to be language of the United States, rather than of the Cement Panel.  Please
confirm whether this is the case.  The above passage from the United States submission seems to
imply that the United States believes that in an anti-dumping dispute a panel can only examine
the “sufficiency” of the “evidence” used in an  investigation, and cannot examine how or how
well that evidence was evaluated by the investi gating authority.  Is this a correct understanding
of the United States’ argument?  Or does this argument refer exclusively to the question of
sufficiency of evidence to initiate an investigation under Article 5.3 ADA?
Response:
One issue before the Guatemala-Cement   panel was to determine what constitutes “sufficient
evidence” to justify the initiation of an anti-dumping  investigation.  In this context the panel analyzed
the decision of the panel in United States -- Measures Affecting Imports of Softwood Lumber from
Canada21   T h e  Guatemala-Cement  panel adopted the approach of the United States–Softwood
Lumber  panel with respect to the standard of review, stating that the approach
is a sensible one and is consistent with the standard of review under Article 17.6(i).
Thus, we agree with the Panel in Softwood Lumber that our role is not to evaluate
anew the evidence and information . . . . Rather, we are to examine whether the
evidence relied on by the Ministry was sufficient, that is, whether an unbiased and
objective investigating authority evaluating that evidence could properly havedetermined that sufficient evidence of dumping, injury, and causal link existed to
justify initiating the investigation.”
The standard of review set forth in Article 17.6 is not  restricted to the initiation of investigations.  By
its very terms, it is the standard that governs the settlement of disputes under the Agreement
22 1  In
                                                     
21 BISD 40S/358 (October 27, 1993).
22 Article 17.6 recites the standard for “examining the matter referred to in paragraph 5.”  The matter
referred to in Article 17.5 (paragraph 5) pertains to matters for which a panel is established, i.e., to determine
“how a benefit accruing to [a Member], directly or indirectly, under this Agreement has been nullified orimpaired, or that the achieving of the objectives of the Agreement is being impeded.”WT/DS122/R
Page 407
quoting this language the United States was not referring to the initiation of an investigation, but to
the standard of review governing this Panel’s decision.
Additional Comment Concerning Whether Anti-Dumping Measures Are an “Exception”
As a final note, the United States would like to clarify its recitation of authority with regard to
the argument that the Anti-Dumping Agreement does not constitute an exception to free trade
principles, as first presented in its oral presentation on  March 8, 2000.  In citing cases that deal with
the “Anti-dumping as an exception” issue, the United States inadvertently omitted a discussion of the
Pork from Canada23  and Wine and Grape Product24  disputes.
Proponents of the “Anti-dumping as an exception” issue, cite the  Pork from Canada  case as
support.  This case purports to characterize Article VI:3 of GATT 1947 as an exception.  In that case,
the panel, which authorized the imposition of countervailing duties, depicted Article VI “as an
exception to basic principles of the General Agreement [that] had to be interpreted narrowly.”  Also,the panel shifted the burden of proof to the United States with respect to having met the requirements
of that provision because the United States was the party invoking that exception.
The Pork from Canada  analysis is not compelling.   The panel’s statement was conclusory in
nature, and the panel cited no authority for the proposition that Article VI was an “exception.”
Moreover, this aspect of the panel ’s decision was dicta , because nothing in the remainder of the panel
report indicates that the panel’s characterization of Article VI:3 as an “exception” influenced the
panel’s analysis of the matter.  Similarly, the Wine and Grape Products  report is equally unpersuasive
on this issue:  it contained a single sentence, with no analysis, to the effect that Article VI must “be
interpreted in a narrow way.
25
Finally, whether anti-dumping measures are or are not an “exception” no longer has any legal
relevance, since the WTO Appellate Body has now established that the status of a provision as a so-
                                                     
23 United States - Countervailing Duties on Fresh, Chilled and Frozen Pork from Canada, DS7/R,
Report of the Panel adopted 11 July 1991, BISD 38S/30, para. 4.4 (hereinafter, “Pork from Canada”).
24 United States - Definition of Industry Concerning Wine and Grape Products, SCM/71, Report of the
Panel adopted 28 April 1992, BISD 39S/436 (hereinafter “Wine and Grape Products”).
25 Id. at 447.  In the only other case up to that point where the issue of Article VI as an “exception” had
been argued, the panel did not incorpor ate the argument into its decision.  Canada - Imposition of
Countervailing Duties on Imports of Manufacturing Beef from the EEC , SCM/85, Report of the Panel issued 13
October 1987 (unadopted), even though the panel referred directly to the paragraph in the Wine and Grape
Products  report where the Article VI-as-exception statement was made.  Id. at para. 5.16.WT/DS122/R
Page 408
called exception (1) does not shift the burden of proof (Wool Shirt26  and Hormone27 ) and (2) does not
warrant a different approach to interpreting the provisions (Hormones).
The United States reiterates its view, therefore, that anti-dumping measures do not constitute
exceptions from the rest of the WTO framework.  They are subject to the same rules of interpretationas any other provision of the WTO Agreements.  Therefore, the Panel should decline to endorse
Japan’s assertion that anti-dumping measures constitute an exception to free trade principles or, by
implication, require the application of a heightened level of scrutiny.
                                                     
26 United States – Measure Affecting Imports of Woven Wool Shirts and Blouses from India,
WT/DS33/AB/R, at 16.
27 EC – Measures Concerning Meat and Meat Products (Hormones) , WT/DS26/AB/R, Report of the
Appellate Body adopted 13 February 1998, para. 104.WT/DS122/R
Page 409
ANNEX 4-1
LETTER FROM THE CHAIR OF THE PANEL TO THAILAND CONCERNING
CONFIDENTIAL INFORMATION
(14 February 2000)
The Secretariat has informed me of a procedural issue that may arise in connection with the
presentation of Thailand’s first submission in the above dispute.  In particular, it has come to the
Secretariat’s attention that your intention is to submit to the Panel alone, with your first submission,
confidential exhibits which, because of their confidential nature, you do not intend to provide to
Poland, the complaining party.  I further understand that you believe that Article 17.7 of the
Agreement on the Implementation of Article VI of the GATT 1994 (“the Anti-Dumping Agreement”)permits a submission of this kind.
In the view of the Panel, the issue of whether or not the Anti-Dumping Agreement in
conjunction with the DSU permits a Panel to accept confidential information that has not been
provided to the opposing party is a complex one, which appears to raise a number of questions of
legal interpretation on which the Panel ultimately may have to make a ruling.  Before it can resolve
this issue, the Panel wishes to hear and consider the views of both parties.
In view of this, so as not to prejudice the interests of either party, the Panel believes that it
should not accept the confidential information in question today.  By this letter, the Panel invites both
parties to present their views on this issue, in writing, by close of business on Thursday,
17 February 2000.  The Panel will consider these views and try to resolve this issue as quickly aspossible, and in any case not later than at the first meeting of the Panel with the parties.  Any
implications for the overall schedule of the dispute arising from the Panel’s consideration of this
issue, as well as the possible need under Article 17.7 of the Anti-Dumping Agreement for a non-
confidential summary of the information to be provided, will be addressed by the Panel at a later date.WT/DS122/R
Page 410
ANNEX 4-2
LETTER FROM POLAND TO THE PANEL CONCERNING
CONFIDENTIAL INFORMATION
(16 February 2000)
We are in receipt of your letter of 15 February regarding Thailand's submission to the Panel
of confidential exhibits that Thailand does not intend to supply to our Government, the complaining
party in the above-referenced dispute.  We believe that the Panel may not accept such a submission
under the relevant provisions of the Dispute Settle ment Understanding (DSU), and that Article 17.7 of
the Anti-Dumping Agreement does not provide an exception to those basic requirements of fair play.
Such requirements of procedural fairness are particularly acute where, as in this case, the withheldinformation appears to concern a key issue before a Panel, whether trade data and other economic
indicia were properly evaluated by a Member.
Under Article 12.6 of the DSU, which is applicable to all dispute settlement procedures under
covered WTO agreements:  "Each party to the dispute shall deposit its written submissions with the
Secretariat for immediate transmission to the Panel and to the other party or parties to the dispute".
Under Article 18.1 of the DSU, "There shall be no ex parte  communications with the Panel or
Appellate Body concerning matters under consideration by the Panel or Appellate Body".
Furthermore, Article 18.2 of the DSU provides:  "Wri tten submissions to the Panel or the Appellate
Body shall be treated as confidential, but shall be made available to the parties to the dispute … .  A
party to a dispute shall also, upon request of a Member, provide a non-confidential summary of the
information contained in its written submissions that could be disclosed to the public".
Appendix 3 of the DSU establishes the Working Procedures that will be applicable to panel
procedures.  These provide inter alia :  "Members shall treat as confidential, information submitted by
another Member to the panel which that Member has designated as confidential. Where a party to adispute submits a confidential version of its written submission to the Panel, it shall also, upon request
of a Member, provide a non-confidential summary of the information contained in its submission that
could be disclosed to the public".
We would note further that in the 22 December 1999 Working Procedures for the Panel,
which are expressly "in addition" to relevant provisions of the DSU, it is provided that "each party's
written submissions … shall be made available to the other party or parties".  (point 10)
These basic DSU requirements of due process are plain:  a panel and all parties shall be given
all submissions.  Ex parte  communications are prohibited.  A Party may declare that its submissions
are confidential, and such information shall not be disclosed by the panel or any other party without
the express approval of the submitting party.  In certain circumstances, the Panel or  any Member may
request that a non-confidential summary of such a co nfidential submission be made available so that it
may be disclosed beyond the panel and parties to the dispute.  The importance of these due process
provisions has recently been underscored by the Appellate Body in the Brazil-Aircraft  case, which (at
paragraphs 108-125) offers important context in consideration of this matter.
There are, of course, additional rules and procedures applicable to disputes under the Anti-
Dumping Agreement, as detailed in Appendix 2 of the DSU, and Article 17.7 of the Anti-Dumping
Agreement is one such provision.  It provides:  "Confidential information provided to the panel shall
not be disclosed without formal authorization fr om the person, body or authority providing suchWT/DS122/R
Page 411
information.  Where such information is requested from the panel but release of such information by
the panel is not authorized, a non-confidential summary of the information, authorized by the person,
body or authority providing the information, shall be provided".
The Government of Poland respectfully submits that this provision was never intended to
eviscerate the rules of due process and accountability otherwise applicable to WTO dispute
settlement, in particular the most basic of requirements that parties "shall" receive submissions,
including confidential submissions, from other parties in a dispute.  Under Article 1.2 of the DSU,
Article 17.7 of the Anti-Dumping Agreement informs th is issue only to the extent that there is a
"difference" between it and the otherwise-a pplicable DSU standard.  Under basic rules of
interpretation, these provisions should be read to avoid the incidence of such a conflict.  That should
be especially true where, as here, basic issues of procedural fairness are at stake.
When read in conjunction with the earlier-referenced DSU provisions, and informed by the
context thereof, we submit that Article 17.7 was essentially intended to apply a heightened duty ofcare with respect to sensitive information in anti-dumping cases, but not to make complaining parties
enter a star chamber.  We note that Article 17.7 never states that confidential submissions are not to
be served on all parties, and that if such extreme measures were truly contemplated, the Agreement
would have said so.  Rather Article 17.7 states only that a panel should not disclose such information
without consent.  This may be read in the context of the Article 12.6 DSU requirement that
submissions are to be deposited with the "Secretariat for immediate transmission to the panel  and to
the other party or parties to the dispute".  Read in context therefore, we believe that the Article 17.7
requirement is designed to prevent disclosure by the panel to other, 'non-party' Members:  this
interpretation is also supported by the distinction between the confidentiality requirements on parties
(for example, in Article 18.2 DSU) and those on Members, set forth in Appendix 3, paragraph 8.
This is a dispute in which numbers matter, and my Government's perception is that reliance
on the confidentiality of those numbers jeopardizes the ability of the panel to perform its assigned
functions.  Sanitized figures are not sufficient.  We respectfully wish to reserve all rights regarding the
admissibility and materiality of such information at least until such time as the first meeting of the
Panel.  We do not believe that Article 17.7 was intended to deny material information to opposing
parties.WT/DS122/R
Page 412
ANNEX 4-3
LETTER FROM THAILAND CONCERNING
CONFIDENTIAL INFORMATION
(17 February 2000)
On 14 February 2000, you provided the Kingdom of Thailand ("Thailand") with a letter
explaining the reasons for refusing to accept confidential exhibits to Thailand's First Written
Submission in the dispute:  Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron
or Non-Alloy Steel and H-Be ams from Poland (WT/DS122) .  In your letter, you request that both
parties to the dispute present their views regarding this issue, in writing, by 17 February 2000.
Thailand respectfully submits the following comments to supplement the position set forth in its FirstWritten Submission.
At the outset, Thailand would like to confirm that its overriding interest is to ensure that these
proceedings are fair to both parties and to third parties.  Thailand welcomes the Panel's guidance
regarding the appropriate manner under the WTO Agreement for Thailand to balance its obligation to
protect confidential information obtained during the anti-dumping investigation with its right to
defend its interests before the Panel.  Thailand agrees that striking the appropriate balance betweenThailand's rights and obligations must nevertheless not prejudice the interests of Poland and Third
Parties in this dispute.
In summary, Thailand considers that Articles 17.5 and 17.7 of the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the "Anti-Dumping Agreement") provide parties in a dispute under the Agreement the right to submit
confidential information solely to a panel for its consideration and the right to prevent the panel from
disclosing this confidential information to the othe r party or third parties without formal authorization.
Article 17.5(ii) of the Anti-Dumping Agreement provides that a panel in a dispute under the
Agreement must examine the matter based upon "the facts made available in conformity with
appropriate domestic procedures to the authorities of the importing Member".  These facts necessarily
include confidential and non-confidential submis sion by both petitioners and respondents and reports
of the investigating authority in which this conf idential and non-confidential information is compiled
and analysed.
Article 17.7 states that:"[c]onfidential information provided to the panel shall not be disclosed without
formal authorization from the person, body or authority providing such information.Where such information is requested from the panel but release of such information
by the panel is not authorized, a non-confidential summary of the information,
authorized by the person, body or authority providing the information, shall be
provided".
Accordingly, in examining the factual record of  the matter, a panel must consider confidential
information provided to it by one of the parties, bu t is obligated not to disclose such information to
any other party without formal authorization.  If one of the other parties requests such information and
if the panel does not receive authorization to disclose it, "a non-confidential summary of the
information, authorized by the person, body or authority providing the information, shall be
provided".WT/DS122/R
Page 413
Article 18.1 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes ("DSU") states that "[t]here shall be no ex parte  communications with the panel or Appellate
Body concerning matters under consideration by the panel or Appellate Body."  Article 18.2 provides
that "[w]ritten submissions to the panel or the A ppellate Body shall be treated as confidential, but
shall be made available to the parties to the dispute".  Clearly, there is a "difference" or conflict
between Article 18 of the DSU and Article 17.7 of the Anti-Dumping Agreement.  The provision of
confidential information to a panel but not to the other parties under Article 17.7 of the Anti-Dumping
Agreement would constitute an ex parte  communication under Article 18.1 of the DSU, and
Article 17.7 of the Anti-dumping Agreement contempl ates that confidential information would "be
requested" by the other party or third parties and thus would not have been made available to them in
written submissions as required under Article 18.2 of the DSU.
Notably, Article 17.7 (and Article 17.5) of the Anti-Dumping Agreement are special or
additional rules of dispute settlement identified in Appendix 2 of the DSU.  Under Article 1.2 of the
DSU, these rules prevail over "different" or conflicting rules in the DSU.  Because these rules conflict
and cannot be applied consistently with one another on this particular issue, Article 17.7 prevails and
accords a party the right to submit confidential information only to a panel for its consideration.  This
interpretation is entirely consistent with existing WTO practice, given that past decisions have simply
reaffirmed the obligations under Article 18.2 of the DSU and have not addressed the special rule
under Article 17.7 of the Anti-Dumping Agreement.
Thailand's right to submit the confidential exhibits exclusively to the Panel is especially
important under the facts of this particular case.  The Thai investigating authorities collected
information on dumping from only one Polish producer (and one Polish exporter) and collected
information on injury from only one Thai producer.  In its First Written Submission, Poland
repeatedly contends that the Thai investigating au thorities did not base their determinations on actual
data.  Under Article 6.5 of the Anti-Dumping Agreement and its domestic law, Thailand was (during
the investigation) and is (during the Panel's proc eedings) obligated not to disclose the confidential
information submitted by interested parties during the investigation.  In order to defend itself,
however, Thailand considers it essential to provide the Panel with evidence that its authorities did, in
fact, base their determinations on actual information, contrary to Poland's assertions.  Therefore,without the ability under Article 17.7 of the Anti-Dumping Agreement to submit confidential
information to the Panel only, Thailand will be unable to disclose the actual data on which it made its
determinations and, therefore, will be unable to defend against Poland's assertions to the Panel.
Without prejudice to its position above, Thailand considers that the following compromise
could provide a mutually acceptable solution regarding how to treat the confidential exhibits:
1. Thailand will disclose Exhibits THAILAND – 11, THAILAND – 18,
THAILAND – 29, THAILAND – 31, THAILAND – 38, THAILAND –42, and
THAILAND – 43 upon receipt of written authorization from Huta Katowice andStalexport waiving all rights to maintain the confidentiality of their data in this panel
proceeding.  Thailand requests that Poland obtain the requisite authorization from
both Polish companies.
2. Based on express authorization from the petitioner, Siam Yamato Steel Co.
Ltd. ("SYS"), Thailand will disclose Exhibits THAILAND – 20, and THAILAND –
 44 to the Panel and to the other Parties.  However, these exhibits will not contain
information on cost of production.  SYS has not authorized Thailand to disclose costof production information either to the Panel or to the other Parties.WT/DS122/R
Page 414
Thailand considers that intentional or inadverten t disclosure of the confidential information
contained in the nine exhibits identified above could be of significant competitive advantage to
petition, respondents, and third companies and could cause significant adverse effects to the source of
the information.  Therefore, under the above mutually acceptable solution, Thailand would
respectfully urge the Panel to remind the Parties' delegations of their obligation under Article 18.2 ofthe DSU not to disclose confidential information obtained during the course of the Panel's
proceedings.  In addition, Thailand would request that the Panel not disclose confidential information
contained in the above nine exhibits to other Members or to the public in its final report without
formal authorization from Thailand.
Thailand, of course, would be willing to discuss other alternatives to resolve this issue on a
mutually acceptable basis, provided that such procedures would guarantee protection of confidential
information in accordance with Thailand's domestic and international obligations and would enable
Thailand to exercise its right to defend its interests in this proceeding.WT/DS122/R
Page 415
ANNEX 4-4
COMMENTS BY THE EUROPEAN COMMUNITIES ON THAILAND’S
FAILURE TO PROVIDE CERTAIN CONFIDENTIAL EXHIBITS
TO THE OTHER PARTIES
(18 February 2000)
I refer to your letter to the main parties in this dispute dated 14 February 2000 concerning
the procedural issue raised by Thailand’s decision not to submit certain confidential exhibits to the
other parties.  A copy of that letter was made available by the Secretariat to the EC yesterday.
As a third party to this dispute, the EC is entitled, in accordance with the provisions of
Articles 10.3 and 18.2 of the DSU, to receive a complete copy of the first submission filed byThailand.  Therefore, the EC is directly concerned by this procedural issue.
The Secretariat’s letter of yesterday does not set out any deadline for the submission of
comments by third parties.  The EC was pl anning to submit its views on this issue on
21 February 2000, as part of its third party submi ssion.  However, in view of the Panel’s stated
intention to make a ruling as quickly as pos sible, the EC has decided to submit its views
immediately, so as to ensure that they can be taken into account by the Panel.
We are providing a copy of this letter and its enclosure to the Permanent Missions of
Thailand, Poland, United States and Japan.
TABLE OF CONTENTS
PAGE
1. Communication of information only to the Panel............................................................................... 416
1.1 The communication of information only to the Panel assumes a conflict between
Article 17.7 ADA and the relevant DSU rules which does not exist .............................. 416
1.2 The communication of information only to the Panel is based on an incorrect
reading of Article 17.7 ADA and of  the relevant DSU rules .......................................... 417
1.3 The communication of information only to the Panel excludes the complainant from 
access to information and the right to comment and thus violates due process and the
adversarial nature of WT O dispute settlement................................................................ 419
1.4 The communication of information only to the Panel replaces the procedures
envisaged by the DSU to protect business confidential information with arbitrary
procedures established un ilaterally by Thailand ............................................................. 419
1.5 The communication of information only to the Panel amounts to an ex parte
communication prohibited by Article 18 DSU ............................................................... 420
1.6 Conclusions................................................................................................................. .... 420WT/DS122/R
Page 416
1. Communication of information only to the Panel
1. In the introductory part of its First Written Submission, Thailand informs the Panel that it
has prepared two versions of this submission, a “Confidential Version” submitted to the Panel only
and containing nine exhibits designated as confidential, and a “Non-Confidential Version” submittedto the Panel and the other Parties to the dispute and containing no confidential exhibits.  Thailand
cites Article 17.7 ADA as the legal basis for this course of action and for its request to the Panel not
to disclose the confidential Exhibits “to Poland or to Third Parties without formal authorisation from
Thailand”.  Thailand justifies this procedure with th e need to balance the duty to protect confidential
information received from the industry during its anti-dumping investigation and its right of defencein the present case.
1
2. The EC considers this procedure inadmissible because:
- it assumes a conflict between Article 17.7 ADA and the relevant DSU rules which
does not exist;
- it is based on an incorrect reading of Article 17.7 ADA and of the relevant DSU
rules;
- it excludes the other parties to the dispute from access to information and the right
to comment and thus violates due process, the principle of equality of arms, and theadversarial nature of WTO dispute settlement;
- it replaces the procedures envisaged by the DSU to protect business confidential
information with arbitrary procedures established unilaterally by Thailand;
- and it amounts to an ex parte  communication prohibited by Article 18 DSU.
1.1 The communication of information only to the Panel assumes a conflict between
Article 17.7 ADA and the relevant DSU rules which does not exist
3. It is generally accepted that Article 17.7 ADA, although an additional rule in the meaning of
Appendix 2 DSU, repeats the rules found in the DSU regarding protection of confidential
information.
2  The argument maintained by Thailand, on the basis of Article 1.2 DSU, that
Article 17.7 ADA would prevail on any rule which requires disclosure of the confidential exhibits, is
not sustainable because the prerequisite for the application of Article 1.2 DSU is missing: Article
17.7 and the DSU rules on protection of confidential information do not differ.   As the Appellate
Body has pointed out clearly in its analysis of the relation between the ADA and the DSU, two sets
of rules should be considered to differ when they cannot be read as complementing each other, i.e.
“when adherence to one provision would lead to a violation of the other provision”.  Apart from
such cases, the special or additional rules of the ADA should be seen as forming an integrated wholewith the DSU.
3
4. Article 17.7 ADA and the relevant DSU rules have been drafted at different points in time to
deal with the same issue: how to balance the two competing interests, both rooted in fairness and due
process, that parties must be given access to the information that is introduced as evidence before a
panel and that private businesses and national authorities must be granted with adequate protection
                                                     
1 Thailand’s First Written Submission, at paragraphs 3 and 4.
2 M CGOVERN E., International Trade Regulation , London: Globefield Press, 1999, at
paragraph 12.141.
3 Report by the Appellate Body on  Guatemala - Anti-Dumping Investigation Regarding Portland
Cement from Mexico , AB-1998-6, WT/DS60/AB/R, 2 November 1998, at paragraphs 65-68.WT/DS122/R
Page 417
for their confidential information when parties deem  it necessary to refer to such evidence in support
of their case. Accordingly, these rules have to be applied concurrently, and only to the extent that
Article 17.7 differs from the DSU rules, the latter prevails.  As it will be pointed out below, this
hypothesis occurs only in relation to minor procedural aspects of the disclosure to the public of non-
confidential summaries.
1.2 The communication of information only to the Panel is based on an incorrect reading
of Article 17.7 ADA and of the relevant DSU rules
5. Thailand cites Article 17.7 ADA as the basis for the duty of the Panel not to disclose the
information submitted only to it by Thailand in its submission.  This reading of Article 17.7 is
incorrect under two points of view:
- first, because it applies this rule to the protection of confidential information
provided by a party in its own submission;
- second, because it interprets the expression “information provided to the panel” as
meaning “information provided to the three panellists”.
6. Such interpretation is in contrast with the ordinary meaning of the words of this provision,
read in their context and in the light of the object and purpose of the treaties involved.
7. Following the reasoning of the Appellate Body in Guatemala – Cement I  , the context in
which Article 17.7 ADA has to be interpreted is that of the WTO rules on the settlement of disputes,
in particular the DSU.  The DSU contains several provisions which deal with the issue of
confidentiality.  In the present case, two norms are particularly relevant, Articles 13.1 and 18.2.
8. Article 18.2 DSU sets the standard of confidentiality to be respected by all Members of the
WTO, as well as “any person that a Member selects to act as its representative, counsel or
consultant”, for the information submitted by the parties during panel and Appellate Body
proceedings.4   It states in the relevant part:
“Written submissions to the panel or the Appellate Body shall be treated as
confidential, but shall be made available to the parties to the dispute. … Members
shall treat as confidential information submitted by another Member to the panel or
the Appellate Body which that Member has designated as confidential.  A party to a
dispute shall also, upon request of a Member, provide a non-confidential summaryof the information contained in its written submissions that could be disclosed to the
public.”
9. Article 13.1 DSU, instead, regulates the issue of confidentiality for information that is
provided to a panel in its discretionary authority to seek information and technical advice from any
individual or body it may consider appropriate.
5   It reads in the relevant part:
                                                     
4 Report by the Appellate Body on Brazil – Export Financing Programme for Aircraft , AB-1999-1,
WT/DS46/AB/R, 2 August 1999, at paragraph 123.  See also Report by the Panel on Indonesia - Certain
Measures Affecting the Automobile Industry , WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R,
2 July 1998, at paragraph 14.1.
5 The authority of a panel to seek information and technical advice has been the object of several
decisions by the Appellate Body.  See, for instance, Report by the Appellate Body on EC Measures
Concerning Meat and Meat Products (Hormones) , AB-1997-4, WT/DS26/AB/R, WT/DS48/AB/R, 16 January
1998, at paragraph 147; Report by the Appellate Body on Argentina – Measures Affecting Imports of
Footwear, Textiles, A pparel and Other Items , AB-1998-1, WT/DS56/AB/R,  27 March 1998, at paragraphsWT/DS122/R
Page 418
“Each panel shall have the right to seek information and technical advice from any
individual or body which it deems approp riate. … Confidential information which is
provided shall not be revealed without formal authorization from the individual,
body, or authorities of the Member providing the information.”
10. Contrary to the reading by Thailand, Article 17.7 ADA covers this second hypothesis: how
to ensure the confidentiality of information provided to the panel not by the parties themselves but
by a “person, body or authority”.  Article 17.7 ADA reads in fact:
“Confidential information provided to the panel shall not be disclosed without
formal authorization from the person, body or authority providing such information.
Where such information is requested from the panel but release of such information
by the panel is not authorized, a non-confidential summary of the information,
authorized by the person, body or authority providing the information, shall be
provided.”
11. The “speciality” of Article 17.7 ADA with regard to Article 13.1 DSU resides in the fact that
Article 17.7 regulates also how the panel can disclose  to the public the confidential information it
has received.  In particular, in case the panel has not been previously authorised to disclose this
confidential information by the person, body or authority that has provided it, the panel has to obtain
this authorisation before it can make public even the non-confidential summary.
12. The second flaw in Thailand’s reading of Article 17.7 ADA and the relevant DSU rules
derives from the interpretation of the expression “information provided to the panel” as meaning
“information provided to the three panellists” , and probably, given Article 27 DSU, to the WTO
Secretariat, which assists the panel.
13. It is clear from Article 18.2 DSU that submissions by the parties, even if confidential, “shall
be made available to the parties to the dispute”.  Even in the case of information or technical advice
provided to the panel by individuals or bodies, Article 13.1 DSU has never been interpreted to mean
that the confidential information submitted to the pa nel was meant only for review by the panellists
and the WTO Secretariat and not by the other parties.  It is established practice in WTO dispute
settlement that, when issues of confidentiality are concerned, the concept of “panel” is generallyopposed to that of “public” and not to that of “other parties to the dispute” and that the expression
“information provided to the panel” has to be read as equivalent to  “information provided during the
proceeding before the panel”.
14. This rule is also confirmed by the fact that the only existing exception is clearly indicated.
In providing additional rules and procedures for expert review groups established in accordance with
Article 13.2 DSU, paragraph 5 of Appendix 4 of the DSU states that:
“The parties to a dispute shall have access to all relevant information provided to an
expert review group, unless it is of a confidential nature.  Confidential informationprovided to the expert review group shall not be released without formal
authorization from the government, organization or person providing the
information.  Where such information is requested from the expert review group but
release of such information by the expert review group is not authorized, a non-
confidential summary of the information will be provided by the government,
organization or person supplying the information.”
                                                                                                                                                                  
84-86; Report by the Appellate Body on United States - Import Prohibition of Certain Shrimp and Shrimp
Products,  AB-1998-4, WT/DS58/AB/R, 12 October 1998, at paragraphs 99 et ff.WT/DS122/R
Page 419
1.3 The communication of information only to the Panel excludes the complainant from
access to information and the right to comment and thus violates due process and the
adversarial nature of WTO dispute settlement
15. The course of action chosen by Thailand is in contrast also with the object and purpose of
WTO dispute settlement rules.  Both Article 17 ADA and DSU rules are drafted to allow the
settlement of disputes in the area of anti-dumping in a manner that ensures that the rights and
obligations of Members are preserved and that fairness and due process are guaranteed.
16. The justification that Thailand provides for the adoption of this procedure – that it has to
balance the duty to protect confidential information received by the industry with its right of defence
in the present case – completely ignores the right of the other parties to this dispute as well as the
basic principle of equality of arms during legal proceedings.  Thailand is free to submit to the Panel
whatever information it deems appropriate to defend itself.  Thailand can also avail itself of the
possibility of designating such information as confidential.  However, in that case, Article 18.2 DSUestablishes clear rules protecting the confidentiality of written submission and information submitted
to the Panel that Thailand, as any other WTO Member, has to follow.  Thailand cannot, in the name
of its own rights of defence, negate similar rights to other Members.
17. Equality of arms is guaranteed to the part ies even in a case as exceptional as the one
regulated by Appendix 4.5 DSU.  In that case, in fact, restrictions on access to relevant confidential
information would apply equally to all parties to the dispute and non-confidential summary of theinformation would have to be provided to all parties.
1.4 The communication of information only to the Panel replaces the procedures envisaged
by the DSU to protect business confidential information with arbitrary procedures
established unilaterally by Thailand
18. Thailand’s concerns regarding the confidentiality of the information in its possession could
have been met by other means already provided in the DSU and intended to respect the rights of all
parties involved.
19. Article 18.2 DSU expressly regulates the situation encountered in the present case.  As
already mentioned, it establishes a duty of confidentiality to be respected by all Members of the
WTO, as well as any person that a Member selects to act as its representative, counsel or consultant,
during panel and Appellate Body proceedings. It also regulates the case in which the party having
submitted confidential information is asked to produce a non-confidential summary of thisinformation to be disclosed to the public.  It is the principle of fair and transparent procedure applied
to its fullest extent.
20. But the WTO dispute settlement system goes even beyond and acknowledges also the case
that a party may not consider Article 18.2 DSU sufficient to secure the protection of its confidentialinformation.  If that was the case, Thailand could have followed the well established practice to
propose to the panel the adoption of more stringent rules as part of its Working Procedures.  The
Panel in Indonesia - Cars  expresses this possibility with great clarity:
“In this respect, we note that the parties agree that the complainants alleging serious
prejudice must demonstrate its existence by positive evidence.  If the United States
considers that the information in question is necessary in order to meet that burden,and if it believes that Article 18.2 is inadequate, the United States may propose toWT/DS122/R
Page 420
the Panel in writing, at the earliest possible moment, a procedure that it considers
sufficient to protect the information in question."6
1.5 The communication of information only to the Panel amounts to an ex parte
communication prohibited by Article 18 DSU
21. Finally, no doubt can be cast on the fact that Thailand’s submission of certain exhibits only
to the panellists constitutes an ex parte  communication prohibited by Article 18.1, which explicitly
states
“There shall be no ex parte  communications with the panel or Appellate Body
concerning matters under consideration by the panel or Appellate Body.”
1.6 Conclusions
22. In conclusion, the EC urges the Panel to declare the initiative of Thailand to withhold
information from the other parties to this dispute as inadmissible.  Thailand should be invited tomake its submission and all its attachments available to the parties to the present dispute.  If
Thailand were to refuse, the submission and the attachments that were withheld from the other
parties to the dispute should be removed from the Panel’s files and be handed back to Thailand.
                                                     
6 Report by the Panel on Indonesia Cars , cited above, at paragraph 14.7.WT/DS122/R
Page 421
ANNEX 4-5
FAX FROM SECRETARIAT CONCERNING
CONFIDENTIAL INFORMATION
(21 February 2000)
Having received the communications from the parties concerning Thailand's intention to
submit certain confidential information in this dispute, the Panel draws Poland's attention to p. 4 of
Thailand's communication of 17 February 2000.  There, Thailand outlines the following
"compromise" that Thailand considers "could provide a mutually acceptable solution regarding how
to treat confidential exhibits":
"1. Thailand will disclose Exhibits THAILAND-11, THAILAND-18,
THAILAND-29, THAILAND-31, THAILAND-38, THAILAND-42, and
THAILAND- 43 upon receipt of written authorization from Huta Katowice and
Stalexport waiving all rights to maintain the confidentiality of their data in this panel
proceeding.  Thailand requests that Poland obtain the requisite authorization from both
Polish companies.
2. Based on express authorisation from the petitioner, Siam Yamato Steel Co.
Ltd. ("SYS"), Thailand will disclose Exhibits THAILAND-20 and THAILAND-44 to
the Panel and to the other Parties.  However, these exhibits will not contain
information on the cost of production.  SYS has not authorised Thailand to disclose
cost of production information either to the Panel or to the other Parties."
We also note that Thailand asks the Panel to remind parties of their obligation under Article
18.2 of the DSU not to disclose confidential information obtained during the course of the Panel's
proceedings.  Article 18.2 of the DSU states:
"2. Written submissions to the panel or the Appellate Body shall be treated as
confidential, but shall be made available to the parties to the dispute.  Nothing in this
Understanding shall preclude a party to a disp ute from disclosing statements of its own
positions to the public.  Members shall treat as confidential information submitted by
another Member to the panel or the Appellate Body which that Member has designatedas confidential.  A party to a dispute shall also, upon request of a Member, provide a
non-confidential summary of the information contained in its written submissions that
could be disclosed to the public."
The Panel notes that this provision obligates all "Members" to treat as confidential
information submitted by another Member to the panel which that Member has designated as
confidential.  Therefore, this obligation applies not only to parties but also to third parties to a
dispute.
The Panel wishes to have Poland's reaction to the above arrangement proposed by Thailand
by close of business on Wednesday 23 February 2000.  The Panel notes in this context that Article
12 of the DSU states, in part:
“1. Panels shall follow the Working Procedures in Appendix 3 unless the panel
decides otherwise after consulting the parties to the dispute.WT/DS122/R
Page 422
2. Panel procedures should provide sufficient flexibility so as to ensure high-
quality panel reports, while not unduly delaying the panel process.”WT/DS122/R
Page 423
ANNEX 4-6
LETTER FROM POLAND TO THE PANEL CONCERNING
CONFIDENTIAL INFORMATION
(23 February 2000)
We are in receipt of your facsimile of 22 February 2000 regarding Thailand's proposed
"compromise" on the issue of confidentiality in this proceeding.  For the reasons outlined below, this
proposal is unacceptable to the Polish side.
In its 17 February 2000 submission, Thailand states that it is willing to provide certain
"confidential" data to Poland and the third parties in this proceeding  only if the Polish firms subject
to Thai anti-dumping duty orders waive rights to confidentiality on their own company-specific data.Thailand further states that certain other information will be disclosed to the parties, but it shall not
include cost of production information.
As set forth in our 16 February 2000 letter, we believe that there is no basis under the
Dispute Settlement Understanding or the Anti-Dumping Agreement for the Panel to accept ex parte
communications of any sort from a party to a proceeding or otherwise to allow a party to make less-
complete submissions to other parties or third parties than to the Panel itself.  Likewise, there is no
basis for "pressuring" other Members into waiving applicable confidentiality protections simply in
order to obtain information to which they are, in  our view, plainly entitled in the first place.
My Government's views on this matter are rather simple.  Thailand has no choice under
applicable WTO rules.  It must provide all "confidential" information to Poland and the third parties,
if it wishes such information to be considered by the Panel.  Otherwise, the Panel shall return such
information to Thailand, and the Panel shall consider only the "non-confidential" information
properly submitted by the Parties.WT/DS122/R
Page 424
ANNEX 4-7
FAX FROM THE SECRETARIAT TO THE PARTIES CONCERNING THE OUTCOME
OF THE 25 FEBRUARY 2000 MEETING
(25 February 2000)
The Panel has asked me to send the following summary of the outcome of this morning’s
meeting concerning the submission by Thailand to the Panel and to Poland and third parties of
certain confidential information.
First, no later than Monday, 28 February 2000, Poland will confirm to the Panel in writing,
with a copy to Thailand, its final position concerning the proposal by Thailand, to which Polandpreliminarily agreed at the meeting.  The Panel understands that, assuming that Poland confirms its
acceptance of the proposal, Poland intends in the same communication to indicate that it has
obtained the requested authorization from the Polish companies for Thailand to submit the
information contained in Exhibits Thailand-11, -18, -29, -31, -38, -42, and –43.
Upon receipt of this communication from Poland, the Panel will immediately communicate
to the parties and third parties an addition to its working procedures reflecting the agreed procedures
concerning all of the confidential information at issue (i.e., the above listed exhibits as well asExhibits Thailand-20 and –44).
Upon receipt of this addition to the Panel’s working procedures, Thailand will immediately
submit the information to the Panel (in eight copies), to Poland and to the third parties.WT/DS122/R
Page 425
ANNEX 4-8
LETTER FROM POLAND TO THE SECRETARIAT CONCERNING
CONFIDENTIAL INFORMATION
(28 February 2000)
With reference to your fax of 25 February 2000 summing up the meeting with the Panel
(Thailand – Anti-Dumping Duties on Steel from Poland (WT/DS122)) that took place on the same
day, I am pleased to inform you of Poland's position with regard to the proposal of Thailand
according to its understanding by the Panel.  The position reads as follows:
1. Poland does not have any problem to grant the authorization for Thailand to submit to the
Panel and to the parties involved, confidential information in Thailand's possession concerning
Polish companies involved in the dispute.  Th e authorization may be granted at any time after
revealing by Thailand confidential information concerning SYS company.
2. Nevertheless, Poland considers delayed submi ssion of SYS confidential data, which we did
not have the chance to acquaint with at any previous stage, as an infringement of our due process
especially in the light of the fact that the Thai side already has the access to Polish confidential data.Submission of Thai data in the middle/end of the current week will effectively reduce the time for
the Polish side to review Thailand's position from three weeks to 1-2 working days.WT/DS122/R
Page 426
ANNEX 4-9
LETTER FROM POLAND TO THE PANEL CONCERNING
CONFIDENTIAL INFORMATION
(1 March 2000)
1. Poland herein grants the authorization for Thailand to submit to the Panel and to the parties
involved, confidential information in Thailand's possession concerning Polish companies involved in
the dispute providing that simultaneously Tha iland will submit confidential information concerning
SYS company.
2. Poland requests prompt clarification from the Panel as to whether the Panel does in fact
intend to hold its first substantive meeting next week and, if so, whether the Panel intends to have
parties address all issues that have been raised in  this matter.  We respectfully submit that Poland's
interest in this dispute appears at risk of being prejudiced, if the issues on which "confidential data"
is apparently to be submitted – i.e. dumping and injury – are indeed to be argued in full next week.
A Panel has broad discretion, of course, to request and receive data from a party at any time.
But the Dispute Settlement Understanding cannot be fairly read to allow a Member to makeuntimely submission of the most fundamental of data , where other parties' rights to see, evaluate,
brief, and discuss that data are abridged as a result.
Therefore, rather than shoot a moving target, we respectfully suggest that the Panel hearing
next week be limited to all issues raised by the parties other than those under Articles 2 and 3 of the
Anti-Dumping Agreement.  We do not believe it would be advisable to expend one of what may
well be only two meetings with the Panel formulating arguments concerning issues of injury and
dumping, when facts herein at issue appear once again likely to change, due to no fault of our own.
We would therefore expect that the issues of injury and dumping will be the subject of
subsequent meetings of the Panel and that the Panel will insure that Poland is given satisfactory
opportunity to review the new Thai data in advance of the second meeting of the Panel.WT/DS122/R
Page 427
ANNEX 4-10
COMMENTS BY JAPAN ON THAILAND'S FAILURE TO PROVIDE
CERTAIN INFORMATION TO THE OTHER PARTIES AND TO
THE THIRD PARTIES
(1 March 2000)
I. GENERAL PRINCIPLE UNDERLYING THE DISPUTE SETTLEMENT
PROCEDURE
The fairness of panel deliberation is ascertained through ensuring that the parties to a dispute
have equal access to, and knowledge of, the assertions presented before the panel.  The complainingparties, defending parties as well as third parties therefore must submit their submissions which
contain their respective assertions and evidence in accordance with the set of rules stipulated in the
Understanding on Rules and Procedures Governing the Settlement of Dispute (hereinafter "DSU"),
without prejudicing any particular party to the dispute.  In observance of such a fundamental
principle for ensuring a deliberation fair to all parties, it must be ensured that the parties have equal
access to all the information submitted to the pa nel, including the information designated as
confidential by the submitting party.  Article 18.2 of the DSU clearly embodies this principle.
Absent such equal access to all the information submitted, the panel deliberation would become
severely impaired and its conclusion void of credibility.  In such a case, the objectiveness and
fairness of the WTO dispute settlement mechanism would be severely compromised.
II. INTERPRETATION OF ARTICLE  17.7 OF THE AGREEMENT ON
IMPLEMENTATION OF ARTICLE VI OF THE GATT 1994 (HEREINAFTER
"ADA") IN RELATION TO THE DSU
1. Thailand and the United States assume that Article 17.7 of the ADA applies to the
information provided to the panel by the parties.  The United States does not explain sufficiently the
basis of its assumption other than the simple statement that it is plain (see paragraph 25 of the US
submission).  Both Thailand and the United States argue that there exists a difference or conflict
between Article 17.7 of the ADA and Article 18.2 of the DSU and insist that Article 17.7 of the
ADA prevails over Article 18.2 of the DSU.
2. Japan disagrees.  Article 17.7 of the ADA does not regulate the treatment of information
contained in the submission from the parties to the panel.  Rather, Japan considers that Article 17.7
of the ADA is a supplement to Article 13.1 of the DSU, which addresses the issue of confidentiality
for information that is provided to a panel under its discretionary authority to seek information and
technical advice from any individual or body it may consider appropriate.  For this reason, Japanconsiders that no such alleged conflict between Article 17.7 of the ADA and the DSU exists.  Japan
supports the view of the EC regarding this point.
3. Additional rules and procedures are containe d in Article 17.7 of the ADA other than those
contained in 13.1 of the DSU, that is, Article 17.7 provides a more detailed set of rules for non-
confidential summary of the information, given the importance of transparency in the area of anti-
dumping.
The reasons why Japan considers that Article 17.7 of the ADA supplements Article 13.1 of
the DSU are as follows:WT/DS122/R
Page 428
- Article 17.7 of the ADA includes the language "where such information is requested
from the panel", which presupposes an act of the panel seeking certain information
or technical advice, prior to the application of this Article.  Such an act of the panel
seeking certain information, is stipulated in Article 13.1 of the DSU.
- If Article 17.7 of the ADA were to be applied to the information contained in the
submission from the parties, the only ent ity that has the right to authorize the
disclosure of the information would be the parties themselves that submitted the
information and not the "person", "body" nor "authority" as stipulated in Article
17.7.  Inclusion of the phrase "the person, body or authority" is only to build uponthe provision in Article 13.1 of the DSU, and in no way establishes any rule
independent of Article 13.1 of the DSU.
III. INTERPRETATION BY THAIL AND AND THE UNITED STATES OF
ARTICLE 17.7 OF ADA RUNS COUNTER TO DUE PROCESS AND FAIRNESS OFTHE WTO DISPUTE SETTLEMENT MECHANISM
If one adopts an interpretation of Article 17.7 of the ADA as permitting the parties to submit
confidential information only to the panel, a pa rty could withhold any information to the other
parties simply by claiming it is confidential.  If such a practice is permitted, the fairness of the panel
deliberation would be severely impaired as the other parties would be placed at a disadvantage of
having to assert themselves without the full know ledge of the argument and evidence presented to
the panel by the party submitting such "confidential" information.  Japan believes such an
interpretation egregiously comprises due process and fairness of the panel proceedings.
IV. THAILAND HAS NOT FULFILLED ITS OBLIGATION FOR AN OBJECTIVE
AND FAIR DELIBERATION OF THE PANEL
In the case before us, the Thai investigating authorities collected information on dumping
from only one Polish producer (and one Polish exporter) and collected information on injury only
from one Thai producer.  This might be an unusual case, but nevertheless Japan considers that in so
far as Thailand fails to supply to all the parties concerned the information submitted to the panel,Thailand presents a serious obstacle for an objective and fair deliberation by the panel, for such an
act deprives the other parties of the opportunity to defend their interests based on the full knowledge
of the assertions and evidence submitted to the panel.
V. CONCLUSION
Japan requests the panel to rule that all written submissions to the panel, including
attachments, from any party shall be made availabl e to all the parties to the dispute in accordance
with Article 18.2 of the DSU and that all written submissions to the first meeting of the panel shall
also be made available to all the third parties in accordance with Article 10.3 of the DSU.  Japan, aswell as other third parties, will treat submissions as confidential in accordance with Article 18.2 of
the  DSU.  If Thailand fails to make available to all the parties concerned the submissions and their
attachments, the panel should exclude from the scope of its examination the submissions and
attachments not made available to the other parties.WT/DS122/R
Page 429
ANNEX 4-11
LETTER OF THE EUROPEAN COMMUNITIES CONCERNING
CONFIDENTIAL INFORMATION
(2 March 2000)
I refer to the letter sent by Poland to the Panel on 2 March 2000, a copy of which has been
made available by Poland to the EC.
In the above-mentioned letter, Poland expresses its concern that its interest in the dispute
might be prejudiced if the issues relating to injury and dumping, on which confidential data by
Thailand may be submitted, are to be argued in full next week without sufficient time to reviewthese data.  Therefore, Poland suggests to the Panel that in the hearing next week the issues relating
to Articles 2 and 3 of the Anti-Dumping Agreement be not discussed.
The EC shares Poland's concern.  At the same time, however, the EC would like to repeat
that, as a third party to this dispute, it is enti tled, in accordance with Articles 10.3 and 18.2  DSU, to
receive a complete version of Thailand's first written submission, including all the exhibits attached
thereto, and that, in accordance with Article 10.2 DSU, it shall have an opportunity to be heard bythe Panel.
Therefore, it is a right of the EC and the other third parties to receive all the data that
Thailand may submit with regard to the issues relating to injury and dumping.  Equally, it is a right
of the EC and the other third parties to be given the opportunity to be heard by the Panel on theseissues, which are at the very core of this dispute and represent the main aspects of this case of
interest to the EC.
On the basis of the agreed Working Procedure of this Panel, third parties are invited to
participate only at the first substantive meeting of  the Panel.  Therefore, if Poland's request were
accepted, the EC and the other third parties to this dispute would not have an opportunity to be heard
by the Panel on all issues, thus prejudicing the rights that they derive from the DSU.
In conclusion, the EC respectfully asks the Panel either to postpone the first substantive
meeting of the parties and third parties, so as to  give all parties sufficient time to consider all
information submitted by Thailand, or to schedule a second meeting in which parties as well as third
parties are given the opportunity to be heard by the Panel on issues relating to Articles 2 and 3 of the
Anti-Dumping Agreement.WT/DS122/R
Page 430
ANNEX 4-12
FAX FROM THE SECRETARIAT TO THE PARTIES CONCERNING
CONFIDENTIAL INFORMATION
(2 March 2000)
The Panel has asked me to communicate the following to the parties to the above dispute:
The Panel is in receipt of Poland’s letters dated 28 February and 1 March 2000.  The Panel
understands from these letters that Poland has obtained the necessary authorization for Thailand to
submit to the Panel and to Poland/third parties confidential information pertaining to the Polish
companies contained in Exhibits Thailand-11, -18, -29, -31, -38, -42, and -43.  On this basis, thePanel has now established working procedures concerning the submission and treatment of the
confidential information at issue.  These supplemental procedures concerning certain business
confidential information are attached.  [See Annex 5-1]
The parties will note that in accordance with these procedures Thailand shall simultaneously
submit to the Panel (with copies to Poland and third pa rties) all of the exhibits pertaining to SYS and
to the Polish companies.  That is, Thailand shall summit, all at the same time, Exhibits Thailand-11,
-18, -20, -29, -31, -38, -42, -43, and –44, to the Panel and to Poland/third parties.  The Panel recalls
that Thailand indicated that it would need a maximum of 24 hours to provide these exhibits once it
received the supplemental working procedures from the Panel, (which would be until noon
tomorrow, 3 March).
In answer to Poland’s question, the Panel confirms that its first meeting will be held on 7-
8 March 2000, as scheduled.  The meeting will be held in Room B and will commence at 10 AM on
7 March.
The Panel takes note of Poland’s concern that given the nearness of the Panel’s first
meeting, it will not be possible for the information in the exhibits that Thailand will submit to be
fully addressed at that meeting.  The Panel wishes to assure the parties that they will be given full
opportunity to raise and address all issues that they wish during the remainder of the Panel’s
proceedings.  That is, there will be no limitations on parties’ ability to raise arguments concerning
this information after the first meeting (i.e., in rebuttal submissions, at the second meeting of thePanel, and in questions and answers). Concerning the first meeting, it is for each party to decide
which issues it will address and how it will address them.WT/DS122/R
Page 431
ANNEX 5-1
2 March 2000
SUPPLEMENTAL WORKING PROCEDURES OF THE PANEL CONCERNING
CERTAIN CONFIDENTIAL INFORMATION
(1) Thailand shall submit to the Panel simultaneously all of the following exhibits: Exhibits
Thailand-11, -18, -20, -29, -31, -38, -42, -43, and –44 (in eight copies).  At the same time,
Thailand shall provide all of these exhibits to Poland and to the third parties.
(2) The above-listed exhibits shall be clearly marked “ Confidential ”.
(3) As required by Article 18.2 of the DSU, all Members to which the above-listed exhibits are
provided by Thailand shall treat them as confid ential, i.e., shall not disclose the information
contained therein without the formal authorization of the parties.  The parties and third
parties shall have the responsibility for all members of their delegations, and in particular
shall ensure that all members of their delegations maintain the confidentiality of the
information contained in the above-listed exhibits.
(4) Any party or third party referring in its written submissions or oral statements to any
information that has been designated as confidential shall clearly identify all such
information in those submissions and statements.
(5) The Panel shall not disclose any information submitted to it which has been designated as
confidential without formal authorization of the parties. The Panel may, however, make
statements of conclusion drawn from such information.WT/DS122/R
Page 432
ANNEX 5-2
SUPPLEMENTAL WORKING PROCEDURES OF THE PANEL CONCERNING
CERTAIN CONFIDENTIAL INFORMATION
(25 April 2000)
Addendum
The Supplemental Working Procedures of the Panel Concerning Certain Confidential
Information, adopted on 2 March 2000, are hereby amended such that paragraphs (2)-(5) apply to
Exhibits Thailand-52, -55, -64, -66, -67, -68, and –69, in addition to the exhibits listed in
paragraph (1).
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